Tuesday, January 17, 2023

Delhi HC directs Yash Raj Films to make Pathaan movie accessible by providing audio description and subtitles for visually and hearing impaired users.

Court: High Court of Delhi

Bench: Justice Pratibha M Singh

Case No:    W.P.(C) 445/2023

Case Title: Akshat Baldwa & Ors. Vs. Yash Raj Films & Ors. 

Date of Hearing/Order : 16 January, 2023

Next Date of Hearing: 06 April, 2023

Brief:

The Delhi High Court on 16 January 2023 directed Yash Raj Films to prepare audio description, close captioning and subtitles in Hindi language for the OTT release of its upcoming movie Pathaan to make it accessible for hearing and visually impaired persons. The movie is scheduled to be released in theatres on January 25 and will be screened on Amazon Prime later in April.

Justice Prathiba M Singh directed the producer Yash Raj Films to prepare audio description, close captioning and subtitles of the movie within two weeks and submit it to Central Board of Film Certification (CBFC) for a decision on re-certification by February 20. The court directed that a decision on recertification of the film be taken by March 10.

The court was hearing a plea seeking direction to make captions in the movie accessible for visually and hearing impaired persons and sought inclusion of audio description, close captioning and subtitles in the film in consonance with the rights of persons with disabilities.

The plea was moved by various persons with disabilities,  that included  a law student, lawyers and Executive Director of the National Association for the Deaf, seeking enforcement of various rights and accessibility requirements as prescribed under the Rights of Persons with Disabilities Act, 2016 and that the films released in India are not catering to the needs of the disabled. 

Rahul Bajaj, one of the petitioners appearing in person, submitted that while subtitles having been approved by the CBFC, the audio description and the closed captioning have not been made available and that even subtitling has been made only in English language and not in the language of the movie in question which makes it almost impossible for hearing and visually impaired persons to enjoy the film. Directions were also sought on the Ministry of Information and Broadcasting and the Department of Empowerment of Persons with Disabilities in the Ministry of Social Justice & Empowerment to notify required standards in this regard.

Noting that the petition raises “very important issues” as to accessibility of entertainment to the hearing and visually impaired persons, the court said that as per Section 42 of RPwD Act, the government has an obligation to take measures to ensure that all content is available in accessible formats for persons with disabilities.

“In the context of films ... special measures would have to be taken for the hearing and visually impaired persons inasmuch as the experience of watching a film in the movie theatre cannot be denied to such persons,” the court said.

Justice Singh also impleaded the Indian Broadcasting and Digital Foundation, Film Producers Association and Ministry of Electronics an Information Technology as respondents in the matter.

Issuing notice to the respondents, the court said they shall place their stands on or before February 28..

“In the meantime, insofar as the theatrical show exhibition of the film, if the producer wishes to do so, they may contact the app providers to explore the possibility of providing audio description and subtitling to be done for future films,” the court said while listing the matter for hearing on April 6.


Below is the Order dated 16 Jan 2023



Judgement reproduced below:
 
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 16th January, 2023
W.P.(C) 445/2023 & CM APPLs.1752-53/2023
AKSHAT BALDWA & ORS.				..... Petitioners
Through:	Mr. Rahul Bajaj, Petitioner No.2 in person 
				versus

	YASH RAJ FILMS & ORS.				..... Respondents
Through:	Mr. Abhishek Malhotra, and Ms. Shrishti Gupta, Advocates for R-1. 
Mr. Chetan Sharma, ASG with Mr. Ravi Prakash, CGSC, Mr. Farman Ali & Ms. Usha Jamal, Advocates for R-2, 2A and 3 
	
CORAM: JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)

1.  	This hearing has been done through hybrid mode. 

CM APPL. 1753/2023 (for exemption)
2.	Allowed, subject to all just exceptions. Application is disposed of.

W.P.(C) 445/2023 & CM APPL. 1752/2023
3. The present petition has been filed by four Petitioners who are citizens, out of whom, Petitioner Nos.1, 2 and 4 are visually impaired and Petitioner No.3 is hearing impaired. Petitioner No.1 is a law student at National Law School of India University, Bengaluru, Petitioner Nos.2 and 4 are qualified lawyers. Petitioner No.3 is the Joint Secretary & Executive Director of the National Association for the Deaf.

4. The petition has been filed seeking directions against Respondent No.1 - Yash Raj Films, which is the producer of the film ‘Pathaan’, the two Ministries i.e., Respondent No.2 - Ministry of Information and Broadcasting and Respondent No.3 - Department of Empowerment of Persons with Disabilities, as also, the Respondent No.4 - Amazon Seller Services Private Limited, which operates an Over-The-Top (hereinafter, “OTT”) platform namely, Amazon Prime Video, on which the said film is stated to be scheduled for release on 28th April, 2023.

5. The Petitioners seek enforcement of various rights and accessibility requirements, as prescribed under the provisions of the Rights of Persons with Disabilities Act, 2016 (hereinafter, “RPWD Act”). The prayers sought in the present petition are extracted below:

“The Petitioners, therefore, pray that in the facts and circumstances of the present case this Hon'ble Court may be pleased to issue writ of mandamus or any other appropriate writ or direction to:
A. Directing Respondent No. 1 to provide AD and subtitling/captioning for the movie Pathaan, in theatres, Over-the-Top streaming platforms (through Respondent No. 4) and any other media in which the movie is made available;
B. A direction to Respondent No. 2 and 3 to take appropriate steps in effecting the provision for audio description and subtitling/captioning for the movie Pathaan;
C. A Direction to Respondent No. 2 and 3 to promptly notify standards of accessibility for captioning/subtitling and audio description; and 
Pass such other and further orders / directions / writs as this Hon’ble Court may deem fit and proper in the facts and circumstance of the case.”
6. The case of the Petitioners is that, though various rights have been recognized for ‘persons with disabilities’ under the RPWD Act, most films which are released in India are not catering to disabled persons despite the statute having been enacted more than 5-6 years ago.

7.	Mr. Rahul Bajaj, Petitioner No.2 appearing in person, makes the following submissions:
i.	There are various tools that help make films disabled - friendly, but none of them have been implemented in the film ‘Pathaan’.  
ii.	The film ‘Pathaan’ is slated for release in theatres on 25th January, 2023. However, apart from the subtitles having been approved by the Central Board of Film Certification (hereinafter, “CBFC”), the said film does not make available audio description and closed captions. Even the approved subtitles are in the English language, instead of being in the language of the film, i.e., Hindi, and this makes it almost impossible for hearing and visually impaired persons to enjoy the said film.
iii.	The producers of the film ‘Pathaan’ ought to be directed to add the audio description, subtitles, and closed captions, before the release of the said film. 
iv.	The two Ministries, i.e., Respondent Nos.2 and 3, be directed to notify the required standards for accessibility to persons who are hearing and visually impaired. On this aspect, he submits that even though certain guidelines have been issued in the past, the same have not been implemented by the Ministries, and there are no sanctions for non-compliance of the same. Thus, a large number of films do not take the necessary steps to provide these tools which make the films disabled-friendly. 
v.	Reliance is placed upon the judgment of the Supreme Court in Rajive Raturi v. Union of India, [(2018) 2 SCC 413].
vi.	Further reliance is placed upon the judgment of the Supreme Court in Vikash Kumar v. UPSC and Ors., [2021 SCC Online SC 84]. 
8. On a specific query from the Court as to how visually impaired persons are able to enjoy films in a theatre, Mr. Bajaj submits that, in certain foreign countries, the theatres themselves make provisions for headphones to be plugged into the seats in the theatre, through which audio description is relayed in an audio format. However, in India, such facilities are not available in most film theatres. Despite this being the position, persons with visual impairment can enjoy the audio description of the films through certain mobile applications which can be downloaded on a smartphone, so long as the producer has an arrangement with the said mobile applications and provides the requisite audio description of the film to the application. It is submitted that there are two mobile applications available in India, namely, ‘XL Cinema’ and ‘Shazacin’, which provide such facilities for visually impaired persons.

9.	On behalf of the Respondent No.1 - Producer - Yash Raj Films, Mr. Abhishek Malhotra, ld. Counsel makes the following submissions:
i.	The film ‘Pathaan’ has already been approved by the CBFC. At the time of approval, the Producer has already submitted the subtitles for the film in the English language. The Producer has also received the certification for the film, which is slated to be released in theatres on 25th January, 2023. 
ii.	The Producers have entered into an arrangement with the OTT platform - Amazon Prime Video, for the OTT release of the film ‘Pathaan’ which is stated to be scheduled on 28th April, 2023. 
iii.	In principle, the stand of the Producers is that it would be willing to take any reasonable steps which may be required in order to ensure that its films are enjoyed by hearing and visually impaired persons as well. 
10. On behalf of the Respondent Nos.2 and 3 - Ministries, it is pointed by ld. Counsel that the Ministry of Information and Broadcasting has issued certain directions to the Film Producers Association, as also, to the CBFC, way back in October, 2019, to use audio description and subtitles/closed captions in all films. Since he is appearing on advance notice, ld. Counsel wishes to seek instructions as to the actual status of the said directions which have been issued, and the implementation thereof.

