Supreme Court: Citing Reasonable Accommodation provisions, bench directs a person with defective colour vision to be appointed as Assistant Engineer Electrical

Court: Supreme Court of India

Bench: Hon'ble Mr. Justice S. Ravindra Bhat and Hon'ble Mr. Justice Aravind Kumar

Case No.: Civil Appeal No. 6785 of 2023 [@ Special Leave Petition (Civil) No. 12671 of 2022]

Case Title: Mohamed Ibrahim Vs. The Chairman & Managing Director & Ors.

Date of Judgement: 16 October 2023

Brief:

The Supreme Court granted relief to the appellant - a person with colour blindness - who was denied appointment to the post of Assistant Engineer applying the principle of "reasonable accommodation" as defined in the RPwD Act. Incidently, colour blindness is not an identified or defined disability in the schedule to the Act.

The Court highlighted that the provisions of the RPwD Act are specifically designed to foster the participation and empowerment of Persons with Disabilities (PwDs). However, it expressed its concern that the benefits arising from affirmative action are confined to a specific category of PwDs, including those with orthopedic, visual, hearing, and mental disabilities, among others covered in the schedule to the Act. These benefits are intricately linked to the concept of "benchmark" disabilities, which grants affirmative action and similar benefits to PwDs who meet a defined threshold of disability, typically 40 percent or more. This distinction based on specified categories and threshold conditions, as per the topc court, creates substantial barriers.

It bench observed, “The actual benefits in the form of affirmative action are defined by a specific category of PwDs (orthopaedical, visual, hearing, mental, etc.) and tied to the context of “benchmark” disabilities, which entitles those PwDs who qualify with a certain threshold of disability (40 percent or more) to the affirmative action and other similar benefits. The nature of inclusion of specified categories only to the exclusion of other categories of disabilities, on the one hand, and the eligibility of a threshold, in the opinion of this court, constitute barriers.”

"The twin conditions of falling within defined categories, and also a threshold condition of a minimum percentage, of such disabilities, in fact are a barrier," opined the court. The Court emphasized the necessity of a more rational and inclusive approach to accommodate individuals who may not it into the established categories of PwDs in the schedule to the Act.

“The facts of this case demonstrate that the appellant is fit, in all senses of the term, to discharge the duties attached to the post he applied and was selected for. Yet, he is denied the position, for being “disabled” as he is color blind. At the same time, he does not fit the category of PwD under the lexicon of the universe contained within the Act. These challenge traditional understandings of what constitutes “disabilities”. The court has to, therefore, travel beyond the provisions of the Act and discern a principle that can be rationally applied.”

The bench was hearing an appeal against the Madras HC judgment which had ruled in favour of the respondent(TANGEDCO) asserting its right to reject the appellant's candidature on the grounds of colour blindness. The case revolved around a job application for the position of Assistant Engineer (Electrical) by the appellant. The appellant, who was initially considered qualified for the role, was subsequently found to be color blind during a medical examination. This raised concerns about his ability to fulfill the responsibilities of an engineer, which frequently involve working with color-coded power cables and wires.

As a result of these concerns, TANGEDCO rejected the appellant's candidature. The appellant challenged this decision under Article 226 of the Constitution, and the Madras High Court initially ruled in his favor, directing TANGEDCO to offer him the position. However, in appeal before the division bench, the decision highlighted the evolving doctrine of proportionality, indicating that TANGEDCO's decision had a reasonable basis, even by this modern standard. Consequently, the division bench's judgment reversed the previous order, leading the appellant to seek redress from the Supreme Court. 

The SC bench noted that respondent TANGEDCO had not explicitly indicated that colour vision deficiency, in any form or degree, serves as a disqualifying factor for the role of an Assistant Engineer. It emphasized that the appellant, being a graduate in electrical engineering, possessed knowledge and experience related to the role's functions. Additionally, practical experience during the course exposed the candidate to equipment defects and solutions for breakdowns. Thus, the SC bench established the need for some form of accommodation.

