Wednesday, January 22, 2020

Kerala HC | Seema Lal & Ors Vs. State of Kerala & Ors | WP(C).No.15436 OF 2017(S) | 22 Jan 2020

Dear colleagues,

Boom in medical tourism in Ayurveda, Kerala - God's own country, has seen proliferation of therapeutic services. With a large number of professional nurses, trained paramedical manpower, the State has also seen rise in Therapy Centres focussed on improving functional abilities and management of disabling conditions in children with disabilities. 

Several parents of children with disabilities having felt exploited at the hands of these institutions and against unprofessionally managed services with least care to child rights,  had raised a campaign for regulation of these institutions in 2015. It was learnt by parents that neither the department of health nor the social justice, women and child departments had any authority to regulate these therapy centres. These centres simply ran under the Shops and Establishements Act in the name of regulation. Several media stories led to ordering of a probe by the then Ernakulam district collector M Rajamanickam to order a probe by health department. The state child rights commission also passed directives to the state government seeking regulations. However not much change happened on the ground forcing the parents to move Kerala High Court through a writ petition. During the course of hearings, and as a result of several interim orders, Government of Kerala state took some actions to regulate these institutions. 

The Court has passed its judgement on 22 Jan 2020 in this matter titled 'Seema Lal & Ors Vs. State of Kerala & Ors' WP(C).No.15436 OF 2017(S).

In its judgment, the court has asked the state to issue the guidelines and ensure that all centres are registered with a fixed timeline. The Govt. has accordingly issued notifications, wherein the qualifications of all therapists are defined, and specifications have been issued while setting up therapy centres. Now, all therapy centres providing services to persons with disabilities under a regulatory mechanism need registration before a competent authority notified by government as per Section 49 of Rights of Persons with Disabilities Act, 2016.

This is a step in right direction and must be followed up in other States as well.

Download a copy of the Judgement

Kerala High Court
Petitioners:        Seema Lal and Ors
Respondents:     State of Kerala and Ors
Case No. :          WP(C).No.15436 OF 2017(S)
Date of Order:    22 Jan 2020

Copy of the Judgement :- Download  or read below.

Wednesday, January 15, 2020

SC once again reaffirms reservation in promotion for persons with disabilities in Siddaraju Vs. Govt. of Karnataka case [Judgement Included]

Dear Colleagues

Please refer to my following earlier posts on various attempts of the Union of India to deny reservation in promotion for persons with disabilities citing Indra Sawhney Judgement,

(a) Supreme Court says Section 33 entitles reservation for employees with disabilities in promotion in Group A, B, C and D alike [01 Jul 2016]
(b) SC dismisses yet another attempt of Centre to sabotage reservation for employees with disabilities in promotion [03 Mar 2015]
(c) SC clarifies 3% reservation in appointment for disabled extends to promotions & deputations as well [10 Oct 2014]
(d) Physically Challenged Versus Logically Challenged [10 Dec 2013]

On 14 Jan 2020, a three judge Bench of Hon'ble Justice Rohinton Fali Nariman, Hon'ble Justice Aniruddha Bose and Hon'ble Justice V. Ramasubramanian while hearing Civil Appeal  No. 1567 OF 2017 titled Siddaraju Vs. State of Karnataka and Ors and batch of connected matters, once again reiterated its earlier stand on reservation in promotion for persons with disabilities allowing reservation in promotion for persons with disabilities in all the groups alike vis. Gp A, B, C or D.

A two judge bench of the SC had earlier clarified the same issue in matter titled Rajeev Gupta Vs. Union of India decided on 30 Jun 2016 had held that the bar against reservation in promotion in the Indra Sawhney judgment did not apply to persons with disabilities. The Court had then held that wherever posts are identified as suitable for persons with disabilities, 3% reservation must be given in direct recruitment as well as in promotion for employees with disabilities in Group A and B as it is given in Group C and D. The Govt. of India decided to however,  challenged it once again when the matter was referred to the present three judge bench to decide the question whether persons with disabilities were entitled to being granted reservation in promotion in view of the bar against reservation in promotion in the Indra Sawhney judgment along with batch of connected matters.

The lead case this time was Siddaraju vs The State Of Karnataka. In the instant case,  a disabled employee of the Karnataka Government approached the Karnataka High Court, seeking the benefit of reservation in promotion. The High Court dismissed his case in March 2016, before the SC judgment in Rajeev Kumar Gupta’s case was pronounced. Siddaraju appealed before the Supreme Court, and on 05 Jan 2017, a two judge bench presided over by Justice Adarsh Kumar Goel referred the matter to a larger (i.e. three judge) bench. Justice Goel’s bench felt that the Government’s contention that reservation in promotion was constitutionally impermissible, according to the 1992 SC judgment in Indra Sawhney’s case, deserved further consideration.

The three judge bench has once again reiterated its stand that Indra Sawhney judgement only applied to reservations under Art 16(4) of Constitution of India in favour of backward classes being a vertical reservation. The reservation in favour of persons with disabilities was covered under Article 16(1) and was a horizontal reservation and did not affect the total 50% ceiling of reservation.

Below is the judgement delivered on 14-15 Jan 2020 in the lead case Siddaraju vs The State Of Karnataka:

Hon'ble Supreme Court of India
Siddaraju vs The State Of Karnataka on 14-15 January, 2020
Author: Rohinton Fali Nariman
Bench: Rohinton Fali Nariman, Aniruddha Bose, V. Ramasubramanian

Monday, September 30, 2019

Court of SCPD expresses displeasure on indifference and arrogant behaviour shown by bureaucrats in implementing RPwD Act 2016 [Judgement Included]

Dear colleagues,

The present case is a classic example of how the siloed approach on the part of the responsible officers at the helm makes it extremely difficult for a statutory authority like the Court of State Commissioner for Persons with Disabilities (SCPD) to perform their statutory functions.  The Hon'ble Court raises concern in its order in the present case on arrogantly irresponsive, indifference and ineffective approach  which as per the court is indeed a matter of grave concern and can have serious consequences for the persons with disabilities as an extremely proactive approach is needed to facilitate implementation of the socially beneficial Act. 

In the instant case, titled as Case No. 324/1101/2018/06/6061-6064  Dated: 24.09.2019 Suo Motu Vs. Commissioner (T&T), Delhi initiated on the complaint of a decorated Air Force veteran named Group Captain Prabal Malakar (Retd.), who is a wheelchair user and happens to be the Honorary Secretary, Multiple Sclerosis Society of India-Delhi Chapter about the problems of accessibility he faces while visiting hotels and cinema halls in the city. While most respondents took immediate action on the advise of the Hon'ble Court, the respondent  The Commissioner (Trade and Taxes), Govt. of NCT of Delhi who deals with the hotels in the city, did not respond even to several record of proceedings. 

Though the Hon'ble Court of SCPD could have easily enforced the attendance of the respondent under Section 82 of the Act or could have taken punitive provision under section 93 of the Rights of Persons with Disabilities Act, it chose to express its displeasure in its order in the following terms: 

"This reminds me of Dr. Naresh Chandra Saxena, former IAS Officer’s recent Book, “What Ails the IAS and Why It Fails to Deliver” in which he describes how the new reforms that are initiated fail to make any impact because most officers resist change and or are indifferent to the poor and the marginalised ones.  In the context of this case and a few others that I have dealt with as the State Commissioner for Persons with Disabilities during the last two and a half years, much of the deprivation of the rights and entitlements of persons with disabilities happens due to inadequate awareness, sensitivity, indifference to their plight and shying away from their responsibility at almost all the levels.  Its preponderance and pervasiveness at higher echelons has most detrimental effect.   

It further goes on to record,  "I am recording my unpleasant experience and the observations in this order with much reluctance and anguish and I am not relishing having to do so. In fact, I am doing so with a heavy heart and under a painful necessity respecting the call of my bounden duty. I feel that I will be failing in my duty if I let go of the lackadaisical approach, apathy and irresponsiveness for as long a period as five months by Commissioner of Excise, Entertainment and Luxury Tax in November 2018 and eight months by the Commissioner of Trade and Taxes in July 2019 only to say that they cannot and would not do anything in the matter coupled with the arrogance on the part of the public authority especially at the helm of affairs. This manifests abdication of obligation and shying away from the responsibility is a matter of serious concern. No effort should be spared to ensure that the credibility quotient of public/govt. authorities is kept at an all-time high if the RPwD Act is to be implemented in letter and spirit."

The Hon'ble Court of SCPD has passed its order as below:
(i) The respondent Department should send out at least a communication to all the Hotels and Restaurants operating in NCT of Delhi and to the President of the Federation of the Hotels and Restaurants Associations of India to ensure accessibility to their premises (built environment) by 15th June, 2022 and provide accessible public facilities and services to persons with disabilities with immediate effect as the date for the same is already over on 15th June, 2019 as mandated in the RPwD Act, 2016 under intimation to the State Commissioner for Persons with Disabilities.  I will of course continue taking up with them as well as with the civic authorities and make appropriate recommendations.
(ii)  I reiterate my recommendation to the worthy Chief Secretary, Govt. of NCT of Delhi that a workshop should be organised urgently for officers at all levels in the NCT of Delhi/Corporations etc. and at regular intervals thereafter to make them aware of  the provisions of the RPwD Act and their obligations under it and review the status of implementation of the provisions of the Act.  Need for such workshops has been brought to my notice by various stakeholders, more particularly by the primary stakeholders based on their bitter experiences and the feedback of the participants of the 9 workshops that this court has organised on the provisions of the RPwD Act and reservation for persons with disabilities in collaboration with UTCS since July 2017.
The respondent is duty bound under Section 81 of the RPwD Act 2016 to inform the court of the action taken on the recommendations made by the court within three months.

Read the Court Judgement in the above Case No. 324/1101/2018/06/6061-6064 Dated: 24.09.2019 here (in Word file)  and here (in PDF file)

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 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.


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.