11. None appears for Respondent No.4 - Amazon Seller Services Private Limited. Accordingly, issue notice to Respondent No.4 through all permissible modes.

12. Heard. This Court is of the opinion that the present petition raises very important issues as to the accessibility to various modes of entertainment for the hearing and visually impaired persons. A reading of Section 42 of the RPWD Act, 2016 shows that the Government has an obligation to take measures to ensure that all content is available in formats accessible to persons with disabilities. The said provision is set out below:
“42. Access to information and communication technology.—The appropriate Government shall take measures to ensure that,— 
(i) all contents available in audio, print and electronic media are in accessible format; 
(ii) persons with disabilities have access to electronic media by providing audio description, sign language interpretation and close captioning; 
(iii) electronic goods and equipment which are meant for every day use are available in universal design.”
13.	In the context of films, the measures that can be taken by film producers to make them accessible to the hearing and visually impaired persons, are as under:
Audio description - which implies the verbal depiction of key visual elements in media and live productions. This involves description of the visuals on screen to enable imagination by the hearing (read visually) impaired;
Subtitling - which provides a text alternative for the dialogue of video footage – the spoken words of characters, narrators and other vocal participants, in the original language itself, as also, in the dubbed language in case of dubbed movies; and 
Closed Captions - which not only supplement dialogue but other relevant parts of the soundtrack – describing background noises, phones ringing, and other audio cues that need describing, 
These features would be integral to the enjoyment of films for persons with disabilities.

14.	In view of the above, special measures would have to be taken for the hearing and visually impaired persons, inasmuch as the experience of watching a film in a movie theatre cannot be denied to persons with disabilities. This is particularly true in view of the fact that the technology for the same is readily available. As submitted by Mr. Bajaj, several films in the past, such as Dangal, Black, Munna Bhai MBBS, are stated to have incorporated audio descriptions, subtitles and closed captions for the hearing and visually impaired persons. 
15.	Thus, considering the reliefs sought, there are two aspects that would be required to be considered:
i.	Firstly, directions insofar as the film ‘Pathaan’ is concerned, to make the said film comply with the prescribed accessibility standards, to the extent possible; and
ii.	Secondly, an overall solution that has to be found to ensure the implementation of the statutory provisions and other directions, to make films disabled-friendly for the hearing and visually impaired.
16.	The position of law as to the right to accessibility has been reiterated by Justice A.K. Sikri, speaking for the Supreme Court, in Rajive Raturi v. Union of India, [(2018) 2 SCC 413], wherein the Court observed as under:
“12) The vitality of the issue of ‘Accessibility’ vis-a-vis visually disabled persons’ right to life can be gauged clearly by this Court’s judgment in State of Himachal Pradesh & Anr. v. Umed Ram Sharma, where the right to life under Article 21 has been held broad enough to incorporate the right to accessibility. Relevant paragraphs of this judgment have been reproduced below:
“Read in the background of Article 38(2) every person has right under Article 19(1)(d) to move freely throughout the territory of India.  He has also the right under Article 21 to his life which embraces not only physical existence of life but the quality of life and for residents of hilly areas, access to road is access to life itself. Therefore, to the residents of the hilly areas as far as feasible and possible society has constitutional obligation to provide roads for communication in reasonable conditions. Denial of that right would be denial of the life as understood in its richness and fullness by the ambit of the Constitution.
  *    *    *
11. …..
13) Right to dignity, which is ensured in our Constitutional set up for every citizen applies with much more vigour in case of persons suffering from disability and, therefore, 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. In a recent judgment in Jeeja Ghosh v. Union of India, these aspects were highlighted by this Court in the following form:
37.  The rights that are guaranteed to differently-abled persons under the 1995 Act, are founded on the sound principle of human dignity which is the core value of human right and is treated as a significant facet of right to life and liberty. Such a right, now treated as human right of the persons who are disabled, has its roots in Article 21 of the Constitution. Jurisprudentially, three types of models for determining the content of the constitutional value of human dignity are recognised. These are: (i) Theological Models, (ii) Philosophical Models, and (iii) Constitutional Models. Legal scholars were called upon to determine the theological basis of human dignity as a constitutional value and as a constitutional right. Philosophers also came out with their views justifying human dignity as core human value. Legal understanding is influenced by theological and philosophical views, though these two are not identical. Aquinas and Kant discussed the jurisprudential aspects of human dignity based on the aforesaid philosophies. Over a period of time, human dignity has found its way through constitutionalism, whether written or unwritten. Even right to equality is interpreted based on the value of human dignity. Insofar as India is concerned, we are not even required to take shelter under theological or philosophical theories. We have a written Constitution which guarantees human rights that are contained in Part III with the caption “Fundamental Rights”. One such right enshrined in Article 21 is right to life and liberty. Right to life is given a purposeful meaning by this Court to include right to live with dignity. It is the purposive interpretation which has been adopted by this Court to give a content of the right to human dignity as the fulfilment of the constitutional value enshrined in Article 21. Thus, human dignity is a constitutional value and a constitutional goal. What are the dimensions of constitutional value of human dignity? It is beautifully illustrated by Aharon Barak (former Chief Justice of the Supreme Court of Israel) in the following manner:
“The constitutional value of human dignity has a central normative role. Human dignity as a constitutional value is the factor that unites the human rights into one whole. It ensures the normative unity of human rights. This normative unity is expressed in the three ways: first, the value of human dignity serves as a normative basis for constitutional rights set out in the Constitution; second, it serves as an interpretative principle for determining the scope of constitutional rights, including the right to human dignity; third, the value of human dignity has an important role in determining the proportionality of a statute limiting a constitutional right.” 
xxx xxx xxx
40. In international human rights law, equality is founded upon two complementary principles: non-discrimination and reasonable differentiation. The principle of non-discrimination seeks to ensure that all persons can equally enjoy and exercise all their rights and freedoms. Discrimination occurs due to arbitrary denial of opportunities for equal participation. For example, when public facilities and services are set on standards out of the reach of persons with disabilities, it leads to exclusion and denial of rights. Equality not only implies preventing discrimination (example, the protection of individuals against unfavourable treatment by introducing anti-discrimination laws), but goes beyond in remedying discrimination against groups suffering systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation. The move from the patronising and paternalistic approach to persons with disabilities represented by the medical model to viewing them as members of the community with equal rights has also been reflected in the evolution of international standards relating specifically to disabilities, as well as in moves to place the rights of persons with disabilities within the category of universal human rights. (See Report of United Nations Consultative Expert Group Meeting on International Norms and Standards Relating to Disability, 10-2-2001.) 
xxx xxx xxx
43. All these rights conferred upon such persons send an eloquent message that there is no question of sympathising with such persons and extending them medical or other help. What is to be borne in mind is that they are also human beings and they have to grow as normal persons and are to be extended all facilities in this behalf. The subject of the rights of persons with disabilities should be approached from human rights perspective, which recognised that persons with disabilities were entitled to enjoy the full range of internationally guaranteed rights and freedoms without discrimination on the ground of disability. This creates an obligation on the part of the State to take positive measures to ensure that in reality persons with disabilities get enabled to exercise those rights. There should be insistence on the full measure of general human rights guarantees in the case of persons with disabilities, as well as developing specific instruments that refine and give detailed contextual content of those general guarantees. There should be a full recognition of the fact that persons with disability were integral part of the community, equal in dignity and entitled to enjoy the same human rights and freedoms as others. It is a sad commentary that this perception has not sunk in the mind and souls of those who are not concerned with the enforcement of these rights. The persons suffering from mental or physical disability experience and encounter nonpareil form of discrimination. They are not looked down by people. However, they are not accepted in the mainstream either even when people sympathise with them. Most common, their lives are handicapped by social, cultural and attitudinal barriers which hamper their full participation and enjoyment of equal rights and opportunities. This is the worst form of discrimination which the disabled feel as their grievance is that others do not understand them.
xxx xxx xxx
46. It is the common experience of several persons with disabilities that they are unable to lead a full life due to societal barriers and discrimination faced by them in employment, access to public spaces, transportation, etc. Persons with disability are the most neglected lot not only in the society but also in the family. More often they are an object of pity. There are hardly any meaningful attempts to assimilate them in the mainstream of the nation's life. The apathy towards their problems is so pervasive that even the number of disabled persons existing in the country is not well documented.”
17.	Similar is the view taken by Justice D.Y. Chandrachud, speaking for the Supreme Court in Vikash Kumar v. UPSC and Ors., [2021 SCC Online SC 84], wherein the Court held that the State, as also, private parties are mandated to provide reasonable accommodation to persons with disabilities. The relevant extracts of the said judgment are set out below:
“44 The principle of reasonable accommodation captures the positive obligation of the State and private parties to provide additional support to persons with disabilities to facilitate their full and effective participation in society. The concept of reasonable accommodation is developed in section (H) below. For the present, suffice it to say that, for a person with disability, the constitutionally guaranteed fundamental rights to equality, the six freedoms and the right to life under Article 21 will ring hollow if they are not given this additional support that helps make these rights real and meaningful for them. Reasonable accommodation is the instrumentality – are an obligation as a society – to enable the disabled to enjoy the constitutional guarantee of equality and non- discrimination. In this context, it would be apposite to remember Justice R M Lodha’s (as he then was) observation in Sunanda Bhandare Foundation v. Union of India, where he stated:
“9…In the matters of providing relief to those who are differently abled, the approach and attitude of the executive must be liberal and relief oriented and not obstructive or lethargic…
XXX
53.   While most of the obligations under the 2016 RPwD Act are cast upon the government or local authorities, the Act and rules made under it have also imposed certain obligations on the private sector. The role of the private sector in the market has increased manifold since the advent of liberalisation in India. The RPwD Act 2016 recognizes that with the burgeoning role of the private sector in generating employment in India, an active responsibility has to be cast upon private employers to create an inclusive workforce by providing persons with disabilities equal opportunities in the job market. However, the guarantee of equal opportunity must be accompanied by the provision of reasonable accommodation. The Rules framed under the 2016 RPwD Act stipulate that private establishments shall not discriminate against persons with disability on the ground of disability. It is to be noted that the definition of discrimination under Section 2(h) of the 2016 RPwD Act includes denial of reasonable accommodation. Private employers are mandated to frame an equal opportunity policy. Equal opportunity policies for establishments having more than 20 employees are required to include provisions relating to (i) appointment of liaison officers in establishments to look after the recruitment of persons with disabilities and provisions of facilities and amenities for such employees; (ii) identification of posts/vacancies for disabled persons; (iii) provision of additional facilities and benefits such as training facilities, assistive devices, barrier free accessibility, preference in transfer and promotion, allotment of residential accommodation and special leave.  The 2016 RPwD Act further provides that private establishments have to conform with accessibility norms stipulated by the Government with respect to building plans. The 2016 RPwD Act also provides that 5% of the workforce of establishments receiving incentives from the appropriate Government would be comprised of persons having benchmark disability.”
18. A perusal of the above judgments would show that accessibility is crucial and is enforceable as a legal right. Even private parties have to ensure that ‘reasonable accommodation’ measures are taken in order to enable greater accessibility for the hearing and visually impaired persons. Though accessibility in the case of Rajive Raturi (supra) is in the context of access to buildings, transportation etc., accessibility to information, technology and entertainment, is equally important. A hearing or visually impaired person, may get easy physical access to a film theatre but may not be able to enjoy the film at all, if the measures to make it enjoyable are not taken by the other stakeholders, including producers, theatre managers, OTT platforms, etc. The State has an obligation to ensure that all steps, that are reasonably possible, are taken in this direction.
Interim Directions:
19.	Thus, in the interim, it is directed as under:
a.	Insofar as the theatrical release of the film ‘Pathaan’ is concerned, since the said film is slated for release on 25th January, 2023, no directions are being passed. 
b.	However, insofar as the release of the film ‘Pathaan’ on the Respondent No.4’s ‘Amazon’ OTT platform is concerned, the following directions are issued:
i.	The Respondent No.1 - Producer shall prepare the audio description, the subtitles in the Hindi language, as also, the closed captions in both English and Hindi languages, and submit that same to the CBFC for approval, by 20th February, 2023.
ii.	Upon the same being submitted, the CBFC shall consider the re-certification of the film ‘Pathaan’, along with the audio description, the subtitles in the Hindi language, and the closed captions in both English and Hindi languages. 
iii.	CBFC shall take a decision on re-certification of the said film by 10th March, 2023. 
c.	If the Respondent No.1 - Producer wishes to enable greater accessibility for the film ‘Pathaan’, in theatres, it may contact the operators of the mobile applications ‘XL Cinema’ and ‘Shazacin’, or other similar applications, if any, to explore the possibility of providing audio description, subtitles, and closed captions.
d.	Insofar as the issue of having an overall and holistic solution to the questions raised in the present petition is concerned, it is deemed appropriate to implead the Indian Broadcasting and Digital Foundation (IBDF) as Respondent No.5 in the present petition. In addition, the Indian Motion Pictures Producers’ Association (IMPPA) shall also be impleaded in this matter as Respondent No.6.  Issue notice to the newly impleaded Respondent Nos.5 and 6, without payment of process fee, through the following particulars: 
Respondent No.5:
Indian Broadcasting and Digital Foundation (IBDF)
Address: C-301, C-302 & C-303, Ansal Plaza, Third Floor,
Khel Gaon Marg, New Delhi - 110 049, India.
Mobile No.:  +91 11 4379 4400, Email: ibdf@ibdfindia.com 
Respondent No.6:
Indian Motion Pictures Producers’ Association (IMPPA)
Address: G-1 to 7, Crescent Tower, Off New Link Road 
Oshiwara, Nr. Dhiraj Gaurav Heights, Andheri West Mumbai, 
Mumbai City, MH 400053 
Email: indiafilm@gmail.com
Phone No.: 022 62390666 / 022 62390777 / 022 62390888
Mobile No.: 8879031147 / 771507277       
e.	Considering the nature of the reliefs sought in this matter, the Ministry of Electronics and Information Technology (MeitY) is also impleaded as Respondent No.2(a). Mr. Farman Ali, ld. Counsel accepts notice on behalf of Respondent Nos. 2(a) as well. 

