Handicapped persons and the law: India
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Car parking
Mar 26 2015
Abhinav Garg
Reserve parking for disabled: HC
The Delhi high court ordered civic agencies to reserve space for the disabled in every parking space across the city and punish errant contractors and attendants. A bench of Chief Justice G Rohini and Justice Rajiv Sahai Endlaw said the agencies have till now only “paid lip service“ to several rules enacted to ensure access to the disabled and ordered them to “reserve parking spaces most suitable for persons with disability and in sufficient number after assessing the need.“
Indicating its seriousness, the HC directed the state gov ernment and its agencies to include a penalty clause in rules so that a parking attendant or contractor who doesn't reserve space for disabled is punished and the contract is cancelled immediately .
However, the court left it to the discretion of the three corporations, DDA, NDMC and the government to explore the number of reserved spaces to be kept for the disabled.
The HC, also explained what moved it to rule in favour of the rights of disabled: “Our own experience in Delhi shows that at several places though ramps have been provided to enable access to wheelchairs, they are there merely for namesake as the gradient is very steep. We want to draw the attention of all concerned agencies that they must standardize the gradient...We find the ramps to be inaccessible in certain places owing to the storm water drain on the sides of the roads which acts as a barrier between the road and the ramp leading to the pavement. All this comes in the way of optimum and intended use of our roads and pavements, with the same being congested, dusty , blocked, uneven and full of potholes, impeding movement.“
The court acted on a PIL by Vinod Kumar Bansal highlighting absence of parking space for the disabled and encroachment upon public land.Giving a series of directions, the HC directed traffic police to ensure within six months that auditory signals are installed at all traffic lights while other agencies were directed to ensure that all pavements are accessible to persons with disabilities.
Broadening the scope of its intervention the court also directed the Union home secretary and the Delhi chief secretary to inform it if a consultant, thinktank or expert can be roped in to suggest ways by which “Delhi can be turned into a world class city.“
The bench observed that the main reason for failure of governance was “continuance even today of schemes and policies of governance and administration, which were devised more than a century ago.“
“It is sad that despite expending huge funds and the best intention of the officials and employees, the city is not able to achieve the world class status which it aspires...We are sure that a competent consultant assigned the said task would be able to devise a structure for better governance of the city,“ the court said.
Dyslexic students
From the archives of The Times of India 2010
‘No calculator for dyslexic student’
SC Says CBSE Knows Best
Dhananjay Mahapatra | TNN
New Delhi: A class XII dyslexic student’s plea seeking to use a calculator for the March 22 mathematics paper did not yield the desired result in the Supreme Court on Friday.
Pranjay’s plea did not find favour with a Bench comprising Chief Justice K G Balakrishnan and Justices Deepak Verma and C K Prasad. Not only he, but another 830 similarly challenged students appearing for their class X and XII boards will have to do without calculators.
In contrast, dyslexic students appearing in the ICSE class X and XII board would have the benefit of a calculator during the mathematics papers.
But, they need not despair or feel disadvantaged. For, CBSE counsel, senior advocate Bhaskar Gupta, told the Bench that the challenged students have been given four distinct concessions which should equip them to compete virtually on par with normal students.
The concessions are:
They can take a scribe with them to write the papers, though the person writing the papers would have to be studying in a class less than his They will be given an additional 60 minutes time for each paper The calculations need not be mandatorily worked out by the dyslexic student. Meaning thereby that the scribe can do it for him as the challenged student only tells him the process of working it out
All such students will be accommodated on the ground floor Appearing for Pranjay, who did well in his class X board under ICSE by scoring 92 in mathematics with the help of a calculator, senior advocate J L Gupta said there was a national policy for physically challenged which categorically says dyslexic students be allowed to use calculators in examinations.
The CBSE counsel said the national policy was of 2006 whereas the secondary board in 2009 had with the help of experts taken a decision to grant these four concessions to challenged students while categoricaly declining the aid of a calculator. This 2009 decision had never been challenged by any student.
