Karnataka HC issues notice to Centre on a PIL challenging exclusion of disabilities as a variable from National Family Health Survey

Court: Karnataka High Court, Bangaluru

Bench: Hon'ble Chief Justice Mr. Prasanna B. Varale and Hon'ble Justice M.G.S. Kamal 

Case No.:  WP (C) 14180 of 2023

Case Title: Javed Abidi Foundation Vs. Union of India (Min. of Health & Family Welfare)

Date of Order: 04.08.2023

Brief of the case 

The petitioner Javed Abidi Foundation has sought a direction to the Ministry of Health and Family Welfare to include the 21 disabilities mentioned in the schedule to the Rights of Persons with Disabilities Act (RPwD), 2016 as a variable in the household survey questionnaire of the NFHS-6 while pointing out that disabilities was a variable in the NFHS-5.

Quoting various media reports, the petition claimed that the disabilities were excluded from NFHS-6 on the advise of a Technical Advisory Committee citing two reasons - enumerators were not trained nor qualified to ask about and evaluate disability; and enumerating disability as a variable was a time-consuming and laborious process.

The petitioner has argued that the reasons cited to exclude disabilities are unjustifiable in the light of Article 31 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), which states that it the right of persons with disabilities to be part of any data collection exercise and all data about disability should be disaggregated so that persons with disabilities can get the maximum advantage of any schemes and other programmes meant for their welfare. The exclusion also violative of the provisions of the RPwD Act, the petition has complained.

The PIL also disputes the claim of the Union Health Ministry that the disabilities has been already enumerated during the 76th round of the National Sample Survey of 2018 and there would be no change in those figures. The Ministry’s response to petitioner stating that the NFHS-5 contained questions in  the questionnaire on disabilities on the advise of Department of Empowerment of Persons with Disabilities, and the primary focus of NFHS is maternal and child health and other questions with a very shorter version of the question will not be advisable.

The court passed the following order:

"The learned counsel for the petitioner invited our attention to Annexure-P1 and submits that though it is stated by respondent No.5 that it will not be able to collect accurate data on disability in its concurrent form and the primary focus of NFHS is maternal and child health, there are no grounds or reasons forthcoming as to why respondent No.5 is not in a position to collect the data on disability when such an exercise was undertaken by the very respondent in the year 2019.

Issue notice returnable within four weeks.

Sri Madhukar M. Deshpande, the learned counsel accepts notice for respondent No.1."

The PIL has made following prayers in the writ and interim relief:

Writ prayers

a) issue a writ in the nature of certiorari quashing the memorandum dated 14/06/2023 bearing reference number no.y.12011/3/2020-stats at Annexure-M is issued by the 2nd respondent stating unsustainable grounds for exclusion of disability from NFHS 6.

b) issue a writ in the nature of mandamus directing the respondents to include the 21 disabilities mentioned in the schedule to the Rights of Persons with Disabilities Act, 2016 as a variable in the household questionnaire for the national family health survey 6 as per the petitioners and several other representations to the respondents.

c) issue a writ in the nature of mandamus directing the respondents to consider the representations of the petitioner at annexures-d, e, f, k and l and to expeditiously consider his appeal at annexure-q.

d) pass such orders (s) or issue such other writ (s). 

Interim prayer

issue orders to the respondents in the nature of directions to introduce a questionnaire on disabilities by way of addendum that is similar the questionnaire on disabilities introduced in NFHS 5 so as to include all the 21 disabilities mentioned in the schedule to the rights of persons with disabilities act, 2016 as a variable in the household questionnaire for the national family health survey 6.

Delhi HC summons Health Secretary, says it is unfortunate that permanent State Mental Health Authority not constituted till date.

Court: Delhi High Court

Bench: Hon'ble Chief Justice Satish Chandra Sharma and Hon'ble Justice Sanjeev Narula 

Case No: W.P.(C) 6952/2019 & tagged case: W.P.(C) 4468/2021

Case Title:  Amit Sahni Vs. Govt of NCT of Dellhi & Ors  and tagged case- Shreyus Sukhija Vs. Govt. of NCT of Dlehi & Ors.