The Court relied on Jeeja Ghosh v. Union of India (2016) 4 SCR 638 to highlight that when public facilities and services are designed with standards inaccessible to persons with disabilities, it results in their exclusion and a denial of rights. The concept of equality goes beyond merely preventing discrimination; it involves addressing systematic discrimination through positive rights, affirmative action, and reasonable accommodation.

The Court also cited the case of Ravinder Kumar Dhariwal v. Union of India  2021 (13) SCR 823, which distinguishes between formal equality and substantive equality. Substantive equality aims to achieve equal outcomes, and the principle of reasonable accommodation plays a critical role in this.

The Court observed that reasonable accommodation entails accommodating disabled individuals based on their capacities. It also relied on Vikash Kumar v. Union Public Service Commission  2021 (12) SCR 311, which held “The principle of reasonable accommodation acknowledges that if disability” should be remedied and opportunities are “to be affirmatively created for facilitating the development of the disabled. Reasonable accommodation is founded in the norm of inclusion. Exclusion results in the negation of individual dignity and worth or they can choose the route of reasonable accommodation, where each individual's dignity and worth is respected.”

The court also cited Ashutosh Kumar v. Film and Television Institute of India (2022),  where the Supreme Court directed the FTII to accommodate students with colour blindness saying, "The respondent institute is a premier institute and one would expect it to encourage liberate thought process and not put courses connected with films in any conformist box".

While  acknowledging the resondent's concerns about colour vision impairment, the Court reminded the TANGEDCO of its obligation to operate within the framework of "reasonable accommodation" as defined by Section 2(y) of the RPwD Act. Resultantly, the court set aside the impugned judgement of the Division bench of Madras High Court saying, “The impugned judgment cannot stand; it is set aside. TANGEDCO, the respondent corporation, is directed to appoint and continue the appellant in its service, as AE (Electrical) at the appropriate stage of the grade of pay,”.

During the hearing, the Court learnt that a member of the bar, Mr. Mehmoud Yumar Faruqi had life experiences of colour blindness -as someone living with a condition of colour blindness and had collected considerable case law and literature. The court had, therefore, requested his assistance for the proceedings. The court expressed its gratitude for his assistance.  

Access the judgement below:

Delhi HC holds KVS recruitment advertisement as unsustainable for denying reservation to blind persons

Court: Delhi High Court

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

Caste No: W.P.(C) 9520/2018 

Title: National Federation of Blind Vs. Kendriya Vidyalaya Sangathan & Others

Date of Judgement: 16 October 2023

Neutral Citation: 2023: DHC: 7551-DB

Brief:

The Delhi high court termed a recruitment advertisement issued by Kendriya Vidyalaya Sangathan (KVS) as unsustainable as it excluded reservation for blind persons from the post of principal in a judgement dated 16 Oct 2023.

The court said that every act of exclusion that has the effect of compelling a person with disabilities out of a race for gaining employment without their fault is an assault on their dignity . 

A bench opined that the advertisement issued by the KVS in August 2018 for the posts of principal, vice-principal, PGTs, TGTs, librarian distinguished PwDs and had the effect of excluding them from the race of recruitment as the distinction was purely on the basis of disability.

“The impugned advertisement distinguishes the persons with disabilities from others and puts a restriction on their potential to participate in the recruitment process to their full ability. The distinction is purely on the basis of disability. The advertisement has the effect of excluding the persons with disabilities from the race of recruitment, in complete violation of the mandatory reservation provision. It may be noted that an act of discrimination is not only a denial of the promise of equal protection before the law. Rather, every act of exclusion is an assault on the dignity of a person. More so, when the exclusion has the effect of compelling the persons with disabilities out of a race for gaining employment, without any fault of theirs. Instead of providing an equal space to grow, we have been compelling the persons with disabilities to prove, time and again, that they are capable of a lot more than we think,” said the bench in its verdict.