20. Let an amended memo of parties be filed on behalf of the Petitioners, within one week. Upon the amended memo of parties being filed, let the Registry serve notice to Respondent Nos.4, 5 and 6.

21. Let a status report be placed on record in respect of the directions issued above and in response to the writ petition, by Mr. Ali, ld. Counsel for Respondent Nos.2, 2(a) and 3, by the next date of hearing.

22. Let the counter affidavit be filed by Respondent No.1 - Yash Raj Films, within four weeks. Upon the service of notice by the Registry, the Respondent Nos.4, 5 and 6 shall also file their counter affidavits placing their stand before this Court, on or before 28th February, 2023. Rejoinders thereto, if any, be filed by the Petitioners, by 15th March, 2023.

23. List on 6th April, 2023, on top of the board in the advance list, for receiving the status report on behalf of the Respondent Nos.2, 2(a) and 3 - Union of India, as also, counter affidavits on behalf of Respondent Nos.1, 4, 5 and 6.

PRATHIBA M. SINGH
     JUDGE
JANUARY 16, 2023




Friday, January 13, 2023

Supreme Court issued notice to Centre on a PIL seeking constitution of District Level Committee for enforcement RPWD Act

Court: Supreme Court of India

Bench: Chief Justice DY Chandrachud and Justice PS Narasimha

Case Title: Seema Girija Lal And Anr. v. Union of India And Ors. 

Case No.: Writ Petition (Civil) Diary No(s). 29329/2021 

Date of Order: 13 Jan 2023

Next Date of Hearing: 17 July 2023

Brief:

A Bench headed by the Chief Justice of India (CJI) issued notice to the Union of India and the Ministry of Social Justice and Empowerment in a plea seeking enforcement of rights of persons with disabilities by constituting District Level Committees for each district to implement the Right of Persons with Disabilities Act 2016 [“RPwD Act”].

The petitioner,  a member of a group called “Together We Can” which is forum for parents, professionals, and other stakeholders working for rights of children with disabilities. 

The petition highlighted that the RPwD Act inter alia recognise the need to have a micro level selfcheck mechanism to ensure the needs of persons with disabilities are met and the Act is properly implemented at the lowest level. Section 72 of the RPwD Act envisages constitution of a ‘District-Level Committee’ [“DLC”] for each district for this purpose. These DLCs are meant to comprise of not just state officials but also respectable members of the local community. DLCs give teeth to the RPwD Act. Having a grassroot-level supervisory body like the DLC in place can be the safest way to ensure enforcement of the provisions of a statute.

The bench in its order stated –

"Petitioner has highlighted that diverse provisions of RPwD Act 2016 haven't been implemented by the States. Petitioners have placed on the record a copy of the fifth meeting of the Central advisory board of disability held on 24 June 2022 under the auspices of the Ministry of social Justice and Empowerment.. The
 minutes of the meeting indicate that as of the date of the meeting -

1. Only 10 states had constituted separate departments for dealing with entitlements of persons dealing with disabilities;
2. Only 12 states have independent commissioners;
3. The States of Andhra Pradesh, Maharashtra and Union Territories of Dadra and Nagar Haveli, Daman and Diu, and Ladakh are yet to notify rules under the statute. They have not constituted the state advisory boards.

The petitioner also submitted that Section 72 of the act which envisaged a District level Committee for each State for the purpose of ensuring that the needs of persons with disabilities are met was yet to be fully implemented. Further, though Section 101(2)(a) empowers the State governments to frame rules regarding the functions of the district level committees, without the formulation of specific rules, the committees would remain ineffective."

Accordingly, the bench issued the following direction –

"We direct that notice shall be issued to Union of India and Ministry of Social Justice and Empowerment. The Ministry shall file counter affidavit within a period of a month. The affidavit shall indicate state wise the implementation. Union of India shall convene a meeting with all concerned states and state advisory boards with a view to eliciting the present status of compliance. We request Ms. Divan, ASG to assist. At this stage we're not issuing notice to state govts. Based on affidavits, we'll decide."