Act: Mental Healthcare Act 2017

Date of Order: 02 Aug 2023

Next Date of Hearing: 15.09.2023

Brief:

Observing that it is unfortunate that the permanent State Mental Health Authority under Mental Health Act, 2017, has not been constituted till date in the national capital, the Delhi High Court has asked Delhi Government’s Health Secretary to remain present before it on September 15, 2023.

“It is made clear that in case the permanent State Mental Health Authority is constituted as per the requirement of Sections 45 & 46 of the Mental Healthcare Act, 2017, the personal appearance of the Secretary (Health), GNCTD, shall be dispensed with without further reference to the Court,” the division bench said in its order dated 02 Aug 2023.

The bench also directed the Delhi Government to comply with the statutory provisions under the Mental Healthcare Act, 2017 and the Mental Healthcare (State Mental Health Authority) Rules, 2018, including constitution of district mental health authorities.

In November 2022, the court was informed by Delhi government’s counsel that the process for reconstitution of State Mental Health Authority is underway and shall be finalised soon. However, since the same was not done, the court made the above observations.

The court was hearing a public interest litigation filed by Advocate Amit Sahni seeking effective implementation of Mental Healthcare Act, 2017. It is his case that the lack of mental health authorities is adversely affecting the treatment of mentally ill persons.

Another plea tagged with the PIL has been moved by man seeking reconstitution of the State Mental Health Authority and also for setting up of Mental Health Review Boards as provided under the Mental Healthcare Act 2017.

Read the Order below:

Bombay HC threatens contempt proceedings if State didn't provide information about implementation of 5% reservation in land allotmment to persons with disabilities at concessional rates under RPWD Act.

Court: Bombay High Court 

Bench: Hon'ble Justice Gautam Patel and Hon'ble Justice Neela Gokhale

Case No.: Writ Petition No. 583 of 2020

Case Title: Rajendra Petrus Lalzare Vs. State of Maharashtra & Ors.

Date of Order: 31 July 2023

Next Date of Hearing: 21 Aug 2023

Case Brief:

The Bombay High Court has issued a stern warning to the Maharashtra government for its failure to provide a meaningful response to the court's query regarding the implementation of a 5 per cent reservation in land allotment at concessional rates for disabled persons under the Disabilities Act. The court has threatened to initiate contempt proceedings against government officials if a proper reply is not filed.

The bench expressed, "This is the most shameful state of affairs. We are not even on the merits of the Petition, but only on the failure of the Government to furnish a meaningful response."

The case was brought before the bench by petitioner seeking the enforcement of Section 37 (c) of the Rights of Persons with Disabilities Act. This provision mandates that the government should create schemes favoring disabled individuals and allocate 5 per cent reservation in the allotment of land at concessional rates for various purposes, including housing, shelter, occupation, business, and recreation centers.

The petition was filed in 2020, and since then, it has been listed for periodic hearings. However, on every occasion, the government has sought adjournments to submit its affidavit, resulting in delays. In June 2022, an additional government pleader orally informed the court about the government's contemplation of issuing general directions to reserve 5 per cent of land for persons with disabilities. Despite this assurance, the government has not taken the necessary action.

The bench pointed out that the government's response, citing the Maharashtra Land Disposal Rules, did not address the court's specific query. The court emphasised the government's obligation to file a proper affidavit outlining the steps taken under Section 37 (c) of the Disabilities Act.

The bench said, "Now we are making it clear that while we are accommodating the learned AGP on personal grounds, we will not grant further time on the next date under any circumstances. If the Affidavit that is said to be filed in purported or ostensible compliance with orders of this Court does not answer the question of steps taken under Section 37(c) of the Disabilities Act, we are putting all concerned in the Government to notice that we will have no choice but to proceed against those officers, if necessary, in suo moto contempt for disobedience of orders of this Court. If the matter is being stood over by two weeks to accommodate the learned AGP, that time should be better utilised to make amends and to clarify the stand of the Government in accordance with the orders of this Court."