But the Bench being satisfied with CBSE’s response declined to grant the benefit of use of calculator to Pranjay. “Once the CBSE thinks the permission to take help of a scribe and additional time of 60 minutes should offset the disadvantageous position of a dyslexic student, we cannot grant the benefit of use of calculator to a single student,” the Bench said refusing any interim relief.
Reservation in promotion
The Times of India Feb 28 2015
Dhananjay Mahapatra
`Disabled should get reservation in promotion'
The SC said the government could not deny quota in promotion to those appointed to a post under the reservation policy for the physically handicapped. A bench of Chief Justice H L Dattu and A K Sikri rejected the Union government's plea to set aside a HC decision ordering that those appointed in government service through physically handicapped quota would also be entitled to reservation while getting promoted.
Arguing for the Centre, attorney general Mukul Rohatgi said there were four categories of civil services and if a person had availed the reservation benefit in getting a job, it would be unfair to extend the reservation benefit again to him while considering him for promotion to the higher category of service.The bench was not convinced. It said, “Why confine the reservation benefit only to the entry level and not for promotion. If a person is disabled, he is always disabled. So, as long as the disability continues, he should get reservation benefits.“
No quota in promotion: SC
The Times of India, Sep 02 2015
AmitAnand Choudhary
SC: Differently abled can't claim quota in promotion
Differently abled persons can claim benefit of reservation in government jobs only at the time of appointment and cannot get the benefit of the affirmative policy in promotion, the Supreme Court said on Tuesday while clarifying its earlier verdict. A bench of Justices Ranjan Gogoi and N V Ramana said the apex court's 2013 verdict did not hold that the reservation policy could also be extended to promotion in jobs and stressed that the disabled could claim benefits only at the time of recruitment.
The SC had in 2013 directed the Centre and all state governments to provide three per cent job reservation to disabled persons in all their departments, companies and institutions under Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act which came into force in 1995.
The Centre submitted that the court had not, while passing order for three percent reservation, dealt with the issue of reservation in promotion and the disabled could not be allowed to claim the benefits.
Although the Court had directed that all vacancies under 3% reservation be filled up within three months, the governments failed to comply with the order in the last two years and there are still 10,000 vacant posts in central government.Solicitor General Ranjit Kumar assured the court that all vacancies would be filled up by the end of this financial year.
The bench directed the government to take necessary steps for recruitment of disabled persons and asked it to honour the deadline set for complying with the 2013 order.
Disabled students in higher education
The Times of India Apr 06 2015
Only 0.6% of disabled students in higher edu
About 0.56% seats in higher education go to disabled candidates though there's reservation to the extent of 3% in public institutions. Of this 74.08% are male and 22.70% female. This came out in the third survey on the Status of Disability in Higher Education conducted by the National Centre for Promotion of Employment of Disabled People .
It includes responses from over 150 institutions of higher education across the country including 16 Indian Institutes of Technology and 13 Indian Institutes of Management, architecture, law, medicine, hotel management and other engineering and business schools.
The participation rate varies across disabilities. Of the total number of disabled candidates, 46.67% have ortho paedic disabilities, 32.13% are visually impaired, 5.16% are speechhearing impaired and 16.05% have other types. The percentage of students varies across streams as well the IIMs, surprisingly, come closest to completing the 3% quota with 2.49% disabled students of the total enrolled. Social work schools have an enrollment of 1.75% and IITs, 1.47%. The general universities are at the bottom with a 0.31% fill-rate. The total number of the students considered is 15,21,438.
Bipin Tiwari of Delhi University's Equal Opportunity Cell explains why it's difficult for universities even proactive ones to fill the quota.“There is a clear disconnect between schools and colleges.I don't know how many disabled children graduate from school every year. We try to spread awareness and enrollment is increasing. There are about 1,300 disabled students enrolled in DU right now,“ Tiwari said.
Of the 1,500-odd seats, about 700 are filled. The gender ratio is far healthier than the national average the survey furnishes about 60-40. The largest category in DU is not that of the orthopaedically-disabled but of the visually-impaired and the percentage of the hearing speech-impaired is far lower.
He explains that most students in this group come from special schools and prefer computer-based courses.“They are often advised at the special schools to take up vocational courses.“
Particular categories of the disabled tend to go for specific streams. For instance, 99% of the disabled in medicine are orthopaedicallly disabled; 57% of the disabled students in general science are blind and 62% in hotel management are in the other disability category (including learningmental disability).
The survey also found that over a 100 of the respondent institutions have a “disability unit“ on campus and over 130 have a “disability policy.“
Polygamy amongst disabled
The Times of India, May 22 2015
Polygamy among disabled as prevalent as among rest
Rema Nagarajan
A little under two-thirds of the disabled population in the 15-59 age group have been married or are married (including those widowed, separated and divorced) compared to nearly three-fourths of the same age-group in the population as a whole. The difference is largely due to the much lower proportion of those ever married in this age group among those who are mentally challenged (38%) and those with multiple disability (43%). The highest proportion of those married are those who are visually challenged and those with hearing impairment, 73% in each, which is equivalent to the proportion in the general population. Among those with mental illnesses too, the proportion is relatively low at just 53%. Interestingly, the pattern of a larger proportion of women than men being married in the 15-59 age group, which is seen in the general population, holds true even among persons with disabilities. Cutting across groups with various kinds of disabilities, there is a significantly higher proportion of married women than men, suggesting that polygamy is just as prevalent among the disabled as among the rest.
In the 60+ age group, in almost all categories of disabilities, the proportion of those ever married is over 95%, barring those with mental illnesses (86%) and those who are mentally challenged (79%).
While the problems faced by those with disabilities might be vastly different from the general population when it comes it matrimony , the patterns seem to be the same.However, disability rights groups would be quick to point out that the census count of just 26.8 million persons with disability , or 2.2% of the population, is indicative of undercounting since most international estimates say the proportion ought at least 4-6% . In this context, one can only guess what the status of those never even counted by the census must be when it comes to matrimony .
Legislative measures
The Disability Law, 1995
See graphic.
The Rights of Persons with Disabilities Bill, 2016
The Indian Express, December 16, 2016
Passed in Lok Sabha in December 2016
The bill had been originally moved in 2014 in Rajya Sabha by then Union minister Mallikarjun Kharge who is now Leader of Congress party in Lok Sabha.
The bill, which aims at securing and enhancing the rights and entitlements of disabled persons, also gives effect to the United Nations Convention on the Rights of Persons with Disabilities and related matters. It provides for imprisonment of at least six months up to two years, along with a fine ranging between Rs 10,000 and Rs 5 lakh for discriminating against differently-abled persons.
In the bill, disability has been defined based on an evolving and dynamic concept and the types of disabilities have been increased from existing seven to 21. The Centre will have the power to add more types of disabilities to it.
The types of disabilities now include mental illness, autism spectrum disorder, cerebral palsy, muscular dystrophy, chronic neurological conditions. It also strengthens the office of chief commissioner and state commissioners for Persons with Disabilities which will act as regulatory bodies.
Provisions
The salient features of the Bill are:
i. Disability has been defined based on an evolving and dynamic concept.
ii. The types of disabilities have been increased from existing 7 to 21 and the Central Government will have the power to add more types of disabilities. The 21 disabilities are given below:-
1. Blindness
2. Low-vision
3. Leprosy Cured persons
4. Hearing Impairment (deaf and hard of hearing)
5. Locomotor Disability
6. Dwarfism
7. Intellectual Disability
8. Mental Illness
9. Autism Spectrum Disorder
10. Cerebral Palsy
11. Muscular Dystrophy
12. Chronic Neurological conditions
13. Specific Learning Disabilities
14. Multiple Sclerosis
15. Speech and Language disability
16. Thalassemia
17. Hemophilia
18. Sickle Cell disease
19. Multiple Disabilities including deafblindness
20. Acid Attack victim
21. Parkinson's disease
iii. Speech and Language Disability and Specific Learning Disability have been added for the first time. Acid Attack Victims have been included. Dwarfism, muscular dystrophy have has been indicated as separate class of specified disability. The New categories of disabilities also included three blood disorders, Thalassemia, Hemophilia and Sickle Cell disease.
iv. In addition, the Government has been authorized to notify any other category of specified disability.
v. Responsibility has been cast upon the appropriate governments to take effective measures to ensure that the persons with disabilities enjoy their rights equally with others.
vi. Additional benefits such as reservation in higher education, government jobs, reservation in allocation of land, poverty alleviation schemes etc. have been provided for persons with benchmark disabilities and those with high support needs.
vii. Every child with benchmark disability between the age group of 6 and 18 years shall have the right to free education.
viii. Government funded educational institutions as well as the government recognized institutions will have to provide inclusive education to the children with disabilities.
ix. For strengthening the Prime Minister's Accessible India Campaign, stress has been given to ensure accessibility in public buildings (both Government and private) in a prescribed time-frame.
x. Reservation in vacancies in government establishments has been increased from 3% to 4% for certain persons or class of persons with benchmark disability.
xi. The Bill provides for grant of guardianship by District Court under which there will be joint decision – making between the guardian and the persons with disabilities.
xii. Broad based Central & State Advisory Boards on Disability are to be set up to serve as apex policy making bodies at the Central and State level.
xiii. Office of Chief Commissioner of Persons with Disabilities has been strengthened who will now be assisted by 2 Commissioners and an Advisory Committee comprising of not more than 11 members drawn from experts in various disabilities.
xiv. Similarly, the office of State Commissioners of Disabilities has been strengthened who will be assisted by an Advisory Committee comprising of not more than 5 members drawn from experts in various disabilities.
xv. The Chief Commissioner for Persons with Disabilities and the State Commissioners will act as regulatory bodies and Grievance Redressal agencies and also monitor implementation of the Act.
xvi. District level committees will be constituted by the State Governments to address local concerns of PwDs. Details of their constitution and the functions of such committees would be prescribed by the State Governments in the rules.
xvii. Creation of National and State Fund will be created to provide financial support to the persons with disabilities. The existing National Fund for Persons with Disabilities and the Trust Fund for Empowerment of Persons with Disabilities will be subsumed with the National Fund.
xviii. The Bill provides for penalties for offences committed against persons with disabilities and also violation of the provisions of the new law.
xix. Special Courts will be designated in each district to handle cases concerning violation of rights of PwDs.
3. The New Act will bring our law in line with the United National Convention on the Rights of Persons with Disabilities (UNCRPD), to which India is a signatory. This will fulfill the obligations on the part of India in terms of UNCRD. Further, the new law will not only enhance the Rights and Entitlements of Divyangjan but also provide effective mechanism for ensuring their empowerment and true inclusion into the Society in a satisfactory manner.
The issues, statewise
Disabled of J&K
Ahmad Tak,Disabled discriminated in J&K "Daily Excelsior" 11/12/2016
As per census 2011 our state has around 361000 population of persons with disabilities but various researches depict that our state has around 6 lakhs population of persons with disabilities with 120000 orthopaedic disabled persons and around 90000 persons facing mild to severe types of mental illness disabilities. Orthopaedic disabilities are on a lager scale due to the armed conflict and allied political disturbances. The frontier districts in our state are worst hit areas where Shahura and Hatlanga villages in Bandipur district where one person with disability in can be found every house hold. Blindness also is at a high as per census 2011 around 68000 persons with blindness are there in the state. 92777 persons in JK have speech and hearing disabilities. Out of total 361253 disabled population there are 233973 persons with different types of disabilities belonging to Kashmir province and 127180 persons with different disabilities in Jammu province. In Kashmir province the males have 55.51% of disability and females have 44.49% of disability. In Jammu Province the male ratio is 58.91% and female ratio is 41.09% Persons with disabilities in J&K face immense barriers. They thus do not enjoy access to society on an equal basis with others, which includes areas of transportation, employment, and education as well as social and political participation. Education In order to provide facilities to these disabled persons the Department of education established resource rooms. The resource rooms were established to provide education to them through, Braille, sign language and other techniques under concept of relaxed curriculum but the resource persons or special educators employed through state project director Sarva Shikhsha Abhiyan are working in different offices and those resource rooms are defunct. The children with disabilities mostly blind and deaf who were taking benefit of these special educators are now in schools where the general line teachers too are worried about how to create inclusive educational system for these children with disabilities. The access to educational services needs to be extended to a larger extent so that disabled students must be able to fulfil their educational needs in schools and participate on an equal basis with other students. Employment On the one hand, we have less educational facilities but on the next side a larger number of youth with disabilities who overcome immense challenges and attain higher qualifications with the support of parents, caregivers, friends and relatives etc, face difficulties to attain employment. The recruiting agencies like Public service Commission and State Services Recruitment Board ignore the recruitment of educated youth with disabilities. Even there is no mention of disability category in the notifications of these recruiting agencies. It is very odd that recruiting agencies of our state compel eligible youth with disabilities to compete with non disabled/open merit candidates and only after passing screening test they are eligible to seek reservation. Hundreds of cases for seeking loan under National Handicapped Finance Development Corporation schemes are pending in the district offices of SC/ST/OBC board in Jammu and Kashmir State. Demanding complicated procedures, like guarantors, mortgages and interviews, youth with disabilities get discouraged and instead establishing business and enjoying economic rehabilitation, they are compelled to live a dependent and charity oriented life. Employment and work should be prioritized over the pension given through social welfare department. Social Security & Rehabilitation It is important to keep in mind that disability is part of the human condition, and that all of us either are or may become disabled to one degree or another during the course of our lives. Government of J&K has been providing social security pension to many underprivileged sections of society. Persons with disabilities get Rs. 400/- per month pension under Social Security Scheme. During Budget session Minister for Finance announced increase in the monthly pension in case of severe disabled people, but so far the order has not been implemented. In many states in our country the social security pension is around 1000 in case of mild to moderate type of disabled people but in case of severe disabled people the social security pension amount is Rs 2000 in order to meet various medical and social needs. As the budget session is approaching in J&K, Minister of Finance Department is humbly requested that separate Budget Allocation may please be made for enhancing the social security pension so that persons with disabilities can meet their special needs. For skill development the Vocational Rehabilitation centre for persons with disabilities was established in Srinagar some decade back, with the mandate to empower persons with disabilities by giving them skill trainings and earn for life with dignity. But the centre was accommodated in a hut in campus of government polytechnic college Srinagar. The centre failed to provide skill training to even 100 persons with disabilities. The centre was fully damaged in 2014 floods and Centre Government has now proposal to wind it off. Accessibility This year the sub theme for International Day for Persons with Disabilities is making cities inclusive and accessible for all. Persons with disabilities in Jammu and Kashmir state face barriers and have almost no access to Government buildings, hospitals, educational institutions, courts, footpaths and transport. Even the concerned offices where persons with disabilities have to reach for the redress of their grievances lack ramps, elevators, signs boards and other forms of accessibility thus persons with disabilities do not reach these places independently or with dignity. In many districts the construction projects are on to construct mini secretariat buildings, polytechnic colleges, Degree college buildings, Courts, Hospitals, Schools and other rural infrastructure but there are no accessibility provisions for the disabled people in the infrastructure. Even the civil secretariat in Srinagar and Jammu lack the basic ramp facility at entry point. Many buildings recently constructed near the hub of administration / civil secretariat Srinagar are non disabled friendly. In many buildings the ramps have been built at the backside thus segregating persons with disabilities. University of Kashmir, Islamic university of science and technology and many government and private colleges have under construction infrastructure but less attention is paid to create inclusion by non provision of appropriate access for students, staff and other visitors with disability. Central University campuses, AIIMS campuses and IIT IIM’s should have 100% disabled friendly infrastructure. Many projects are under construction like Hospitals buildings, Legislative complex, state library building, Human Rights commission building, Mubarak mandi complex, District court complex Srinagar, Bandipur, samba, Kulgam and pulwama, various railway stations and many other buildings throughout state they need simple changes in their architectural design in order to be disabled friendly or accessible for all. Under a scheme Sugamaya Bharat (Accessible India campaign) under the Ministry of Social Justice and empowerment around 50 buildings in all capital states are going to audited for making them disabled friendly. Our state should take lead in the campaign to make to make more buildings disabled friendly. Rehabilitation of Severe disablities Persons with mental disabilities have been completely living dependent life in our state. Some persons with mental disabilities have been living a dependent life without attention and care. Some stray here and there without any guardianship. Nobody is showing concern even when the problem was shared with various concern headquarters. Various youth and middle aged persons with mental disabilities are seen near shrines, bus stops and in an open in all odd weather conditions. National Trust Act 1999 has been in vogue throughout country. It is only in J&K, state that National Trust Act – 1999 has not been accepted. Some existing rules are the cause of disability but the rule that can help in rehabilitation of severe and uncovered category of disability is not accepted. Various times the Act was brought to legislative assembly but always at the bottom of the list of discussion with least priority. National Trust Act has so many schemes that can provide shelter, health and insurance facilities to the persons with mental disabilities. It is the need of the hour to accept and implement the law which is fully sponsored by central government funds. Disability Certificate The issuance of disability certificates is looked after by the Health department. The disability certificates are issued through medical board in the district hospitals. The doctors in the Board should be sensitised to issue the disability certificates to the deserving persons with disabilities only. There are some cases where in the medical board has issued fake disability certificates and the underserving people take benefit of these disability certificates to grab various jobs. Thus the right of deserving persons with disabilities is snatched by the physically fit people. The mechanism of keeping the record of the disability certificates issued by the medical board should be strengthened so that the verification of disability certificates is done in a proper way. Such mechanism will weed out the fake disability certificate holders. The district medical boards should assess the persons with disabilities at ground floor and the specialists needed viz ophthalmologist, ENT specialist, psychiatrist and others should be available. The persons with disabilities should not be referred to other places for assessments that gives them more pains and put them in risks. Some Historic decisions were taken by the Governor Administration during Governor’s rule in J&K but their implementation is still pending. Appointment of full time disability Commissioner in our state was long pending demand for redressal of grievances of persons with disabilities. Finally after years of advocacy the Governor of J&K gave green signal to the appointment of full time disability commissioner, the office and staff for the Disability commissioner was also given sanction. But so far the disability commissioner has not assumed the office. All the persons with disabilities have been pleading for disability commissioner since March 2016. As per JK persons with disabilities Act – 1998 the Commissioner for Disabilities should be the official of the state not below Secretary Level. Present appointed Commissioner is of Special secretary level hence Law Department didn’t approve the appointment. Country has ratified UN – convention on the Rights of persons with disabilities and bound to endure the development of all citizens with disabilities. Our state has passed JK Disability Act – 1998 with the mandate (Equal Opportunities, protection of Rights & Full Participation). The Act has been beneficial only for three common disabilities that is Movement, Seeing & Hearing & speech (Blind Deaf & Mute & Locomotor disabilities). Thus the multiple disabilities, mental disabilities were not getting benefits. National Trust Act was enacted in Country in 1999 to cater the demands of Autism, Cerebral Palsy, Mental Retardation and Multiple Disabled persons. But in our state the Act was not enacted, despite number of representations, protests and signatory campaigns. Finally on 23rd of March 2016 the Governor of J&K accorded assent to the “Jammu and Kashmir State Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple disabilities Bill, 2016”. Besides empowering persons with such disabilities to live independently, this Act will enable the State Government to ensure timely interventions and mediations for mitigating the genuine problems persons with mental and severe multiple disabilities facing highest level of discrimination and social stigma. Still the rules have not been framed for the proper implementation and the state trust body has not been formulated so far.
Total Males Females Total number of disabled 361153 204834 156319 persons in J&K 56.71% 43.29% Seeing Disability 66448 35656 30792 Hearing Disability 74096 42744 31352 Speech Disability 18681 11351 7330 Movement Disability 58137 35145 22992 Mental Disability 16724 9798 6926 Mental Illness 15669 8810 6859 Multiple Disability 44441 24478 19963 Other Disabilities 66957 36852 30105 Total Rural 273952 154892 119060 Total Urban 87201 49942 37259