Read the Copy of the order below:

Thursday, December 22, 2022

Supreme Court of India leaves it to MOHFW to Review Chronic Fatigue Syndrome / Rare disease Treatment Policies

Court: Supreme Court of India

Bench: Chief Justice and Justice Pamidighantam Sri Narasimha

Case Title: P. Sreenivasa Chakravarthy Vs. Union of India & Anr.

Case No: Writ Petition Civil........... Diary No(s). 29711/2021

Date of Hearing: 05 Dec 2022


Intoduction

In a significant move addressing the healthcare challenges faced by individuals living with rare diseases, the Supreme Court of India has directed the Ministry of Health and Family Welfare to take a closer look at the policies and treatment protocols for Myalgic Encephalomyelitis/Chronic Fatigue Syndrome (ME/CFS). This directive comes in response to a writ petition filed by P. Sreenivasa Chakravarthy, who invoked the jurisdiction of the Court under Article 32 of the Constitution of India.

Petitioner's Grievance:

The petitioner, P. Sreenivasa Chakravarthy, is a patient diagnosed with Myalgic Encephalomyelitis/Chronic Fatigue Syndrome (ME/CFS), a condition recognized as a neurological disease by the World Health Organization since 1969. Chakravarthy's grievance centers around the lack of concrete steps taken by the government to diagnose and treat ME/CFS despite the existence of a National Policy for Treatment of Rare Diseases, first framed in 2017 and revised in March 2021.

Chakravarthy highlighted the introduction of a digital portal by the Ministry of Health and Family Welfare aimed at crowd funding and voluntary donations for the treatment of rare diseases. However, he argued that such measures have not adequately addressed the specific needs of ME/CFS patients.

Court's Observations and Directions:

The bench, comprising the Chief Justice and Justice Pamidighantam Sri Narasimha, acknowledged the complexity of the issues raised by the petitioner. The Court recognized that the reliefs sought by Chakravarthy would necessitate expert scientific evaluation and policy decisions at the appropriate administrative level.

The Court opined that it would be most appropriate for the Ministry of Health and Family Welfare to examine the grievances presented by the petitioner. The bench suggested that a comprehensive review by experts could lead to informed policy decisions and effective treatment protocols for individuals suffering from ME/CFS.

Next Steps for the Petitioner:

The Supreme Court granted Chakravarthy the liberty to prepare a detailed representation of his grievances and submit it to the Secretary of the Ministry of Health and Family Welfare. The Court emphasized that this representation should include a copy of the Court's order to ensure that the matter is examined expeditiously and thoroughly at the appropriate levels of the government.

Implications of the Judgment:

This directive from the Supreme Court underscores the need for a nuanced and expert-driven approach to healthcare policies, particularly concerning rare diseases like ME/CFS. The Court's decision highlights the importance of scientific and policy expertise in addressing the challenges faced by patients with rare diseases. 

The involvement of the Ministry of Health and Family Welfare and the directive for a comprehensive review could pave the way for more robust and effective healthcare strategies for ME/CFS patients. This move also sets a precedent for future cases where individuals suffering from rare diseases seek judicial intervention to ensure that their healthcare needs are adequately met by the government.

Conclusion:

The Supreme Court's directive to the Ministry of Health and Family Welfare marks a crucial step towards better healthcare policies for rare diseases. By emphasizing the need for expert evaluation and policy-making, the Court has highlighted the importance of a tailored approach to addressing the unique challenges faced by ME/CFS patients. As the petitioner prepares his comprehensive representation, there is hope for more informed and effective treatment protocols for individuals suffering from this debilitating condition.

Tuesday, December 13, 2022

Delhi HC: Right to Life includes Right to Health, Referring to persons with disabilities as 'sub-standard lives' is 'unacceptable terminology', directs IRDAI to act.

Court: High Court of Delhi at New Delhi

Bench: Justice Pratibha M Singh

Case No:  W.P.(C) 6074/2019

Case Title: Saurabh Shukla Vs. Max Bupa Health Insurance Co. Ltd. & Ors.

Date of  Order: 13 December 2022

Next Date of Hearing: 17 March 2023

Brief of the Case:

Observing that the right to life includes the right to health, the Delhi High Court has directed the insurance regulator to call a meeting of all insurance companies to design health insurance schemes for people with disabilities and introduce them preferably within two months.

The court also asked the Insurance Regulatory and Development Authority of India (IRDAI) to take immediate steps to modify the terminology "sub-standard lives" in their regulations to ensure that such "unacceptable terminology" is not used while referring to persons with disabilities.

The court said people with disabilities are entitled to health insurance cover and cannot be discriminated against. The court observed, "It is the settled position in law that the Right to Life includes the right to health and healthcare is an integral part of the same... The Rights of Persons with Disabilities Act 2016 leaves no ambiguity insofar as the entitlement of persons with disabilities for insurance. A perusal of Sections 3, 25 and 26 makes it clear that person with disabilities cannot be discriminated against insofar as healthcare and other connected aspects are concerned" .

"The IRDAI, shall call a meeting of all insurance companies to ensure that the products are designed for persons with disabilities and other persons in terms of the circular dated 2nd June, 2020. The process of designing such products shall be supervised by the IRDAI and it shall be ensured that the said products are introduced on an early date, preferably within two months," she said.

The court's order was passed on a petition by an investment professional Mr Saurabh Shukla, who is a wheelchair due to Tetraplegia that left him paralysed below the chest. Shukla was never hospitalised and two insurance companies refused to give him health insurance that lead to filing of the present case.

The court said the United Nations Convention of the Rights of Persons with Disabilities, 2006 prohibits discrimination against persons with disabilities in the provision of health insurance and that in the present case the rejection of the petitioner's proposal by the insurance companies with cryptic rejection letters was disconcerting.

The court said irrespective of the economic standing of a person with disability, insurance coverage cannot be rejected or refused and asked the insurance providers to consider the case of the petitioner for issuance of a health insurance policy.

"This Court is of the opinion that there is no doubt that persons with disabilities would be entitled to health insurance coverage and products would have to be designed to enable them to obtain health insurance coverage," the court said.

It overserved that even under the regulatory framework insurance companies have to give insurance cover to persons with disabilities, persons with HIV as well as persons affected with mental illness and IRDAI ought to ensure that its circulars and other policies are duly given effect to by the insurance companies.

"The stand of IRDAI before this Court both in the Counter affidavit, Circular and in the oral submissions does not match with the inaction when the issue was brought to its notice. The IRDAI ought to have stepped up and ensured that the insurance companies offer adequate products for persons with disabilities," the court said.

"Refusal to issue a health insurance policy to the Petitioner ought to have been a warning bell to the IRDAI. Unfortunately, despite the above settled legal position and the IRDAI's position on record, there is a disconnect in implementation," it added.

The court has now sought a status report from IRDAI and insurance companies and listed the case for further hearing on March 17, 2023. 

Read the Judgement in PDF below or Download (PDF 844KB).

   


IN  THE  HIGH  COURT  OF  DELHI  AT  NEW  DELHI

Date of Decision: 13th December, 2022

W.P.(C) 6074/2019

SAURABH SHUKLA                                        ..... Petitioner

versus

MAX BUPA HEALTH INSURANCE CO. LTD. AND ORS. ..... Respondent


CORAM:

JUSTICE PRATHIBA M. SINGH

Prathiba M. Singh, J. (Oral)

          

1. This hearing has been done through hybrid mode.

Brief Facts

2. The inherent challenges for persons with disabilities are further exacerbated by institutions which fail to recognise rights of such persons as provided for in law. The present petition raises issues concerning denial of health insurance for persons with disabilities.

3. The present petition has been preferred by Mr. Saurabh Shukla who is suffering from Tetraplegia and paralysis below his chest due to a spinal cord injury which he suffered in 2011.  He is confined to a wheelchair and has limited use of his arms. Despite the injury, he is currently working as an investment professional with a hedge fund and is working from home.  

4. It is the case of the Petitioner that he approached two insurance companies i.e, Max Bupa Health Insurance Co. Ltd. & Oriental Insurance Co. Ltd., for seeking a Mediclaim/Health Insurance. However, both the companies refused to issue any health insurance policy to the Petitioner.  Thereafter, the Petitioner submitted a representation vide an email dated 7th January, 2018 to the Court of the Chief Commissioner for Disabilities. The Dy. Chief Commissioner of the Court of the Chief Commissioner for Disabilities vide letter dated 14th March, 2018 took up the matter with The Chairperson, Insurance Regulatory and Development Authority of India (IRDAI). The relevant extract of the communication addressed to the Chairperson, IRDAI is as follows: 

“2. Section 75 of the Rights of Persons with Disabilities Act, 2016 mandates the Chief Commissioner for Persons with Disabilities on his own motion or on application of any aggrieved person or otherwise to look into the complaints inter-alia, with respect to matters relating to deprivation of rights of persons with disabilities and to take steps to safeguard the rights and facilities made available to them.

3. You are advised to look into the matter and advice the insurance companies to initiate the policies for persons with disabilities. It is ensured that persons with disabilities are not deprived of their legitimate rights. Action taken in the matter may please be sent to this Court within 30 days from the date of receipt of this communication.”  

5. In their reply dated 4th May, 2018, the General Manager (Health), IRDAI simply stated that the regulatory mechanism to enable insurance companies to provide health insurance covering existing disability already exists. However, no positive reply or consideration in regard to the case of the Petitioner for issuance of a health insurance policy was given. The reply concluded with the following extract:

“Therefore, taking into consideration the needs of the targeted market segment, Insurers design the products, which is in their domain. It is essential that the products that the insurance companies design shall be financially viable and seif-sustainable for them to meet the liabilities as and when the claim arises”

Thus, the IRDAI turned a blind eye to the problem and defended the insurance companies.

6. In this factual background, the Petitioner has approached this court with the present petition seeking quashing of the rejection of his Health Insurance application by the insurance companies. Further, he also seeks a writ of mandamus directing the Respondent Insurance companies i.e, Max Bupa Health Insurance Co. Ltd. & Oriental Insurance Co. Ltd. to issue a Health Insurance policy to him.

Application for Health Insurance

7. Today, none appears for Max Bupa Health Insurance Co. Ltd.  Mr. Rajiv Jaiswal, ld. Counsel appears for the Oriental Insurance Co. Ltd. He submits that as per the application form submitted by the Petitioner, he suffers from various medical conditions which are serious in nature. The Petitioner has also truly and diligently filled in his application for issuance of health insurance and self-declared his existing disabilities.  As per the self-declaration form filled by the Petitioner, these conditions include:

(i) Quadriplegia i.e., paralysis of arms and legs 

(ii) Respiratory Distress due to undergoing Tracheostomy following the spinal cord injury

(iii) Stones in Bladder 

(iv) Threat of urinary diseases/infection due to the requirement to use a Foley Catheter                urine drainage

The relevant portion of the Mediclaim Insurance Proposal Form filled by the Petitioner while applying for issuance of Health Insurance Policy from The Oriental Insurance Company Limited, is relied upon. 

8. As per the said form, the Petitioner is confined to a wheelchair and suffers from respiratory diseases.  

9. Upon the application for issuance of a Health Insurance policy being received from the Petitioner, the question of issuing a policy to him was considered at the level of the regional office. However, the request for issuance of a health insurance policy was denied due to adverse medical history as also on the ground that Max Bupa has also refused to issue Health Insurance to the Petitioner. The same was communicated to the Petitioner vide email dated 8th February, 2019.  Ld. Counsel for Oriental Insurance submits that as per the policies of the insurance company whenever a Mediclaim policy is sought, the same is only issued after evaluating the risks involved. He further submits that in the present case, the Petitioner was considered to be not entitled to a Health insurance policy, considering his medical history.

10. As per the record, the Petitioner had also approached Max Bupa Health Insurance Company (hereinafter ‘Max Bupa’) with a request for issuance of Health Insurance Policy. However, in the correspondence with Max Bupa, it has been claimed by the Petitioner that his request was rejected without even looking at his medical records. In response to the contentions raised by the Petitioner, the following response was given by the General Manager, Customer Services, Max Bupa vide emails dated 30th January, 2018 and 5th February, 2018 to the following effect:

“We hope you will appreciate that an underwriter while underwriting is bound by certain conditions as mentioned in Underwriting Policy (filed with the regulator), Underwriting Manuals and SOPs. During the Underwriting process, the underwriter, evaluates each individual's medical history and takes appropriate action based on the severity and prognosis of the condition(s), upon full assessment of facts. The underwriter has to decide whether the proposed insured's declared condition presents a future medical risk and thereby takes a decision on whether to accept the risk, apply exclusions or decline the risk. In case of an unacceptable risk, the insurer cannot issue the policy as requested by the customer.”

Discussion

11. At this stage, the court queried the ld. Counsel for Oriental Insurance Company if any disabled person has been issued a health insurance policy by the said company. Upon this query being raised by the Court Mr. Jaiswal, ld. Counsel submits that he does not have instructions in this regard.

12. On behalf of the IRDAI, Mr. Nag, ld. Counsel relies upon Regulation 8(b) and 8(c) of the Insurance Regulatory and Development Authority of India (Health Insurance) Regulations, 2016 which mandates that health insurance coverage shall be provided to disabled persons. Regulation 8 of the said regulations are extracted below:

“8. Underwriting 

a. All Life Insurers, General Insurers and Health Insurers shall evolve a Health Insurance Underwriting Policy which shall be approved by the Board of the Company. Every Insurer shall also put in place measures for periodical review of the underwriting policy in tune with the changes affecting the medical field and health insurance business.

b. The underwriting policy shall also cover the approach and aspects relating to offering health insurance coverage not only to standard lives but also to sub-standard lives. It shall have in place various objective underwriting parameters to differentiate the various classes of risks being accepted in accordance with the respective risk categorisation. 

c. Any proposal for health insurance may be accepted as proposed or on modified terms or denied wholly based on the Board approved underwriting policy. A denial of a proposal shall be communicated to the prospect in writing, by recording the reasons for denial. Provided, the denial of the coverage shall be the last resort that an insurer may consider.

d. General Insurers and Health Insurers may devise mechanisms or incentives to reward policyholders for early entry, continued renewals (wherever applicable), favourable claims experience, preventive and wellness habits and disclose upfront such mechanism or incentives in the prospectus and the policy document, by complying with the norms specified under Product Filing Procedure Guidelines. Provided that what is proposed to be covered as part of wellness habits and preventive habits be clearly defined in each and every product.

e. The insured shall be informed in writing of any underwriting loading charged over and above the premium as filed and approved under the Product Filing Guidelines and specific consent of the policyholder for such loadings shall be obtained before issuance of a policy.”

13. Ld. Counsel further submits that a recent circular issued by the IRDAI dated 2nd June, 2020 also requires companies to evolve health insurance policies for persons with disabilities, HIV/AIDS and persons affected with mental illness diseases. The said circular reads as: 

“Ref: IRDAI / HLT/ MISC / CIR / 129 / 06 / 2020  

  2nd June, 2020

To, All Insurers (Except ECGC and AIC)

Sub: Disclosure of underwriting philosophy of offering Insurance coverage to Persons with Disability (PWD) and people affected with HIV/AIDS and Mental Illness diseases.

1.    Reference is drawn to the provisions of IRDAI (Health Insurance) Regulations, 2016 in accordance to which every insurer shall evolve a health insurance underwriting policy covering approach and aspects relating to offering health insurance coverage not only to standard lives but also to substandard lives. Further insurance companies shall also comply with various provisions of HIV and AIDS Prevention and Control Act, 2017 and Mental healthcare Act, 2017.

2.  Notwithstanding the above provisions, it is considered essential that the targeted population of every insurer shall have complete information on the philosophy that insurers adopt while complying with the above referred provisions.

 3.     In furtherance to above, all Insurers are instructed to publish on their respective websites the underwriting philosophy and approach with regard to offering insurance coverage to the following category of population:

     a.    Persons with Disabilities ( PWD)

     b.    Persons affected with HIV /AIDS

     c.    Persons affected with Mental Illness diseases.

 4.    All Insurers (Life, General and Health Insurers) are here by directed to comply with the aforesaid instruction by 01st October, 2020.

 5.    This has the approval of the competent authority.”

14. Upon being questioned by the court as to whether IRDAI has received or approved any products for offering health insurance for persons with disabilities, Mr. Nag, ld. Counsel submits that he would require to seek instructions in this regard.  

Observations

15. It is observed that in the counter affidavit, IRDAI has taken a stand that the regulations do not specify that policies could be modified on a case-by-case basis, based on the individual requirements of the person seeking insurance. Upon the denial of an insurance policy the reasons have to be communicated to the person. Paragraph 6 of the Counter Affidavit which refers to Regulation 8(c) of the IRDAI Health Regulations, 2016 clearly states that the denial of health insurance coverage shall be the last resort of the insurer. The relevant extracts of the counter affidavit of IRDAI are set out below:

“2. At the outset, it is important to highlight the standard insurance companies have to meet in order to deny health insurance. Decisions such as the impugned decisions are underpinned on the underwriting policy of each insurance company. It is the practice of all companies to have such a policy, and it is this policy that dictates the instances in which insurance is either issued or denied to an applicant. This policy being a private document, is naturally subject to law. In order to appreciate the legal framework within which these policies operate, it is important to take note of Regulation 8 of the IRDAI (Health Insurance) Regulations, 2016 (hereinafter referred to as the "2016 Regulations") which deals with underwriting policies, and specifically Regulation 8 (c) which is reproduced below for convenience;

"Any proposal for health insurance may be accepted as proposed or on modified terms or denied wholly based on the Board approved underwriting policy. A denial of a proposal shall be communicated to the prospect in writing by recording the reasons for denial. Provided, the denial of the coverage shall be the last resort that the insurer may consider."

  (emphasis supplied)

 3. Evidently therefore, it has been left to the commercial wisdom of insurance companies to determine which risks they are able to undertake in the underwriting policy, and accordingly issue or deny health insurance policies/Crucially however, this freedom has been circumscribed by the proviso which states that denial of a policy can only be the last resort i.e. insurance companies must insure an applicant, if they can. Regulation 8 (c) also mandates the insurance companies to modify their terms if required to meet the needs of a particular applicant. Undoubtedly therefore, the company must evaluate each and every applicant and if it is theoretically possible to issue an insurance policy, the law requires them to do so. The rationale behind such law is evident in that insurance companies are serving an important public function, and they cannot be permitted to take decisions based solely on their own whims or on the principles of profit maximisation. This reasoning becomes even more relevant when their grossly illegal actions are seen in the context of the Petitioner, a disabled person and one who may not meet their expectation of a highly profitable policy holder but one who in fact needs their services the most. Various international conventions, domestic statutes and directive principles of state policy clearly state that India must move towards a society where disabled people are not discriminated against and the summary refusal by the Respondent companies flagrantly violate these principles.

 XXXX XXXX         XXXX

5. In any case, it is submitted that as described above, the only question to be answered while issuing or denying a health insurance policy is to determine whether it is possible to insure the particular applicant. If it is possible, there is a positive obligation on the companies to extend insurance to the applicant. In order to answer this question, it is important to understand the broad contours of the insurance business.

    XXXX XXXX         XXXX

6. Therefore, if at all the Respondent companies' actions can be justified, they can only be done so on the ground that the Petitioner's probability of filing a claim each year is too close to 1. In such a scenario, the Petitioner would be placed in a pool of people all of whom have a probability close to 1, resulting in a situation where each person in the pool is filing a claim each year. This would lead to a situation where there is no cross subsidization possible, since each person in the pool is filing a claim and there is nobody to cross subsidize. Therefore, each person's premium would have to be roughly similar to their payout. Insurance as a concept”

Legal Position

16. It is the settled position in law that the Right to Life includes the right to health and healthcare is an integral part of the same. The Supreme Court in C.E.S.C. Limited and Ors. v. Subhash Chandra Bose and Ors. (1992) 1 SCC 44 has also held that the term health includes medical care and health care facilities. The Court held:

“32. The term health implies more than an absence of sickness. Medical care and health facilities not only protect against sickness but also ensure stable manpower for economic development. Facilities of health and medical care generate devotion and dedication to give the workers' best, physically as well as mentally, in productivity. It enables the worker to enjoy the fruit of his labour, to keep him physically fit and mentally alert for leading a successful, economic, social and cultural life. The medical facilities are, therefore, part of social security and like gilt-edged security, it would yield immediate return in the increased production or at any rate reduce absenteeism on grounds of sickness, etc. health is thus a state of complete physical, mental and social well being and not merely the absence of disease or infirmity. In the light of Articles 22 to 25 of the Universal Declaration of Human Rights, International Convention on Economic, Social and Cultural Rights, and in the light of socio-economic justice assured in our Constitution, right to health is a fundamental human right to workmen the maintenance of health is a most imperative constitutional goal whose realisation requires interaction of many social and economic factors. Just and favourable condition of work implies to ensure safe and healthy working conditions to the workmen. The periodical medical treatment invigorates the health of the workmen and harnesses their human resources...”

17. In W.P.(C) No.10323/2009 titled ‘Vikas Gupta vs. Union of India’ a Division Bench of this Court in a judgment authored by Justice R. S. Endlaw has held that in fact there should be no difference between the insurance premium paid by disabled and non-disabled persons inasmuch as discrimination is itself is prohibited. The relevant portion of the said judgment reads as under:

“4. An affidavit dated 09.02.2010 was thereafter filed by the GM (PLI), Postal Life Insurance Directorate stating that some extra premium was charged from the persons with disability since disabled persons are more prone to accidental risks as compared to non-disabled persons. It was inter alia stated in the said affidavit:-

“5. That as regards the issue of extra premium it is submitted that the Insurance Policy is a contract between the insurer and the insured. It identifies the insured, the insuring company, risks covered, policy period and premium amount. The Insurance Policy is binding on both the insurer and insured. In the insurance business a pool is created through contributions made by persons seeking to protect themselves from common risk. Premium is collected by insurance companies which also act as trustee to the pool. Any loss to the insured in case of happening of an uncertain event is paid out of this pool. It works on the principle of risk sharing. Therefore prejudice would be caused to the normal insured persons in case of any casualty of the disabled persons. As disabled persons are more prone to accidental risks as compared to normal persons and the amount which is to be paid to the family of the deceased would be paid out of the same pool.

6. That the extra premium payable by the disabled person is marginally different from extra premium payable by normal persons as specified in Rule 14 of Post Office Life Insurance Fund. Also in case of LIC insurance, numerical loading of under-writing system is followed.”

xxx

22. It would thus be seen that disability per se cannot be the basis of discrimination in the matter of insurance. This Court is therefore unable to uphold the action of the respondents and/or the provisions of the Rules (supra) which create persons with disabilities class unto themselves. The same undoubtedly is a violation of the Disabilities Act even though not expressly dealing with the matter of insurance. The persons with disability cannot be grouped together for the purpose of insurance. They are to be treated similarly as others/non-disabled persons and just like in the case of non-disabled persons, the insurance risk is assessed on an individual basis, are liable to be similarly assessed; while so assessing, depending upon the risk assured and the risk assessed, premium is to be computed.”

18. Further, in Shikha Nischal v. National Insurance Company Ltd & Anr., 2021 SCC OnLine Del 2577, this Court had the occasion to consider a case involving a person suffering from mental illness and the insurance policies in this respect.  The Court in the said case has observed as under:

“25. The crux of the above provisions, circulars and affidavits clearly is that mental illnesses cannot be treated differently from physical illnesses. Insurance policies also cannot discriminate between these two types of illnesses. The reasons for the non-discriminatory provisions between mental and physical illnesses are not far to seek. While physical illnesses are manifested in the human body in some form, mental illnesses do not always have visible physical manifestations. However, mental illnesses can also be debilitating and destructive. The recent pandemic also highlights this beyond any doubt. Circumstances leading to patients requiring isolation, healthy persons being subjected to lock-downs, work from home conditions, loss of employment leading to lack of confidence for long durations have led to several mental problems. Such mental conditions need to be dealt with immediately. Availability of insurance for mental disabilities or conditions is, therefore, not only important but is an essential need. It is in recognition of the importance of a healthy mental state for a human being that both the Convention and the provisions of the MHA, 2017 discussed above, have been introduced. 

26. No doubt, the basic obligation is that of the insurance company which is also to blame for having not issued the Healthcare Policy in compliance with the applicable provisions of the MHA, 2017. However, the IRDAI’s functions are quite comprehensive and vital under the IRDAI Act, 1999 and if any insurance company is not in compliance with any provisions of the law, the IRDAI cannot turn a blind eye to the same. The IRDAI has a duty to fully supervise and ensure that the provision of the MHA, 2017 are implemented by all the insurance companies for the benefit of the persons who obtain mediclaim policies. This has clearly not happened, as is evident from the facts of the present case.

27. It is clear from a perusal of the provisions of MHA, 2017, as also the provisions of the IRDAI Act, 1999 that immediately upon the MHA, 2017 coming into force, all insurance products ought to have extended the same treatment for mental and physical illnesses and remove any clause that discriminate between the same. The Insurance Ombudsman’s order which holds that the provisions of the MHA are not relevant to the present Petitioner is untenable. The MHA, 2017 has come into effect from May/July, 2018, and thus the exclusion in the Healthcare Policy of NICL with respect to “all psychiatric and psychosomatic disorders/diseases”, under Clause 4.10 as noted above, is contrary to law.”

19. The Rights of Persons with Disabilities Act, 2016 (hereinafter ‘RPwD Act’) leaves no ambiguity insofar as the entitlement of persons with disabilities for insurance.  A perusal of Sections 3, 25 and 26 makes it clear that person with disabilities cannot be discriminated against insofar as healthcare and other connected aspects are concerned.

20. Further, the United Nations Convention of the Rights of Persons with Disabilities, 2006 under Article 25 also prohibits discrimination against persons with disabilities in the provision of health insurance and also requires countries to provide the same in a fair and reasonable manner. Article 25 of the said convention which was ratified by India in 2007 reads as:

“States Parties recognize that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. States Parties shall take all appropriate measures to ensure access for persons with disabilities to health services that are gender-sensitive, including health-related rehabilitation. In particular, States Parties shall:

a. Provide persons with disabilities with the same range, quality and standard of free or affordable health care and programmes as provided to other persons, including in the area of sexual and reproductive health and population-based public health programmes;

b. Provide those health services needed by persons with disabilities specifically because of their disabilities, including early identification and intervention as appropriate, and services designed to minimize and prevent further disabilities, including among children and older persons;

c. Provide these health services as close as possible to people's own communities, including in rural areas;

d. Require health professionals to provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent by, inter alia, raising awareness of the human rights, dignity, autonomy and needs of persons with disabilities through training and the promulgation of ethical standards for public and private health care; 

e. Prohibit discrimination against persons with disabilities in the provision of health insurance, and life insurance where such insurance is permitted by national law, which shall be provided in a fair and reasonable manner; 

f. Prevent discriminatory denial of health care or health services or food and fluids on the basis of disability.”