The court has granted the state government a final opportunity to file a meaningful response and set the next hearing for August 21, 2023. If the government fails to comply with this directive, the court warned that it may take suo motu contempt action against the responsible officers for disobeying its orders.

Read the Court Order below:

Delhi HC directs Guru Govind Singh Indraprastha University to provide 5% reservation for persons with disabilities as per RPWD Act 2016.

Court: High Court of Delhi

Bench:  Hon'ble Mr. Chief Justice Satish Chandra Sharma, and Mr. Justice Saurabh Banerjee

Case No.:  W.P.(C) 6605/2023

Case Title: Justice for All  Vs. Govt of NCT of Delhi & Others

Date of Interim order: 17 May 2023 [PDF 1MB]

Date of Judgement: 25 July 2023 [PDF 967KB]

Brief:

Delhi High Court has taken a significant step towards promoting inclusivity and accessibility in educational institutions by instructing the city government and Guru Gobind Singh Indraprastha University to ensure a five percent reservation for specially-abled candidates.

This directive aims to uphold the provisions of the Rights of Persons with Disabilities Act, 2016, and ensure that individuals with disabilities have equal opportunities for education.

The order came in response to a public interest litigation that alleged the respondent university was not adhering to the provisions of the Act.

While the university claimed to have provided a five percent quota for specially-abled candidates in all courses, the court directed the Delhi government and the university to make further efforts to ensure seats designated for specially-abled persons are indeed filled by candidates from all categories of disabilities.

On 17.5.2023, the court passed an interim order directing the university to provide the appropriate reservations for candidates with disabilities in the ongoing academic session. The petitioner, brought attention to the fact that the university was only offering a three percent quota instead of the mandated five percent under the Act. In response, the university filed an affidavit, confirming that it was indeed implementing a five percent reservation for specially-abled individuals.

Access the Judgement dated 25 Jul 2023

Bombay HC- RBI says it is aware of concerns of visually impaired but issueing new banknotes a huge task (Ongoing matter)

Court: Bombay High Court (Mumbai)

Bench: Hon'ble Acting Chief Justice Shri Nitin Jamdar and Mr. Jusitce Shri Arif S. Doctor

Case No.: PIL/13/2019 (Original) [Previous references: WP lodging No. 2038 of 2016, WP No. 2420 of 2017]

Case Title: National Association for the Blind (India) Vs. Reserve Bank of India and 2 Others.

Subject:  Inaccessibility of bank notes and coins to blind and visually impaired.

Date of Order: 19 July 2023

Earlier Order: 28 June 2023

Next Date of Hearing: 11 October 2023

Case Brief:

The Reserve Bank of India in an affidavit tells the the Bombay High Court bench that while it acknowledges the concerns of visually impaired persons regarding identification of currencies, introducing new banknotes was a monumental task that is extremely complicated and time-consuming process extending over a period of 6-7 years and also entails heavy expenditure.

The affidavit was filed in response to a petition by the National Association ofthe Blind (NAB), claiming new currency notes and coins issued by the central bank posed difficulty for visually-impaired people in identifying and distinguishing them.

The affidavit said the process adopted before introducing new series of banknotes involves multiple considerations, including incorporation of visually impaired-friendly features, security, and design features to make them counterfeit deterrent.

"The RBI is aware of and acknowledges the concerns of the visually impaired persons regarding identification of banknotes. The work on the next series of banknotes has been underway since 2017," it said.

"Introducing a new series of banknotes is a monumental task. This has to be thought through carefully because having multiple series of banknotes of different sizes and features of the same denomination would cause more confusion than resolve the problem," the affidavit noted.

The central bank pointed out that the expenditure that would be incurred in introducing a new series of currencies would be high. The affidavit said the annual expenditure towards security printing was pegged at Rs 4,682 crore.

"This annual amount was not for introducing a new series but merely for printing notes to replace old, soiled, damaged notes and to meet the incremental demand of banknotes," it said.

The cost of introducing a new series of banknotes will be much higher and will include expenditure towards adaptation of paper production, printing machines and the entire currency dispensation and processing eco-system to any proposed changes, the document said.

