A platform to share the periodic updates on developments in disability law, policy formulation and related fields across the world with special focus on India. It analysis successes and failures in the struggle of restoring disability rights through Court Intervention and general discourse on Human Rights of People with Disabilities.
Wednesday, January 4, 2017
Delhi University gets another rap from Delhi High Court - Fined for defying Section 39 of Disabilities Act 1995 [Judgement Included]
Wednesday, December 28, 2016
RPWD Bill 2016 & the Right to Reservation in Promotion for Employees with Disabilities
Please refer to my earlier post dated July 1, 2016 titled 'Supreme Court says Section 33 entitles reservation for employees with disabilities in promotion in Group A,B,C and D alike'. Subsequently on 15th Dec 2016, the Hon'ble Supreme Court rejected the Review Petition filed by the DoPT against the judgement thereby making the its said judgement final.
Meanwhile, the Rights of Persons with Disabilities Bill 2016 has been passed by the Rajya Sabha (14 Dec 2016) and the Lok Sabha (16 Dec 2016) with over 119 amendment in the 2014 bill. Let me come straight to the concerned section dealing with the employment. I reproduce the concerned sections from 1995 Act and 2016 Bill below which clarifies things:
Extracts from PWD Act of 1995
32. Appropriate Governments shall--
(a) Identify posts, in the establishments, which can be reserved for the persons with disability;
(b) At periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology.
33. Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent. for persons or class of persons with disability of which one per cent. each shall be reserved for persons suffering from-
(i) Blindness or low vision;
(ii) Bearing impairment;
(iii) Loco motor disability or cerebral palsy, in the posts identified for each disability:
Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.'
Extract from RPWD Bill 2016
Despite clear writing on the wall on the issue of reservation in promotion for persons with disabilities after the Supreme Court's clarification, the bill negates the judgement. It relegates the right to reservation in promotion to a provisio where it is left to the appropriate governments to issue instructions from time to time! I would say this bill takes away reservation in promotion from the PwDs in a clandestine manner and leaves this to the mercy of the states who have never been serious about implementing the benevolent legislation.
The above is one example, there are host of others that we find are negating the rights of persons with disabilities and also these are not in conformity with the UNCRPD to which this Bill claims to align with. Lawyers, activists, persons with disabilities will put their mind to the Bill and analyse where its goes wrong and how can this be corrected to ensure that rights of persons with disabilities are not taken away under the garb of legislation. We invite you to this consultation that starts tomorrow. For more details please visit the page 'Invitation for National Consultation on RPWD Bill 2016 on 29-30 Dec 2016 at New Delhi'
Will look forward to meeting and interacting with many of you tomorrow & day after.
Monday, November 21, 2016
Hyderabad HC Permits Blind Advocate To Take Judicial Service Exam pending his Writ Petition
Read more at: http://www.livelaw.in/hyderabad-hc-permits-visually-challenged-idia-scholar-naga-babu-take-judicial-service-exam/
Wednesday, November 16, 2016
Right to Dignity - a Consititutional Right of the Female Disabled Employee will Prevail over Employer's Right to Take Work, says Kerala HC [Judgement Included]
5% Marks Concession to Reserved Categories in TET is Creating Equal Level-Playing Field - Supreme Court [Judgement Included]
“47. Equality of opportunity has two different and distinct concepts. There is a conceptual distinction between a non-discrimination principle and affirmative action under which the State is obliged to provide a level-playing field to the oppressed classes. Affirmative action in the above sense seeks to move beyond the concept of non-discrimination towards equalizing results with respect to various groups. Both the conceptions constitute “equality of opportunity”.”
Wednesday, October 26, 2016
Supreme Court of India | Civil Appeal No. 213 of 2013 | State of Punjab Vs. Jagjit Singh & Ors | Dated 26 Oct 2016
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 213 OF 2013
Appellants: State of Punjab & Ors.
Respondents: Jagjit Singh & Ors.
Bench: Hon'ble Justice Jagdish Singh Khehar
Hon'ble Justice S.A. Bobde)
Order Date: 26 October 2016
Status : Reportable
Thursday, October 20, 2016
US Supreme Court to hear ground breaking case involving what is "appropriate education" for students with Autism in public schools
Disabled Soldiers & Politics of their Disability Pension
Thursday, September 1, 2016
Supreme Court while upholding the Karnataka HC decision directs Karnataka Govt not to deny Primary School Teacher jobs to Visually Impaired Candidatesto
Court: Supreme Court of India
Bench: Hon'ble the Chief Justice T.S. Thakur, Hon'ble Mr. Justice A.M. Khanwilkar, Hon'ble Dr. Justice DY Chandrachud
Case No.: Civil Appeal No. 3910 of 2009 (Against the final order and judgment of the Karnataka High Court in PIL Writ Petition No. 16396 of 2005 dt. 29.09.2007)
Case Title: Selection Authority and Deputy Director Vs. Akhila Karnataka S.K. Andha Sangha
Date of Judgement: 01 Sep 2016
Supreme Court of India upheld the ruling of the Karnataka High Court in PIL Writ petition No. 16396 of 2005, directing the Karnataka State Government to ensure reservation for visually impaired persons in the role of primary school teachers and to execute this through a dedicated recruitment drive. This decision marked the culmination of a legal battle that saw the state government arguing that individuals with blindness or low vision were unsuitable for the role of primary school teachers and should not be entitled to reservation in these positions.
The repercussions of this Supreme Court ruling are significant, as it will necessitate the recruitment of hundreds of blind and low vision individuals to address the shortfall in reserved vacancies that had persisted since 2005.
This legal victory was achieved through the efforts of a non-governmental organization (NGO) representing blind individuals, known as the "Akhila Karnataka Andha S.K. Sangha", with the able representation of Advocate Jayna Kothari. The organization had previously succeeded in petitioning the Karnataka High Court, where the state had argued that primary school teacher positions were ill-suited for visually impaired persons. In an affidavit submitted to the Supreme Court in July 2016, the state contended that students in primary schools could not be effectively taught by teachers with blindness or low vision. They further claimed that many government primary schools, out of a total of 44,000, had only one or two teachers without additional support staff, making it difficult for such schools to function if reservations were granted to visually impaired persons.
However, the Supreme Court ultimately rejected these arguments put forth by the Karnataka State Government. The bench, led by the Chief Justice of India, pointed out that the Persons with Disabilities Act of 1995 mandates that a minimum of 3% of all government job vacancies should be reserved for disabled individuals. Of this quota, at least 1% should be allocated for persons with impaired vision. Moreover, both the Central and Karnataka State Governments had recognized primary school teaching positions as suitable for blind and low vision individuals in accordance with the said Act. The court maintained that placing visually impaired individuals in schools equipped with other teachers and support staff would not disrupt the schools' functioning, particularly given the availability of modern technology-based aids and appliances for blind and low vision individuals. Thus, the Supreme Court held the state government responsible for fulfilling its obligation to employ visually impaired persons in these positions and dismissed their appeal.
Below the Supreme Court's order dated 01.09.2016 dismissing the appeal of the State Govt. of Karnataka:
"We have heard learned counsel for the parties at considerable length who have taken us through the orders impugned in these appeals. We are of the considered view that the impugned orders do not suffer from any error much less any perversity to compel our interference in exercise of our powers under Article 136 of the Constitution of India. These civil appeals accordingly fail and are dismissed."
Access the Karnataka HC Judgement:
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]
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.