Friday, January 25, 2019

Supreme Court says people above 50% of hearing and visual disability can not perform as judge! [Judgement included]

Dear Colleauges,


However, a Supreme Court bench of Justice Ashok Bhushan and Justice KM Joseph on 22 Jan 2019 in the case titled V. Surendra Mohan vs. State of Tamil Nadu, shattered all my progressive writings and efforts to see more blind judges in India. The bench upheld the Tamil Nadu State’s policy of restricting the eligibility of blind and deaf candidates for the reserved posts of 'civil judge' to those with 40-50% of their respective disabilities. The SC Bench held,   "A judicial officer in a state has to possess reasonable limit of the faculties of hearing, sight and speech in order to hear cases and write judgments and, therefore, stipulating a limit of 50% disability in hearing impairment or visual impairment as a condition to be eligible for the post is a legitimate restriction i.e. fair, logical and reasonable  and that it does not contravene any of the provisions of the Disabilities Act 1995 or any other statutory provision."

I have seen judges's inherent biases and pre-conceived notions about disabling conditions often reflected in their judgements referring to persons with disabilities as unfortunate, crippled, wheelchair bound. This shows their lack of knowledge on disabling conditions and disability rights, however, this judgement has left me totally shaken. A common man's ignorance is pardonable, but for MyLords, whose pen has the ability to impact fate of millions of Indians with disabilities, it can be devastating for the hopes of many of them. The judges need to be well read and aware about the evolving capabilities of persons with disabilities with the advent of technology and science and the concept of reasonable accommodation that the UN Convention on the Rights of Persons with Disabilities provide. It is easier to label some one as 'incompetent' than set your own house in order. That is what the judiciary has done through this judgement despite the post of a judge identified as suitable to be held by a blind person by the Expert Committee constituted  by govt. of India, a bench renders them unsuitable!. Technically the bench should have refrained from stepping in to the shoes of the Expert Committee.

In the instant case, a person with seventy (70) percent blindness was denied appointment as a judge because he was more than fifty (50) percent threshold, the specified outer limit set by the Tamil Nadu State. Surprisingly, the Supreme Court came to the conclusion in the case that persons with more than the specified range of blindness are not eligible because they cannot perform functions of a judge!

In the background that several blind lawyers and judges are functioning well and the post is also identified as suitable for persons with disabilities by an Expert Committee under the Persons with Disabilities Act 1995 and that the Act makes no restrictions of degree of  percentage of disabilities for providing job reservations and other benefits etc which are equally available to all persons above 40% disabilities, this judgement looks absurd.  Instead of holding that differentiation based on extent of blindness is invalid and working towards facilitating accessibility of ICT, processes and reasonable accommodations for judges with blindness, the Court decided to justify the decision of the Government and the Madras High Court, which took a stand that completely blind persons cannot perform the so called strenuous tasks of reading, writing, communicating, examining witnesses, following procedures, advising advocates, etc.

Background of the case

In 2012, the Tamil Nadu Public Service Commission received a requisition from the State Government for filling up the vacancy posts of Civil Judge. The Commission wrote a letter to both the State Government as well as the High Court proposing to notify the percentage of disability as 40%-50% for partially blind and partially deaf for selection. The High Court communicated its approval to the aforesaid proposal which was also consented to, by the State of Tamil Nadu. The TNPC subsequently went on to publish the notification.

V. Surendra Mohan applied for the role of civil judge, however, his application was rejected on the ground that he was 70% blind (instead of below 50%). He challenged this decision in the Madras High Court upon which he was permitted to sit for the interview. Following his interview, Mohan’s application was again rejected. As a result, V. Surendra Mohan filed a writ petition in the Madras High Court. In 2015, the High Court held that the TNPC’s decision was lawful as it was in line with the State’s policy.

In 2019, Mohan appealed to the Supreme Court, challenging the rejection of his application as well as the policy on the basis of which his application was rejected, alleging it as arbitrary and unjustified.

The Bench comprising Justice Ashok Bhushan and Justice KM Joseph rejected this submission. It remarked that “a judicial officer in a State has to possess reasonable limit of the faculties of hearing, sight and speech in order to hear cases and write judgments and, therefore, stipulating a limit of 50% disability in hearing impairment or visual impairment as a condition to be eligible for the post is a legitimate restriction”.

The Supreme Court’s view that a totally blind person cannot function as a judge is trashed by live examples of  several successful blind judges in India and beyond. Accessible work place, computers with screen reading softwares, pleadings and documents in accessible format and reasonable accommodations is what is needed for their inclusion and this makes so many lawyers and judges do wonderfully well in their workplace.

Surprisingly, neither the State government or the High Court nor the Supreme Court have given any reasons as to justification of  50% disability cut-off when Persons with Disabilities Act makes so such distinction. No empirical evidence or research has been put forward to support that beyond the 50% threshold, a person would not be able to effectively perform his duties as a judge.  Supreme Court blindly relies on the government wisdom on this 50% cut-off, without questioning its scientific basis. It is also unclear as to how an advertisement by TNPSC pursuant to a “letter” from the government attained the status of an overriding legal norm. This matter wasn't referred to by the State to the Experts Committee. Decision was taken by babus based on their own whims and fancies and since it affected judiciary, the court also felt safe as they had not to change any infrastructure to accommodate a blind judge in their system. It is almost another level of apartheid visible in the present order. 

The present judgement also literally backtracks its own judgement dated 22 January 2019 wherein the Hon'ble Supreme Court had set deadlines to make public places accessible to persons with visual impairment. It had expressed that “it becomes imperative to provide such facilities so that these persons also are ensured level playing field and not only they are able to enjoy life meaningfully, they contribute to the progress of the nation as well.”  Instead of providing level playing field, this judgement deprives blind candidates from their established legal right  arbitrarily. This order is a black spot on the image of Indian Supreme Court which has otherwise been very proactive for the rights of marginalised communities and has always batted for their inclusion in constitutional spirit. Therefore, this needs to be remedied soon in coming days.

Read the judgement in PDF below in V. Surendra Mohan vs. State of Tamil Nadu, Civil Appeal No. of 83 of 2019:



Wednesday, January 9, 2019

Insurance Company denies health insurance on the basis of disability - Court of Chief Commissioner approached

Dear Colleagues,


A Bengaluru based banker with visual disability has preferred a complaint in the Court of Chief commissioner for Persons with Disabilities against Religare for denying him health insurance policy on the grounds of his blindness. The 63 year-old banker Mr. TR Raghu Kumar has optic nerve atrophy (ONA), a condition of permanent vision loss caused due to damaged optic nerve, in March 1991. 

“I suddenly lost my eyesight; I woke up one morning to know that my vision has been affected. This can happen to anybody,” he said. He bought a health insurance policy from Religare for Rs 5 lakh and paid one-year premium of Rs 16,597 on October 26, 2018. “I had declared my condition in the insurance proposal and submitted a copy of the medical certificate,” he added.

A month later, Raghu received a call from the company stating that his insurance was rejected as he was totally blind and the premium was refunded. Alleging discrimination, Kumar wrote to the commissioner for persons with disabilities on November 29.

Responding to an email query, Religare said Kumar’s insurance proposal was declined due to ONA. “ONA can be caused by multiple reasons and not limited to trauma (including stroke), tumour, decrease in oxygen or blood supply, infections, disorders or hereditary reasons. There was no ascertainment with regard to the cause in his proposal. We cover persons with any kind of disability (physical/visual/hearing), provided there’s no co-existing health condition that’s in contravention with our medical underwriting guidelines,” Religare said.

However, Kumar said the company never asked him anything pertaining to the cause of ONA. “I’ve submitted the disability certificate which is self-explanatory. The company collected money for the premium and rejected my proposal without raising any question. This is nothing but discrimination against a disabled person,” he added.

Source: Times of India 

Monday, September 3, 2018

LPG dealership not a poverty alleviation scheme so as to come under Section 37 of The Rights of Persons with Disabilities Act, 2016, opines Bangalore HC

Poverty alleviation is for consumers- says Karnataka High Court, rejecting plea that questioned oil companies reserving only 3 per cent of LPG dealerships for people with physical challenges.

The High Court has refused a plea by an organisation working for the welfare of physically challenged persons to reserve five per cent of LPG dealerships to such people. The HC said that it cannot apply Section 37 of The Rights of Persons with Disabilities Act, 2016 as the LPG dealership given by State-owned oil companies are not government welfare schemes where this rule needs to be applied.

Karnataka Rajya Vikalchetanara Rakshana Samiti approached the HC against Indian Oil Corporation, Bharat Petroleum, Hindustan Petroleum and the Union Government challenging a notification by these companies that wanted to select 238 LPG distributors.

As per the RPD Act, the reservation for physically challenged persons is five per cent. But the notification had reserved only 6 distributorships for the physically challenged instead of 11, it was argued. This was less than 3 per cent.

The HC however said that the distributorship is not a welfare measure. It said, “In the overall comprehension of the matter, we are satisfied that even if the award of LPG distributorships, essentially a matter of commercial contract, is a welfare measure and leads to manifold empowerment and all-round development of society, it cannot be termed as a notified scheme for poverty alleviation and development.”

The court also said that poverty alleviation in LPG is directed at consumers and not distributors. So, reservation for distributors under the Act was not possible. It said, “Needless to reiterate that the availability of LPG to the persons below poverty line may be correlated with the poverty alleviation, but that relates to the consumers and not to the distributors.”

The division bench of Chief Justice Dinesh Maheshwari and Justice S Sunil Dutt Yadav refused to consider the distributorship licencing as a poverty alleviation scheme. It said, “The award of LPG distributorships is taken up essentially by the three State-owned oil companies and is not any notified scheme of the appropriate Government or local authorities, which could be classified as a poverty alleviation and development scheme.”

Noting that three per cent of the distribution agencies are already reserved for physically challenged persons, the HC said, “The provision for reservation by the respondent Oil Companies, who are the agencies and instrumentalities of the Government, prima facie indicates their attention to the requirements of the persons belonging to different classes and categories. However, for that matter, we find no reason to issue a mandamus to provide for extra reservation for persons with disabilities by operating Section 37” of The Rights of Persons with Disabilities Act, 2016.

However, the HC said that claims of other concessions in application fee and financial assistance can be sought by making appropriate representation to the concerned authorities.

Sunday, February 18, 2018

Delhi HC directs IIT Delhi to re-admit and coach student with disability expelled for failing [Judgement Included]

Dear Colleagues,

In the instant case, Manif Alam, a student with 50% locomotor disability had secured admission in MSc (mathematics) at IIT-Delhi under the reserved category for persons with disabilities in the academic year 2017-18. However, on January 9, 2018, his name was suddenly struck off the rolls without even giving him a chance to explain why he had not been able to secure the minimum score of 4.00 SGPA in the first semester.

The petition filed before the Delhi High Court citing various provisions of the new Rights of Persons with Disabilities Act 2016 & case laws prayed for setting aside the arbitrary decision of expelling the student without giving him an opportunity to even improve his performance. Reliance was placed on the observations of the Hon'ble Supreme Court in Avinash Singh Baghri & Ors. v. Registrar IIT Delhi & Anr. in WP(C) 535 of 2008. 

Hon'ble Justice Rekha Palli, also referred to para 26 of the decision of Supreme Court in the case of Avinash Singh Baghri vs. Registrar, IIT, Delhi in W.P.(C) 535/2008, wherein in the context of students belonging to SC/ST and OBC categories, it was held as under:- 
“26. It is not in dispute that SC and ST are separate class by themselves and the creamy layer principle is not applicable to them. Article 46 of the Constitution of India enjoins upon the State to promote with special care the educational and economic interests of the weaker sections of the people and protect them from social injustice and all forms of exploitation. These socially and economically backward categories are to be taken care of at every stage even in the specialized institutions like IITs. They must take all endeavour by providing additional coaching and bring them up at par with general category students. All these principles have been reiterated by the Constitution Bench of this Court in Ashok Kumar Thakur vs. Union of India & Ors., (2008) 6 SCC 1.”
The writ petition was vehemently opposed by IIT Delhi while the other respondents including the Chief Commissioner for persons with disabilities, Ministry of Human Resources and Development as also Ministry of Social Justice and Empowerment supported the petition strongly in favour of the rights of the student with disability.

The judge expressed, "In my view the respondent Institute cannot, by placing reliance on its Rules, defeat the very purpose of the the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the Rights of Persons with Disabilities Act, 2016. I cannot lose sight of the fact that both these aforesaid Acts are special legislations dealing with persons with disability ensuring equal opportunities, protection of rights and full participation and therefore it is the duty of every Educational Institution to make an endeavour to ensure that the special objects of these Acts are achieved. Respondent No.1-Institute having admittedly failed to provide special facilities by way of extra coaching and guidance to the petitioner has failed in its duty and for this reason alone, the impugned order is liable to be set aside. The petitioner surely deserves a chance to improve his performance and make an attempt to clear his backlog for which purpose the respondent Institute ought to give him extra coaching and guidance.

Directing the premier institute to immediately re-admit Manif Alam, the court said, “If this is the state of affairs of the IITs in India, one can only imagine what goes on in the institutions which get lesser funds and guidance from the Union government.”

Underlining that Rights of Persons with Disabilities Act 2016 mandates it to be the duty of all educational institutions to “provide necessary support to maximise academic and social development consistent with the goal of full inclusion”, Justice Rekha Palli said the institute must be “more sensitive towards the needs of persons with disabilities”. This mandate can never be achieved if such students are expelled without giving them another opportunity to attain the necessary level, she said.

Allowing the plea of the student, HC stressed that “the core issue...is as to whether a student like the petitioner who is able to join a premier Institute like IIT-Delhi only because of the 5% reservation provided for ‘persons with disability’ can be expelled after the very first semester on account of his inability to meet the criteria fixed for general students who had admittedly joined the institute with much better academic backgrounds in terms of marks”.

The objective of the Act is to give the disabled people an opportunity to join the mainstream, the court said. To achieve this, the educational institutes should give them extra coaching and guidance if needed, it stressed. “A mere reservation at the time of entry into the institutes would become meaningless if the institutes like IIT-Delhi don’t do their bit and extend a helping hand to such students.”

Rejecting IIT-Delhi’s stand that it is not bound to follow these norms as it is not affiliated to UGC and is autonomous, the court made it clear that the disability act is fully applicable in this case. By not providing special facilities through extra coaching and guidance, IIT-Delhi “has failed in its duty and for this reason alone, the order is liable to be set aside. The petitioner surely deserves a chance... to make an attempt to clear his backlog”, the court said. The institute ought to give him extra coaching and guidance, it added.

Setting aside the impugned order of the IIT Delhi dated 09.01.2018, the Court directed the respondent IIT Delhi to immediately re-admit the petitioner and also provide him extra coaching, if the need be. 

Click on the hyperlink to download the judgement:



Friday, June 30, 2017

California Federal Judge allows Website Accessibility Lawsuit to continue under Title III, ADA

Dear Colleagues,

Within a week after a Florida federal judge handed down a trial verdict finding that Winn Dixie had violated Title III of the ADA by having a website that could not be used by the blind plaintiff, U.S. District Judge John Walter of the Central District of California ruled that blind plaintiff Sean Gorecki could continue his lawsuit against retailer Hobby Lobby about the accessibility of its website. The retailer had asked the court to dismiss the case on various grounds, all of which were rejected by the judge. The case will now move forward.

This decision is significant for several reasons:

The decision illustrates that two judges in the same United States District Court can have diametrically opposite views on the very same issue. In March of this year, U.S. District Judge James Otero dismissed a lawsuit brought by a blind plaintiff against Domino’s Pizza about its allegedly inaccessible website. Judge Otero found that Domino’s had met its obligations under the law by providing telephonic access via a customer service hotline, and that requiring Domino’s to have an accessible website at this time would violate its constitutional right to due process. On the due process point, Judge Otero noted that neither the law nor the regulations require websites to be accessible, and that the Department of Justice (DOJ) had failed to issue regulations on this topic after seven years. As further evidence that covered entities have not been given fair notice of their obligations under the ADA, he cited the DOJ’s official statements from the beginning of the website rulemaking process that (1) it was considering what legal standard of accessibility to adopt, and (2) telephonic access could be a lawful alternative to having an accessible website. Based on these due process concerns, Judge Otero invoked the “primary jurisdiction” doctrine which “allows courts to stay proceedings or dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.”

In stark contrast, U.S. District Judge John Walter in the Hobby Lobby case rejected the due process argument and held that the “primary jurisdiction” doctrine did not apply. With regard to the due process argument, Judge Walter stated that “for over 20 years, the DOJ has consistently maintained that the ADA applies to private websites that meet the definition of a public accommodation” and that “Hobby Lobby had more than sufficient notice in 2010 to determine that its website must comply with the ADA.” Judge Walter also held that the “primary jurisdiction” doctrine did not apply because it only applies to cases whose resolution require the “highly specialized expertise” of a federal agency. Judge Walter found that this case is a “relatively straightforward claim that Hobby Lobby failed to provide disabled individuals full and equal enjoyment of goods and services offered by its physical stores by not maintaining a fully accessible website.”

Judge Walter reserved judgment on what Hobby Lobby would have to do to make its website accessible until after a decision on the merits. The Court specifically noted that the plaintiff was not asking for conformance with a specific technical rule such as the Website Content Accessibility Guidelines 2.0.

Because Judge Walter’s decision was on a motion to dismiss and not a final judgment, Hobby Lobby does not have the right to appeal the decision at this time. We predict that the case will settle before the court reaches the merits of the case.

Sources: 

Thursday, April 27, 2017

Supreme Court of India asks compliance report of new RPwDAct 2016 in 12 weeks

Dear Colleagues,

Hon'ble Supreme Court of India has, in a major move to ensure speedy justice to persons with disabilities, has passed directions to implement the Rights of Persons with Disabilities Act 2016 enforced by the Govt. of  India on 19 April 2017. In an interlocutory application filed by the petitioner in Justice Sunanda Bhandare Foundation vs. Union of India and Another, reported as (2014) 14 SCC 383, and on the application filed by intervener "Sambhavana Organisation",  the bench of  Justices Dipak Misra, A M Khanwilkar and M M Shantanagoudar passed the directions to all the States and Union Territories to file compliance report within 12 weeks on the Act of 2016.

The Intervener, Sambhavana Organisation - a self help group of persons with disabilities had also filed an application citing examples of over seven Universities that were discriminating against persons with Blindness and Vision Impairments while filing up various teaching and non-teaching posts. The intervener also cited instances that UGC that funds these universities has not taken any action on implementation of the provisions of the Disabilities Act particularly the reservation in employment and successive employment notification systemically failed to give the rightful representation to the stakeholders with visual disabilities.

The bench observed, "The 2016 Act visualizes a sea change and conceives of actualization of the benefits engrafted under the said Act. The whole grammar of benefit has been changed for the better, and responsibilities of many have been encompassed. In such a situation, it becomes obligatory to scan the anatomy of significant provisions of the Act and see that the same are implemented. The laudable policy inherent within the framework of the legislation should be implemented and not become a distant dream. Immediacy of action is the warrant."

The bench referred to certain provisions to highlight the salient features of the Act of 2016 and stressed that more rights have been conferred on the disabled persons and more categories have been added. That apart, access to justice, free education, role of local authorities, National fund and the State fund for persons with disabilities have been created. The 2016 Act is noticeably a sea change in the perception and requires a march forward look with regard to the persons with disabilities and the role of the States, local authorities, educational institutions and the companies. The statute operates in a broad spectrum and the stress is laid to protect the rights and provide punishment for their violation. 

The Court directed, "When the law is so concerned for the disabled persons and makes provision, it is the obligation of the law executing authorities to give effect to the same in quite promptitude. The steps taken in this regard shall be concretely stated in the compliance report within the time stipulated. When we are directing the States, a duty is cast also on the States and its authorities to see that the statutory provisions that are enshrined and applicable to the cooperative societies, companies, firms, associations and establishments, institutions, are scrupulously followed. The State Governments shall take immediate steps to comply with the requirements of the 2016 Act and file the compliance report so that this Court can appreciate the progress made. The Bench directed the SC registry to send its order to chief secretaries of all states and directed them to take immediate steps to comply with its direction by 16 Aug 2017.

The Court directed that compliance report to be filed by the States shall be supplied to the learned counsel for the petitioner (Justice Sunanda Bhandare Foundation), learned counsel for the Union of India as well as to the learned counsel for the applicant/intervenor (Sambhavana Organisation) so that they can assist the Court.

A copy of the Order Dated 25 April 2017 in matter titled Justice Sunanda Bhandare Foundation vs. Union of India and Another can be accessed here.

Thursday, April 20, 2017

What the 21 Disabilities Covered in the Rights of Persons With Disabilities Act 2016

The number of recognized disability conditions was increased from 7 to 21 in the Rights of Persons with Disabilities Act 2016 (hereinafter RPWD Act 2016). The RPWD Act 2016 (Act 49 of 2016) was enacted by the Indian Parliament to fulfill India’s obligation to implement the UN Convention on the Rights of Persons with Disabilitis (UNCRPD). It received the assent of Hon'ble President of India on 27th Dec 2016 and notified in Gazette of India on 28th Dec 2016. The Act came in to effect on 19 April 2017 vide a notification.

The new list of recognized disabilities added as an annexure to the Act includes three blood disorders, people of Short Stature, Acid Attack Survivors, Parkinson disease, Chronic neurological conditions, Multiple Sclerosis etc. 

Following are the 21 disabilities included in the RPWD Act 2016:
  1. Blindness
  2. Low-vision
  3. Leprosy Cured persons
  4. Hearing Impairment (deaf and hard of hearing)
  5. Locomotor Disability
  6. Dwarfism
  7. Intellectual Disability
  8. Mental Illness
  9. Autism Spectrum Disorder
  10. Cerebral Palsy
  11. Muscular Dystrophy
  12. Chronic Neurological conditions
  13. Specific Learning Disabilities
  14. Multiple Sclerosis
  15. Speech and Language disability
  16. Thalassemia
  17. Hemophilia
  18. Sickle Cell disease
  19. Multiple Disabilities including deaf-blindness
  20. Acid Attack victim
  21. Parkinson’s disease

Here is the Schedule to the RPWD Act 2016 reproduced:

THE SCHEDULE
[See clause (zc) of section 2]
SPECIFIED DISABILITY

1. Physical disability.—
A. Locomotor disability (a person's inability to execute distinctive activities associated with movement of self and objects resulting from affliction of musculoskeletal or nervous system or both), including—
(a) "leprosy cured person" means a person who has been cured of leprosy but is suffering from—
    (i) loss of sensation in hands or feet as well as loss of sensation and
    paresis in the eye and eye-lid but with no manifest deformity;
    (ii) manifest deformity and paresis but having sufficient mobility in
    their hands and feet to enable them to engage in normal economic activity;
    (iii) extreme physical deformity as well as advanced age which
    prevents him/her from undertaking any gainful occupation, and the
    expression "leprosy cured" shall construed accordingly;
(b) "cerebral palsy" means a Group of non-progressive neurological condition affecting body movements and muscle coordination, caused by damage to one or more specific areas of the brain, usually occurring before, during or shortly after birth;
(c) "dwarfism" means a medical or genetic condition resulting in an adult
height of 4 feet 10 inches (147 centimeters) or less;
(d) "muscular dystrophy" means a group of hereditary genetic muscle
disease that weakens the muscles that move the human body and persons with multiple dystrophy have incorrect and missing information in their genes, which prevents them from making the proteins they need for healthy muscles. It is characterised by progressive skeletal muscle weakness, defects in muscle proteins, and the death of muscle cells and tissue;
(e) "acid attack victims" means a person disfigured due to violent assaults by throwing of acid or similar corrosive substance.

B. Visual impairment—
(a) "blindness" means a condition where a person has any of the following conditions, after best correction—
   (i) total absence of sight; or
   (ii) visual acuity less than 3/60 or less than 10/200 (Snellen) in the
   better eye with best possible correction; or
   (iii) limitation of the field of vision subtending an angle of less than 10 degree.
(b) "low-vision" means a condition where a person has any of the following conditons, namely:—
       (i) visual acuity not exceeding 6/18 or less than 20/60 upto 3/60 or upto 10/200      (Snellen) in the better eye with best possible corrections; or
       (ii) limitation of the field of vision subtending an angle of less than 40 degree up to 10 degree.
C. Hearing impairment—
(a) "deaf" means persons having 70 DB hearing loss in speech frequencies in both ears;
(b) "hard of hearing" means person having 60 DB to 70 DB hearing loss in speech frequencies in both ears;
D. "speech and language disability" means a permanent disability arising out of conditions such as laryngectomy or aphasia affecting one or more components of speech and language due to organic or neurological causes.

2. Intellectual disability, a condition characterised by significant limitation both in
intellectual functioning (rasoning, learning, problem solving) and in adaptive behaviour
which covers a range of every day, social and practical skills, including—
(a) "specific learning disabilities" means a heterogeneous group of conditions wherein there is a deficit in processing language, spoken or written, that may manifest itself as a difficulty to comprehend, speak, read, write, spell, or to do mathematical calculations and includes such conditions as perceptual disabilities, dyslexia, dysgraphia, dyscalculia, dyspraxia and developmental aphasia;
(b) "autism spectrum disorder" means a neuro-developmental condition typically
appearing in the first three years of life that significantly affects a person's ability to
communicate, understand relationships and relate to others, and is frequently associated
with unusal or stereotypical rituals or behaviours.
3. Mental behaviour,—
"mental illness" means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, but does not include retardation which is a conditon of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence.

4. Disability caused due to—

(a) chronic neurological conditions, such as—
(i) "multiple sclerosis" means an inflammatory, nervous system disease in
which the myelin sheaths around the axons of nerve cells of the brain and spinal
cord are damaged, leading to demyelination and affecting the ability of nerve
cells in the brain and spinal cord to communicate with each other;
(ii) "parkinson's disease" means a progressive disease of the nervous
system marked by tremor, muscular rigidity, and slow, imprecise movement, chiefly
affecting middle-aged and elderly people associated with degeneration of the
basal ganglia of the brain and a deficiency of the neurotransmitter dopamine.
(b) Blood disorder—
(i) "haemophilia" means an inheritable disease, usually affecting only male but transmitted by women to their male children, characterised by loss or impairment of the normal clotting ability of blood so that a minor would may result in fatal bleeding;
(ii) "thalassemia" means a group of inherited disorders characterised by reduced or absent amounts of haemoglobin.
(iii) "sickle cell disease" means a hemolytic disorder characterised by chronic anemia, painful events, and various complications due to associated tissue and organ damage; "hemolytic" refers to the destruction of the cell membrane of red blood cells resulting in the release of hemoglobin.
5. Multiple Disabilities (more than one of the above specified disabilities) including
deaf blindness which means a condition in which a person may have combination of
hearing and visual impairments causing severe communication, developmental, and
educational problems.

6. Any other category as may be notified by the Central Government.

————

Wednesday, April 19, 2017

ना रहेगा बांस, ना बजेगी बांसुरी - Instead of making online audio and video content accessible at the order of Deptt of Justice, UC Berkeley removes entire public content - leaving all students in lurch.

Dear Colleauges,

A group of scholars have objected to a decision by the University of California, Berkeley, to remove many video and audio lectures from public view as a result of a Justice Department accessibility order.
In response to the Department of Justice's letter to the University of California, Berkeley, dated 30 Aug 2016 asking it to implement procedures to make publicly available online audio and video content accessible to people who are deaf, hard of hearing, deaf and blind, and blind, the University, rather than complying with the request, took the outrageous step of ending public access to those valuable resources, which include over 20,000 audio and video files, to avoid the costs of making the materials accessible. And on top of it, the UC Berkeley issued a public statement saying that disability access requirements forced this decision.
A large number of stakeholders have strongly objected to Berkeley’s choice to remove the content, and its public statement  The stakeholders feel that Berkeley has for years systematically neglected to ensure the accessibility of its own content, despite the existence of internal guidelines advising how to do so. Further, the Justice Department letter left sufficient room for many alternatives short of such a drastic step. The stakeholders allege that it was never the intent of the complainants to the department, nor of the disability community, to see the content taken down.
In fact, people who depend on the accessibility of online course content constitute a significant portion of the population. There are between 36 and 48 million individuals in the United States with hearing loss, or about 15 percent of the population. An estimated 21 million individuals are blind or visually impaired. Altogether, about one in five adults in the United States has a functional disability.
The prevalence of disability increases significantly after the age of 65: more than one in three older adults have hearing loss, and nearly one in five have vision loss. Refusing to provide public access to online content negates the principle of lifelong learning, including for those who may eventually acquire a disability. Moreover, many individuals without hearing and vision disabilities benefit from accessible online course content.
As per the post of Mr. Christian Vogler, the public response to Berkeley’s announcement - and to Inside Higher Ed’s reporting -- has been disheartening. While some commenters have acknowledged the need for accessible e-learning content, others have cast blame on those seeking access, accusing people with disabilities of putting their own interests first. Many have suggested that calls for access, such as captioning and audio description for video content, deprive the broader public of these resources. Many misrepresent this issue as one where the needs of the many outweigh the needs of the few.
Despite the large number of people who stand to gain from accessible content, changes to existing practice are rarely made voluntarily and typically occur through the enforcement of disability civil-rights laws. Those laws, including the Americans With Disabilities Act and its 2008 amendment, were passed unanimously or with overwhelming bipartisan majorities in both the U.S. House of Representatives and the U.S. Senate.
Once disability civil-rights laws are passed and implemented, the broader public stands to gain. As laid out by “The Curb Cut Effect,” the installation of curb cuts -- a direct consequence of the unanimously passed 1968 Architectural Barriers Act -- permitted diverse public access that has nothing to do with wheelchairs: baby strollers, shopping carts, bicycles, roller skates, skateboards, dollies and so forth. Today, curb cuts are so ubiquitous that we do not usually think about their existence anymore, yet we cannot imagine our country without them. In fact, Berkeley, often considered the birthplace of the civil-rights movement, led the way in curb cut implementation.
Captions are often referred to as digital curb cuts. As with physical curb cuts, widespread digital captioning originates from civil-rights legislation, including the 21st Century Communications and Video Accessibility Act of 2010. About 30 percent of viewers use captions, according to Amazon, 80 percent of whom are not deaf or hard of hearing. A 2011 Australian survey revealed similar numbers, and a 2006 British study found that 7.5 million people in Great Britain had used captions to view television, including six million, or 80 percent, with no hearing loss. On Facebook, 85 percent of viewers consume video without sound, and captioning has increased user engagement. And an October 2016 study found that about 31 percent of hearing respondent college students “always” or “often” use closed captions when they are available, and another 18 percent sometimes use captions.
It was never the intention of the complainants or their allies to have course content removed from public access. With the recent mirroring of 20,000 public lectures, the net outcome is that we are back to square one with inaccessible content, now outside of the control of Berkeley. (We wish to emphasize that we have no quarrel with the decision to mirror the content, and affirm the right to freedom of speech in the strongest terms.)
The Department of Justice’s letter did not seek the removal of content, either. Indeed, Berkeley’s peer institutions have affirmed that they will continue to make their materials publicly available while striving to make them accessible as well.
The letter cannot have come as a surprise to Berkeley. In February 2013, seven months after the university announced its partnership in edX with the Massachusetts Institute of Technology and Harvard University, faculty and staff members on Berkeley’s now-dismantled Academic Accommodations Board met to discuss how to “make sure students with disabilities have access” in “online education, including MOOCs.” There, board members warned that the university needed strong and immediate plans for disability access in its MOOCs.
In April 2014, the Civil Rights Education and Enforcement Center, on behalf of the complainants, contacted Berkeley and offered to engage in structured negotiation -- a successful method of dispute resolution that has been used with some of today’s biggest champions of captioned online video content. When the offer of structured negotiations went nowhere, the center filed with the Department of Justice in October 2014.
The Justice Department letter issued in August 2016 found that Berkeley had failed to enforce the accessibility of such content, resulting in few of their video or audio files being accessible. The department asked that the university strengthen its procedures to enforce accessibility guidelines. In response, rather than make the suggested changes, Berkeley publicly threatened to withdraw content and then went ahead with its March 2017 announcement to remove content.
The stakeholders acknowledge that remedial accessibility work -- after-the-fact efforts to make content accessible -- can be costly. Such work requires not only the addition of captions and audio descriptions but also checking to ensure that documents and materials can be read by screen readers or accessed on a variety of devices. That is why it is so important that leadership enforce accessibility policies from the beginning. The ADA contains an undue-burden defense that protects public entities that cannot afford to make accessibility changes. But it is difficult to see how this applies here, since Berkeley was offered the option to make content accessible over a longer period of time to keep the cost manageable.
The fact that the online content is free is immaterial. Civil-rights justice and access are built on the premise that everyone, with or without a disability, should be able to participate. Online educational content has become a key ingredient of community participation, irrespective of whether it is free or paid. Moreover, Berkeley created the content at the outset -- which means taxpayers, including taxpayers with disabilities, partially funded it.
Barriers to accessing the educational materials of a respected university hinder community participation by people with disabilities. The removal of digital access barriers is a crucial endeavor for a society that continues to revise its aspiration of justice for all. 
The stakeholders who were signatories to this article titled "Access Denied" originally appearing on InsiderHigherEd.com,  expressed that they experience such barriers on a very personal level. They have urged the UC Berkeley to reconsider its decisions and restore the access to the public content to all while the content is made accessibile in due course of time.

Tuesday, April 4, 2017

Supreme Court of India wants an Expert Panel To Determine What Areas of Medical Practice Can Colour-blind MBBS Aspirants Study based on international best practices [Judgement Included]

Dear colleagues,

In a progressive order, the Hon'ble Supreme Court bench comprising Justice Dipak Misra and Justice AM Khanwilkar has directed the Medical Council of India to constitute a committee of experts to look into the areas of practice that MBBS aspirants with colour blindness could indulge in. 

The bench passed these orders while hearing a Civil Appeal No. 4394 of 2017 (arising out of S.L.P.(C) No.30772 of 2015), filed by two MBBS aspirants, who were declared ineligible for admissions at the stage of counseling in 2015, as they had partial colour blindness. 

The petitioners had challenged the decision of the committee that refused them admission because of their colour-blindness before the High Court of Tripura and  Agartala, contending that there existed no regulation framed by the Medical Council of India, under the Medical Council Act, 1956, debarring them from seeking admission. The high court had, however, refused to interfere, and had dismissed their petition. 

Before the Hon'ble SC, the petitioner's counsel contended that it was “obligatory” on the part of the Medical Council of India to take a “progressive measure so that an individual suffering from CVD may not feel like an alien to the concept of equality, which is the fon juris of our Constitution”. Amicus Curiae Mr. Viswanathan urged that a complete ban on the admission of individuals suffering from CVD to MBBS course would violate conferment of equal opportunities and fair treatment. To buttress this submission, he had made reference to provisions of the Convention on the Rights of Persons with Disabilities and Optional Protocol, to which India is a signatory. 

The Amicus Curiae Mr. Viswanathan had urged that as colour blindness is not considered as a disability under the Persons with Disabilities Act 1995 nor it is a disability under the recently notified Rights of Persons with Disabilities Act 2016, the nature and severity of colour blindness and the disciplines they can practise has to be given a re-look.

The defendants, on the other hand, had submitted that since the complete diagnosis and prognosis of a disease or disorder may depend upon colour detection, there is requirement for restriction in the field of practice of an individual with colour blindness in this country.

Considering rival submissions, the court made reference to a judgment of the Delhi High Court in the case of Dr Kunal Kumar v Union of India and others, and also to a judgment of the Rajasthan High Court in Parmesh Pachar Vs. Convener, Central Undergradutate Admission Board. While the Delhi HC had concurred with the view that people with colour blindness may not be able to pursue certain courses or disciplines, the Rajasthan HC had opined that students suffering from disabilities cannot be debarred from seeking admissions..

The apex court, however, wished neither to lean in favour of the view of Delhi High Court nor generally accept the perception of Rajasthan High Court. It, thus, directed an assessment by an independent expert committee, and observed, “Total exclusion for admission to medical courses without any stipulation in which they really can practice and render assistance would tantamount to regressive thinking. The march of science, apart from our constitutional warrant and  values, commands inclusion and not exclusion. That is the way a believer in human rights should think”.

The bench directed that the expert committee shall also  concentrate on diagnostic test for progress and review of the disorder and what are the available prosthetics aids to  assist CVD medical practitioners and what areas of practice could they undertake without difficulty with these aids. It further said the committee shall include representatives of the Medical Council of India, and experts from genetics, ophthalmology, psychiatry and medical  education, who shall be from outside the members of the Medical Council of India. It has been directed to submit a report to the court within three months. The matter has been listed for July 11.

Writing the order the court expressed, "Human being is a magnificent creation of the Creator and that magnificence should be exposed in a humane, magnanimous and all-inclusive manner so that all tend to feel that they have their deserved space. Total exclusion for admission to medical courses without any stipulation in which they really can practise and render assistance would tantamount to regressive thinking. When we conceive of global phenomenon and universal brotherhood, efforts are to be made to be within the said parameters. The march of science, apart from our constitutional warrant and values, commands inclusion and not exclusion. That is the way a believer in human rights should think.

The bench has directed the Committee of Experts to submit a report to the court within three months, while fixing the next listing on 11 July 2017.

Click here to access the judgement dated 23 Mar 2017 in Civil Appeal No. 4394 of 2017 (arising out of S.L.P.(C) No.30772 of 2015) titled Pranay Kumar Podder Vs. State of Tripura and Others. [PDF size 151 KB Opens in google drive]