The RBI urged the HC to dismiss the NAB's petition with cost claiming it has taken all necessary steps in studying the grievance highlighted in the plea and was examining the matter with due seriousness.

On Wednesday, NAB advocate Uday Warunjikar sought the court to not dispose of the plea and said the RBI has not made a positive statement in its affidavit.

RBI counsel Venkatesh Dhond said the petitioner has a unipolar thought but the central bank has to consider several points. Dhond sought further time from the HC for the banking regulator to consider the issue. The division bench headed by Acting Chief Justice Jamdar then posted the matter for further hearing after 12 weeks.

The RBI affidavit pointed out that central banks across the world generally change the design of banknotes and introduce new security features once in a decade primarily to make counterfeiting difficult.

The RBI also follows the same policy but the periodicity is not fixed and is dependent upon several factors such as number and quality of counterfeit notes detected, existence of other perceived threats to the security of the national currency and changes in national policies, it said.

The affidavit maintained the last time a series of banknotes were introduced was in 2016 and this was preceded by an elaborate process of consultation among various stakeholders.

"This process included the constitution of a design committee in 2010 comprising field experts to make recommendations on the design/size of the new series of banknotes, including making them sensitive to the requirements of the differently abled persons," it said.

"Considering the needs of the visually impaired persons, features such as intaglio, identification marks, bleed lines and so on have been included in the banknotes in addition to the difference in size of various denominations though the same were reduced from the earlier series to make them aligned with international norms and to make them more wallet friendly," the RBI said.

The process also involves taking feedback from representatives of two national-level associations of visually impaired and to "the extent feasible, their concerns will be factored in the next series of banknotes", said the affidavit.

Read the Order dated 19 July 2023 below:

In a bid to make inspection of digitized court records accessible Delhi HC notifies rules applicable to all district courts and Tribunals under its control

Dear Colleagues,

The Delhi High Court has notified rules providing for electronic inspection of the digitized Court record of the High Court as well District Courts and Tribunal under its control and supervision. This will help litigants, lawyers alike in not only savinv their time and energy but also make it more accesssible to diverse group of users with disabilities.

These Rules shall govern the procedure related to the electronic inspection of the digitized Court record of the High Court as well District Courts and Tribunal under its control and supervision and shall be called “The Delhi High Court Rules for Electronic Inspection of Digitized Court Records, 2023”. The facility of electronic inspection of court record shall be in addition to the existing facility of physical inspection.

Below is the Gazette notification dated 18 July 2023 on the subject:

Supreme Court directs appointment of independent Disability Commissioners in all states by 31 Aug 2023

Court: Supreme Court of India

Bench: Chief Justice of India DY Chandrachud ; Mr. Justice PS Narasimha and Mr. Justice Manoj Misra 

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:  17 Jul 2023 

Previous Order: 13 Jan 2023

Next Date of Hearing: 18 Sep 2023

Brief:

Please refer to the brief write up on the previous order passed by the court dated 13 Jan 2023 in this PIL seeking the formation of district-level committees to enforce the Rights of Persons with Disabilities Act, 2016, when the Hon'ble supreme court was pleased to issue a notice, without even admitting it or the registry allocating it a Writ petition number.  The petition stated that India’s basic infrastructure to meet the needs of its nearly 3 crore persons with disabilities is 'visibly absent', and that the top court should take judicial notice of this concern. 

The bench had then specifically passed the following order:

"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."

During the hearing on 17 July 2023, the Chief Justice expressed the concern that the current state of implementation of the RPWD Act 2016 revealed a distressing situation throughout the country. 

Pertinently, the bench noted that disability commissioners were entrusted with several statutory duties under Section 75 and Section 80G of Act. However, a report before the Court indicated that several States and Union Territories had failed to appoint such independent commissioners as required under Section 79 of the Act. And thus it direted the appointment of such commissioners by August 31, 2023.

The Court further ordered the concerned Union Ministry to coordinated with the relevant ministry of all State governments to file an updated affidavit by September 17. The States were asked to upload relevant details on the dashboard of the Central government.

The matter has now been listed for further hearing on September 18, 2023.

Read the Order dated 17 July 2023 below:

Delhi High Court holds EPFO's action discriminatory in denying typing speed exemption to a candidate with upper limb disability.

Court: Delhi High Court 

Bench: Hon'ble Mr. Justice V. Kameshwar Rao & Honb'le Mr. Justice Anoop Kumar Mendiratta

Case No.: W.P.(C) 9255/2019

Case title: Raju Ranjan Vs. Union of India & Anr.

Date of Decision: 11 July 2023

Brief:

A division bench of the Delhi High Court ruled in favor of an disabled individual's on the issue of exemption from the computer typing test for individuals with upper limb disabilities in a case involving the Employees Provident Fund Organization (EPFO). 

The Court acknowledged that when a clerical position is designated as suitable for individuals with upper limb impairments, it becomes impermissible to subject such individuals to a pre-employment computer typing test. This is because persons with disabilities in their arm or hand may face significant challenges in maintaining the required typing speed. Consequently, such a typing test would be deemed arbitrary and constitutionally impermissible.

As a result of this judgment, the Delhi High Court directed the Employees Provident Fund Organization to grant an exemption to a candidate with a disability in one arm from the computer skill test for the position of Social Security Assistant. The candidate's employment eligibility would be determined solely based on their performance in the written examination.

The petitioner, who has a 40% Locomotor Disability affecting one arm, argued that the EPFO failed to appreciate the nature of their disability, despite presenting an Exemption Certificate issued by the Competent Authority.

It was observed that the EPFO had identified the Social Security Assistant position as suitable for individuals with one arm disabilities, thereby fulfilling their legal obligation under the 1995 Act. However, the recruitment rules for this position required a typing speed of at least 5000 Key Depressions Per Hour (KDPH) for data entry work. This requirement was deemed arbitrary and discriminatory toward individuals with physical handicaps, particularly those with one arm affected, as it would be virtually impossible for them to achieve this typing speed.

The only logical application of the job advertisement would have been to grant an exemption to physically handicapped individuals with one arm affected. Regrettably, this was not done, and the EPFO did not prescribe relaxed standards for candidates with such disabilities. The petitioner, for instance, was able to achieve a typing speed of only 1935 KDPH.

The petitioner argued that the EPFO's conduct revealed that they had identified the position as a mere formality to show compliance with legal provisions, rather than a genuine intention to extend the benefits of the Act to potential beneficiaries.

Furthermore, the EPFO's actions were found to be arbitrary and discriminatory. Internally, the EPFO had granted an exemption from the computer skill test to all physically challenged Lower Division Clerks (LDCs) for their promotion or absorption into the Social Security Assistant position, even if the disability affected both hands or had an impact on computer operations. 

Access the Judgement here:

Karnataka HC- During the exam, facility of Scribe and Option of objective type questions can be availed by other disabilities too, not just by candidates with hearing impairment.

Court: Karnataka High Court, India

Bench: The Hon'ble Mr. Prasanna B. Varale, Chief Justice and The Hon'ble Mr. Justice M.G.S. Kamal

Case No: Writ Appeal No. 722 OF 2023 

Case Title: Karnataka State Law University Vs.  Krishna

Date of Judgement: 10-07-2023

Brief:

The Karnataka High Court dismissed an appeal filed by the Karnataka State Law University challenging a single bench order directing it to conduct III Semester exam for a differently abled Law student, by providing objective type of questions instead of descriptive type of questions.

It said that the overall object of the MSJE Exam Guidelines for persons with disabilities  needs to be appreciated which is providing opportunity for all to participate in the mainstream education system and that there is no stringent distinction based on the nature of disability in Exam Guidelines for alternative objective exam for students with disabilities.

Krishna, having 46% overall impairment affecting both brain and eyes, is pursuing his five years integrated law degree at Vaikunta Baliga Law College. Since he was unable to write by hand as such for the I Semester exam he utilized the facility of scribe. He was, however, informed by the college that unless permission was granted by the University, it cannot permit him to take the help of a scribe for examinations in future.

Accordingly, he made a representation to the appellant-University requesting for objective questions instead of descriptive questions and to utilize the help of a scribe in view of his disability. However, no action was taken on the representation constraining him to file a writ petition before the High Court.

The Court disposed of his petition while directing the University to consider the grievance and pass appropriate orders. Following which the University partly allowed the representation and rejected the request to provide objective questions instead of descriptive questions.

Thus the student again approached the Court which took note of the relevant guidelines issued by the Ministry of Social Justice and Empowerment, Department of Empowerment of Persons with Disabilities (Divyangjan) making provision for providing objective questions instead of descriptive questions to the disabled students. Court declined to accept the contention of the appellant-University that the provision is applicable only to the students having hearing impairment.

It held, “Section 2(r) of the Rights of Persons with Disabilities Act, 2016 `persons with bench mark disability’ means person with not less than 40% of specified disability, where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms as certified by the certifying authority."

Further, it directed the University to subject the student to medical examination by Chief Medical Officer/Civil Surgeon/Medical Superintendent of the Government Health Care Institution and if it is certified that the respondent is suffering from low vision to the extent of 40% or more, provide objective questions instead of descriptive questions.

The University in appeal argued that as per the guidelines, alternative objective questions can be provided only for those students who are are person with hearing impairment and not to persons  from any other disabilities. In the instant case since the student is not a person with hearing impairment but with a visual impairment and mental retardation, it contended that the benefit of the aforesaid provision cannot be extended. It was also submitted that since the student is suffering from mental retardation, objective questions which requires reasoning and intellectual skill cannot be provided.

A division bench said, “The overall object of the guidelines needs to be appreciated which is providing opportunity for all to participate in the mainstream education system. There cannot be any strict and stringent distinction on the basis of the nature of ailment. The purpose is to facilitate the specially abled persons to participate in the examination within the limits provided under the guidelines subject to required compliance in the nature of obtaining certificates from the competent authorities"

It added “Viewed from the said object, learned Single Judge taking note of the provisions describing persons with disability as provided under Section 2(r) of the Rights of Persons with Disabilities Act, 2016 has directed the appellant-University to subject the respondent for medical examination by Chief Medical Officer/Civil Surgeon/Medical Superintendent of the Government Health Care Institution and only if it is certified that the respondent is suffering from low vision to the extent of 40% or more, to provide objective questions instead of descriptive questions to the respondent in the ensuing examination.”

Accordingly the bench dismissed the appeal filed by the Karnataka State Law University. Read the Judgement below:

Kerala HC- Invokes parens patriae, directs district administration and local institution to handover the daughter with autism to mother

Court: Kerala High Court, India

Bench: Honourable Mr. Justice P.B.Suresh Kumar & the honourable Mrs. Justice C.S. Sudha

Case Title: Santha Kumari v. State of Kerala & Ors. 

Case Number: WP(CRL.) NO. 296 OF 2023

Date of Judgement: 10 July 2023

Act Referred: National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999

Brief:

No one else can give to the ward all that a mother can give to her, said the Kerala High Court while uniting a differently abled child with her mother.

Invoking parens patriae jurisdiction to ensure that the child is not left "at the mercy of others, a Division Bench of Kerala HC, ordered the girl child with autism be united with her mother instead of being in an institution after the death of father.

The crux of the case is that the petitioner-mother was living separately from her husband after the birth of the child in question. The child resided with the father who obtained an order under Section 14 of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (hereinafter, 'Act, 1999'), appointing him as the guardian of the ward and his second wife (6th respondent) as the alternative guardian.

After his death, the petitioner sought the child's custody who was meanwhile handed over to the Grace Home Charitable Society (5th respondent) by the local authorities. The 5th respondent insisted on concurrence of the District Administration and the Gram Panchayat however, the same was refused. Hence this petition was filed.

Court observed that Section 14 does not affect in any manner, the rights of the parents of persons with disability to take care of their dependent children with disabilities, if they are not otherwise disqualified. The Court thus directed the petitioner to submit an affidavit as to whether she would be in a position to care for the ward. Ultimately, finding the petitioner fit, the Court ordered that the child be handed over to her.

Read the Judgement below: