Thursday, October 20, 2016

Disabled Soldiers & Politics of their Disability Pension

Dear Colleagues,

Here is a wonderful article by  Maj Navdeep Singh, a veteran and a fellow lawyer at Punjab and Haryana High Court. In this connection, you may also refer to  my earlier post dt. 26 Feb 2014 "DESW works against Ex-Servicemen disabled during service are worst hit".

Questions of compensation

India has the distinction of exhibiting disdain towards the cause of disabled soldiers

India is quite a paradox. There is excessive chest-thumping for our men and women in uniform on the one hand and pride in laying constant siege to the benefits and legal rights of those very personnel whom we superficially cheer while on parades on the other.

And bearing the brunt of this all are our disabled soldiers. The deleterious effect the stress and strain of military service has on a soldier’s health is a universally recognised phenomenon. In fact, most nations go out of the way to make the lives of their troops more comfortable — as seen in rising payouts for their loss of health. However, India has the distinction of exhibiting utter disdain towards the cause of disabled soldiers. At a very rudimentary level, for example, one has defence services accountants asking how ailments such as heart disease, neurosis, backache, seizures — common in civilians too — can be affected or aggravated by military service.

The service-disability connection

It is not difficult to discern that a highly unsettled and regimented life, away from family most of the year, and at times under the shadow of the gun, the inability to cope with domestic commitments, and a lack of community living, sexual fulfilment and physical proximity, curtailed freedoms and rights, can all lead to an aggravation of common medical conditions. The life of military personnel or even paramilitary troopers who are on duty almost 24 hours a day and who require permission to use even a washroom or visit a market after signing multiple registers, cannot be compared with civilians who live with their families and have fixed and reasonable working hours in a week.

Disability rules in India and other democracies are balanced and work on the presumption of a military service-disability connection. But the army of accountants and financial wizards often rejects such disability claims leading to numerous instances of judicial intervention. When disability benefits are awarded by courts and tribunals, there is more shock in store. The Ministry of Defence appeals against the claims of disabled, at times over amounts as little as a few hundred rupees. Between 2012-2013, 90 per cent of all appeals filed in the Supreme Court by the Ministry of Defence were against disabled soldiers. The efforts of the Defence Minister to control the litigation malaise are being met with strong resistance from the official-legal ecosystem which thrives on the miseries of disabled soldiers.

Paring pension rates
A recent example was the recommendation made in the Seventh Central Pay Commission to slash disability pension rates. The observation was that as there was an increase in the percentage of disabled officers in the defence services vis-à-vis the lower ranks, benefits needed to be slashed from the “percentage of pay system” to a “slab system” which would be more equitable for ranks other than officers. The recommendation was that from the current formula of “30% of pay for 100% disability”, the disability element should now be granted at the fixed rate of Rs. 27,000, Rs.17,000 and Rs.12,000 for Commissioned Officers, Junior Commissioned Officers and Other Ranks respectively for 100 per cent disability, and proportionately reduced for lesser disability. Surprisingly, no such corresponding “equitable” change was recommended for civilian disability pensioners, including those from the Central Armed Police Forces, who continue to receive benefits on the basis of “percentage of pay”.

Statistically, there is a higher probability of officers incurring disability than jawans since the latter start retiring in their 30s after about 15-plus years of service. Officers retire in their 50s after a service period spanning 30 years or more. It shocks one that those who are maimed and infirm have to bear insults when instead there should be concern about the rise in stress and strain and a deteriorating health profile among defence personnel.

The recommendation was made suo motu based on data by the Defence Accounts Department to the commission and without being authenticated by the defence services. No opportunity was granted to discuss the issue. The accounting jugglery is even more jarring since the slab system would result in a better payout only to those rare cases where those in the lower ranks are medically boarded out at the start of their careers, while it results in a loss to all jawans who are released on completion of regular service terms. In the higher ranks, the difference is more glaring. A Lieutenant General who is 100 per cent disabled and drawing a disability element of Rs.52,560 as of December 31, 2015, would now get Rs.27,000 on January 1, 2016. His civilian counterpart, on a par earlier, would now get Rs.67,500. While the pay commission has handsomely increased all pensions, which includes civil disability, it has slashed those for military disability; in some instances by more than half. The fact that vested interests have twisted the issue on social media citing ‘government sources’ makes this even more unfortunate.

What is the use of all the pomp and show at military displays or basking in the glory of our military achievements if we cannot take care of our disabled soldiers? They may form a minuscule percentage, but they certainly deserve much better.

About Major Navdeep Singh - Major Singh is a veteran and an advocate at the Punjab and Haryana High Court. He was the founding President of the Armed Forces Tribunal Bar Association, Chandigarh., and is Member of the International Society for Military Law and the Law of War at Brussels

Source: The Hindu

Tuesday, August 23, 2016

Bombay HC favours aspiring candidates with cerebral palsy for admission to MBBS; Orders re-constitution of Medical Board with 2 Neuro-specialists [Judgement Included]

Dear colleagues,

This petition by two candidates with cerebral palsy who are aspiring to become doctors/ surgeons revolves around three larger questions often faced by many candidates with disabilities aspiring to be doctors:
(a) Whether a person with cerebral palsy can be a doctor?
(b) Whether the 40-70% disability criteria set by MCI for admission to MBBS courses is constitutionally valid ?
(c) Whether  a team of ophthalmologist, a pathologist, an orthopaedic, a general physician and a surgeon can assess the disability of a person with cerebral palsy in absence of a neuro specialist?

The Medical Board set up by State Directorate of Medical Education and Research mechanically assessed the candidates above 70% disability looking at the etiology of their disability i.e. cerebral palsy. The Board did not have neuro-specialists. Hon'ble Bench ordered to re-examine the candidates citing that the Medical Board was not competent to even assess the candidates with cerebral palsy. The court expressed that the Medical Board should include two doctors who have a specialization in neuroscience and asked for re-constitution of the same to assess the disability and to keep two seats vacant for them.  However, it seems the judgement doesn't address the impugned criteria of 40-70% disability!  Another area that is worth our concern is the tendency of authorities to adjust candidates with disabilities in disability quota even when the candidates have scored higher marks in the common entrance test like general candidates. This must be checked at every stage.

It is pertinent to mention that the candidates did not have functional impediment of upper limbs, they had a restriction of the lower limbs while walking. However, since the disability is a result of cerebral palsy, the medical board often indicates all four limbs involved. Same is the case with the List of identified posts by Govt. of India wherein the assessment or identification doesn't highlight the functional abilities as it mechanically goes with categories as One Arm, One Leg, Both Legs. Merely on the basis of slight involvement of limbs the candidates are declared ineligible even where the affected limb hasn't lost its functional competence. (Eg. a person with a deformed feet but with no functional limitation in walking is declared as ineligible for a post not meant for both leg affected candidate.) These inconsistencies in the list of identified jobs and their mechanical implementation by departments is causing more harm than good.

Click here for the Combined Court Order dt 22 Aug 2016 in WP(C) 9299/2016 titled Rajnandinee P. Mane Versus State of Maharashtra and Ors.  WP(C) 9556/2016 titled Rutuja D. Raut Vs. State of Maharashtra and Ors. 
Here is the brief coverage by Times of India of this specific case.

Friday, August 19, 2016

Indian Currency not friendly to Blind, NAB files petition in Bombay High Court

Dear Colleagues,

Coins of various denominations and notes of Rs 100 and Rs 500 have no different identification marks which will help blind persons in differentiating among them claims a petition filed by the National Association for Blind (NAB), before the Bombay High Court. Advocate Uday Warunjikar, who has moved the petition, said: "Under provisions of the Persons with Disabilities Act, there are various provisions which have been made by the government for safeguarding the interest of the disabled. Several provisions are also there for ensuring a disable-friendly environment. However, in the present coins and notes it is difficult for persons who are blind or with low vision to differentiate between them."

The petition states that the problems of identification have been aggravated in the last few years. Earlier, blind or low vision person were easily able to identify coins and notes. There were unique marks on each coin; some coins were raised/embossed and tactile. Moreover, on a written request sent by RBI and Mint asking for feedback from NAB on the shape of coins and notes. A detailed suggestion was forwarded to the government in which it was said that there is no much difference between Rs 100 and Rs 500 notes. Coins of Rs 2, Rs 1 and Rs 50 paise are similar, there should be coins with proper borders, different designs, shapes, different textures for avoiding confusion, nothing is being done.

The plea says the suggestions were given last year and it was expected that appropriate decision would be taken. However, till now nothing is being done to address the issue. Earlier, the association would teach blind persons to identify currency notes. Now, it has become difficult to educate them. The petition prays for directions to the authorities to place on record steps it has taken to protect the rights of blind persons to have access to information about the currency notes and coins. Direct the respondents to make changes in the currency notes and coins to help blind persons easily identify them.

Source: DNA

Travelodge sued for discriminating with a deaf customer with guide dog in USA

Dear Colleagues,

A deaf woman who uses a service dog is suing the Travelodge of La Mesa, alleging discrimination for how she was treated when she tried unsuccessfully to check into the hotel earlier this year.

The Travelodge though did not initially bar her from staying overnight with her guide dog, it demanded that she sign a damage policy form for pets that she and her lawyers say is discriminatory, according to a lawsuit filed last week in U.S. District Court.

When she protested during the check-in process, the desk clerk informed her that she and herguide dog were no longer welcome to stay at the hotel, the suit says. She asked for a refund but was denied one at the time because the hotel stay was booked on Expedia, the desk clerk told her.

The plaintiff, Naomi Sheneman, of Rochester, New York, is alleging violations of the Americans with Disabilities Act, Unruh Civil Rights Act and the California Disabled Persons Act.

She is seeking a court order requiring Travelodge to comply with policies prohibiting discrimination against the deaf and to train its staff on a regular basis about the rights of individuals who are deaf or hard of hearing under state and federal laws. The suit also seeks compensatory damages.

“There are a lot of hotels out there that don’t follow the law and require additional burdens for people with service animals,” said attorney Andrew Rozynski of Eisenberg & Baum Law Center For The Deaf and Hard of Hearing, which is representing Sheneman. “This suit is to show that you can’t have these additional burdens for people with disabilities because that’s the law. To require her to sign this form and say she can’t stay there and embarrass her is humiliating.”

Travelodge said it was reviewing the complaint with its attorneys. “However, we want to make it clear that Ms. Sheneman, who was a returning guest and totally familiar with the policies and rules of the hotel, was not presented any additional requirements because of her service animal,” the hotel said in a statement. “She was asked for the same deposit as any customer and presented the same information that would be given to any guest with a non-service animal.”

The La Mesa hotel said it did not refuse service to Sheneman, and that it “has never discriminated against persons with service animals. We welcome service animals as advertised on our website, and guests with service animals are staying on a regular basis at the Travelodge of La Mesa.”

While the Travelodge of La Mesa does not permit pets, it notes on its website that “ADA defined service animals are welcome at this hotel.” When Sheneman checked in, she was told that a damage deposit for the room was required, which she provided.

But when she was given a form setting forth additional charges to be applied specifically to damage caused by a guest’s animal, she said she was uncomfortable signing it because it “appeared to impose additional terms or obligations on her because of her service animal,” states the suit.

Sheneman was forced to stay at another hotel and ultimately received a full refund from Travelodge of the $185.53 she had paid.

Thursday, August 4, 2016

Are meritorious candidates with disabilities pushed into disability quota against the spirit of Section 33?

Dear Colleagues,

The govt. departments, who should be complying with the provisions of the Persons with Disabilities (equal opportunities, protection of rights and full participation) Act 1995 have been flouting these very provisions under different garbs. This is not a new phenomenon. I remember in April 2005, I had challenged on behalf of All India Confederation of the Blind an advertisement of Govt. of NCT of Delhi and UPSC for filling up 90 posts of Principals without giving 3% reservation for persons with disabilities. In the counter filed by the Delhi Govt. it was suggested that they will adjust all persons with disabilities against reserved quota even if they cleared on their own merit. The Hon'ble Court presided by Justice S. Ravindra Bhat then had given a categorical judgement saying this could not be allowed and issued rule. The Delhi Govt. even went in appeal through LPA No.2042, 2043 and 2044/2005, however, on 21 Dec 2005 vide a common judgement, the double bench headed by the Hon'ble Chief Justice and Justice Madam B Lokur dismissed the said appeals upholding that Article 46 of the Constitution provides that the State shall promote the interests of weaker sections and weaker section would include not just SCs and STs but also persons with disabilities. The court had dismissed the LPAs with directions that a candidate with disabilities who has qualified in the selection and whose merit is so high that if he were a general category candidate he would still have been selected, then his appointment will not be made against the quota of persons with disabilities. Such a candidate would be treated as if in the general category and the reserved seats of the disabled category will be calculated excluding him or be filled up accordingly.

In fact, this fact has been repeatedly held by the Hon'ble Supreme Court that concessions to help / enable a candidate appear in examinations cannot be termed as “reservation benefits“ if she/he qualifies on merit. [PGI Medical Education and Research V. K.L. Narasimham, (1997) 6 SCC 283]

The trend of subverting the laws against the marginalized section continues to be pushed by many employing departments rendering the minimum reservations as maximum reservations. As simple as age relaxations, fee relaxations, lower threshold of qualifying marks and additionally in case of disabled candidates - using a scribe or availing compensatory time during examination is being used as the basis to classify them as "reserved candidates". Using a scribe or compensatory time or fee/ age /qualifying marks relaxation can at best be considered as enabling provisions. These provisions can not be used to push them in to the "reservation quota" thereby defeating the original intent of such beneficial legislation.

The National Commission for SCs is examining this issue and has issued notice to UPSC, DoPT etc. on receipt of complaints from the stakeholders. The Commissioner for Persons with Disabilities on the other hand, has not taken any suo moto notice of several such cases happening right under their nose. This is an alarming situation where the statutory bodies are lagging behind in restoring justice to the most marginalized and have failed to protect their rights and equal participation in the spirit of the Persons with Disabilities Act 1995.

Friday, July 1, 2016

Supreme Court says Section 33 entitles reservation for employees with disabilities in promotion in Group A,B,C & D alike [Judgement Included]

Dear Colleagues,

Please refer to my earlier posts dated 02 March 15 and  10 Oct 14, on the subject. 

In a historic judgment in Writ Petition (Civil) No. 521/2008 titled Rajeev Kumar Gupta and Others Versus Union of India and Others, the Hon'ble Supreme Court on 30 Jun 2016 has set aside / quashed the two office memorandums No.36035/16/91-Estt. (SCT) dated 18.02.1997 and No.36035/3/2004-Estt. (RES) dated 29.12.2005 issued by the Department of Personnel and Training, Government of India, terming them as illegal and inconsistent with the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

In the instant case the petitioners, Rajeev Kumar Gupta and seven other persons with disabilities serving as engineers in Prasar Bharti made the grievance that the higher level posts in the engineering cadre were filled mostly by promotion. Although these posts were suitable for persons with disabilities, the Government was denying them 3% reservation in these posts, which amounted to defeating the intent and purpose of reservation provided for in the Persons with Disabilities (equal opportunities, protection of rights and full participation) Act, 1995. At the heart of the problem were the DoPT instructions dated 18.2.97 and 29.12.2005, which prohibited reservation in promotion for disabled persons in Group A and B posts. 

Petitioners had argued that a large number of Groups A and B were filled only through promotion and because of the impugned DoPT memorandums, the benefit of reservation under Section 33 of the 1995 Act was denied with respect to those posts. Petitioners therefore lost out on a significant amount of opportunities at the upper end of the organizational hierarchy.

The government opposed concession to the disabled, contending that they have no right to demand reservation in promotion to identified Group A and Group B posts. It also cited the nine-judge bench ruling by the apex court in the Indra Sawhney (Mandal reservation) case, to maintain reservation should be confined to recruitment at the initial level, and not at the stage of promotions.

It may be pertinent to mention that in the Indra Sawhney case while dealing with caste based reservation issue, the Bench had held "Reservation in promotion is constitutionally impermissible as, once the advantaged and disadvantaged are made equal and are brought in one class or group then any further benefit extended for promotion on the inequality existing prior to be brought in the group would be treating equals unequally. It would not be eradicating the effects of past discrimination but perpetuating it."

But the bench dismissed the government’s arguments, noting that once the posts for the disabled have been identified under Section 32 of the Act, the purpose behind such identification cannot be frustrated by prescribing a mode of recruitment which results in denial of statutory reservation.

“It would be a device to defraud persons with disabilities of the statutory benefit. Once a post is identified, it means that a person with disability is fully capable of discharging the functions associated with the identified post. Once found to be so capable, reservation under Section 33 to an extent of not less than 3 per cent must follow. Once the post is identified, it must be reserved for PWD irrespective of the mode of recruitment adopted by the State for filling up of the said post,” it held.

The bench further said that Indra Sawhney’s case shall not impose a bar on reservation for the disabled, since the principle laid down in this case is applicable only when the State seeks to give preferential treatment in the matter of employment to the backward class.

“The basis for providing reservation for persons with disabilities is physical disability and not any of the criteria forbidden under Article 16(1) such as caste, religion etc. The objective behind the 1995 Act is to integrate those living with disabilities into the society and to ensure their economic progress… persons with disabilities are not and cannot be equated with backward classes contemplated under Article 16(4),” it said. Article 16 of the Constitution empowers the state to prescribe preferential treatment to certain classes in matters of public employment.

The judgement is historic and a major milestone in the fight for restoring the rights of persons with disabilities in India. 

The argument in this case were concluded on 17.03.2016  and the bench had reserved the judgement.

The case, represents success in a hard fought battle waged by persons with disabilities for equal opportunity and representation in the higher echelons of Government. Hitherto, disabled persons were likely to stagnate at the lower levels of the organizational hierarchy, as their promotion to higher level posts was made difficult because of their physical disadvantage. 


Brief Background of related matters

It may be pertinent to mention that the Hon'ble Supreme Court  had on 08 Oct 2013 in the case titled Union of India vs. National Federation of the Blind delivered a land mark judgment directing the Govt, of India and State Governments to compute 3% reservation for persons with disabilities in all groups of posts against the total number of vacancies in the cadre strength. The Hon'ble Court also laid down that the computation had to be done in an identical manner in respect of all groups of posts. Subsequently, the Hon'ble Supreme Court vide its judgement dated 10 Dec 2013 in a case titled as MCD Vs. Manoj Kumar Gupta upheld a judgment of Hon'ble Delhi High court which declared that Section 33 of the Disabilities Act, provided for reservation in promotion for persons with disabilities in Groups A and B also.

But instead of implementing the judgement, the Govt. of India had been contesting the issue through various frivolous litigation which were nipped in the bud each time by the Hon'ble Court. 

Judgement Copy

(Hyperlinked text opens the judgement in a new windowJudgement dated 30 June 2016 in Writ Petition (Civil) No. 521/2008 titled Rajeev Kumar Gupta and Others Versus Union of India and Others

Updates as on 04 Sep 2017 

The issue of whether persons with disabilities deserve reservation in promotions as well, apart from the reservation that exists in appointment, has been escalated by the Supreme Court to a five-judge bench since it requires interpretation by the Constitution bench.

On Monday (September 4, 2017) the bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud heard deposition by Solicitor General Ranjit Kumar and counsels  requested a larger bench to hear the issue. The three judge bench headed by the Hon'ble Chief Justice Dipak Misra agreed to refer the matter to a five-judge bench.

The question that has arisen in this case is whether persons, governed under “The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995”, can be given reservation in promotion. A view had been taken by this Court in Rajeev Kumar Gupta & Others vs Union of India & Others in the affirmative. The Solicitor General had pointed out that the prohibition against reservation in promotion laid down by the majority in Indra Sawhney vs Union of India and Others – (1992) case applies not only to Article 16(4) but also to 16 (1) of the Constitution of India and inference to the contrary is not justified. Persons with disabilities certainly require preferential treatment and such preferential treatment may also cover reservation in appointment but not reservation in promotion. Section 33 of the 1995 Act is required to be read and construed in that background. “We find merit in the contention that the matter needs to be considered by the larger bench,” he said.

Thursday, June 23, 2016

Kerala HC: Tax Exemption on Vehicle for disabled is financial privilege different from a Right [Judgement Included]

Dear Colleagues,
A double bench of the Kerala High Court has ruled that a cap on tax exemption on purchase value of vehicles by persons with disabilities can not be termed as discriminatory. The division bench comprising of Justice Antony Dominic and Justice Dama Seshadri Naidu opined  that the exemption made by the Government in the instant case, was in the nature of concession to persons with disabilities. And this exemption being a part of financial incentive, the Government was well within its powers to impose suitable conditions.

Brief Brackground  of the case

The Government, had by a notification, G.O. (MS) No. 16/98/Tran., dated 31.03.1998, granted a tax exemption for certain motor vehicles, including the luxury cars, being purchased by differently abled persons. However by a subsequent amendment, the Government had imposed a limit to the cap of Rs.5,00,000/- ,on the value of such vehicles entitled to such tax exemption.

Appellant, a person with 100% disability and a wheel chair user purchased a car of a value exceeding Rs. 5,00,000/. He argued that his son was also disabled being mentally retarded, a bigger car of a value more than 5,00,000/- cap was required to manage the daily activities of the family. He contended that limiting the cap on value of vehicles entitled to tax exemption for use by disabled, violated Article 14 of the Constitution of India. 

His writ petition in this regard, before the single bench was dismissed. Aggrieved by the same, he approached the division bench in an appeal.  Dismissing the writ appeal, the division bench observed:- “Be it a classification of discrimination in terms of Article 14 of the Constitution, it applies vis-a-vis the right that has been constitutionally consecrated. In that context, legion are the precedents that the classification or discrimination shall pass the judicial muster as regards the reasonableness or non-arbitrariness.” 

Judgement

The bench opined, “In the present instance, it is only a concession the Government has conferred on physically challenged persons. It being a financial incentive, the Government is well within its powers to impose suitable conditions. In other words, a privilege being entirely different from a right, a Fundamental Right at that, we are of the opinion that the contention of the learned counsel as regards discrimination or unreasonableness does not apply.” 



Wednesday, June 8, 2016

Deaf witness is a competent & credible witness- High Court [Judgement Included]

Dear Colleagues,

A single bench of Hon'be Delhi High Court presided by Justice Mukta Gupta while disposing off an appeal has held that when a deaf witness is under cross-examination the Court is required to take due care of the fact that vocabulary of such a person is limited as he or she speaks through sign language and it may not be possible for that witness to answer, or in detail explain every answer by sign language. This disability of a limited vocabulary of sign language does not  affect either the competence or the credibility of such witness.

In the instant appeal filed by the Accused who was convicted for the offence defined under Section 9(k), punishable under Section 10 of The Protection of Children from Sexual Offences Act, 2002, for sexually assaulting a 12 yr old deaf and dumb girl, twin arguments were raised by the counsel for appellant i.e.  firstly since the prosecutrix could not be cross-examined her testimony cannot be read in evidence  and secondly even if the offence is proved against the appellant, the same would fall under Section 7 punishable under Section 8 of POCSO Act and not under Section 9(k) punishable under Section 10 of the POCSO Act.

Section 119 of the Indian Evidence Act, 1872 provides: “119. Dumb witnesses.- A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs, but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence.”

While dealing with the mode of recording, non-administration of oath to a deaf and dumb witness and involving an interpreter for understanding the evidence of such a witness, the Supreme Court in the decision reported as (2012) 5 SCC 789 State of Rajasthan Vs. Darshan Singh @ Darshan Lal held: “26. The object of enacting the provisions of Section 119 of the Evidence Act reveals that deaf and dumb persons were earlier contemplated in law as idiots. However, such a view has subsequently been changed for the reason that modern science revealed that persons affected with such calamities are generally found more intelligent, and to be susceptible to far higher culture than one was once supposed. When a deaf and dumb person is examined in the court, the court has to exercise due caution and take care to ascertain before he is examined that he possesses the requisite amount of intelligence and that he understands the nature of an oath. On being satisfied on this, the witness may be administered oath by appropriate means and that also with the assistance of an interpreter. However, in case a person can read and write, it is most desirable to adopt that method being more satisfactory than any sign language. The law requires that there must be a record of signs and not the interpretation of signs.

On Questioning the Testimony as no cross examination held

In reply to the first argument of questioning the testimony, Justice Mukta Gupta held as follows;

“The purpose of cross-examination is to ascertain the truth in relation to the acquisition levelled against an accused person and a discretion is vested in the Court to control the cross-examination. A party cross-examining a deaf and dumb witness like any other witness is required to act within the bounds of law and cannot be permitted to cross-examine the witness all and sundry on irrelevant questions. Section 138 of the Indian Evidence Act itself provides that the examination and cross-examination of a witness must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified in his examination-in-chief. The purpose is that in cross-examination besides relevant facts, facts which impeach the credibility of the witness and shake his creditworthiness can also be asked. However still the first portion of Section 138 of the Evidence Act qualifies this right confining the cross-examination to relevant facts though it may not have been so deposed in the examination-in-chief. It is the duty of a Judge to control the cross-examination to prevent any abuse and to protect a witness from being unfairly dealt with. Sections 149 to 152 of the Evidence Act prohibit asking questions without reasonable grounds, which are indecent and scandalous in nature, or which are intended to insult or annoy the witness”.

“When a deaf and dumb witness is under cross-examination, the Court is required to take due care of the fact that vocabulary of such a person is limited as he or she speaks through sign language and it may not be possible for that witness to answer, or in detail explain every answer by sign language. This disability of a limited vocabulary of sign language does not affect either the competence or the credibility of such witness. The Court is required to exercise control over the cross-examination keeping in view the ability of the witness to answer the questions.

From the examination of the witness which was in question-answer form and the response to the cross-examination wherein the witness drew and explained the distance where the incident took place, it can safely be held that there was sufficient compliance of the right to cross-examination provided to an accused and the testimony of this witness is not required to be effaced”

On punishment under section 8 Sexual Assault or Section 9 Aggravated Sexual Assault 

The Court then examined the question whether appellant can be convicted for offence defined under Section 7 and punishable under Section 8 of the POCSO Act or defined under Section 9(k) and punishable under Section 10 of POCSO Act. The appellant was charged for offence defined under Section 7 and punishable under Section 8 of POCSO Act i.e. “sexual assault”.

Section 7 POCSO Act defines the term sexual assault as physical contact without penetration. The punishment for the same is provided in Section 8 wherein the minimum sentence is 3 years which may extend to 5 years with fine.

Section 9 of POCSO Act defines “aggravated sexual assault” which is punishable under Section 10 POCSO Act. Section 9 POCSO Act defines different types of sexual assault which would be termed as aggravated sexual assault. Sub-clause (k) of Section 9 POCSO Act provides that whoever, taking advantage of a child’s mental or physical disability, commits sexual assault on the child would be punished for aggravated sexual assault as per Section 10 of POCSO Act wherein the minimum punishment is of 5 years imprisonment which may extend to 7 years and fine.”

Though charged with a major offence an accused can be convicted for a minor offence, the vice-versa is impermissible.

Court altered the Punishment

Accepting the contention of the Accused, the bench held that in the facts of the case Court is not required to go into whether aggravated sexual assault is made out or not from the evidence on record, for the reason there was no charge for aggravated sexual assault framed against the appellant. “ It is trite law that though charged with a major offence an accused can be convicted for a minor offence, however the vice-versa is impermissible which has been done by the learned Trial Court.”

Consequently, the Court altered the conviction of Accused to one for offence defined under Section 7 and punishable under Section 8 of POCSO Act.

The earlier sentence dt. 17 Dec 2013  of "Rigorous imprisonment for a period of six years and fine of Rs. 5,000/- in default whereof to undergo simple imprisonment for a period of three months" has not been modified as "Rigorous imprisonment for a period of 5 years and to pay a fine of Rs. 10,000/- in default whereof to undergo simple imprisonment for a period of one month".

Click here for the Judgement dated 03 Jun 2016, bearing No. CRL.A. 751/2014 titled Chander Singh Vs. State

Language used by Judiciary referring to persons with disability

An important takeaway from this judgement is also the issue of improper and disability unfriendly language used by the Hon'ble Judges despite their best intentions. The terminology "deaf and dumb", "suffering from disability" etc has been repeatedly used by the prosecution, courts below and the high court in the pleadings, orders and judgement. And this is not one odd case. Its high time that the judicial officers  and prosecution officers too are trained in the use of correct language / terminology while referring to persons with disabilities. While the words, "suffering from" and "handicapped" are one extreme, the term "Divyang" suggested by Hon'ble Prime Minister of India is on the other extreme of the disability etiquette. People with disabilities are persons first and therefore a simple reference to them as "a person with disability" or "a person with hearing impairment", speech impairment, etc... in line with the UNCRPD accepted worldwide is appropriate and proper. The Hon'ble High Court must consider addressing this as a priority.  





SC slaps Rs.10 lakhs fine on SpiceJet for discriminating with a flier with disability [Judgement Included]

Dear Colleagues,

This is in continuation to my earlier two posts titled Jeeja Ghosh, a prominent Indian disability right activist discriminated by Spicejet Pilot dated 19 Feb 2012 and Supreme Court of India issues notice to SpiceJet for deplaning disabled woman dated 05 April 2012.

In a remarkable judgement in a clear case of disability discrimination, a bench comprising Justices A K Sikri and R K Agrawal of Hon'ble Supreme Court has directed the budget airline Spicejet to pay a sum of Rs 10 Lakh (One Million Indian Rupees) as damages to a flyer living with cerebral palsy, who was forcibly offloaded in 2012, saying the manner in which she was de-boarded depicts "total lack of sensitivity".

The apex court noted that the flier with disability Ms. Jeeja Ghosh was not given "appropriate, fair and caring treatment" which she required with "due sensitivity" and the decision to de-board her was "uncalled for".

"On our finding that SpiceJet acted in a callous manner, and in the process violated Rules, 1937 and Civil Aviation Requirements (CAR), 2008 guidelines resulting in mental and physical suffering experienced by Ghosh and also unreasonable discrimination against her, we award a sum of Rs 10,00,000 as damages to be payable to her," observed the Bench.

Ms. Ghosh was offloaded from a SpiceJet flight on February 19, 2012 from Kolkata when she was going to attend a conference in Goa hosted by NGO ADAPT (Able Disable All People Together), the second petitioner in the case.

The bench said the decision to offload Ghosh was taken by the airlines without any medical advise or consideration and her condition was not such which required any assistive devices or aids.

"Even if we assume that there was some blood or froth that was noticed to be oozing out from the sides of her mouth when she was seated in the aircraft (though vehemently denied by petitioner), nobody even cared to interact with her and asked her the reason for the same. No doctor was summoned to examine her condition. Abruptly and without any justification, a decision was taken to de-board her without ascertaining as to whether her condition was such which prevented her from flying. This clearly amounts to violation of Rule 133-A of Rules, 1937 and the CAR, 2008 guidelines," the bench said.

Download the Judgement

  • WP(C) No. 98/2012 Titled Jeeja Ghosh and Anr Versus Union of India and Others 
  • Or Read the embedded Judgement in PDF below:




Thursday, June 2, 2016

HC Order fail to bring relief to disabled MBBS aspirant this year despite clearing NEET [Judgement Included]

Dear Colleagues,

In the instant case, the Hon'ble Delhi High Court, in a matter of discrimination on the grounds of disability, the petitioner not only failed to get any practical relief while she missed her crucial year of MBBS even after clearing NEET Examination but also the stipulation that only persons up to 70% disability can be considered for MBBS course remained unchallenged. 

Thus in fact, this case can not be used by any other candidate with a disability  to seek admission in MBBS if he has more than 70% disability. The petitioner has to clear the NEET exam all over again next year thereby wasting her crucial year of life which can never be replenished to her. Is it true justice? Were respondent burdened with any cost for this lapse? How can the petitioner with 80% disability be considered next year again under the same rules that debar a candidate above 70%? What is the guarantee that her percentage of disability will not be used by the respondent to once again to deny her the seat even if she has the perseverance to clear the NEET the next year?

Brief of the case. 

The petitioner, Ms. Sanjana Sinha, when she was seventeen, had undergone amputation of her left leg, and got an artificial leg/prosthetic limb fitted, her disability adjudged as 80%. After qualifying NEET examination, she applied to Faculty of Medical Sciences for admission to MBBS course against the seats reserved for persons with disabilities. 

Although initially she found her name in the merit list and rank list, later she was declared not eligible for admission to MBBS due to her disability, which is 80%. The petitioner challenged this through the Writ petition, by contending that with the external aid/prosthetic limb her disability is less than 70%, within the prescribed range. The petitioner did not challenge the rule limiting the eligibility to 70%!

Division Bench comprising of Justices V. Kameswar Rao and Badar Durrez Ahmed observed “A welfare legislation…… needs to be given a purposive interpretation, inasmuch as to give benefit to a person with disability so that he/she don’t feel less privileged than a normal person. Moreover, we find that the petitioner has a brilliant academic carrier and has also qualified the NEET examination but for the disability, she would have got the admission in the course.” 

The Court also observed that having disability of 80% is a more appropriate case to be given benefit of the Act, since with the external aid/prosthetic limb, the disability would come within the range as permissible under the Regulation i.e. between 40/50-70. 

The Court allowed the Writ petition in following terms: “We may only state here that the petitioner was a successful candidate for the academic year starting 2013-2014. At this point of time, no direction can be issued to give admission to the petitioner on the basis of the said examination. The only direction that can be given is, in view of our discussion, the respondent shall not deny admission to the petitioner if she is successful in a future NEET examination on the ground that she has a disability of 80%.”

Download a copy of Judgement: