Important Judgements for the Persons with disabilities

1. The leading judgment of Rajive Raturi v. Union of India is the basal case underlying the rights of the disabled in our country. 

Rajive Raturi Versus Union of India WP © No. 228/2006.

https://indiankanoon.org/doc/149818296/

This Judgment of Supreme Court is the basal case underlying the rights of the disabled in our country. This case made the policymakers realize all the grounds of basic amenities that the disabled are missing out. It all began with a public interest litigation to provide amenities to the disabled and resulted in compelling lawmakers to make astounding changes to the disabilities act 1995.

The case of Rajeev Raturi brought futuristic changes to accessibility and transport of visually impaired in public transport and the necessary infrastructure India was lacking on. The recommendations of this judgment saw changes like making every educational institute accessible for the disabled, every public transport to be made accessible to the disabled, and most importantly an audit each year to be conducted on how many institutions have been made accessible to the disabled and how many institutions are yet to be made.

Accessibility is crucial and is enforceable as a legal right.

IN AKSHAT BALDWA & ORS.  VERSUS  YASH RAJ FILMS & ORS W.P.(C) 445/2023 of Delhi High Court. 

https://www.verdictum.in/pdf_upload/pms16012023cw4452023192434watermark-1459581.pdf

The High held that accessibility is crucial and is enforceable as a legal right. Even private parties have to ensure that ‘reasonable accommodation’ measures are taken in order to enable greater accessibility for the hearing and visually impaired persons. Though accessibility in the case of Rajive Raturi (supra) is in the context of access to buildings, transportation etc., accessibility to information, technology and entertainment, is equally important. A hearing or visually impaired person, may get easy physical access to a film theatre but may not be able to enjoy the film at all, if the measures to make it enjoyable are not taken by the other stakeholders, including producers, theatre managers, OTT platforms, etc. The State has an obligation to ensure that all steps, that are reasonably possible, are taken in this direction.

 

2. RESERVATION IN PROMOTION

The Right of Persons with Disabilities Act, 2016 expressly provides for reservation in promotion in accordance with instructions issued by the Government from time to time”. 

Reserve Bank of India Versus A. K. Nair & others Civil Appeal No. 529/2023 https://indiankanoon.org/doc/169712311/

In this case the Hon’ble Supreme Court has held that, “Persons with Disabilities (Equal opportunity, Protection of Rights, and full participation) Act, 1995, did not contain any express provisions for the reservation of persons with disabilities serving the feeder cadre, though there were provisions indicating that merely because employee is one living with a disability they ought not to deny promotion. Mere absence of express mandate for reservation in promotion for persons with disabilities did not absolve the Government from keeping reserved vacancies on promotional posts. The Right of Persons with Disabilities Act, 2016 expressly provides for reservation in promotion in accordance with instructions issued by the Government from time to time”. 

State of Kerala Versus Leesamma Joseph, is another case which upheld the right of persons with disabilities to seek reservations in promotions.  

https://main.sci.gov.in/supremecourt/2020/25422/25422_2020_38_1501_28090_Judgement_28-Jun-2021.pdf

 

3. Bombay High Court (HC) held that visually impaired student to pursue a course in physiotherapy. 

Zill Suresh Jain Versus The State CET Cell W.P. (L) No. 33102/2022.

https://indiankanoon.org/doc/190302887/

The facts of the case was that petitioner suffers from low visual impairment disability to the extent of 40%. The Petitioner completed her SSC in March 2020 and her HSC in March 2022. She desires to study and later practice physiotherapy. She is denied these opportunities only on account of her vision impairment.

The court took note of the fact that several visually impaired individuals, including students, lawyers and assistants, are effectively functioning in various courts across India. It emphasized the incessant commitment of society and, specifically, the state government to continuously explore avenues to assist those who are most deserving of support; firmly rejecting the notion that nothing can be done.

 

4. Individual Suffering from dysgraphia or writer’s cramp is entitled to a scribe in the Civil Services Examination (CSE)

In Vikash Kumar Versus Union Public Service Commission SLP( C) 1882/2021,

https://indiankanoon.org/doc/157396742/

The Hon’ble Supreme held that the appellant would be entitled to the facility of a scribe for appearing at the Civil Services Examination and any other competitive selection conducted under the authority of the government”.

This case is related towards affirming the position of persons with disabilities as right bearers. Here, Vikas Kumar holding that an individual Suffering from dysgraphia or writer’s cramp is entitled to a scribe in the Civil Services Examination (CSE) is a significant step towards affirming the position of persons with disabilities as right bearers. 

 

5. “Temporary disability is not a disqualification to avail of the reservation”.

Anmol Kumar Mishra Versus Union of India WP (C ) 13146/ 2021, High Court of Delhi,

https://indiankanoon.org/doc/140423479/

The petitioner seeks admission to IIT, Kharagpur for the Electronics and Electrical Communication Engineering Dual Degree (B.Tech. plus M.Tech.) course. He suffers from a condition of visual impairment called keratoconus, and applied for admission in the category of Persons with Disability [“PwD”]. He was admitted to the course of his choice pursuant to the Joint Entrance Examination [“JEE”] conducted by the respondents. However, his admission was cancelled, as reflected on the admissions portal on 31.10.2021, and communicated to him by a communication dated 09.11.2021. The reason stated for the rejection of his candidature is that the disability certificate submitted by him mentions that his disability is temporary and “likely to improve”. What is now being raised is that a temporary disability is a disqualification to avail of the reservation. 

The certificate records that he has a 40% temporary disability in relation to both eyes as per the guidelines for assessing the extent of specified disability under the Rights of Persons with Disabilities Act, 2016 dated 04.01.2018 [“the Guidelines”] issued by the Government of India. The certificate is stated to be valid for one year, i.e. until 14.01.2022. 

The Court observed that, “I am of the view that the petitioner’s case is merited. It may be noted that in the Act, the definition of “PwDs”, “PwBDs” and of “specified disability” do not ex facie distinguish between temporary and permanent disabilities. The definition of PwD, to the extent that it incorporates the necessity of long-term impairment, itself subsumes this requirement. The petitioner is undisputedly a PwBD whose certificate mentions that his impairment is to the extent of 40%. The Schedule of the Act, while enumerating specified disabilities, also does not make a distinction between permanent and temporary impairment in the context of visual impairment”. 

 

6. The State and Central Governments, being the competent authorities to provide and ensure support and safety to the sports women with disabilities, so as to inspire their confidence freely and take part actively in the events at all levels. 

Madras High Court in  M. Sameeha Barvin Vs.  Govt. of India (Min. of Youth and Sports  in Writ Petition No. 16953 of 2021 dated 20 December  2021

https://www.disabilityrightsindia.com/2021/12/madras-hc-m-sameeha-barvin-vs-govt-of.html

The 18-year-old M. Sameeha Barvin had moved the court alleging gender discrimination after AISCD refused to select her despite a good performance in the trials. In her petition, Sameeha said that of the 12 athletes who had participated, 10 were men and two women and she had finished first in the latter category. On seeking to know why she wasn’t selected, it was disclosed that the selection authorities were against sending a lone female member to the event. The athlete, who has 90 per cent hearing impairment, said this amounts to gender discrimination.

The High Court issues the following directions to the respondent authorities for the purpose of streamlining the policy qua woman athletes with disabilities, in consultation with experts, so as to enable them to participate in all the events at State, National and International levels, with equality and dignity:

(i)    to prevent or prohibit unfair discrimination against the women athletes with disabilities, on one or more grounds including race, gender, sex, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(ii)    to provide adequate financial assistance and all other requisites to the women athletes with disabilities, so as to participate in all the events.

(iii)    to follow proper selection process, so as to enable the meritorious candidates to participate in the events.

(iv)    To provide necessary training and free medical facilities to all the women athletes with disabilities, who achieve meritorious level in the respective sports for participation in all the international games.

(v)    to provide all possible means to entertain women athletes with disabilities to utilise their fullest potentials and capabilities so as to achieve success in all the events.

(vi)    to provide all the disabled friendly materials, clothes, prosthetics and other accessories that may be required by the women athletes with disabilities in day today affairs, with incentives so as to encourage and nurture their excellence in the respective sports and to participate in the events at all levels.

(vii)    to extend the financial assistance to one of the family members, who accompany the disabled female athletes to participate in the international games. 

(viii)    To give effect to the principle of reasonable accommodation by providing all assistance that are required / requested by the females athletes with disabilities so as to enable them to participate in the international games, on par with males.

(ix)    to ensure safety and security of the female athletes with disabilities during their travel, irrespective of number of participants, so as to inspire their confidence freely and take part actively in the events at all levels.

(x )    to sensitize the male counter parts and inculcate the sense of equality in their mind, so as to maintain safe environment for women athletes at all levels.

(xi)    to reward all the disabled women participants in the international games, irrespective of their achievements or otherwise.

(xii)    Must ensure that all the women athletes whether with or without disabilities, be given equal treatment on par with males, so as to enjoy full and equal rights and freedoms and to maintain their dignity.

 

7. RESERVATION IN GOVERNMENT JOBS

IN THE SUPREME COURT OF INDIA IN AJAY KUMAR PANDEY & ORS VERSUS STATE OF U.P. & ORS. CIVIL APPEAL NO. 4811 OF 2022 DECIDED ON 01.08.2022,

https://indiankanoon.org/doc/191165120/

held that “The identification of the posts which can be filled up by candidates suffering from disabilities is the responsibility of the appropriate Government under Section 32 of the Act, which is the State Government in the present case. Once such exercise has been carried out, the appropriate Government in terms of Section 33 of the Act shall reserve 1% each for the visual disability, hearing impairment and locomotor disability.

Union of India & Anr. v. National Federation of the Blind & Ors 5 (2013) 10 SCC 772

it is a settled rule of interpretation that if the language of a statutory provision is unambiguous, it has to be interpreted according to the plain meaning of the said statutory provision. In the present case, the plain and unambiguous meaning of Section 33 is that every appropriate Government has to appoint a minimum of 3% vacancies in an establishment out of which 1% each shall be reserved for persons suffering from blindness and low vision, persons suffering from hearing impairment and persons suffering from locomotor disability or cerebral palsy.

Siddaraju Versus State of Karnataka, Government should extend 3% reservations to the persons with disabilities in all identified posts in Group ‘A’ and group ‘B’ irrespective of the mode of filling up of such posts. 

 

8. “Reservation of seats in the educational institutions” and Accessibility for Students with Disabilities in Universities/Colleges

IN THE SUPREME COURT OF INDIA IN WRIT PETITION (CIVIL) NO. 292 OF 2006 DISABLED RIGHTS GROUP & ANR VERSUS UNION OF INDIA & ORS. ISSUED FOLLOWING DIRECTIONS:- https://main.sci.gov.in/supremecourt/2006/15134/15134_2006_Judgement_15-Dec-2017.pdf

the directions which are sought by the petitioners are in consonance with the provisions contained in the 22 Disabilities Act, 2016. In these circumstances, we dispose of these writ petitions with the following directions: 

1. While dealing with the issue of reservation of seats in the educational institutions, we have already given directions in para 8 above that the provisions of Section 32 of the Disabilities Act, 2016 shall be complied with by all concerned educational institutions. In addition to the directions mentioned therein, we also direct that insofar as law colleges are concerned, intimation in this behalf shall be sent by those institutions to the Bar Council of India (BCI) as well. Other educational institutions will notify the compliance, each year, to the UGC. It will be within the discretion of the BCI and/or UGC to carry out inspections of such educational institutions to verify as to whether the provisions are complied with or not. 
2. Insofar as suggestions given by the petitioner in the form of “Guidelines for Accessibility for Students with Disabilities in Universities/Colleges” are concerned, the UGC shall consider the feasibility thereof by constituting a Committee in this behalf. In this Committee, the UGC would be free to include persons from amongst Central Advisory Board, State Advisory Boards, Chief Commissioner of State Commissioners appointed under the Disabilities Act. This Committee shall undertake a detailed study for making provisions in 23 respect of accessibility as well as pedagogy and would also suggest the modalities for implementing those suggestions, their funding and monitoring, etc. The Committee shall also lay down the time limits within which such suggestions could be implemented. The Expert Committee may also consider feasibility of constituting an in-house body in each educational institution (of teachers, staff, students and parents) for taking care of day to day needs of differently abled persons as well as for implementation of the Schemes that would be devised by the Expert Committee. This exercise shall be completed by June 30, 2018.

 

9. The case of Reasonable accommodation

Facts:-  The appellant is aggrieved by a judgment of the Madras High Court , which dismissed his petition, claiming arbitrariness in the declining of his candidature as Assistant Engineer (hereafter “AE”) (Electrical) by the Tamil Nadu Generation and Distribution Corporation Limited- (hereafter referred to as TANGEDCO or “Corporation” or “employer” variously), on the ground that he was colour blind.

The Supreme Court of India in Civil Appeal 6785 of 2023 titled as Mohamed Ibrahim Versus The Chairman & Managing Director & Ors, decided on 16th October, 2023;

https://www.advocatekhoj.com/library/judgments/announcement.php?WID=16877

held that The appellant is, for all purposes, treated as a person with disability, but does not fall within the categories defined in the Act, nor does he possess the requisite benchmark eligibility condition. The objective material on the record shows that the colour vision impairment is mild. Yet, TANGEDCO’s concerns cannot be characterised as unreasonable. However, TANGEDCO is under an obligation to work under the framework of “reasonable accommodation”, which is defined by Section 2 (y) as follows: “(y) “reasonable accommodation” means necessary and appropriate modification and adjustments, without imposing a disproportionate or undue burden in a particular case, to ensure to persons with disabilities the enjoyment or exercise of rights equally with others;..” 26. Reasonable accommodation thus, is “appropriate modification and adjustments” that should be taken by the employer, in the present case, without that duty being imposed with “disproportionate or undue burden”. 16 TANGEDCO- the employer expresses its willingness to accommodate the appellant. Yet the position it offers, is highly inadequate: that it is belated, is beside the point. In the considered view of this court, the post offered, i.e., Junior Assistant, is inconsistent with the appellant’s qualification which cannot be offered to him; the offer is a mere palliative gesture, which he justifiably rejected

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, from the date he was terminated from 17 service, or his appointment was cancelled, and accommodate him in a suitable department, where he can be given appropriate responsibilities. The appellant shall also be entitled to 50% of full arrears of salary, and all allowances, and his service shall be reckoned from the original date of appointment, (which was later cancelled), with full continuity. The appeal is allowed in these terms, without order on costs.