Analysis

21. The IRDAI is the sector regulator in the insurance industry in India.  Regulation 8 which deals with underwriting reads as under:

“8. Underwriting 

b. The underwriting policy shall also cover the approach and aspects relating to offering health insurance coverage not only to standard lives but also to sub-standard lives. It shall have in place various objective underwriting parameters to differentiate the various classes of risks being accepted in accordance with the respective risk categorisation. 

c. Any proposal for health insurance may be accepted as proposed or on modified terms or denied wholly based on the Board approved underwriting policy. A denial of a proposal shall be communicated to the prospect in writing, by recording the reasons for denial. Provided, the denial of the coverage shall be the last resort that an insurer may consider.”

22. A perusal of the IRDAI regulations above regulation would show that, unfortunately, the terminology sub-standard lives is used in respect of persons with disabilities which is not an acceptable terminology. Even otherwise, Regulation 8(b) and Regulation 8(c) read with the circular dated 2nd June, 2022 clearly provides that insurance companies have to give insurance coverage to the following three categories three categories of persons:

i. Persons with disabilities 

ii. Persons with HIV

iii. Persons affected with mental illness.

23. The IRDAI being the regulator of the sector has important functions to perform under the IRDAI Act of 1999. The IRDAI ought to ensure that its circulars and other policies are duly given effect to by the insurance companies. In the present case, it has been observed the Court of the Chief Commissioner of Disabilities brought the facts of this case to the knowledge of the IRDAI. However, this action also did not yield any positive response from the IRDAI with respect to the case of the Petitioner. The stand of IRDAI before this Court both in the Counter affidavit, Circular and in the oral submissions does not match with the inaction when the issue was brought to its notice. The IRDAI ought to have stepped up and ensured that the insurance companies offer adequate products for persons with disabilities. Refusal to issue a health insurance policy to the Petitioner ought to have been a warning bell to the IRDAI. Unfortunately, despite the above settled legal position and the IRDAI’s position on record, there is a disconnect in implementation.

Conclusion and Directions

24. In the background of this case, the manner in which both the insurance companies have simply rejected the proposal of the Petitioner that too with cryptic rejection letters is disconcerting.  The Petitioner is a person who is working as an investment professional who can afford an insurance policy by paying a reasonable premium. Irrespective of the economic standing of a person with disability, insurance coverage cannot be rejected or refused. 

25. Under these circumstances, this Court is of the opinion that there is no doubt that persons with disabilities would be entitled to health insurance coverage and products would have to be designed to enable them to obtain health insurance coverage.  

26. In view of the above discussion the following directions are issued:

i. The IRDAI, shall call a meeting of all insurance companies to ensure that the products are designed for persons with disabilities and other persons in terms of the circular dated 2nd June, 2020.  The process of designing such products shall be supervised by the IRDAI and it shall be ensured that the said products are introduced on an early date, preferably within two months.  

ii. The Petitioner is permitted to approach Max Bupa Health Insurance Co. Ltd. & Oriental Insurance Co. Ltd., once again. The two insurance providers shall consider the case of the Petitioner for issuance of a health insurance policy and the question of extending insurance to the Petitioner shall be reviewed. A proposal shall be placed on record by the next date of hearing.

iii. Immediate steps shall be taken by the IRDAI to modify the terminology `sub-standard lives’ in their Regulations so as to ensure that such unacceptable terminology is not used in its Regulations or other documents while referring to persons with disabilities.

27. Let a status report be filed on behalf of the IRDAI and the insurance companies at least two weeks before the next date of hearing.

28. List on 17th March, 2023.


PRATHIBA M. SINGH

     JUDGE

DECEMBER 13, 2022/dj/am

2022/DHC/005555

W.P.(C) 6074/2019





Diverse Stakeholders Move Madras High Court in support of Accesssible Low Floor Buses - say, it also helps them - not just the disabled.

Kindly refer to our post dated 22 July 2022,  26 August 2022 on the subject of procurement of low floor accesssible buses in the State of Tamilnadu. Despite the Court directions, the State has been hell bent on arguing in favour of the high floor inaccessible buses that puts a large population of persons with disabilities in the state at a disadvantage and denying them their right to equality when it comes to public transportation. The state has been trying to argue that it would buy some percentage of buses as acessible low floor misinterpreting the Law of the land and citing reasons of floods and high costs of accesssible buses. 

The accessible low floor buses are not just an issue of disabled people alone. It impacts a large number of users of public transport such as women wearing saris, children, women who are family way, people of short stature. In fact, all persons feel safe when an accessible mode of transport is provided.

To support the case of demand for mandatory low floor accessible buses, a woman with mobility impairment on both her lower limbs, a 70-year-old lawyer with 44 years of standing in the Bar, a pregnant college student and a 68-year-old retired entrepreneur have moved Madras High Court through a public interest litigation, in support of a plea to ensure that all intra-city government buses are universally accessible. The PIL plea says that senior citizens, pregnant women and vendors also find it difficult to board the government buses, hencce the state needs to be directed to only purchase accessible low floor buses.

Acting Chief Justice T. Raja and D. Bharatha Chakravarthy on Monday granted time till December 21 for the Transport Department to respond to their petitions for impleading as parties in a public interest litigation (PIL) petition preferred by cross disability rights activist Vaishnavi Jayakumar of Chennai.

The activist had challenged a tender notification issued on October 10 for procuring 1,771 fully built non-AC diesel buses including 1,170 buses with a floor height of 900 mm. She contended that the law permits procurement of only low floor buses (400 mm) or with a maximum floor height of 650 mm with ramps/kneeling system/lifts for entry.

The Transport Department had already filed a counter affidavit stating that it would not be possible to ply only low floor buses in all cities unless and until the allied infrastructure, such as good roads, was fully in place. It also asserted that no law or court order had been violated in the recent tender notification.

However, in her affidavit in support of the impleading petition, P. Kavitha, a differently abled woman, said she was dependent on a pair of crutches and calipers for commuting from one place to another and that it was virtually impossible for her to either board or get down from buses with a floor height of 900 mm.

“The concentrated weight of the calipers on my lower limbs (which is around 4 kgs) makes the process of climbing the high steep steps extremely cumbersome and time consuming. As a result, I am often at the receiving end of my co-passengers’ irritation and impatience vis-à-vis holding up the bus,” she said.

She highlighted that inaccessibility of public transport affects the freedom of movement of persons with locomotor and other disabilities. The tender notification under challenge had been issued in callous disregard of the need for accessible public transport for the differently-abled individuals, she complained.

Advocate Sudha Ramalingam too wanted to implead herself as party in the case on the ground that high floor buses were nightmare to embark and disembark not only for the differently abled but also for the elderly dependent on public transport.

She said women with infants and young kids too find it difficult to access the high floor buses and that the fruit and flower vendors too struggle to get into the buses. Many had suffered injuries on the knees and legs while accessing the buses, she lamented and said, low floor buses were a fundamental requirement and not a luxury.

Similarly, T.S. Santhakumari, a 68-year-old retired entrepreneur, supported her view and said senior citizens with knee pain could not travel in government buses due to the very high floor height. She said that low floor buses would provide the elderly people the confidence and the joy of being able to travel without much difficulty.

Yet another impleading petitioner M.K. Divyadeshna, a 7-month pregnant college student, said, she had to travel from Tiruvallur to Guindy on a daily basis to pursue her studies. Government buses were the only affordable means of travel but the risk in travelling in them, due to their inaccessible nature, was beyond contemplation, she rued.

It is interesting to note as to how the state would cotinue to ignore the needs of a vast section of society misinterpreting the mandate of the accessibility law anchored in the Rights of Persons with Disability Act 2016 and Rules made thereunder.

Related News: The Hindu.  





Monday, December 12, 2022

Delhi HC: Children with Disabilities entitled to basic facilities free of costs that includes, school uniform, books, assistive devices, transportation etc. [Judgement Included]

Court: High Court of Delhi at New Delhi

Bench: Justice Pratibha M Singh

Case No: W.P.(C) 14032/2022

Case Title: Manish Lenka Vs. Union of India & Ors.

Date of  Order: 12 December 2022

Next Date of Hearing: 22 March 2023

Subject: Free Educational Facilties for children with Disabilities

Matter in brief:

Petitioner, a student of Class 6 at a Kendriya Vidyalaya school in Noida, with a visual impairment of over 75 per cent, had moved the high court seeking a grant of books, learning material, and assistive devices along with other facilities provided under the RPWD Act. The boy’s counsel argued the child’s father is a daily wager who is unable to afford his son’s educational requirements.

The child claimed the facilities were not being provided by the school pursuant to which he approached the Court of Chief Commissioner under the RPWD Act. The Chief Commissioner on October 13, 2020, had directed that “books, learning materials, uniforms etc, as well as the facility of scribe/lab assistant” be granted to the student. The student claimed that despite the said order the facilities were not granted to him.

Submitting its status report before the high court, the school argued that all the items as requested had been provided including a scribe during offline exams for the 2021-22 session and the same shall be provided in future as well. However, the child’s counsel argued his client had not been given a waiver of the uniform fee, computer fee, and transportation cost to date.

Perusing the provisions of the Rights of Persons with Disabilities Act (RPWD), 2016, the bench observed, “A perusal of the said provisions show that facilities such as uniform, computer fee and transportation cost are all covered under the statute… These constitute basic facilities for a child… Considering the recognition given to the rights of persons with disabilities, there can be no doubt that these facilities ought to be provided especially at Kendriya Vidyalaya Schools which are government schools present all over the country, in order to ensure that children with disabilities are not deprived of proper education”.

The bench directed the school to provide uniforms free of cost to the student within a period of two weeks and also waived the computer fee. With respect to transportation costs, since the school did not provide it, the child’s counsel was asked on the next date of the hearing to make a submission on the transportation cost incurred by the child for travelling between his home to the school and back.

The bench also directed the Centre to file a status report regarding the measures that are to be taken in regard to the transportation cost and other facilities as directed under the RPWD Act. The Centre was also directed to file a status report on the student’s requirement for an assistive device. The bench added if the child is not provided with the requisite facilities as directed by the court, he would be free to approach the Court by way of an application. 

The matter has been next listedon 22 March 2023.

Read the Judgement here:

Monday, December 5, 2022

Supreme Court of India appoints Committee for Accessibility Audit of Supreme Court Premises on International Day of Persons with Disabilities

05 Dec 2022, New Delhi, India

The Chief Justice of India (CJI) Dr D Y Chandrachud has decided for a comprehensive accessibility audit of the Supreme Court premises, with an aim of ensuring accessibility in the justice system and understanding the hardships faced by the specially-abled persons, in their interface with the Supreme Court.

On the International Day of Persons with Disabilities observed on December 3 every year, the CJI has constituted a "Supreme Court Committee on Accessibility" chaired by a sitting judge of the apex court. The initiative by the CJI is in lines with the World Health Organisation's this year theme "Transformative solutions for inclusive development: the role of innovation in fuelling an accessible and equitable world".

Justice S Ravindra Bhat will be in charge of the “Supreme Court Committee on Accessibility,” which has been tasked with carrying out an extensive accessibility audit of the Supreme Court’s facilities extending to both physical as well as technological accessibility. .

The committee’s member secretary will be an officer from the Supreme Court registry.  In addition, the committee consists of:

  • A Bengaluru-based professor from NLSIU;
  • Supreme Court employee with different abilities;
  • A Supreme Court Bar Association-nominated Differently Abled Advocate;
  • A person suggested by NALSAR University’s Centre for Disability Studies (Mr. Nilesh Singit)

The audit will cover both technology and physical accessibility. A questionnaire for people with disabilities who visit the Supreme Court premises to determine the nature and scope of their issues has also been assigned to the Committee for preparation and distribution. 

The Committee will also solicit input from advocates, litigants, interns, and other members of the Supreme Court. The Committee will prepare a report that will include the audit and survey results and recommendations for removing access barriers.

Friday, December 2, 2022

Court of CCPD holds the SBI's Promotion Policy to grades of SMGS IV and SMGS V (2022-23) as discriminatory to employees with visual disabilities, recommends review.

Court: Court of Chief Commissioner for Persons with Disabilities, New Delhi

Bench/Presided by : Ms. Upma Srivastava, CCPD

Case No:  : 13348/1021/2022

Case Title: Visually lmpaired Bank Employees Welfare Association (VIBEWA) Vs. The Chairman, State Bank of India & Ors.

Date of  Order: 01 December 2022

Brief of the Case:

The petitioner Visually Impaired Bank Employees Welfare Association (VIBEWA) is an association of visually impaired people working in the banking, insurance and other financial sectors in India. VIBEWA is the first association in the country formed exclusively for the empowerment and welfare of visually impaired employees in the banking and other financial sectors. 

VIBEWA challenged the impugned Promotion Policy issued by the State Bank of India on 21 Jan 2022 to the grades of SMGS IV and SMGS V (2022-23) as being discriminatory towards employees with vision disabilities vis-a-vis their non-disabled counterparts. 

On one hand the SBI has exempted employees with disabilities from RUSU (Rural and Semi Urban) assignments as a reasonable accomodation but the impugned promotion policy brings in the marks for mandatory assignments of branch experience, branch manager assignment and credit assignments as a pre-condition for promotion to SMGS IV and SMGSV without giving any suitable alternate to visually impaired employees. The policy under challenge gives a 5% weightage in the form of marks for work experience in branches while arriving at the final merit list for promotions to SMGS IV and SMGS V.  But in reality, no visually impaired officers are posted by SBI to these very assignments as the functions attacehd to these assignments are visual in nature. This means the visually impaired officers will be at mercy of junior  employees to perform a part of that function/task which would put them  in vulnerable situation in which high probabilility of commission of fraud exists. 

Most visually impaired in the officer cadre in SBI are posted in establishments other than branches such as regional offices, credit processing cells, zonal offices, etc., as the jobs in such offices are more suitable for them to be productive.  

However, the weightage in marks for branch experience would put those visually impaired without branch experience at a highly disadvantageous position for no fault of theirs’ and in fact would put them in a position of -5 (minus five marks) at the beginning itself vis-à-vis their non disabled counterparts.  Such a policy would not only put the existing officers due to promotion at a disadvantage but also would force others to get posted in branches where the assignments are not ideally suitable for higher cadres like MMGS III. This will jeopardize their entire career and thus is a ploy to withhold them from equal opportunities of promotion. 

The petitioner avered that the impugned policy acted as a ‘barrier’ leading to ‘discrimination’ on the basis of disability in carrier progression of officers with visual disabilities and defeats the spirit of RPWD Act, DoPT guidelines and SBI’s own equal opportunity policy and would simply mean that a officer with blindness would start with minus five (-5) in the merit list of the promotion vis a vis his non-disabled counterparts.

On enquiry of the Hon'ble court about the procedure which existed before this impugned promotion policy came into effect, the respondent informed that prior to the impugned policy, the requirement of operational assignment was not there.

Petitioner submitted that evidently the visually impaired in the banking sector have proved to be very productive in the jobs relating to marketing, recoveries, digital promotions, Human Resources, training, research, monitoring and follow up etc. and SBI is no exception. In fact, some visually impaired officials have received the highest ratings for their performance in their annual appraisal while competing with officials without disabilities, which means bank itself has recognized them as the best in that particular area of work. Therefore, the respondent bank as a reasonable accommodation should identify assignments/ job roles for visually impaired which they are already successfully performing and count such jobs in place of or equal to the mandatory assignments for the purpose of arriving at final merit list for promotion. And thus VIBEWA prayed before the court seeking directions:-

a.   Exempting visually impaired officials from the marks assigned to branch experience in promotions to SMGS IV and SMGS V in arriving at final merit list, as a reasonable accommodation. 

b.   Exempting visually impaired officials from mandatory assignments in arriving at final merit list for all promotions, similar to exemption from RUSU (Rural and Semi Urban) assignment, as a reasonable accommodation.

c.     To identify roles/ jobs that are performed by visually impaired officials and count the jobs/ work experience of visually impaired officers relating to marketing, recoveries, digital promotions, HR, training, research, monitoring and follow up etc.  as equivalent to the current mandatory assignment introduced by the impugned policy with respect to vision impaired employees, as a reasonable accommodation.

d.   In respect of any visually impaired official who is eligible for promotion to SMGS IV and SMGS V in the promotion year 2022-23, the respondent needs to exclude the mandatory branch manager/credit assignment and reconsider the candidature of such officials for the purpose of arriving at the final merit list. The final merit of such an official be arrived at excluding the marks for branch experience by normalizing their score to 100 by the marks they have scored out of 95.

"The Rights of Persons with Disabilities Act, 2016 provides for equality in employment. lt is certain that intention of the statute is that no policy can be framed which is discriminatory to divyang employees. Such a policy (impunged by VIBEWA) will leave divyang employees with Visual lmpairment in situation where they will either be dependent upon mercy of other employees of whom they are taking assistance of or else it will be impossible for them to perform such functions in individual capacity and hence they will never be considered to promotion to the posts of SMGS-IV and SMGS-V. The impugned promotion policy excludes divyang employees with Visual lmpairment hence, such a policy must be done away with or reasonable accommodation for visually impaired should be provided for in the policy.",  the court concluded.

Accordingly the Hon'ble Court made the following recommendations: -

a) ln case of divyangjan with Visual Impairment similar weightage in marks should be given to them for performing some other functions which they can easily perform in individual capacity and without exposing themselves to unnecessary risk. 

b) Complainant in its reloinder has given list of various posts. Functions associated with such posts can be performed by divyangjan with Visual Impairment in individual capacity. Hence, Respondent is recommended to consider performance of divyang employees with Visual Impairment holding such posts while evaluating them for promotion, instead of considering 'branch experience', 'mandatory branch manager assignment' and 'credit assignment'. 

c) Accordingly, the policy should be reviewed to prevent exclusion and provide reasonable accommodation for giving them equal opportunity in promotion.

Read the Order below: