Monday, May 2, 2016

Private Insurance Contracts can't override fundamental rights of equality & health through exclusion clauses

Dear Colleagues,

Please refer to my earlier blog entry titled "Extra Premium or reduced insurance amount, both discriminatory against employees with disabilities- Delhi HC" wherein the Hon'ble Delhi High Court had categorically come to a conclusion that charging extra premium from employees with disabilities was indeed a discrimination on the basis of disability and the court in its remarkable judgement directed the postal life insurance to provide equal insurance coverage and not charge extra premium from the employees with disabilities.

I had called that judgement  a milestone in the disability rights movement with far reaching implications not only in India but also beyond India and especially in European countries where the actuaries continue to discriminate against persons with disabilities by under-valuing their lives. 

In the instant case, the plaintiff  Jai Prakash Tayal, holding a mediclaim policy had filed a suit seeking payment of Rs. 5 lakh spent on his treatment while the Insurance firm had denied mediclaim saying “genetic disease is not payable as per policy genetic exclusion clauses".

The trial court presided by Hon'ble Additional District Judge, Delhi Dr. (Ms.) Kamini Lau lambasted the United India Insurance Company, a Public Sector Undertaking (PSU) of Govt. of India, for rejecting the mediclaim of a person for heart ailment on the ground of genetic disease exclusion clause. 
News Clipping from Times of India Delhi Edition 02 May 2016

Adding that the clause was "arbitrary , discriminatory and unfair" the Judge said, “I hold that a genetic disease exclusion clause in a mediclaim insurance policy, which totally excludes the grant of insurance in case of genetic diseases, is liable to be struck down being violative of the constitutional mandate, the fundamental underlying constitutional scheme, policy of the state and public good.

The plaintiff had told the court that he had already taken two claims for the same treatment and, therefore, a third claim for the same disease was not liable to be rejected. The court ruled in favour of the plaintiff and said he was entitled to the amount. It observed that a person suffering from a genetic disease is as much in need of a medical insurance cover as others and in fact the liability qua them is more.

“No person can be discriminated or deprived of state protection in case of an ailment, be it genetic or acquired. The courts of law are required to interpret the provisions of the private contracts in the light of these constitutional obligations,“ the court said.

The court held that good health is not a privilege but a justiciable fundamental right and lamented that healthcare finances have a poor record as only 4% of the national budget is spent on it. “The time has come that India catches up with this alternative model of allocating resources and funding to its public health programmes,“ the judge said. 

Related News from Times of India :  Court pulls up insurer, cites right to health







Thursday, February 11, 2016

Frame Policy for Compensation to Disabled Rape Survivor - SC [Judgement Included]

Dear Colleagues,

A two Judge Bench of the Supreme Court comprising of Justices MY Eqbal and Arun Mishra, while hearing a Criminal Appeal 884/2015 filed by the accused challenging his conviction and sentence of 7 Yrs rigorous imprisonment (RI) u/s 376 IPC,  has directed all the State Governments to formulate Uniform Schemes for the Victims of Sexual Assaults. 

The rape survivor  in the case is a blind and illiterate girl, who was subjected to sexual intercourse on the promise of marriage by the accused. After upholding the Conviction and Sentence on the Accused, the Court examined the question as to ‘whether in the facts and circumstances of the case the prosecutrix is entitled to victim compensation and, if so, to what extent?’ 

In addition to the the Victim Compensation Scheme of Chhattisgarh state, the the hon'ble Court also examined the Schemes notified by other State as well. After examining the schemes, the Court held, "Perusal of the aforesaid victim compensation schemes of different States and the Union Territories, it is clear that no uniform practice is being followed in providing compensation to the rape victim for the offence and for her rehabilitation. This practice of giving different amount ranging from Rs.20,000/- to Rs.10,00,000/- as compensation for the offence of rape under section 357A needs to be introspected by all the States and the Union Territories. They should consider and formulate a uniform scheme specially for the rape victims in the light of the scheme framed in the State of Goa which has decided to give compensation up to Rs.10,00,000/-"

The Court observed, “While going through different schemes for relief and rehabilitation of victims of rape, we have also come across one Scheme made by the National Commission of Women (NCW) on the direction of this court in Delhi Domestic Working Women’s Forum vs. Union of India and Ors. [Writ Petition (Crl) No. 362/93], whereby this Court inter alia had directed the National Commission for Women to evolve a “scheme” so as to wipe out the tears of unfortunate victims of rape. This scheme has been revised by the NCW on 15th April 2010. The application under this scheme will be in addition to any application that may be made under Section 357, 357A of the Code of Criminal Procedure as provided in paragraph 22 of the Scheme. Under this scheme maximum of Rs.3,00,000/- (Three lakhs) can be given to the victim of the rape for relief and rehabilitation in special cases like the present case where the offence is against an handicapped woman who required specialized treatment and care” 

The Court passed the following directions :-

1) All the States and Union Territories shall make all endeavour to formulate a uniform scheme for providing victim compensation in respect of rape/sexual exploitation with the physically handicapped women as required under the law taking into consideration the scheme framed by the State of Goa for rape victim compensation; 

2) So far as this case is concerned, the respondent-State shall pay a sum of Rs.8,000/- per month as victim compensation to the victim who is physically handicapped, i.e. blind, till her life time.

To read the judgement click here: 

Related News coverage




Tuesday, January 19, 2016

Madras HC issues directions to Commissioner on disabled friendly Govt buildings


Disabled-friendly govt buildings: HC directs Commissioner

Business Standard | January 19, 2016

The Madras High Court today directed the Commissioner for Persons with Disabilities to hold a meeting within 10 days and present a final picture before the court by March 11 on making government buildings disabled- friendly. 

The First Bench, comprising Chief Justice Sanjay Kishan Kaul and Justice Pushpa Sathyanarayana, gave the direction on two PILs seeking to direct authorities, particularly the Chairman and Managing Director of Metropolitan Transport Corporation and the Commissioner of Chennai Corporation to implement "the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995". 

The petitioners Rajiv Rajan and M Gnana Sambndam also sought a direction to provide barrier-free environment in public places giving access to the usage of transport system. 

They also wanted the authorities to frame and notify comprehensive rules for according recognition to various types of schemes for disabled.  Already, the court had appointed T Mohan, an advocate, as amicus curiae and directed him to file a report on the matter. 

When the matter came up today, the union government placed on record a note containing the additional facilities included in a Handbook on Barrier-Free and Accessibility, 2014, which mentions the requirements for making public places disabled-friendly. 

The bench, going through the note in its order, said "let a meeting be held by the Commissioner for Persons with Disabilities in consultation with the state Public Works Department and the amicus curiae within ten days so that we have a clear plan of action as to how will it be verified as to what extent the different buildings can be made disabled-friendly." 

The bench further said that such meetings should continue with frequency and to ensure that the final picture is placed before it by March 11. The court also directed the Commissioner for Persons with Disabilities to remain present in the Court on March 11, 2016.



Friday, January 8, 2016

Kerala High Court insists the 3% reservation computation from 1996 [Judgement Included]

Dear Friends,

A good clarification comes from the Kerala High Court. A double bench comprising Justice Thottathil B Radhakrishnan and Justice Anu Sivaraman while hearing on 06 Jan 2016, wednesday, has dismissed a Writ Appeal No. 362 of 2015 titled Kerala Public Service Commission Vs. E. Dineshan, filed by the Kerala Public Service Commission seeking to quash the Single Judge order in WP(C).No. 27234 of 2011.

The Single Judge Justice A.V.Ramakrishna Pillai had  ordered that the reservation has to be computed from the date of enactment of legislation i.e. 1996 and not from the date of a Govt. order. The single judge had quashed the govt. notification to the extent it restricted the benefit of 3% reservation of handicapped persons mandated under Section 33 of the Act from 1.2.2010 onwards.

To read the Single Judge order in WP(C).No. 27234 of 2011 click here:

 WP(C).No. 27234 of 2011 (PDF file)
 WP(C).No. 27234 of 2011 (Word File)

Here is a related new from Express news

Kerala HC Upholds Order on Jobs for Physically-Challenged
By Express News Service Published: 07th January 2016 06:00 AM

KOCHI: A Division Bench of the Kerala High Court on Wednesday upheld the order of the Single Bench declaring that handicapped persons are entitled to get three percent of vacancies in the post of assistant grade II/clerk/junior clerk/cashier from 1996 while making appointment to public sector undertakings.

A Division Bench comprising Justice Thottathil B Radhakrishnan and Justice Anu Sivaraman issued the order while dismissing an appeal filed by the Kerala Public Service Commission seeking to quash the Single Judge order. The Single Judge had also directed the Kerala State Electricity Board, Kerala State Road Transport Corporation, Kerala State Financial Enterprises and Kerala Headload Workers Welfare Fund Board to report all existing vacancies to enable the PSC to advise candidates from the shortlist. The commission contended that the vacancies which had arisen during the validity of the rank list could only be filled. And the backlog vacancies could be filled only through a special recruitment drive.

The single judge had also quashed the state government order clarifying that the reservation of three per cent for disabled persons could be implemented only from February 1, 2010. The petitioner submitted that three per cent vacancies had to be reserved for the handicapped persons in terms of Sections 32 and 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

The Bench said that the single judge verdict was in accordance with the principles laid down by the Supreme Court judgement in implementing reservation available to physically handicapped persons.



Friday, January 1, 2016

Lets proactively ensure that all Indian Government websites conform to WCAG 2.0

Dear Colleagues,

The NIC guidelines known as the "Guidelines for Indian Government Websites (GIGW)" mandate that all Government websites shall conform to the international accessibility standards, the World Wide Web Consortium (W3C) and the Web Content Accessibility Guidelines (WCAG) 2.0. 

Persons with disabilities use different assistive technologies to browse the web. However, if the websites or documents are not constructed as per the Web Content Accessibility Guidelines (WCAG), the assistive technology fails to read them thus barring a person with disability from accessing the website thus rendering the website inaccessible.

India signed the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in 2007 and ratified it a few months later. The Member States are, obliged to proactively promote digital inclusion of persons with disabilities. 

Govt. of India has launched Open Government Platform - OGPL To Promote Transparency And Citizen Engagement (www.ogpl.gov.in). OGPL is a joint product from India and United States to promote transparency and greater citizen engagement by making more government data, documents, tools and processes publicly available. This will be available, as an open source platform. By making this available in useful machine-readable formats it allows developers, analysts, media & academia to develop new applications and insights that will help give citizens more information for better decisions. OGPL has become an example of a new era of diplomatic collaborations that benefit the global community that promote government transparency, citizen-focused applications, and enrich humanity.

However, if the WCAG is not implemented, it will render the OGPL movement also futile. It is for each of us to take up the matters of inaccessibility of websites of govt. departments with the state commissioners for persons with disabilities. Visit section on How to write a petition

Here are some useful documents:





Wednesday, December 9, 2015

SC directs States & UTs to consider Acid Attack Survivors in Disability List [Judgement Included]

Dear Friends,

On Monday i.e. 07th December 2015, the Hon'ble Supreme Court of India, while hearing WP(C) No. 867/2013 titled Parivartan Kendra Versus Union of India and Others,  directed all states to treat "Acid Survivors" as disabled persons and extend job reservation and social welfare schemes. While it's good thought to extend the benefits of this benevolent legislation to mainstream and empower acid survivors, will there be corresponding increase in the %age of reservation? Which disability group would give up their share ? 

A bench of Justices M Y Eqbal and C Nagappan said that steps must be taken to bring such victims to the national mainstream and putting them in the category of disabled person would be a step in that direction. The victims can claim benefits under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act if they are brought in the disability list.

The central law- The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 provides for reservation in jobs etc to the tune of 3% where 1% each is reserved for Visually Impaired (both low vision and Blind), Orthopedic Disabilities (including cerebral palsy) and Hearing Impaired. There are several other categories defined in the definition of a person with disability in the Act viz. Leprosy Cured, Mental Illness, Mental Retardation etc. but the reservation is not extended to any other categories except the above three. The judgement is silent on the process of granting such reservation as the law currently has no such provision. The direction in the last para is :

"Disposing of the present writ petition, we additionally direct all the States and Union Territories to consider the plight of such victims and take appropriate steps with regard to inclusion of their names under the disability list."

Let us see how the States and UTs respond to this direction coming from none other than top court of the country. But one thing is certain, in today's scenario, no disability group would be willing to let go their share!



Judgement
Here is a media coverage from Times of India: 


Wednesday, November 18, 2015

Visually Challenged / Blind will be considered for Ktk Adm Service exams from Next Year

Barred from even applying for the KAS Examination this year by Karnataka Public Service Commission, the visually impaired / blind candidates can look for KAS exams from next year where RPSC will also compensate for the number of reservation seats that might have fallen in their kitty. 

However, this doesn't compensate the opportunity lost by those candidate who may not have even looked at the stick of reservation and wanted to compete on their own merit. Their right to equality has been infringed and there can be no compensation of loss of opportunity and loss of time. This has not been appreciated either by the Court nor by the Govt. of Karnataka.  KPSC must extend further age relaxation to such candidates in the coming year who might have become overage due to such a lapsed opportunity to mitigate at least some loss.

Here is the news coverage from Deccan Herald.

HC orders quota for visually challenged in KAS posts
Bengaluru: Nov 17, 2015, DHNS:

The High Court has disposed of a petition, directing the Karnataka Public Service Commission and the State government to incorporate three per cent reservation for persons with low vision and the visually challenged for the posts of KAS officers or group ‘A’ posts in the next appointments.

The National Federation of the Blind had approached the court challenging the KPSC notification in January 2015, which had barred visually-challenged and those with low vision from applying for the posts. However, the court had directed the government to form a committee to examine possibility of including such persons. 

KPSC later issued another notification in October 2015, including persons with low vision and visually challenged as eligible to apply for the said posts in various government departments under the three per cent quota for persons with disabilities.

KPSC had called for applications for two posts of assistant commissioner in commercial tax and finance department and one post of executive officer in the Panchayat Raj department.

Advocate Jayna Kothari, appearing for the Federation, sought a stay on the KPSC’s exams and appointments. However, the stay was not granted, KPSC exams were held and necessary appointments were made in due course. 

A division bench comprising acting Chief Justice S K Mukherjee and Justice B V Nagarathna passed an order stating that as the KPSC’s exercise of appointments had already been carried out, the petitioner’s contention cannot be considered this year. 

However, the bench directed KPSC and the government to incorporate the necessary percentage for people with low vision and visually challenged in next KPSC appointments for the said posts.

Source: Deccan Herald 

Thursday, November 5, 2015

Consent Decree filed to ensure Physically Accessible Polling Centres in Augusta County, Virginia


Dear Colleagues,

The US Justice Department announced today that it has filed a complaint and proposed consent decree today in the U. S. District Court for the Western District of Virginia resolving allegations that Augusta County, Virginia has discriminated on the basis of disability by failing to provide physically accessible polling places to people with mobility and vision disabilities. Title II of the ADA requires public entities to ensure that all of their polling places are accessible to people with disabilities.

Under the consent decree, which must be approved by the court, the County agreed to make permanent architectural changes to a number of polling place facilities, and to provide temporary measures such as portable ramps and temporary doorbells at others, to provide accessible polling places throughout the County. The County, which cooperated with the United States, also agreed to revise its policies and polling place survey instrument, and provide training to poll officials.

Click here to read the Consent Decree. However, it throws light that disability continues to be a subject last on the agenda of administration -some times due to lack of awareness and while other times due to lack of enforcement - both in developed as well in developing world. Glad that Deptt of Justice has taken this initiative to make Polling Process accessible to residents with Disabilities in Augusta County and also to create mechanism for monitoring and enforcement for a longer term.

Monday, November 2, 2015

Disability Pension is independent of length of service - Punjab & Haryana HC

Dear Friends,

You don't need a qualifying service to be eligible for disability pension, the P&H High Court has clarified. The Union of India’s defended that the petitioner had less than 10 years of qualifying service required under Central Civil Service (Pension) Rules, 1972 to be eligible for disability pension, which the court rejected.  

Disability pension not linked to length of service, says HC
Saurabh Malik, Tribune News Service

Chandigarh, October 30, 2015

The Punjab and Haryana High Court has made it clear that disability pension has no connection with the length of service and is payable when an employee suffers from disability.

Forty years after a Border Security Force official was invalidated out from service with 100 per cent blindness, the high court also held him entitled to disability pension from the date of discharge.

The court was told that petitioner Amarjit Singh had suffered acute eyesight failure, while he was posted in high altitude area in the Ladkah sector. In December 1974, the Union of India issued a letter claiming that the petitioner was not entitled to pensionary benefits as per the Rules. Subsequently, he was invalidated out from service in February 1975. He was seeking disability pension from the date of discharge but without success.

The Union of India’s case was that the petitioner had less than 10 years of qualifying service required under Central Civil Service (Pension) Rules, 1972. Taking up the matter, the Division Bench of Justice Hemant Gupta and Justice Raj Rahul Garg observed the question of qualifying service arose to earn pension or invalid pension on attaining the age of superannuation under the Central Civil Service (Pension) Rules, 1972.
But the writ petitioner was invalidated out from service on account of medical condition. Such discharge entitled all persons paid from civil estimates to extraordinary pension, which included disability pension.
The bench added: “We find that under the 1972 rules, invalid pension is availed by an employee if he seeks retirement on account of any bodily or mental infirmity.

The case

  • Forty years ago, BSF official was invalidated out from service with 100 per cent blindness
  • The court was told that petitioner Amarjit Singh had suffered eyesight failure, while he was posted in the Ladkah sector
  • In December 1974, the Centre issued a letter claiming that the petitioner was not entitled to pensionary benefits as per the rules


Mumbai HC cites the capabilities of Blind as Solicitors & Advocates to deny claim of tax exemption for Eye Checkup

Dear Friends,

There are two areas worth noting in this judgement. Firstly, the Mumbai High Court has indicated that Blindness is no handicap in discharging the duties of a solicitor or an advocate and by that analogy even a judge. Secondly, you may not be able to claim tax exemption for tour expenses even for reasons of an eye test in computing the income chargeable under the head profits and gains from business or profession.

Shot in arm for disability advocates who have been facing extreme resistance from some states & their judiciary who have consistently denied people with blindness the opportunities of being  a judge by obtaining exemption under section 33 of the Disabilities Act. Crazy no?

Here is the news item from TNN:

Lawyer denied tax waiver for eye test done while abroad
Shibu Thomas, TNN | Oct 30, 2015, 01.30AM IST

MUMBAI: A person's eyes are not just used exclusively for professional purposes, said Bombay high court while rejecting a lawyer's claim seeking tax exemption for a foreign tour, which he claimed was a "pre-operative eye check-up".

A division bench of Justice M S Sanklecha and Justice Girish Kulkarni pointed to blind advocates practising in courts.

"Eyes are an important organ of the human body and are essential for the efficient survival of a human being. Eyes are essential not only for the purpose of business or profession but for purposes other than these," said the judges, adding, "We are not persuaded to accept the submission that eyes are required to be exclusively used for the purpose of profession. No evidence has been brought on record to establish that in the absence of investigation and treatment, the applicant would be handicapped in discharging his obligation as a solicitor/advocate. While at this, we cannot resist but point out that in this court itself, we have a couple of visually challenged advocates who are competent in discharging their duties."

The court also cited former advocate general of West Bengal Sadhan Gupta who was visually challenged. "It is therefore clear that the said expenditure as claimed by the advocate is not in the nature of the expenditure wholly and exclusively incurred for the purposes of the profession of the applicant and thus this expenditure cannot be claimed by the applicant to be allowed as deduction in computing the income chargeable under the head profits and gains from business or profession."

The court was hearing a petition filed by advocate Dhimant Thakkar, who claimed tax exemption for the period 1986-87 of an amount of Rs 43,600 for a foreign tour, which he claimed was in connection with preoperative tests. The income-tax department rejected the claim saying the expenses were for a personal reason.

The advocate claimed that but for this treatment he would not have been able to continue with his profession and therefore the expenditure ought to have been allowed as a deduction for professional expenses. The HC disagreed and concurred with the tax department that if the advocates claims were accepted, then "every and all expenses incurred on daily living and food would be allowable as part of tax exemption".