The court also said, “We may usefully note that the power of identification of posts is bound by a procedure, which, amongst other things, involves consultation with experts including persons with disabilities. The persons with disabilities are the direct stakeholders in this exercise and the legislature has aptly carved out a provision for a consultative exercise with such persons. It is a manifestation of the principles of natural justice and there can be no deviation from the statutory procedure. Exclusion of a post, without engaging in a consultative exercise, shall also be violative of the principles of natural justice.”

The bench also opined that the Sangathan at the stage of recruitment and advertisement of vacancies was duty bound to reserve 4 % of the total number of vacancies, inclusive of vacancies against identified as well as unidentified posts.

The court cautioned that it was impermissible to exclude subjects which cannot be taught by PwDs at the time of reservation of vacancies.

“Once recruited, appointments can be made against the posts identified as suitable for respective categories of persons with disabilities. There is no power with the respondent or its committee to revisit and cut short the list notified by the government. The process of identification or its review is to be carried out by the appropriate government only. Further, the said exercise is to be carried out after constitution of an expert committee with due representation of persons with benchmark disabilities,” said the court directing the KVS to reserve the post of principal for blind persons, conduct an audit of the total number of vacancies in the establishment and prepare a vacancy based roster for recruitment of PwDs within three months.

“The rights belonging to the persons with disabilities are meant to secure inclusivity and human dignity. Such rights, although statutorily enacted, find their roots in the fundamental rights of life, equality and non-discrimination, as enshrined in the Constitution. The guarantee of equal opportunity to all equally extends to the persons with disabilities and while interpreting the benevolent provisions of the statutes in this regard, the court must be mindful of the same,” the court also said.

Read the Judgement in W.P.(C) 9520/2018 below:

Bombay HC directs Police Cop to compensate an NDA Professor for a false probe against him for alleged fake disabilty certificate

Court: Bombay High Court

Bench: Hon'ble Justice Nitin W. Sambre & Hon'ble Justice R.N. Laddha

Case No. – Writ Petition No. 1124 of 2018 

Case Title – Dr. Kamal Chandra Tiwari v. State of Maharashtra & Anr.

Date of Judgement: 04 Aug 2023

Cited as: 2023:BHC-AS:29209-DB

Case brief:

Slamming a police officer for falsely implicating a disabled professsor of the National Defence Academy (NDA) by carrying out a false investigation for a genuine disability certificate, a division bench of the Bombay High Court has quashed and set aside the FIR and consequential proceedings against the staffer and ordered compensation of Rs. 25,000 to be paid to one Dr. Kamal Chandra Tiwari, an Assistant Professor at the National Defence Academy, Pune falsely prosecuted for producing fake disability certificates.

The court ordered a compensation of Rs 25,000 to be paid to the employee, to be recovered from the salary of the investigation officer. The officer had ignored communication from the hospital verifying the employee's disability certificate. The employee's advocate stated that the officer's actions were vindictive.

“Such an act of the investigating officer (IO)... can be termed as causing mental agony, lowering down dignity and ill-treating the petitioner, an academician (sic),” said Justices Nitin Sambre and R N Laddha in the August 4 order released on Thursday.

They awarded compensation of Rs 25,000 to Kamal Tiwari and directed it to be paid to the Maharashtra State Legal Services Authority within six months. The state will recover the amount from the salary of the IO, Anand Pagare, who is currently posted as inspector at Police Training Centre, Daund.

The NDA had sent Tiwari’s 41% disability certificate issued by Sassoon Hospital, Pune, on December 1, 2012, to the facility for verification. The hospital said it couldn’t trace the original record, prompting the NDA to lodge a police complaint in May 2016 that Tiwari, who had joined as assistant professor (sociology), had produced a forged certificate. Tiwari was booked under Sections 420 (cheating), 467 (forgery), 468 (forgery for purpose of cheating), and 471 (using as genuine a forged document) of the IPC.

In September 2016, the hospital wrote to the IO Pagare that the original record had been traced.  The investigating officer Pagare intentionally and deliberately overlooked the same and purely with an intention to initiate malafide prosecution has charge-sheeted the petitioner in July 2017. 

In June, the judges issued a contempt notice to IO Pagare after he “intentionally” ignored their query on whether he had looked into the record. In his reply, Pagare said he had recorded the statements of two doctors who denied signing the certificate. He said it was his first posting. The judges said he was expected to verify the certificate’s genuineness.

Tiwari’s advocate Jagdish Reddy said he suffered because of Pagare’s vindictive attitude. Pagare’s advocate Satyavrat Joshi said he regrets the bonafide mistake and tenders his unconditional apology to the court and to Tiwari.

"Such act of the Investigating Officer, in our opinion, can be termed as causing mental agony, lowering down dignity and ill-treating the petitioner, an academician. The prosecution initiated by the said officer can be termed as malicious which has not only caused harassment to the petitioner but also immeasurable anguish. The fact that the petitioner, a handicap person is an academician having good repute an employee of National Defence Academy, Pune and the acts done with clandestine manner by the Investigating Officer, in our opinion, warrant award of compensation as has been prayed by him. Counsel for the petitioner magnanimously stated that he is not interested in the amount of compensation which can be made over to the Legal Services Authority, however, the Investigating Officer should realize his mistake which should be pinching for bias and malafide criminal prosecution against the petitioner. In the backdrop of aforesaid observations, we deem it appropriate to award compensation of Rs.25,000/- by Mr.Anand Pagare, Investigating Officer to be paid to the Maharashtra State Legal Services Authority within period of six months from today." observed the bench.

The bench discharged the contempt notice with the following obervations:

"As far as contempt notice is concerned, we hereby warn the investigating officer Mr Anand Pagare, Police Inspector presently attached to Police Training Centre, Nanvij Daud, Pune to be more diligent in carrying out his duty as a police officer. With above warning, we discharge the contempt notice."

Read the Order:

Supreme Court seeks Centre's resonse to a plea which sougth quanum of assistance to PwDs 25% higher than those given to others as per section 24(1)

A bench headed by CJI Chandrachud issued notice to the Centre seeking its response on the petition filed by Delhi-based organisation 'Bhumika Trust' and posted the matter for hearing after four weeks

The Supreme Court today asked the Centre to respond to a plea which sought that quantum of assistance to persons with disabilities should be 25 per cent higher than those given to others under similar social welfare schemes.

A bench headed by Chief Justice D Y Chandrachud issued notice to the Centre seeking its response on the petition filed by Delhi-based organisation 'Bhumika Trust' and posted the matter for hearing after four weeks.

The bench, also comprising Justices J B Pardiwala and Manoj Misra, requested Additional Solicitor General Aishwarya Bhati to assist the apex court in the matter.

The top court noted the petitioner has relied on the proviso to section 24 (1) of the Rights of Persons with Disabilities Act, 2016.

Section 24 of the 2016 Act deals with social security and section 24 (1) says, "The appropriate government shall within the limit of its economic capacity and development formulate necessary schemes and programmes to safeguard and promote the right of persons with disabilities for adequate standard of living to enable them to live independently or in the community: provided that the quantum of assistance to the persons with disabilities under such schemes and programmes shall be at least 25 per cent higher than the similar schemes applicable to others." Jayant Singh Raghav, president of the organisation, told the bench that proviso to section 24 (1) of the Act provides that quantum to be provided to the persons with disabilities needs to be 25 per cent additional to the others under similar social welfare schemes.

"Which are the schemes in respect of which you are claiming a 25 per cent enhancement," the bench asked.

Raghav referred to the disability pension given by different states.

"Presently, instead of issuing notice to all the states, we will issue notice only to the Union of India and we will then see what the Union Government has to say," the bench said.

Source: Unedited stroy from syndicate feeds

Accessibility in residential societies remains a matter of concern; petitioner, a blind person litigates to seek justice.

Court: Delhi High Court 

Bench: Hon'ble Justice V. KAMESWAR RAO,  Hon'ble Justice ANOOP KUMAR MENDIRATTA

Case No.: WP (Civil) No. 7642/2022

Case Title: Jayant Singh Raghav v Vice Chairman, Delhi Development Authority, & Ors.

Next Date of Hearing: 06/10/2023

Case Brief:

The petitioner Jayant Singh Raghav, is a person with a disability has raised this litigation alleging rights infringement of individuals with disabilities in accessing suitable facilities within residential communities against the Chandanwari Society (a residential housing society) with Delhi Development Authority (DDA) as the resondents. 

The petitioner emphasizes what he perceives as a violation of the rights of persons with disabilities to access appropriate facilities within residential communities. He contends that the environment lacks provisions tailored to his specific needs, obstructs equal opportunities, and disrupts harmonious communal living.

In response, the Chandanwari Society, represented by the respondents, counters these claims by asserting their consistent efforts to ensure unimpeded accessibility for the petitioner. The Society argues that it has taken substantial measures to establish a barrier-free environment within the apartment complex.

Before approaching the high court, petitioner had lodged a complaint with the State Commissioner for Persons with Disabilities, Government of NCT of Delhi, citing the society's perceived inaction. The complaint pointed out a violation of Rule-15 of the Rights of Persons with Disabilities Rule, 2017. A subsequent directive highlighted shortcomings and mandated rectifications. However, the complaint was closed without comprehensive justification by passing an order.

Unsatisfied with the complaint's closure, the petitioner turned to the Hon’ble Delhi High Court, filing a writ petition under Article 226 of the Constitution of India. The grounds for the petition include alleged breaches of fundamental rights under Article 14, 19, and 21 of the Constitution. The petitioner also raised concerns about non-compliance with the "Harmonized Guidelines and Space Standards for Barrier-free Built Environment for Persons with Disabilities and Elderly Persons" 2016.

Differing viewpoints emerged regarding the application of the Unified Bye-Laws where the petitioner contends that the society's layout and infrastructure do not conform to the Unified Bye-Laws, 2016. However, the respondents assert that the apartment complex was constructed under the Unified Bye-Laws, 1983, making substantial reconstruction impractical after 33 years. Despite this, the respondents assert their ongoing commitment to enhance accessibility within existing structural constraints.

Mr. Raghav is critical of the changes implemented by the society, suggesting that they are cosmetic and, in some cases, potentially hazardous to disabled individuals. He expresses concerns over the safety and effectiveness of the alterations, arguing that hurried modifications might inadvertently lead to harm.

Throughout the legal process, the petitioner filed various ancillary applications alongside the primary writ petition, including inter-locutary application, early hearing application, and urgent application.

The petitioner further claims that the modifications initiated by the respondents are confined to Tower-3 of the society, where he resides. However, he contends that the issue extends beyond his personal access to encompass the entire society. He emphasizes that the concern is not solely about Common area accessibility of the block where the petitioner resides but pertains to the community's overall inclusion.

In conclusion, the case underscores the intricate interplay between an individual with disabilities striving for equitable access and a residential society working within practical limitations to achieve accessibility standards. The legal journey encompasses a range of stages, from pre-court complaints to constitutional writ petitions, highlighting the petitioner's pursuit of enforcing rights. Consequently, the petitioner has filed a Special Leave Petition (SLP) before The Hon’ble Supreme Court seeking an expedited grant of the interim relief as prayed for.

Forced to climb staircase at the theatre, disabled man files complaint in consumer forum citing lack of accessibility, theatre directed to pay Rs 1 lakh compensation

Dear colleagues,

An inaccessible cinema theatre, which had neither elevators nor ramps despite the provisions of RPWD Act 2016 mandating accessibility in public spaces, and made a person with a disability climb the staircase to watch actor Udhayanidhi's 'Nenjukku Neethi' movie, has been asked to pay ₹1 lakh as compensation to the aggrieved person. 

The Thiruvallur District Consumer Disputes Redressal Forum passed the order based on a complaint from S Sureshkumar of Kundrathur. He complained that he went to Gokulam Cinemas in Poonamallee to watch 'Nenjukku Neethi' in May 2022, but realised on entering the premises that the screen was on the second floor, and yet it had no lifts or ramps. 

The theatre employees told Suresh that he had to climb the staircase due to which he suffered severe leg pain the same day, said Suresh, who has locomotor disability of 60%. He alleged that Gokulam Cinemas had violated Rights of Persons with Disabilities Act 2016 by not providing lifts or ramps in the newly built complex and the district collector too was at fault for having issued licence to the theatre hall without proper inspection as required under section 44 of the Act of 2016.

In response, Gokulam Cinemas said Suresh was not on their premises on the said date to watch the movie and he was trying to mislead the court with a ticket borrowed from another person. Counsel for the theatre argued that work to install lifts could not be completed due to Covid-19 pandemic. 

The forum rejected the management's argument, saying: "The contention could not be entertained as Covid-19 effects came to an end two years ago." It directed the theatre to pay ₹1 lakh as compensation for the mental agony and hardship caused, and another ₹10,000 towards Suresh's litigation expenses. The Thiruvallur district collector has been directed to take necessary action against the theatre within four weeks.

More such cases are on the anvil as the timelines for implementing mandatory accessibility is over. Those who have been sleeping over the accessibiltiy mandate are waking up to such music.  Its high time that the establishments must get their buildings and services access audited and take remedial action. Its better late than never!

Delhi HC passes important directions to make Court system accessible and to realise Access to Justice for persons with disabilities under Section 12 of RPwD Act 2016 and emphasizes "Active Judicial Conduct" to ensure PwD's actual, practical and meaningful participation in the judicial process and fair trial.

Court: Delhi High Court

Bench: Justice Swarana Kanta Sharma

Case No.: W.P.(CRL) 2500 / 2022

Case Title: Rakesh Kumar Kalra Deaf Divyang Vs. State Govt. of NCT of Delhi

Decided on: August 24, 2023

Cited as:  Revised Neutral citation-  2023:DHC:6132  ; 2023 SCC OnLine Del 5261

Brief:

The petitioner, by way of above writ petition filed under Article 226 of the Constitution of India read with Section 482 of the Criminal Procedure Code, 1973 and Article 14 and 21 of the Constitution of India, sought issuance of appropriate writ, order or directions in the nature of mandamus thereby directing the respondent/State to constitute a Special Court as per Section 84 of the Rights of Persons with Disabilities Act, 2016 and to make the criminal trial he is facing friendly to his disability so that he can participate in it fully.

"It was crucial that this Court examine the question in view of the issue raised by the petitioner herein as to whether the judicial system itself has complied with the requirement of equality apropos a person with disability who is an accused or petitioner before the court of law, while it administers justice." expressed the court.

The Court issued pivotal directions to address the critical issue of ensuring that persons with disabilities can actively participate in legal proceedings. The court emphasized that no citizen should feel denied of justice due to physical or mental disabilities, either because of the lack of appropriate infrastructure or insensitivity within the judicial system.

The case at hand involved a petitioner who had filed a writ petition under Article 226 of the Constitution and Section 482 of the Criminal Procedure Code. The petitioner, who had been deaf since childhood and also suffered from post-traumatic stress disorder-induced eye cataract and post-traumatic fractured maligned joint stiffness, faced significant challenges in participating in trial proceedings related to allegations against them. The court recognized that these challenges infringed upon the principles of natural justice, contravened the Right of Persons with Disabilities Act, and violated constitutional rights.

To address these issues, the court referred to the importance of fair trials as a fundamental right in the Indian criminal justice system, citing the case of Zahira Habibullah Sheikh v. State of Gujarat (2006) 3 SCC 374. The court highlighted the need to implement Section 12 of the Right of Persons with Disabilities Act, which aimed to make legal proceedings more accessible to individuals with disabilities. It also referred to the Supreme Court's E-Committee's Standard Operating Procedure on Preparation of Accessible Court Documents.

The judgment also pointed out the inadequacy of Special Courts under the RPWD Act, as they were limited to certain offenses. The court stressed the importance of alternative methods, such as the use of braille, sign language, and assistive technology, to enable individuals with disabilities to participate in legal proceedings effectively.

Additionally, the court provided a list of infrastructural improvements necessary to ensure accessibility, including facilities like wheelchairs, elevators, and sign language interpreters in courts. It called for judicial education and training to raise awareness of the needs of persons with disabilities, drawing inspiration from the cases of State of Maharashtra v. Bandu (2018) 11 SCC 163 and Smruti Tukaram Badade v. State of Maharashtra (2022 SCC OnLine SC 78.

The judgment underscored the need for a specific provision within the RPWD Act to address the requirements of witnesses, accused persons, advocates, and others involved in judicial trials and proceedings.

To ensure effective compliance with Section 12(4)(c) of the RPWD Act, the court issued various directives, including the provision of essential electronic gadgets, the creation of schemes to address the needs of accused persons with disabilities, and increased public awareness about available resources. The Delhi Judicial Academy was also tasked with holding sensitization programs for judges, lawyers, court staff, and police.

The Court was of the opinion that active judicial conduct to ensure access of persons with disabilities in  the judicial process will ensure achieving constitutional vision of justice of ensuring fundamental and human rights of persons with disabilities and their actual, practical and meaningful participation in the judicial process and fair trial.

In conclusion, the Delhi High Court's judgment emphasizes the importance of ensuring access to justice for persons with disabilities, particularly in the context of the specific case. The court provides a comprehensive set of directions to address the challenges faced by the petitioner and others in similar situations. These directives aim to create a more inclusive and accessible judicial system, thus upholding the constitutional vision of justice. The authorities are required to implement these directives within a three-month period.

Read the judgemnet here:

Delhi High Court disposes of petition on Equal Health Insurance for persons with disabilities, after IRDAI and 29 Insurance companies bring out health policies for PwDs [Judgement included]

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  Judgement : 18 August 2023

Brief of the Case: 

Please refer to our earlier post updating on the hearing dated 13 December 2022 in the present case titled "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."

The matter was further listed before the Court on 17th March, 2023. On the said date, in compliance with the directions dated 13 Dec 22, IRDAI placed on record a status report, giving details of the tasks undertaken by IRDAI. As per the said report, IRDAI had called a meeting of all general and health insurance companies on 18th January, 2023, where the relevant issues were discussed and a committee consisting of six senior officials from the various insurance companies was constituted. The Committee was entrusted with the following tasks: 

“i. Design and develop specific product/s for the following: 

     a. Persons with Disabilities (PWD) 
     b. Persons afflicted with HIV/AIDS 
     c. Persons having mental illnesses

ii. The design and development of the products shall be comprehensive enough to meet the insurance needs of the respective groups. 

iii. The complete documentation shall be developed -- Proposal form, Schedule, the Policy wordings including the various terms and conditions etc., apart from a Customer Information Sheet (Key Features Document).”

Thereafter, a model policy was drafted by IRDAI and a circular dated 27th February, 2023 was issued to all general and health insurance providers, directing them to launch products for persons with disabilities (PWD), Persons afflicted with HIV/AIDS, and those with Mental Illness, with immediate effect. IRDAI also complied with the third direction as contained in paragraph 26 of order dated 13th December, 2022 and the previously used expression ‘sub-standard lives’ in Regulation 8(b) of the IRDAI (Health Insurance) Regulations, 2016 was deleted.

The Petitioner was also offered a health insurance policy by Niva Bupa Health Insurance Company and expressed his willingness to avail of the policy, vide his email dated 1st March, 2023. However, the Petitioner had certain contentions against the specific details of the policy offered. Vide order dated 17th March, 2023, this Court directed the Petitioner to avail the health insurance offered by Niva Bupa, while allowing the Petitioner to make a representation to IRDAI on the issues of Amount of premium being charged, Loading charges, Amount of coverage and Period of Exclusion for Pre-Existing Diseases.

In terms of order dated 17th March, 2023, the following compliances were to be undertaken by IRDAI:

 i. IRDAI was to take a decision on the representation by the Petitioner and issue directions by 15th April, 2023; 

ii. IRDAI was to convey the decision on the representation of the Petitioner by 30 th April, 2023; 

iii. IRDAI was to notify all the insurance companies to submit their products in terms of circular dated 27th February, 2023 along with model policy and file a status report. 

Pursuant to the said order, an affidavit has been filed by the Deputy General Manager of the Health Department of IRDAI wherein the deponent states as under: 

“2 That after the issuance of circular dated 27.02.2023, all the general and standalone health insurance companies have filed their products for Persons with Disabilities (PWD), Persons afflicted with HIV/AIDS and those with Mental illness with Answering Respondent/IRDAI under the “Use and File” procedure dated 01.06.2022. It is respectfully submitted that as per Use and File circular insurers are not required to obtain any prior approval for launching and marketing their insurance product. Copy of the Use and File circular dated 01.06.2022 is annexed as Annexure A. 

3 That in compliance of the Circular dated 27.02.2023, all general and standalone health insurance companies have also launched their products for Persons with Disabilities (PWD), Persons afflicted with HIV/AIDS and those with Mental illness a list containing the details of products launched in accordance to Circular dated 27.02.2023 is annexed as Annexure B.”

In terms of the above averments made in the affidavit, the various general and health insurance companies including the four Government insurance companies namely New India Assurance Company, United India Insurance Company Ltd, Oriental Insurance Company Ltd. and National Insurance Company Ltd. have launched products for persons with disabilities. The complete list of 29 companies who are stated to have launched their insurance products for persons with disabilities, has been reproduced in a table in the below judgement.

From the said table, it is clear that several insurance companies have launched products for PwDs. However, in respect of the products which have been launched, the Petitioner raises some objection qua the high insurance premium and the loading charges, that is being charged. The said consideration of the amount of premium of any company’s specific product would be beyond the scope of this writ petition. It is, however, observed that if any person insured is having a grievance on the amount of premium being charged, remedies in accordance with law are available to such persons. The Petitioner is given liberty to approach the concerned authority if he so desires. This Court however, would reiterate the decision of the Supreme Court in Vikash Kumar v. Union Public Service Commission, 2021 SCC OnLine SC 84, which has also been considered by this Court in Akshat Baldwa & Ors. v. Yash Raj Films & Ors., 2023:DHC:345 wherein the principle of reasonable accommodation has been highlighted to ensure that society and indeed the state, can provide additional support and facilities that are necessary for persons with disabilities to lead a life of equal worth and dignity.

The court furhter made clear that the merits of each and every product launched and whether the charges are reasonable or not has not been considered by the Court and the same was left open for consideration by any appropriate forum, which may adjudicate a challenge to the same. 

The IRDAI, being the sector regulator would also have an obligation to ensure that PwDs are not unduly prejudiced and give suitable directions to insurance companies, after reviewing the products launched. 21. Insofar as the decision of the IRDAI qua the Petitioner is concerned, the decision is stated to have been taken by the IRDAI on 19th April, 2023. The said decision of the IRDAI has been placed on record. The challenge to the decision is on the following aspects: 

i. Amount of premium being charged and loading charges imposed on the Petitioner etc. 

ii. Amount of Coverage iii. Period of exclusion for pre-existing diseases 

"The IRDAI’s decision is detailed and reasoned. The Petitioner has already availed of the policy in terms of the order dated 17th March, 2023. The Petitioner is free to avail of his remedies in accordance with law in for any outstanding grievances qua this decision of the IRDAI dated 17th April, 2023." observed the court.

This Court appreciated the assistance given by the parties and their Counsels, in ensuring that insurance products for persons with disabilities have been launched in India. The court admitted that the while the said products may not be the most ideal for persons with disabilities, this would merely be a first step in the process of achieving Equality for PwDs, which is the solemn intent of legislations including the Right of Persons with Disabilities Act, 2016. 24.  And the court thus disposed of the petition accordingly.

Here is the detailed judgement:  

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: