color chooserblueRedGreenOrangePurple
Font ResizeFont DecreaseRevert font size to defaultIncrease font size
OOPS. Your Flash player is missing or outdated.Click here to update your player so you can see this content.
You are here: Home Legal Rights of Persons with Disabilities

Search within the Web Portal Punarbhava
Loading...
Legal Rights of Persons with Disabilities PDF Print E-mail
Friday, 02 September 2011 16:16
Image of Legal Rights of Persons with Disability

Published by :

Rehabilitation Council of India
(A Statutory Body Under Ministry of Social Justice & Empowerment)

23-A, Shivaji Marg, New Delhi-110015
e-mail : This e-mail address is being protected from spambots. You need JavaScript enabled to view it
website : rehabcouncil.org
2004


Published by :

Rehabilitation Council of India
in 2001 Revised in 2004
Name of Book changed to "Legal Rights of Persons with Disability.

Foreword

I deem it a great pleasure to write this Foreword to the book " Legal Rights of Persons with Disability in India " by Shri Gautam Banerjee for the Rehabilitation Council of India.

The number of disabled people in our country has been perpetually on the increase and at present, there are about 100 million disabled persons in our country. It is heartening that the predicament of the disabled has been taken note of by the Indian Legislature. Several Acts have been made to protect the legal interests of the disabled who would otherwise be left to the vagaries of fate. These Acts mainly consist of the Mental Health Act, 1987, the Rehabilitation Council of India Act, 1992, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and more recently the National Trust for welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999. There are also several constitutional guarantees and protections made available to the disabled in various other laws of the country.

I understand Shri Gautam Banerjee Advocate, Supreme Court has dealt with the various legislations concerning the disabled and indicated the legal rights that are now available to the disabled in our country. This kind of treatise is a first attempt to publish the legal rights of the disabled by the Rehabilitation Council of India. I must congratulate Shri Gautam Banerjee for writing this book on a voluntary basis for RCI despite his professional commitments. My thanks are due to the Indian Law Institute, New Delhi for their suggestions and review of the manuscript. The members and staff of RCI who have been associated in giving their inputs in the preparation of this publication also deserve my appreciation. I am sure this publication will go a long way to cater to the needs of all those who are engaged in the welfare of the disabled as also the disabled in ensuring their legal protection.

(Major H.P.S. Ahluwalia)
Chairman
Rehabilitation Council of India
Preface

This book is the result of my latent desire to stand by the disabled of our country. Yes, as a lawyer. To stand for upholding the legal rights of the disabled and to defend their legal rights against all odds. There is a need to create awareness about the legal rights of the disabled amongst the people. And one step is to get such rights available at one place.

The book takes the reader on a journey through the various legislative enactments which have given expression to the legal rights of the disabled. These enactments are _ the Mental Health Act, 1987, the Persons with Disabilities (Equal opportunities, Protection of rights and Full participation) Act, 1995, the Rehabilitation Council of India Act, 1992 and the National Trust for welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999. Besides, the Constitutional guarantees available to the disabled arising out of the Constitution of India and other legislations have been discussed. The International instruments of the United Nations relating to the disabled which provide thought for legislative action have also been included.

I am grateful to the Rehabilitation Council of India for publishing the book and to everyone in the RCI who have taken pains for its publication. I will be happy to receive any comments about the book as also suggestions for its improvement.

Gautam Banerjee

Advocate, Supreme Court of India
C-528, Sheikh Sarai, Phase-I
New Delhi-110017.
Telefax: 91 11 26013458
e-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

26th March, 2001

Contents LEGAL RIGHTS OF Persons with Disability

Part- I General Legal provisions relating to the disabled
  1. Introduction
  2. The Disabled and the Constitution
  3. The Disabled and the Educational Laws
  4. The Disabled and the Health Laws
  5. The Disabled and Family Laws
  6. The Disabled and Succession Laws
  7. The Disabled and Labour Laws
  8. The Disabled and Judicial Procedure
  9. The Disabled and Income Tax Laws
Part-II Analysis of Specific Legislations for the disabled
  1. The Mental Health Act, 1987
  2. The Rehabilitation Council of India Act, 1992
  3. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995
  4. The National Trust for Welfare of Persons with Autism, Cerebral  palsy, mental retardation and Multiple Disabilities Act, 1999
Part- III Rights of the Disabled as enshrined in International Instruments of the U.N. Part- IV Court Cases on Rights of Persons with Disability

Part-I


GENERAL LEGAL PROVISIONS RELATING
TO THE DISABLED
  1. INTRODUCTION
    Do the disabled have any legal rights? Do the disabled have the same legal rights as those who are not disabled? Is the protection and guarantee of law available to the disabled? Has the law maker thought of the disabled sufficiently well? How has the law defined the disabled in the first instance?. Are the disabled secure in the regime of law? These are some of the questions which come to mind when we think of the disabled in relation to their legal rights.

    In the nature of things legislative protection of citizens is a matter of paramount importance for the citizens of any country. The Constitution as the basic law carries the guarantee of legal security for all its citizens. It mandates that the laws to be made pursuant to the authority of the Constitution must conform to the principles of fairness, equality, objectivity and fraternity of the people. There are for instance, fundamental rights guaranteed to the citizens who also have certain fundamental duties in relation to fellow citizens and the government. The directive principles of State policy guide the government in providing for mechanisms and facilities that agree with the constitutional purpose enshrined in the provisions of the Constitution.

    The present study seeks to explore the extent of legislative provisions available for the protection of the disabled in our country. A systematic knowledge about the legal rights of the disabled in the legislative frame work would be a source of power and strength with those concerned about the welfare of the almost 2% of disabled people out of the country's total population. Armed with such knowledge, they would find a premise for new thoughts and direction for future action and operation.
  2. THE DISABLED AND THE CONSTITUTION

    The Constitution of India applies uniformly to all citizens of India whether or not they are healthy and normal or disabled (physically or mentally) and irrespective of their religion, caste, gender, creed etc. The only requirement is that the people to whom the Constitution will apply have Indian citizenship.

    "Disability" has not been defined in the Constitution. But what has been said is that no citizen shall suffer any disability on the ground of his religious belonging, gender ,race, caste, sex, place of birth or any of them in regard to their access to public places, shops and the use of wells, tanks, etc. The Constitution has however described the following social groups as those for whom special legislations may be made without discriminating with the rest of the people of India. These are women, children and those belonging to the socially and educationally backward classes. The Constitution maker did not find it necessary to identify other social groups such as the aged or the disabled for whom separate legislation could be made.

    Under the Constitution the disabled have been guaranteed the following fundamental rights:
    1. The Constitution secures to the citizens including the disabled justice, liberty of thought, expression, belief, faith and worship, equality of status and of opportunity and for the promotion of fraternity just as it does for other citizens who are not disabled. Artide 14 ensures that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
    2. Article 15(1) enjoins on the Government not to discriminate against any citizen of India (including the disabled) on the ground of religion, race, caste, sex, place of birth or any of them.
    3. Article 15(2) States that no citizen (including the disabled) shall be subjected to any disability, liability, restriction or condition on any of the above grounds in the matter of their access to shops, public restaurants, hotels and places of public entertainment or in the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of government funds or dedicated to the use of the general public. Women and children and those belonging to any socially and educationally backward classes or the Scheduled Castes & Tribes can be given the benefit of special laws or special provisions made by the State. There shall be equality of opportunity for all citizens (including the disabled) in matters relating to employment or appointment to any office under the State.
    4. No person including the disabled irrespective of his belonging can be treated as an untouchable. It would be an offence punishable in accordance with law as provided by Article 17 of the Constitution.
    5. Every person including the disabled has his life and liberty guaranteed under Article 21 of the Constitution. All children of the age of six to fourteen years will be entitled to free and compulsory education provided by the state. (Article 21A).
    6. There can be no traffic in human beings (including the disabled) and begar and other forms of forced labour is prohibited and the same is made punishable in accordance with law (Article 23).
    7. Article 24 prohibits employment of children (including the disabled) below the age of 14 years to work in any factory or mine or to be engaged in any other hazardous employment. Even a private contractor acting for the Government cannot engage children below 14 years of age in such employment.
    8. Article 25 guarantees to every citizen (including the disabled) the right to freedom of religion. Every disabled person (like the non disabled) has the freedom of conscience to practice and propagate his religion subject to proper order, morality and health.
    9. No disabled person can be compelled to pay any taxes for the promotion and maintenance of any particular religion or religious group.
    10. No disabled person will be deprived of the right to the language, script or culture which he has or to which he belongs.
    11. Every disabled person can move the Supreme Court of India to enforce his fundamental rights and the rights to move the Supreme Court is itself guaranteed by Article 32,.
    12. No disabled person owning property (like the non disabled) can be deprived of his property except by authority of law though right to property is not a fundamental right. Any unauthorised deprivation of property can be challenged by suit and for relief by way of damages.
    13. Every disabled person (like the non disabled) on attainment of 18 years of age becomes eligible for inclusion of his name in the general electoral roll for the territorial constituency to which be belongs.

      The disabled also have by implication certain rights which though not enforceable, provide effective guidelines for the government to make provisions including legislative provision for the disabled.

      These are : It is the duty of the State to apply the directive principles of State policy. These consist of securing a social order in promotion of the welfare of the people in which justice, social, economic and political shall inform all the institutions of national life. In particular the State shall strive to minimise in equalities in income, in status, facilities and opportunities not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. The State policy has to be directed to secure that the citizens, men and women equally have the right to an adequate means of livelihood, the economic system is operative for the common good, there is equal pay for equal work for both men and women, that citizens are not forced by economic necessities to enter avocations unsuited to their age and strength. The State shall secure that the operation of the legal system promotes justice, free legal aid is provided to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The State shall make provisions for securing the right to work to education and public assistance in case of unemployment, oldage, sickness and disablement and in other cases of undeserved want. The State has a duty to secure just and humane conditions of work and for maternity relief, a living wage for all workers ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. The State shall endeavour to provide for free and compulsory education for all children until they complete the age of fourteen years. The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years. Every citizen who is a parent or guardian has to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years. The State also has the responsibility of promoting with special care the educational and economic interests of the weaker sections of the people particularly the scheduled castes and scheduled tribes and protect them from all sorts of social injustice. All this can be achieved through appropriate legislations and schemes.
  3. The disabled and the Educational law

    The right to education is available to all citizens including the disabled. Article 29 (2) of the Constitution provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language, or any of them. This right is as much guaranteed to the disabled as to the non disabled. If the disabled belong to a minority religion or language they shall have the right to establish and administer educational institutions of their choice and the State shall not discriminate in granting aid to such educational institution under the management of the minority whether based on religion or language.

    Article 45 of the Constitution directs the State to provide free and compulsory education for all children (including the disabled) until they attain the age of 14 years. The State can set up schools of its own or grant aid to recognised schools. Though minority communities based on language or religion are free to set up schools and educational institutions of their choice, no child can be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds mainly of religion, race, caste, language or any of them. The State can set up educational institution for the physically disabled persons such as schools for the blind, schools for the deaf & dumb and schools for the mentally retarded. If such schools are State aided they cannot deny admission to a disabled person having that particular disability relating to the school on any of the grounds mentioned above.

    Various States have enacted Primary education Acts to provide for free primary education for children in those States. It is the obligation of every local authority (Municipal Corporation, Municipal Committee or Cantonment Board) to provide for compulsory primary education for children who are ordinarily resident within its jurisdiction. Primary education means education upto 8th class and for children who are not less than 6 years and not more than 14 years. Schools can also be set up under the above Act for imparting primary education to children suffering from physical and mental disability. The schools so set up are aided by the State government and it is the responsibility of the parent or the guardian to send the child to an approved school imparting primary education. Those who receive primary education and pass class 8th are deemed to be literate persons by the Government.

    The States have also enacted legislations called Secondary schools Education Act for imparting education higher than primary education. These schools are also aided by the government and there can be special schools for the disabled. The management and regulation of such schools imparting higher than primary education that is, Secondary education is controlled by the State government in accordance with the provisions contained in the said enactment.

    For admission to College, University and professional courses the disabled persons are not subjected to any kind of disability or disentitlement if they are otherwise fit and eligible to pursue higher courses of education. For admission to these institutions of higher learning reservation may be provided for those who are physically handicapped or physically disabled but otherwise are competent to pursue such courses of higher education.
  4. The disabled and Health laws

    Article 47 of the Constitution imposes on the Government a primary duty to raise the level of nutrition and the standard of living of its people and the improvement of the public health and in particular to bring about prohibition of the consumption of intoxicating drinks and drugs which are injurious to health except for medicinal purposes. The legislatures of the various States are empowered to make laws on public health and sanitation, hospitals and dispensaries and in this respect several municipal laws, labour welfare laws, industrial laws have made provisions for ensuring public health and safety.

    Article 41 of the Constitution provides that the State shall within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in case of unemployment, oldage, sickness and disablement and in other cases of undeserved want.

    The health laws of India are particularly relevant from the point of view of the disabled. Some of the Acts which make provision for the health of the citizens including the disabled are to be seen in the following enactments.

    The Mental Health Act, 1987 is an Act to Consolidate and amend the law relating to the treatment and care of mentally ill persons, to make better provisions with respect to their property and affairs and for connected matters. Under this Act provisions have been made for admitting persons to any psychiatric hospital or psychiatric nursing home for treatment as a voluntary patient. The medical officer incharge after making necessary inquiry within 24 hours may admit the patient. The patient can be discharged only after the medical officer incharge has taken the opinion of a Board consisting of two medical officers as to whether further treatment is necessary. Where further treatment is necessary the patient will be kept in the hospital or nursing home for periods upto 90 days at a time. The area magistrate is also empowered to recommend mentally ill persons for being admitted to the psychiatric hospitals. Provisions have also been made for the State to provide at its own expense legal aid to mentally ill persons in certain cases as also for the protection of human rights for the mentally ill persons.

    In 1996, the Persons with disabilities (equal opportunities, protection of rights and full paticipation) Act, 1995 was enacted to give effect to the proclamation on the full participation and equality of the people with disabilities in the Asian and Pacific region held at Beijing from 1st to 5th December 1992. This Act spells out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities. It also provides for creating a barrier free environment for persons with disabilities, to remove any discrimination against persons with disabilities in the sharing of development benefits vis-a-vis non disabled persons, to counteract any situation of the abuse and exploitation of the disabled persons, to lay down strategies for comprehensive developments for programmes and services and for equal opportunities for disabled persons and for their integration into the social mainstream. The Act provides for constitution of Co-ordination Committees and Executive Committees at the Central and State level for carrying out the functions assigned to them under the Act. It also provides for the appointment of Chief Commissioner for persons with disabilities at the Central level and Commissioner for persons with disabilities at the State levels to monitor funds and to safeguard the rights of the disabled persons.

    The Rehabilitation Council of India Act, 1992 was also enacted to provide for the Constitution of the Rehabilitation Council of India for regulating the training of rehabilitation professionals and for maintenance of a Central rehabilitation register and for matters connected therewith or incidental thereto.
  5. The disabled and family laws

    So far as laws of India relating to marriage the various laws enacted by the government for the various communities apply equally to the disabled persons along with those who are not disabled. In most of these Acts it has been provided that the following circumstances will disable a person from undertaking marriage. These are:
    1. Where either party is an idiot or lunatic,
    2. Where one party is unable to give a valid consent due to unsoundness of mind or is suffering from mental disorder of such kind and extent as to be unfit for marriage or for procreation of children.
    3. Where the parties are within the degree of prohibited relationship or are sapindas of each other unless permitted by custom or usage.
    4. Where either party has a spouse living.
    For any of the above grounds a marriage can be declared as null and void and a court will be competent to dissolve the marriage by a decree of divorce . There is no bar in respect of a disabled person having relationship by marriage with another non disabled person provided they are of marriageable age and do not suffer from any of the disabilities specifically mentioned above. Marriageable age is different in different laws. Marriage has to be performed with the free consent of the two parties of the opposite sex.The rights and duties of the parties to a marriage whether in respect of disabled or non disabled persons are governed by the specific provisions contained in the Hindu Marriage Act, 1955 (for Hindus) the Christian Marriage Act, 1872 (for Christians) the Parsi Marriage and Divorce Act, 1935 (for Parsis). The Special Marriage Act, 1954 (for spouses of differing religions) the Foreign Marriage Act, 1959 (for marriage outside India). A disabled person who is a complete idiot or lunatic cannot be validly married. The Child Marriage Restraint Act, 1929 as amended in 1978 to prevent solemnization of child marriages also apply to the disabled. A disabled person cannot act as a guardian of a minor under the Guardian and Wards Act, 1890 if his disability is to such a degree that he cannot act as a guardian of a minor. Similar is the position under the Hindu Minority and Guardianship Act, 1956 as also under the Muslim law. These laws also provide for grounds on which there can be a divorce between the parties such as sufferance from incurable leprosy, venereal form of communicable disease, entering into another marriage while one marriage is subsisting, living in adultery, change of religion, of being mentally unsound or having mental disorders, renunciation of the world or where the other party has not been heard of as alive for more than seven years. Divorce by mutual consent of parties is also provided by law.

    Disability of an adult person does not come in the way of his or her adopting a child. Similarly, a disabled child can also be adopted into a family of abled persons. Under the Hindu Adoption and Maintenance Act, 1956 in which the questions of adoption and maintenance have been dealt with, also apply to persons with disability. The provisions of Section 125 of the Criminal Procedure Code for seeking maintenance from spouse or the parents or children also apply to persons with disability. Under the recent National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation, and Multiple Disabilities Act, 1999 a guardian can be appointed for persons with disability who are more than 18 years of age. Parents, siblings, relatives and voluntary organisations can make appropriate applications for appointment as guardian before the respective Local Level Committee set up under the Act. More about this has been discussed later.
  6. The disabled and Succession Laws
    Are the disabled deprived of succession or inheritance to property? The answer is No. Under the Hindu Succession Act, 1956 which applies to Hindus it has been specifically provided that physical disability or physical deformity would not disentitle a person from inheriting ancestral property. Similarly,in the Indian Succession Act, 1925 which applies in the case of intestate and testamentary succession there is no provision which deprives the disabled from inheriting ancestral property. The position with regard to Parsis and the Muslims is the same. In fact a disabled person can also dispose his property by writing a `will' provided he understands the import and consequence of writing a will at the time that a Will is written. For example, a person of unsound mind can write a Will during periods of sanity. Even blind persons or those who are deaf and dumb can write their Wills if they understand the import and consequence of writing a Will.
  7. The disabled and the labour laws

    Do the disabled have the right of employment?

    Do they have the right to be employed in jobs where their disability does not interfere with the discharge of their duties? Do the disabled workmen have any special rights in labour law? What if a non disabled employee becomes disabled in the course of employment? What right does a workman have who becomes disabled outside his employment? Has the law made any provisions to take care of the legal rights of the disabled employees? These are many of the questions that arise when we talk of the disabled in relation to the labour laws.

    The labour laws of our country aim at creating harmonious industrial relations between the management and the workmen and secure congenial and safe working conditions for the workmen, and provide for their health and security. These laws apply equally to the disabled and the non-disabled in general. There may be special provisions made for the benefit of disabled workmen such as job quota for the disabled, reservation of particular jobs for the disabled, concessions in the performance and output of the disabled, adjustment of working conditions for the disabled, particular relief and considerations for the disabled in the matter of pay, allowances, timings of work, travel to and fro to work, medical attention and entertainment for the disabled.

    The rights of the disabled have not been spelt out so well in the labour legislations but provisions which cater to the disabled in their relationship with the employer are contained in delegated legislations such as rules , regulations and standing orders.

    A disabled employer may have some preference for the disabled employees. A worker in a factory loses one arm in a factory accident disabling him from the work he was doing. He is then taken in as a lift man which he can operate with one hand. A driver of a transport company permanently damages his legs in a road accident on duty. He is adjusted in a table work. A person becomes disabled during employment and the employer cannot adjust him anywhere. What would be the nature of compensation which the employer must hand out before asking the disabled worker to leave. Some of the rights of workers who become disabled during the course of employment are entitled to compensation as per the Workmen's compensation Act, 1930 and are entitled to treatment under the Employees' State Insurance Act, 1948.

    The service rules of the Government provide that an employee who becomes disabled should be adjusted in a post where his disability will not prevent him from rendering work.

    Employers generally do not take responsibility for the worker who becomes disabled by any accident or event incurred outside his employment hours. The law supports the employer in his legal stand. It is only compassion which can persuade the employer to continue with such disabled worker after adjusting him in a suitable work. There is therefore a need for the law to make provisions for the worker in such circumstances. The rights of the disabled employees must balance with the need of the employers and their work situation. Deprivation of work due to disability should be ruled out.

    Driving Licence to a Disabled Person

    Under the Motor Vehicles Act, 1988 driving licence is given to a person subject to such person being found physically and mentally fit to drive a vehicle on the road. For this a registered medical practitioner appointed for the purpose by the State Government upon examination has to certify that the person is, to the best of his judgement, medically fit to hold a driving licence. If it is certified that the person is not fit to hold a driving licence, no driving licence is issued to such person. In the medical test, the person must not suffer from any defect of vision (unless corrected by suitable spectacles), is able to readily distinguish the pigmentary colours red and green, is able to distinguish a motor car number plate at a distance of 25 meters in good day light, does not suffer from a degree of deafness which would prevent his hearing the ordinary sound signal, does not suffer from night blindness. He should not have any defect or deformity or loss of memory which would interfere with the efficient performance of his duties as a driver. Special attention is given by the medical practitioner to a person's distant vision, hearing ability, condition of the arms, legs, hands and joints of both extremities. A person who passes the medical test as above will be entitled to a driving licence. A disabled person will therefore have the right to obtain a driving licence depending upon the condition of the disability and his ability to clear the medical test. Some vehicles are so designed as to enable an orthopedically disabled person to drive the same if he can demonstrate that his vision, hearing and locomotor movements will not interfere with his driving. Section 16 of the Motor Vehicles Act, 1988 empowers a licensing authority to revoke a driving licence if it has reasonable grounds to believe that the holder of a driving licence is, by reason of any disease or disability unfit to drive a motor vehicle. Section 186 of the said Act provides that whoever drives a motor vehicle in any public place when he is to his knowledge suffering from any disease or disability calculated to cause his driving of the vehicle to be a source of danger to the public, he shall be prosecuted and punished and be made liable for payment of fine from Rupees 200/- to 500/-.
  8. The disabled and judicial procedure

    Those who are physically and mentally fit can sue others for their rights. The disabled on the other hand have to depend upon the fit person to take his matter to court, which means the dependence of the disabled on the non disabled in matters of pursuing his legal rights is fraught with the risk of being beguiled/misled and even cheated. Under the procedure followed by the courts as per the procedural laws a minor and a person of unsound mind can be represented by his next friend or guardian . Any other person who has capacity to enforce his rights can appoint an agent by means of a power of attorney. There is no provision in the law of procedure which permits safe representation on behalf of a disabled person that is a person whose disability is of a kind other than unsoundness of mind. The procedure of the courts must also be flexible enough to make concessions and adjustments where the litigant is physically and mentally disabled. The law must be specific and such matters cannot be allowed to remain at the whims and fancies of an individual judge or the vagaries caused by the opposite parties.

    The law however makes no distinction in the competence of a disabled person to enforce his legal rights as a suitor, defendant , witness or in the various rights that are available to a suitor, defendant, appellant or respondent. Sections 11 and 12 of the Contract Act, 1872 renders a person of unsound mind incapable of entering into contract or transfering property. Also they have no right of franchise.

    In matters of punishment, the judicial and legal system do not make any concessional provisions for the disabled accused and this depends largely on the kindness and discretion of the judge. No disabled person who is found guilty of a criminal offence or a civil liability can claim any special treatment before the judicial authority and procedure. However special procedures have been laid down in sections 328 to 339 of the Criminal Procedure Code, 1973 for trial of accused persons of unsound mind who are incapable of making their defence. S.84 of the IPC excepts a person who does any offence if he is in capable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.

    The difficulties encountered by the disabled in pursuit of their legal remedies has to be addressed through measures of legal reform so that the disabled find it convenient and easy to follow judicial remedies. A disabled person should not be objected to his entering a court room with crutches or other aids. Efforts need to be made to treat the disabled with consideration and courtesy.

    Under the Designs Act, 1911 which deals with the law relating to protection of designs any person having jurisdiction in respect of the property of a disabled person (who is incapable of making any statement or doing anything required to be done under this Act) may be appointed by the Court under Section 74, to make such statement or do such thing in the name and on behalf of the person subject to the disability. The disability may be lunacy or other disability.

    Disabled Person as a Witness in Court

    It has been provided in Section 118 of the Evidence Act, 1872 that all persons shall be competent to testify before a court unless the Court considers that the witness is prevented from understanding the questions put to them, or from giving rational answers to those questions because of their tender age, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Even a lunatic person is competent to testify as a witness, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.

    From the above, it would be clear that a disabled person is competent to testify as a witness in a court unless he is prevented because of his disability from understanding the questions put to him and giving rational answers to them. In the case of a person with impaired hearing, so long as he is able to understand the questions put to him through use of sign language, and can answer them he is a competent witness. The court may, in such cases take the assistance of an expert in sign languages to facilitate communication with the Court. Similarly, a person with impaired vision can also be a competent witness so long as he can understand the questions put to him and answer them rationally.

    So far as a person who is unable to speak, a specific provision is contained in Section 119 of the Evidence Act, 1872. This section provides that a witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs. But such writing must be written and the signs made in open court. Evidence so given shall be deemed to be oral evidence.

    No disabled person therefore, can be prevented from testifying as a witness in a court of law or other authority empowered to receive evidence. Each instance of a disabled person coming to tender evidence in court will have to be seen in the light of the nature of disability and the inability of such person to tender evidence that the court can take on record.
  9. The disabled and Income Tax Laws

    The Income Tax Act, 1961 recognises the plight of the disabled and allows concessions to the blind or those subject to permanent physical disability or to those subject to mental retardation and also allows deductions incurred on the maintenance of the disabled. It also allows deductions and rebate in the case of senior citizens who are more than 65 years of age.

    Section 80U of the said Act provides that in computing the total income of an individual, being a resident, who at the end of the previous year, is suffering from a permanent physical disability (including blindness) or is subject to mental retardation being a permanent physical disability or mental retardation specified in the rules made in this behalf by the Central Board of Direct Taxes which is certified by a physician, a Surgeon, an oculist or a psychiatrist, as the case may be, working in a Government hospital, and which has the effect of reducing considerably such individual's capacity for normal work or engaging in a gainful employment or occupation, there shall be allowed a deduction of a sum of Rs. 50,000 with enhanced limit of Rs. 75,000 for the severely disabled. Such individual has to produce the aforesaid certificate before the Assessing Officer in respect of the first assessment year for which he claims deduction under this Section.

    Rule 11D substituted w.e.f. 1.4.92 by IT (Third Amend) Rules, 1992 for the purposes of Section 80U—
    1. permanent physical disability shall be regarded as a permanent physical disability if it falls in any one of the categories specified below, namely.
      1. permanent physical disability of more than 50% in one limb; or
      2. permanent physical disability of more than 60% in two or more limbs; or
      3. permanent deafness with hearing impairment of 71 decibels and above, or
      4. permanent and total loss of voice.
    2. mental retardation shallbe regarded as a mental retardation if intelligence quotient is less than 50 on a test with a mean of 100 and a standard deviation of 15 such as the Wechsle Scale;
    3. blindness shall be regarded as a permanent physical disability, if it is incurable and falls in any one of the categories specified below, namely:

      All with corrections
      Better eye Worse eye
      (a) 6/60-4/60
      or
      field of vision
      110-20
      3/60 to Nil
      (b) 3/60 to 1/60
      or
      field of vision
      100
      F.C. at 1 foot to Nil
      (c) F.C. at 1 foot to Nil
      or
      field vision 100
      F.C. at 1 foot to Nil
      or
      field of vision 100
      (d) Total absence of sight Total absence of sight

      Under Section 80DD of the Income Tax Act, 1961 it has been provided that deductions will be available to an assessee resident in India, being an individual or Hindu Undivided Family in respect of maintenance including medical treatment of a handicapped dependant. It provides that where the assessee during the previous year has incurred any expenditure for the medical treatment (including nursing) training and rehabilitation of a handicapped dependant, or paid or deposited any amount under a scheme framed in this behalf by the Life Insurance Corporation of India or Unit Trust of India and approved by the Central Board of Direct Taxes in this behalf for the maintenance of a handicapped dependant, in that event the assessee will be allowed deduction of a sum of Rs. 50,000 in respect of the previous year. The deduction shall be allowed only if a scheme of LIC or UTI provides for payment of annuity or lump-sum amount for the benefit of a handicapped dependant in the event of the death of the individual or the member of the HUF in whose name subscription to the scheme has been made. The assessee has to nominate either the handicapped dependant or any other person or a trust to receive the payment on his behalf for the benefit of the handicapped dependant. If the handicapped dependant pre-deceases the individual or member of the HUF the amount so deposited shall be deemed to be the income of the assessee of the previous year in which such amount is received by the assessee and shall be chargeable to tax as income of that previous year. This Section also provides that a `Governmental hospital' includes a departmental dispensary whether full-time or part-time established and run by a department of the Government for the medical attendance and treatment of a class or classes of Government servants and members of their family. Such hospitals may be maintained by a local authority or any other hospital with which arrangement have been made by the Government for the treatment of the Government servants. A handicapped dependant, has been defined to mean a person who is a relative of the individual or a member of the Hindu Undivided Family and is not dependant on any person other than such individual or HUF for his support or maintenance. Also, the handicapped dependant should be suffering from a permanent physical disability (including blindness) or is subject to mental retardation, being a permanent physical disability or mental retardation specified in Rule 11A made by the CBDT for the purpose of this Section. The said disability must be certified by the physician, surgeon, oculist or a psychiatrist as the case may be working in a Governmental hospital and which has the effect of reducing considerably such person's capacity for normal work or engaging in a gainful employment or occupation.

      Rule 11A_For the purpose of Section 80DD,
      1. permanent physical disability shall be regarded as a permanent physical disability if it falls in any one of the categories specified below, namely:-
        1. permanent physical disability of more than 50 per cent in one limb; or
        2. permanent physical disability of more than 60 per cent in two or more limbs; or
        3. permanent deafness with hearing impairment of 71 decibels and above; or
        4. permanent and total loss of voice;
      2. blindness shall be regarded as a permanent physical disability, if it is incurable and falls in any one of the categories specified below, namely:-

        All with corrections
        Better eye Worse eye
        (a) 6/60-4/60
        or field of vision
        110-20
        3/60 to Nil
        (b) 3/60 to 1/60
        or
        field of vision
        100
        F.C. at 1 foot to Nil
        (c) F.C. at 1 foot to Nil
        or
        field vision 100
        F.C. at 1 foot to Nil
        or
        field of vision 100
        (d) Total absence of sight Total absence of sight
      3. mental retardation shall be regarded as a mental retardation if intelligence quotient is less than 50 on a test with a mean of 100 and a standard deviation of 15 such as the Wechsle scale.

        The understanding as to what constituted disability under the law was brought in line with the Persons with Disability Act, 1995 by the Finance Act, 2003 for income earned during the financial year 2003-2004. Prior to the Finance Act disability was referred to as handicap and was defined in Rule 11A and 11D of the Income Tax Rules. To avail of any benefit or exemption a person had to have a permanent physical disability which included disability arising out of loss of limbs, speech, sight and hearing to the extent specified. This was required to be certified by Government Doctor specialising in the respective field. Income Tax law accepted disability to be incurable while describing it as a permanent physical disability. Under the Persons with Disability Act, 1955 disabled has to be treated as defined in the said Act even if it may be cured after some time. Curable disability or disability which is severe now but may not be severe later requires to be certified for a limited period. The burden of proof for such certification lies on the disabled. Since disability has a larger meaning and includes those who are leprosy cured or with locomotor disability and mentally ill, these will come to be covered by the Income Tax also. The Income Tax return has a column in which disabled assessee will have to fill for deduction claimed under Section 80U. An original disability certificate will have to be attached at time of the first application. In successive years the photocopy of the same can be submitted, provided the disability is of a permanent kind. Under Section 800DD the deduction limit has been increased to Rs. 50,000 per annum from Rs. 40,000. It has been certified by CBDT by its Circular No. 702 dated 3.4.1995 that in respect of any expenditure on maintenance admissible under Section 80DD there is no need for proof of expenditure as long as the person has incurred some expenditure and provides the necessary certificate of disability. Where the disability is a severe one, the deduction is of Rs. 75,000. By the Finance Act, 2004 those suffering from autism, cerebral palsy and multiple disability have also been included within the purview of the Income Tax for claiming deduction under Section 80U and 80DD. In the case of transport allowance for blind or orthopedically disabled employees for commuting between their residence and places of employment, they can get exemption to the extent of Rs. 800 per month. If they happen to be blind or orthopedically handicapped with disability of lower extremities, the transport allowance will be exempted upto Rs. 1600 per month under Rule 2BB of the Income Tax Rules. However, this allowance will be exclusive of the salary or has to be separately given as the exemption is not deductible from the salary itself. Under the Finance Act, 2003 a certificate of disability for a limited number of years where the nature of disability requires re-assessment has to be submitted. The disability certificate will have to be renewed after the expiry of the period specified in the original certificate, wherever it is for a limited period. Further, voluntary agencies engaged in providing education, voluntary training and other assistance for the physically challenged and underprivileged members of the society or engaged in charitable or other activities of general public utility, are given some tax benefits. Under Section 80G of the Income Tax Act, 1961 the exemption is subject to registration and other requirements laid down under the said Act. Donations made to such voluntary agencies and institutions are eligible for deduction of 50 per cent of their donations to such institutions from their income.
Part_II

Analysis of Specific Legislations
for the disabled
  1. THE MENTAL HEALTH ACT, 1987

    Salient Features

    The law relating to treatment and care of mentally ill persons was earlier regulated by the Lunacy Act, 1912. With the change in attitude of the society towards persons afflicted with mental illness, it is now realised that no stigma should be attached to such illness as it is curable particularly when diagnosed at an earlier stage. They are to be treated like any other sick persons and the environment around them should be made as normal as possible. With this objective the said Lunancy Act of 1912, was replaced by the Mental Health Act of 1987 which came into force in all States and union territories on 1st April 1993. It was enacted in pursuance of Entry 16 of the concurrent list of the Constitution, that is, Lunancy and mental deficiency, including places for the reception or treatment of lunatics and mental deficients. In some states like Tamil Nadu, the Lunancy Act, 1912 is still in operation.

    The purpose of the Act is to regulate admission to Psychiatric hospital or nursing homes of mentally ill persons who do not have sufficient understanding to seek treatment on a voluntary basis and to protect the rights of such persons while being detained. A mentally ill person is one who is in need of treatment by reason of any mental disorder other than mental retardation.

    The Act also seeks to protect society from the presence of mentally ill persons who have become or might become a danger or nuisance to others, to regulate responsibility for maintenance of such mentally ill persons while they are detained in Psychiatric hospitals and nursing homes. It also provides facility for establishing guardianship or custody of mentally ill persons who are in capable of managing their own affairs. Under the Act, the government has power to regulate establishment, licensing, and control of Psychiatric hospitals and nursing homes. The Act also creates a Central authority and State authorities for mental health services.

    Central Authority for Mental Health Services

    This authority established by the Central Government has to be responsible for regulation, development direction and co-ordination with respect to mental health services under the Central Government. It has to supervise the Psychiatric hospitals and nursing homes and other mental health agencies under the control of the Central Government and also to advise the latter on all matters relating to mental health.

    State authority for mental health services are established by the State Governments to carry on the same functions as the Central authority but within the state for which it has been set up.

    Psychiatric Hospitals and Psychiatric Nursing Homes

    Both the Central government and the State Governments have the power to establish or maintain

    Psychiatric hospitals or nursing homes for mentally ill persons within their jurisdiction. Separate hospitals or nursing homes may be established for the minors, those addicted to alcohols, those convicted of any offence and those belonging to any other class as may be prescribed. After the commencement of this Act, no person can establish or maintain a Psychiatric hospital or nursing home without holding a proper license granted under this Act. Those existing Psychiatric hospitals or nursing homes at the time of commencement of the Act have also to obtain a license or a fresh license. The application for license has to be made to the licensing authority as may be specified by the state government who shall after making necessary enquiries grant the license or refuse to grant the license where the applicant does not satisfy the requirements or minimum facilities for the care of mentally ill persons after giving a reasonable opportunity of hearing. A license granted under this Act is not transferable or heritable and will normally be for a period of five years from the date it is granted and may be renewed from time to time. The government will prescribe the conditions for maintenance of Psychiatric hospitals or nursing homes. A license can also be revoked by the licensing authority if it is satisfied that the Psychiatric hospital is not being maintained in accordance with the Act or rules made there under or is being carried out in a manner detrimental to the mental or physical well-being of the in-patients. An Appeal can also be made to the State Government against such revocation of license. Psychiatric hospitals and nursing homes can be inspected by inspecting officers who will have the discretion to interview in private any inpatient as also examine their complaints. Based on the inspectors report, the licensing authority may issue suitable directions to such hospitals. Provisions have also to be made for treatment of out patients in such hospitals and nursing homes.

    Admission and Detention of Mentally Ill Persons

    Any mentally ill person or the guardian of a minor who is mentally ill can request the medical officer incharge of the Psychiatric hospital and nursing home for being admitted as a Voluntary patient. The medical officer has to make his enquiry within 24 hours and decide whether or not to admit such applicant as a voluntary patient and discharge him when a request is made for such discharge. A relative or friend of a mentally ill person who is unable to express his willingness for admission as a voluntary patient may be admitted and kept as in patient if the medical officerincharge is satisfied that it is in the interest of mentally ill person to be so admitted. Such requests should be accompanied by two medical certificates of which one should be from the government doctor recommending admission of such patients. Discharge of such patients may be allowed by the magistrate after notice to the relative or friend.

    Reception Orders

    Applications may be made by the medical officers incharge of a Psychiatric hospital or nursing home or the husband wife or other relatives of the mentally ill persons to the area magistrate for detention of such mentally ill persons under a reception order to be passed by the magistrate. In such cases the mentally ill person must be suffering from mental disorder of such a nature and degree that his treatment in the Psychiatric hospital is required to be continued for more than six months or that he be detained in the interest of his personal health and safety or for protection of others. A reception order means an order made by the magistrate for the admission and detention of a mentally ill person in a psychiatric hospital or psychiatric nursing home

    Powers and Duties of Police Officers

    It is the duty of every officer incharge of a police station to take into protection any mentally ill person wandering within the limits of his station and is incapable of taking care of himself or that he is dangerous to the society. The Police has to inform the person or his relatives of the grounds on which he has been taken into protection and he shall be produced before the magistrate within 24 hours. The magistrate may after making necessary enquiry pass a reception order authorising the detention of the said person. The police can also take in its protection any mentally ill person within the limits of its station if such person is ill treated or neglected by any relative or other person having charge of such mentally ill person. A reception order for such person can be obtained from the magistrate in such cases. Mentally ill prisoners can also be taken into any Psychiatric hospital or nursing home. Pending report by a medical officer, the mentally ill person can be kept in an observation ward of a general hospital or nursing home for a period of 15 days as may be considered necessary by the magistrate. The medical certificates must certify that the doctor has examined the mentally ill person personally within 10 days preceding the certificate. The reception order is sufficient authority to detain a mentally ill person as in-patient in the Psychiatric hospital or ward. Every magistrate or district court making a reception order has to send a certified copy of the same along with all the medical certificates to the medical officer incharge of the Psychiatric hospital or nursing home in which the mentally ill person has to be admitted. The magistrate or the district court shall exercise jurisdiction over Psychiatric hospital and nursing homes over its own State. A reception order can be amended to correct mistakes. The magistrate has power to appoint a substitute for the person upon whose application reception order was made. The powers of magistrate can also be exercised by the Commissioners of Police.

    Visitors for Psychiatric Homes

    It is the duty of every State Government and the Central Government to appoint at least five visitors consisting of a medical officer, a Psychiatrist and two social workers as visitors to be attached to every Psychiatric hospital and nursing home. It shall be the duty of the visitors to make an inspection of the hospital or nursing home once every month and examine the patients and shall report on the management and conditions of such hospitals and nursing home. The Medical Officer incharge of the Psychiatric hospital or nursing home will recommend discharge of a patient. A patient can also be discharged where any relative or friend of a mentally ill person desires that such person shall be delivered to his care or custody. A person who has recovered from mental illness may apply to the magistrate for his discharge. Patients of adult age can also apply for leave of absence through his relative and the medical officer incharge may grant such leave in the interest of health and personal safety of the mentally ill person upto a period of 60 days. Similar applications can be made to the magistrate if leave has been refused by the medical officer incharge. Mentally ill patient can be removed by the state Government to a similar hospital in another state. The district court can also enquire into the mental condition of a mentally ill person who is possessed of property. In certain cases a guardian and a manager to take care of such person and his property can also be appointed. The extent of power and duties of such guardian or manager have been spelt out in the Act itself.

    The cost of maintenance of mentally ill persons detained as an in-patient in any Psychiatric hospital or nursing home will be borne by the state government under whom the authority which passed the detention order is situated unless costs for such maintenance have been undertaken to be borne by any person or relative of the detained patient.

    The Act further provides that no mentally ill person shall be subjected to any indignity whether physical or mental or cruelty during his treatment. Moreover no mentally ill person under treatment shall be subjected to research except with his consent and if it is for his benefit.

    Directions Issued By the Supreme Court of India for Implementation of the Mental Health Act, 1987

    Based on a news item concerning death by burning of 25 mentally challenged patients housed in a mental asylum due to fire, the Supreme Court took suo moto action and issued notice to the Union of India as also the State Governments. It was found that the death of the mentally challenged patients in the asylum were caused by the fact that the patients were chained to poles or beds and therefore could not escape. After considering the submissions made on behalf of the Central and State Governments, the Supreme Court issued the following directions to be complied with by the Central and State Governments as the case may be. (AIR 2002 SC 979)
    1. Every State and Union Territory must undertake a districtwise survey of all registered unregistered bodies by whatever name called, purporting to offer psychiatric mental health care. All such bodies should be granted or refused license depending upon whether minimum prescribed standards are fulfilled or not. In case license is rejected, it shall be the responsibility of the SHO of the concerned police station to ensure that the body stops functioning and patients are shifted to Government Mental Hospitals. The process of survey and licensing must be completed within 2 months and the Chief Secretary of each State must file a comprehensive compliance report within 3 months from date of this order. The compliance report must further state that no mentally challenged person is chained in any part of the State.
    2. The Chief Secretary or Additional Chief Secretary designated by him shall be the nodal agency to coordinate all activities involved in implementation of the Mental Health Act, 1987, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabliities Act, 1999. He shall ensure that there are no jurisdictional problems or impediments to the effective implementation of the three Acts between different ministries or departments. At the Central level, the Cabinet Secretary, Government of India or any Secretary designated by him shall be the nodal agency for the same purpose.
    3. The Cabinet Secretary, Union of India shall file affidavit in this Court within one month from date of this order indicating : -
      1. The contribution that has been made and that is proposed to be made under Section 21 of the 1999 Act which would constitute corpus of the National Trust.
      2. Policy of the central government towards setting up at least one Central Govenment run mental hospital in each State and Union Territory and definite time schedule for achieving the said objective.
      3. National Policy, if any, framed under Section 8(2) (b) of the 1995 Act,
    4. In respect of States/Union Territories that do not have even one full-fledged State Government run mental hospital , the Chief Secretary of the State/Union Territory must file an Affidavit within one month from date of this order indicating steps being taken to establish such fullfledged State Government run mental hospital in the State/Union Territory and a definite time schedule for establishment of the same.
    5. Both the Central and State Governments shall undertake a comprehensive awareness campaign with a special rural focus to educate people as to provisions of law relating to mental health, rights of mentally challenged persons, the fact that chaining of mentally challenged persons is illegal and that mental patients should be sent to doctors and not to religious places such as Temples or Dargahs.
    6. Every State shall file an affidavit stating clearly :
      1. Whether the State Mental Health Authority under Section 3 of the 1987 Act exists in the State and if so, when it was set up.
      2. If it does not so exist the reasons thereof and when such an Authority is expected to be established and operationalised.
      3. The dates of meetings of those Authorities, which already exist, from the date of inception till date and a short summary of the decisions taken.
      4. A statement that the State shall ensure that meetings of the Authority take place in future at least once in every four months or at more frequent intervals depending on exigency and that all the statutory functions and duties of such Authority are duly discharged.
      5. The number of prosecutions, penalties or other punitive/coercive measures taken if any, by each State under the 1987 Act."
The Medical Termination of Pregnancy Act, 1971

Under this Act, pregnancy of a `lunatic' with the written consent of her guardian can be terminated provided the doctor is of the opinion that the pregnancy will cause injury to the woman's physical or mental health.

Rights of the disabled who are mentally ill


Under the Mental Health Act, 1987 mentally ill persons are entitled to the following rights:
  1. A right to be admitted, treated and taken care of in a Psychiatric hospital or Psychiatric nursing home or convalescent home established or maintained by the Government or any other person for the treatment and care of mentally ill persons (other than general hospitals or nursing homes of the Government).
  2. Even mentally ill prisoners and minors have a right of treatment in Psychiatric hospitals or Psychiatric nursing homes of the Government.
  3. Minors who are under the age of 16 years, those persons who are addicted to alcohol or other drugs which lead to behavioural changes and those convicted of any offence are entitled to admission, treatment and care in separate Psychiatric hospitals or nursing homes established or maintained by the Government.
  4. Mentally ill persons have the right to have regulated, directed and co-ordinated mental health services from the Government which through the Central Authority and the State Authorities set up under the Act have the responsibility of such regulation and issue of licenses for establishing and maintaining Psychiatric hospitals and nursing homes.
  5. Treatment at Government hospitals and nursing homes mentioned above can be had either as in patient or as out-patients.
  6. Mentally ill persons can seek voluntary admission in such hospitals or nursing homes and minors can seek admission through their guardians. Admission can be sought for by relatives of mentally ill persons on behalf of the latter. Applications can also be made to the local magistrate for grant of reception orders.
  7. The police have an obligation to take into protective custody a wandering or neglected mentally ill person and inform his relative and have to produce such person before the local magistrate for issue of reception orders.
  8. Mentally ill persons have the right to be discharged when cured and entitled to `leave' in accordance with the provisions in the Act.
  9. Where mentally ill persons own properties including land which they cannot themselves manage, the District Court upon application has to protect and secure the management of such properties by entrusting the same to a Court of Wards, by appointing guardians of such mentally ill persons or appointment of managers of such property.
  10. The costs of maintenance of mentally ill persons detained as in-patient in any Government Psychiatric hospital or nursing home shall be borne by the State Government concerned unless such costs have been agreed to be borne by the relative or other person on behalf of the mentally ill person and no provision for such maintenance has been made by order of the District Court. Such costs can also be borne out of the estate of the mentally ill person.
  11. Mentally ill persons undergoing treatment shall not be subjected to any indignity (whether physical or mental) or cruelty. Nor can such mentally ill person be used for purposes of research except for his diagnosis or treatment or with his consent.
  12. Mentally ill persons who are entitled to any pay, pension, gratuity or any allowance from the Government (such as Government servants who become mentally ill during their tenure) are not to be denied such payments. The person who is in-charge of such mentally ill person or his dependants will receive such payments after the Magistrate has certified the same.
  13. A mentally ill person shall be entitled to theservices of a legal practitioner by order of the Magistrate or District Court if he has no means to engage a legal practitioner or his circumstances so warrant in respect of proceedings under the Act.
2. THE REHABILITATION COUNCIL OF INDIA ACT, 1992

This Act was passed in 1992 for the purpose of constituting the Rehabilitation Council of India, for regulating the training of Rehabilitation professionals and for maintenance of a Central Rehabilitation register. It was amended by the Rehabilitation Council of India (Amendment) Act, 2000 which provides for monitoring the training of rehabilitation professionals and personnel, promoting research in rehabilitation and special education as additional objectives of the Act.

Objects of the Act:


The purpose of the Act is to transform the erstwhile Rehabilitation Council , a society formed and registered in 1986 under the Societies Registration Act, 1860 into a statutory body. Accordingly, the Rehabilitation Council of India has been set up by the Central Government by notification so that the functions allotted to the Rehabilitation Council of India under the Act may be performed in pursuance to the statute and the powers exercised by the Rehabilitation Council of India may be deemed as statutory powers.

This was necessary in view of the fact that the Rehabilitation Council of India was envisaged to be the apex body for recognition of qualifications for Rehabilitation professionals, enrol them and maintain the Central Register of Rehabilitation professionals and for regulating their conduct.

The Rehabilitation Council of India Act is applicable throughout India. It was brought into force on 31st July 1993. A Committee of experts recommended certain changes in the Act which have been approved by Parliament by passing the Amendment Act of 2000 in August/September, 2000.

Important definitions —

— "handicapped" means a person suffering from any disability, referred to in Clause (i) of Section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Act 1 of 1996).

Mental retardation—

— "mental retardation" means a condition of arrested or incomplete development of mind of a person which is specially characterised by sub-normality of intelligence;

Recognised rehabilitation qualifications —

— "recognised rehabilitation qualifications" means any of the qualifications in Prosthetic & Orthotic engineering, in Speech & hearing. Teacher training for the Deaf, the Blind, the mentally retarded and in communication disorders as have been included in the Schedule to the Act.

Rehabilitation professionals—

— audiologists, speech therapists, clinical psychologists hearing aid technicians, rehabilitation engineers, psychologists, social workers, counsellors, Prosthetists, Orthotists, Physiotherapists, Occupational therapists, Opthalmic technicians etc.

Rehabilitation

— refers to a process aimed at enabling persons with disabilities to reach and maintain their optimal physical, sensory, intellectual, psychiatric or social functional levels.

SALIENT FEATURES OF THE ACT

Composition of Rehabilitation Council of India—

The Council shall consist of the following members, namely:-
  1. a Chairperson, from amongst the persons having experience in administration with professional qualification in the field of rehabilitation, disabilities and special education to be appointed by the Central Government;
  2. not exceeding seven members to be nominated by the Central Government to represent respectively the Ministries of the Central Government dealing with matters relating to persons with disabilities;
  3. one member to be appointed by the Central Government to represent the University Grants commission;
  4. one member to be appointed by the Central Government to represent the Directorate General of Indian Council of Medical Research;
  5. two members to be appointed by the Central Government to represent the Ministry or department of the States or the Union territories dealing with Social Welfare by rotation in alphabetical order;
  6. such number of members not exceeding six as may be appointed by the Central Government from amongst the rehabilitation professionals working in voluntary organisations;
  7. such number of members not exceeding four as may be appointed by the Central Government from amongst the medical practitioners enrolled under the Indian Medical Council Act, 1956 in the Indian Medical Register and engaged in rehabilitation of the handicapped;
  8. three Members of Parliament of whom two shall be elected by the House of the People and one by the Council of States;
  9. such number of members not exceeding three as may be nominated by the Central Government from amongst the social workers who are actively engaged in assisting the disabled;
  10. the member-Secretary, ex-officio,
Terms of office and disqualification of members—
  1. The Chairperson or a member shall hold office for a term of two years from the date of his appointment or until his successor shall have been duly appointed, which ever is longer.
  2. A casual vacancy in the Council shall be filled in accordance with the provisions of section 3 and the person so appointed shall hold office only for the remainder of the term for which the member in whose place he was appointed would have held that office.
  3. The Council shall meet at least once in each year at such time and place as may be appointed by the Council and shall observe such rules of procedure in the transaction of business at a meeting as may be prescribed by regulations.
  4. The Chairperson or, if for any reason, he is unable to attend the meeting of the Council, any member elected by the members present from amongst themselves at the meeting, shall preside at the meeting.
  5. All questions which come up before any meeting of the Council shall be decided by the majority of votes of the members present and voting, and in the event of an equality of votes, the Chairperson, or in his absence, the person presiding shall have a second or casting vote.
    No person shall be a member if he—
    1. is, or becomes, of unsound mind or is so declared by a competent court; or
    2. is, or has been, convicted of any offence which, in the opinion of the Central Government, involves moral turpitude; or
    3. is, or at any time has been, adjudicated as insolve
    Vacation of office by members
    If a member—
    1. becomes subject, to any of the above disqualifications or
    2. is absent without excuse, sufficient in the opinion of the Council, from three consecutive meetings of the Council; or
    3. ceases to be enrolled on the Indian Medical Register; his seat shall thereupon become vacant.
Executive Committee—
  1. The Council shall constitute from amongst its members an Executive Committee and such other committees for general or special purposes as the Council deems necessary to carry out the purposes of this Act.
  2. The Executive committee shall consist of the Chairperson who shall be member ex officio and not less than seven and not more than ten members who shall be nominated by the Council from amongst its members.
  3. The Chairperson shall be the Chairperson of the Executive Committee.
  4. In addition to the powers and duties conferred and imposed upon it by this Act, the Executive Committee or any other committee shall exercise and discharge such powers and duties as the Council may confer or impose upon it by any regulations which may be made in this behalf.
    No act or proceeding of the Council or any committee thereof shall be called in question on the ground merely of the existence of any vacancy in, or any defect in the constitution of, the Council or a committee thereof, as the case may be.
Member secretary and employees of the Council—
  1. The Central Government shall appoint the Member-Secretary of the Council to exercise such powers perform such duties under the direction of the Council as may be prescribed or as may be delegated to him by the Chairperson.
  2. The Council shall, with the previous sanction of the Central Government employ such officers and other employees as it deems necessary to carry out the purpose of this Act.
  3. The Council shall, with the previous sanction of the Central Government, fix the allowances to be paid to the Chairperson and other members and determine the conditions of service of the member-Secretary, officers and other employees of the Council.
Transfer of the Rehabilitation Council to the Council—
  1. On and from the date of the constitution of the Council, the Rehabilitation Council shall stand dissolved and on such dissolution,
    1. all properties and assets, movable and immovable, of, or belonging to, the Rehabilitation Council shall vest in the Council;
    2. all the rights and liabilities of the Rehabilitation Council shall be transferred to, and be the rights and liabilities of, the Council;
    3. without prejudice to the provisions of clause (b), all liabilities incurred, all contracts entered into and all matters and things engaged to be done by, with or for the Rehabilitation Council immediately before that date, for or in connection with the purposes of the said Rehabilitation Council shall be deemed to have been incurred, entered into, or engaged to be done by, with or for, the Council;
    4. all sums of money due to the Rehabilitation council immediately before that date shall be deemed to be due to the Council;
    5. all suits and other legal proceedings instituted or which could have been instituted by or against the Rehabilitation Council immediately before that date may be continued or may be instituted by or against the Council, and
    6. every employee holding any office under the Rehabilitation Council immediately before that date shall hold his office in the Council by the same tenure and upon the same terms and conditions of service as respects remuneration, leave, provident fund, retirement and other terminal benefits as he would have held such office as if the Council had not been constituted and shall continue to do so as an employee of the Council or until the expiry of a period of six months from that date if such employee opts not to be the employee of the Council within such period.
  2. Notwithstanding anything contained in the Industrial Disputes Act 1947 or any other law for the time being, in force, absorption of any employee by the Council in its regular service under this section shall not entitle such employee to any compensation under that Act or other law and no such claim shall be entertained by any court, tribunal or other authority.
FUNCTIONS OF THE COUNCIL

Recognition of qualifications from Indian Universities
  1. The qualifications granted by any University or other institution in India which are included in the schedule to the Act shall be recognised qualifications for rehabilitation professionals.
  2. Any University or other institution which grants qualification for the rehabilitation professionals not included in the Schedule may apply to the Central Government to have any such qualification recognised, and the Central Government, after consulting the Council may, by notification, amend the Schedule so as to include such qualification therein and any such notification may also direct that an entry shall be made in the last column of the Schedule against such qualification only when granted after a specified date.
Recognition of outside qualifications

The Council may enter into negotiations with the authority in any country outside India for settling of a scheme of reciprocity for the recognition of qualifications, and in pursuance of any such scheme, the Central Government may, by notification, amend the Schedule so as to include therein any qualification which the council has decided should be recognised, and by such notification may also direct that an entry shall be made in the last column of the Schedule declaring that it shall be the recognised qualification only when granted after a specified date.

Enrolment of qualified Rehabilitation Professionals—
  1. Subject to the other provisions contained in this Act, any qualification included in the Schedule shall be sufficient qualification for enrolment on the Register.
  2. No person, other than the rehabilitation professional who possesses a recognised rehabilitation qualification and is enrolled on the Register and any person being a doctor or a paramedic in the field of physical medicine and rehabilitation, orthopaedic, ear, nose, or throat (ENT), opthalmology or psychaiatry employed or working in any Government hospital-
    1. shall hold office as rehabilitation professional or any such office (by whatever designation called) in Government or in any institution maintained by a local or other authority;
    2. shall practice as rehabilitation professional anywhere in India;
    3. shall be entitled to sign or authenticate any certificate required by any law to be signed or authenticated by a rehabilitation professional;
    4. shall be entitled to give any evidence in any court as an expert under section 45 of the Indian Evidence Act, 1872 on any matter relating to the handicapped.

      Provided that if a person possesses the recognised rehabilitation professional qualifications on the date of commencement of this Act, he shall be deemed to be an enrolled rehabilitation professional for a period of six months from such commencement, and if he has made an application for enrolment on the Register within said period of six months, till such application is disposed off;
  3. Any person who acts in contravention of any provision of sub section (2) shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Council can require information

Every University or institution in India which grants a recognised qualification shall furnish such information as the Council may, from time to time, require as to the course of study and examinations to be undergone in order to obtain such qualification, as to the ages at which such courses of study and examinations are required to be undergone and such qualification is conferred and generally as to the requisites for obtaining such qualification.

Council to appoint Inspectors
  1. The Council shall appoint such number of Inspectors as it may deem requisite to inspect any University or institution where education for practicing as rehabilitation professionals is given or to attend any examination held by any University or institution for the purpose of recommending to the Central Government recognition of qualification granted by that University or institution as recognised rehabilitation qualifications.
  2. The Inspectors appointed under sub-section (1) shall not interfere with the conduct of any training or examination but report to the Council on the adequacy of the standards of education including staff, equipment, accommodation, training and other facilities prescribed, for giving such education or of the sufficiency of every examination which they attend.
  3. The Council shall forward a copy of the report of the Inspector under sub-section (2) to the University or institution concerned and shall also forward a copy with the remarks of the University or the institution thereon, to the Central Government.
Council to appoint Visitors at examinations
  1. The Council may appoint such number of Visitors as it may deem requisite to inspect any University or institution wherein education for rehabilitation professionals is given or attend any examination for the purpose of granting recognised rehabilitation qualifications.
  2. Any person, whether he is a member of the Council or not, may be appointed as a Visitor under sub-section (1) but a person who is appointed as an Inspector under sub-section (1) of section 15 for any inspection or examination shall not be appointed as a Visitor for the same inspection or examination.
  3. The Visitor shall not interfere with the conduct of any training or examination but shall report to the Chairperson on the adequacy of the standards of education including staff, equipment, accommodation, training and other facilities prescribed for giving education to the rehabilitation professionals or on sufficiency of every examination which they attend.
  4. The report of a Visitor shall be treated as confidential unless in any particular case the Chairperson otherwise directs;
Provided that if the Central Government requires a copy of the report of a Visitor, the Council shall furnish the same.

Withdrawal of recognition

Where the Inspector or Visitor reports want of prescribed standards by any University or Institution, the Council will represent to the Central Government which may after calling for explanation notify an entry in the Schedule to the Act that the recognised rehabilitation qualification shall be valid only from a specified date.

Council to prescribe minimum standards of education

The Council may prescribe the minimum standards of education required for granting recognised rehabilitation qualification by Universities or institutions in India.

Registration of Rehabilitation Professionals

The Member-Secretary of the Council may, on receipt of an application made by any person in the prescribed manner enter his name in the Register provided that the Member Secretary is satisfied that such person possesses the recognised rehabilitation qualification.

Registration of Vocational instructors and personnel working on disability in the Register.

The Council shall register vocational instructors and other personnel working in the Vocational rehabilitation Centres under the Ministry of Labour as may be recommended by that Ministry. The Council shall also register personnel working in National Institutes and apex institutions on disability under the Ministry of Social Justice and Empowerment as may be recommended by that Ministry.

Recognition of Man-power development Centres

The Council shall recognise the Vocational Rehabilitation Centres of the Ministry of Labour and the National Institutes and apex institutions on disability of the Ministry of Social Justice and Empowerment as Man-power development Centres.

Privilege of persons registered on the Register

Subject to the conditions and restrictions laid down in this Act regarding engagement in the area of rehabilitation of the handicapped by persons possessing the recognised rehabilitation qualifications, every person whose name is for the time being borne on the Register shall be entitled to practice as a rehabilitation professional in any part of India and to recover in due course of law in respect of such practice any expenses, charges in respect of medicaments or other appliances or any fees to which he may be entitled.

Professional misconduct and removal from Register—
  1. (1) The Council may prescribe standards of professional conduct and etiquette and a code of ethics for rehabilitation professionals.
  2. (2) Regulations made by the Council under sub-section (1) may specify which violations thereof shall constitute infamous conduct in any professional respect, that is to say, professional misconduct, and such provision shall have effect notwithstanding anything contained in any other law for the time being in force.
  3. (3) The Council may order that the name of any person shall be removed from the Register where it is satisfied, after giving that person a reasonable opportunity of being heard, and after such further inquiry, if any, as it may deem fit to make;
  4. (i) that his name has been entered in the Register by error or on account of misrepresentation or suppression of a material fact;
  5. (ii) that he has been convicted of any offence or has been guilty of any infamous conduct in any professional respect, or has violated the standards of professional conduct and etiquette or the code of ethics prescribed under sub-section (1) which, in the opinion of the Council, renders him unfit to be kept in the Register.
  6. (4) An order under sub-section (3) may direct that any person whose name is ordered to be removed from the Register shall be ineligible for registration under this Act either permanently or for such period of years as may be specified.
  7. The Council has framed the Rehabilitation Council of India (Standards of
    Professional Conduct, Etiquette and Code of Ethics for Rehabilitation professionals) Regulations, 1998.
Appeals against Orders of Removal from Register An appeal can be made to the Central Government by a person whose name has been removed from the Register within 60 days of such order of removal unless sufficient cause prevented making of such appeal within the said period. Register of Rehabilitation professionals—
  1. (1) It shall be the duty of the Member-Secretary to keep and maintain the Register in accordance with the provisions of this Act and any order made by the Council and from time to time to revise the Register and publish it in the Official Gazette.
  2. (2) The Register shall be deemed to be a public document within the meaning of the Indian
Evidence Act, 1872 and may be proved by a copy thereof.

Council to furnish information
  1. The Council shall furnish such reports, copies of its minutes abstracts of its accounts, and other information to the Central Government as that Government may require.
  2. The Central Government may publish in such manner as it may think fit, any report copy, abstract or other information furnished to it by the Council under this section or under section 16.
Prosecution of Offenders—

Notwithstanding anything contained in the Code of Criminal procedure, 1973, no court shall take cognizance of an offence punishable under this Act, except upon a complaint, in writing, made by any person authorised in this behalf by the Council.

Rules & Regulations—

The Central Government may, by notification, make rules to carry out the purposes of this Act.

The Council may, with the previous sanction of the Central Government, make by notification, regulations generally to carry out the purposes of this Act, and without prejudice to the generality of the foregoing power, such regulations may provide for-
  1. the management of the property of the Council;
  2. the maintenance and audit of the accounts of the Council;
  3. the resignation of members of the Council;
  4. the powers and duties of the Chairperson;
  5. the rules of procedure in the transaction of business under sub-section (3) of section 4;
  6. the function of the Executive Committee and other committees, constituted under section 7;
  7. the powers and duties of the Member-Secretary under sub-section (1) of section 8;
  8. the qualifications, appointment, powers and duties of, and procedure to be followed by, Inspectors and Visitors;
  9. the courses and period of study or of training, to be undertaken, the subjects of examination and standards of proficiency therein to be obtained in any University or any institution for grant of recognised rehabilitation qualification;
  10. the standards of staff, equipment, accommodation, training and other facilities for study or training of the rehabilitation professionals;
  11. the conduct of examinations, qualifications of examiners, and the conditions of the admission to such examinations;
  12. the standards of professional conduct and etiquette and code of ethics to be observed by rehabilitation professionals under sub-section (1) of section 21;
  13. the particulars to be stated, and proof of qualifications to be given, in application for registration under this Act;
  14. the manner in which and the conditions subject to which an appeal may be preferred under sub-section (1) of Section 22;
  15. the fees to be paid on applications and appeals under this Act;
  16. any other matter which is to be, or may be, prescribed;
The Council has, with the previous sanction of the Central Government, has made the Rehabilitation Council of India Regulations, 1997.
Rights of the Disabled that emerge from the Rehabilitation Council of India Act, 1992
  1. To have the right to be served by trained and qualified Rehabilitation professionals whose names are borne on the Register maintained by the Council.
  2. To have the guarantee of maintenance of minimum standards of education required for recognition of rehabilitation qualification by Universities or institutions in India.
  3. To have the guarantee of maintenance of standards of professional conduct and etiquette by rehabilitation professionals against the penalty of disciplinary action and removal from the Register of the Council.
  4. To have the guarantee of regulation of the profession of rehabilitation professionals by a statutory council under the control of the Central Government and within the bounds prescribed by the statute.
3. PERSONS WITH DISABILITIES (EQUAL OPPORTUNITIES, PROTECTION OF RIGHTS AND FULL PARTICIPATION) ACT, 1995

Salient features

The persons with disabilities Act seeks to give effect to the Proclamation on the full participation and equality of the people with disabilities in the Asian and Pacific region. The said Proclamation was made at Beijing on 1st to 5th December 1992 to launch the Asian and Pacific decade of the disabled persons 1993-2002 which was convened by the Economic and Social Commission for Asian and Pacific region. India was a signatory to the said Proclamation and therefore it became obligatory for India to pass a suitable legislation for the benefit of the disabled.

The objectives of the disabilities Act broadly are as follows:
  1. To lay down the government's responsibility for prevention of disabilities, protection of the rights, of the disabled, provision of medical care, education, training, employment and rehabilitation of persons with disabilities.
  2. To create an environment for the disabled which would have no barriers.
  3. To remove any discrimination against persons with disabilities in the sharing of development benefits in relation to non disabled persons.
  4. To counteract any situation which abuses and exploits persons with disabilities.
  5. To lay down strategies for comprehensive development of programs and services and equalization of opportunities for persons with disabilities.
  6. To make special provisions for the integration of persons with disabilities into the social main stream.
  7. Setting up of co-ordination committees and executive committees at the central and State levels to carry out various functions assigned to them.
  8. To appoint a Chief Commissioner for persons with disabilities at the Central level and commissioner for persons with disabilities at the State level clothed with the powers to monitor the funds disbursed by the central and State governments and also to take steps to safeguard the rights of the persons with disabilities. The Act has been made applicable to the whole of India except the State of Jammu & Kashmir with effect from July 1996.
Relevant Definitions
  1. *"Disability" means —
    1. blindness;
    2. low vision;
    3. leprosy-cured;
    4. hearing impairment;
    5. locomotor disability;
    6. mental retardation;
    7. mental illness;
  2. "Blindness" refers to a condition where a person suffers from any of the following conditions, namely—
    1. total absence of sight; or
    2. visual acuity not exceeding 6/60 or 20/200 (snellen) in the better eye with correcting lenses; or
    3. limitation of the field of vision subtending an angle of 20 degree or worse;
  3. "Cerebral palsy" means a group of non-progressive conditions of a person characterised by abnormal motor control posture resulting from brain insult or injuries occurring in the pre-natal, peri-natal or infant period of development;
  4. "Hearing impairment" means loss of sixty decibels or more in the better ear in the conversational range of frequencies;
  5. "Leprosy cured person" means any person who has been cured of leprosy but is suffering from—
    1. loss of sensation in hands or feet as well as loss of sensation and paresis in the eye and eye-lid but with no manifest deformity;
    2. manifest deformity and paresis but having sufficient mobility in their hands and feet to enable them to engage in normal economic activity.
    3. extreme physical deformity as well as advanced age which prevents him from undertaking any gainful occupation;
  6. "Locomotor disability" means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy;

    In a recent decision the Supreme Court of India (AIR 1999 S.C. 512) has held that the government should give same concession as for the blind if any passenger travelling, in Indian Airlines by air has 80% locomotor disability.

    *Serial numbers do not represent section numbers of the Act
  7. "Mental illness" means any mental disorder other than mental retardation;
  8. "Mental retardation" means a condition of arrested or incomplete development of mind of a person which is specially charactersied by subnormality of intelligence;
  9. "Person with low vision" means a person with impairment of visual functioning even after treatment or standard refractive correction but who uses or is potentially capable of using vision for the planning or execution of a task with appropriate assistive device.
  10. "Person with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority;
  11. "Institution for persons with disabilities" means an institution for the reception, care, protection, education, training, rehabilitation or any other service of persons with disabilities;
  12. "Rehabilitation" refers to a process aimed at enabling persons with disabilities to reach and maintain their optimal physical, sensory, intellectual, psychiatric or social functional levels;
  13. The central Co-ordination Committee (CCC)
    The Central government shall constitute the Central Co-ordination committee consisting of :
    1. The Minister in-charge of the Department of Welfare in the Central Government, Chairperson, ex officio;
    2. The Minister of State in-charge of the Department of Welfare in the Central Government, Vice-Chairperson ex-officio;
    3. Secretaries to the Government of India in-charge of the Departments of Welfare, Education, Woman and Child Development, Expenditure, Personnel, Training and Public Grievances, Health, Rural Development, Industrial Development, Urban Affairs and Employment, Science and Technology, Legal Affairs, Public Enterprises, Members, ex-officio;
    4. Chief Commissioner, Member, ex-officio;
    5. Chairman Railway Board, Member, ex-officio;
    6. Director-General of Labour, Employment and Training, Member ex-officio;
    7. Director, National Council for educational Research and Training Member, ex-officio;
    8. Three Members of Parliament, of whom two shall be elected by the House of the People and one by the Council of States, Members;
    9. Three persons to be nominated by the Central Government to represent the interest, which in the opinion of that Government ought to be represented, Members;
    10. Directors of the—
      1. National Institute for the Visually handicapped, Dehradun;
      2. National Institute for the Mentally handicapped, Secundrabad;
      3. National Institute for the Orthopaedically handicapped, Calcutta;
      4. Ali Yavar Jung National Institute for the Hearing handicapped, Bombay;
    11. Four Members to be nominated by the Central Government by rotation to represent the States and the Union territories in such manner as may be prescribed by the Central Government; on the recommendation of the State Government or, as the case may be, the Union Territory;
    12. Five persons as far as practicable, being persons with disabilities, to represent non-
    13. governmental organisations or associations which are concerned with disabilities, to be nominated by the Central Government, one from each area of disability, Members;
    14. Joint Secretary to the Government of India in the Ministry of Welfare dealing with the welfare of the handicapped, Member-Secretary, ex-officio;
    15. The office of the Member of the Central Coordination Committee shall not disqualify its holder for being chosen as or for being a member of either House of Parliament.
  14. Disqualifications-
    1. No person shall be a Member of the Central Coordination Committee, who-
      1. is, or at any time has been, adjudged insolvent or has suspended payment of his debts or has compounded with his creditors, or
      2. is of unsound mind and stands so declared by a competent court, or
      3. is or has been convicted of an offence which, in the opinion of the Central Government, involves moral turpitude, or
      4. is or at any time has been convicted of an offence under this Act, or
      5. has so abused in the opinion of the Central Government his position as a Member as to render his continuance in the Central Coordination Committee detrimental to the interests of the general public;
    2. No order of removal shall be made by the Central Government under this section unless the Member concerned has been given a reasonable opportunity of showing cause against the same.
    3. Notwithstanding anything contained in sub-section (1) or sub-section (6) of section 4, a Member who has been removed under this section shall not be eligible for renomination as a Member.
  15. Functions of the Central Coordination Committee-
    The function of the Central Coordination Committee shall be to serve as the national focal point on disability matters and facilitate the continuous evolution of a comprehensive policy towards solving the problems faced by persons with disabilities. It may perform all or any of the following functions, namely:-
    1. review and coordinate the activities of all the Departments of Government and other Governmental and non-Governmental Organisations which are dealing with matters relating to persons with disabilities;
    2. develop a national policy to address issues faced by persons with disabilities;
    3. advise the Central Government on the formulation of policies, programmes, legislation and projects with respect to disability;
    4. take up the cause of persons with disabilities with the concerned authorities and the international organisations with a view to provide for schemes and projects for the disabled in the national plans and other programmes and policies evolved by the international agencies.
    5. review in consultation with the donor agencies their funding policies from the perspective of their impact on persons with disabilities;
    6. take such other steps to ensure barrier free environment in public places, work places, public utilities, schools and other institutions;
    7. monitor and evaluate the impact of policies and programmes designed for achieving equality and full participation of persons with disabilities;
    8. to perform such other functions as may be prescribed by the Central Government;
  16. Central Executive Committee-(CEC)
    1. The Central Government shall constitute a Committee to be known as the Central Executive Committee to perform the functions assigned to it under this Act.
    2. The Central Executive Committee shall consist of-
      1. the Secretary to the Government of India in the Ministry of Welfare, Chairperson, ex-officio;
      2. the Chief Commissioner, Member, ex-officio;
      3. The Director- General for Health services, Member, ex-officio;
      4. the Director-General, Employment and Training, Member, ex-officio;
      5. six persons not below the rank of a Joint Secretary to the Government of India, to represent the Ministers or Departments, of Rural Development, Education, Welfare, personnel Public Grievances and Pension and Urban Affairs and Employment, Science and Technology, Members, ex-officio;
      6. the Financial Advisor, Ministry of Welfare in the Central Government, Members, ex-officio;
      7. Advisor (Tariff) Railway Board, Member, ex-officio;
      8. four members to be nominated by the Central Government, by rotation, to represent the State Governments and the Union territories in such manner as may be prescribed by the Central Government;
      9. one person to be nominated by the Central Government to represent the interest, which in the opinion of the Central Government ought to be represented, member;
      10. five persons, as far as practicable, being persons with disabilities, to represent non-governmental organisations or associations which are concerned with disabilities, to be nominated by the Central Government, one from each area of disability, Members;
      11. Joint Secretary to the Government of India in the Ministry of Welfare dealing with the Welfare of the handicapped, Member-Secretary, ex-officio;
    3. Members nominated under clause (1) and clause (j) of sub-section (2) shall receive such allowances as may be prescribed by the Central Government.
    4. A Member nominated under clause (i) and clause (j) of sub-section (2) may at any time resign his office by writing under his hand addressed to the Central Government and the seat of the said Member shall thereupon become vacant.
  17. Functions of the Central Executive Committee-
    1. The Central Executive Committee shall be the executive body of the Central Coordination Committee and shall be responsible for carrying out the decisions of the Central Coordination Committee.
    2. Without prejudice to the provisions of sub-section (1), the Central Executive Committee shall also perform such other functions as may be delegated to it by the Central Coordination Committee.
  18. Meetings of the Central Coordination Committee-
    The Central Coordination Committee shall meet at least once in every six months and shall observe such rules of procedure in regard to the transaction of business at its meetings as may be prescribed by the Central Government.
  19. Meetings of the Central Executive Committee -
    The Central Executive Committee shall meet at least once in three months and shall observe such rules of procedure in regard to the transaction of business at its meetings as may be prescribed by the Central Government.
  20. Temporary association of persons with Central Executive Committee for particular purposes—
    The Central Executive Committee may associate with itself any person whose assistance or advise it may desire to obtain in performing any of its functions under this Act, who shall have the right to take part in the discussions of the Central Executive Committee but shall not have a right to vote at a meeting of the said Committee, and shall not be a member for any other purpose.
  21. State Coordination Committee-(SCC)
    1. Every State Government shall, by notification, constitute a body to be known as the State Coordination Committee to exercise the powers conferred on, and to perform the function assigned to it, under this Act.
    2. The State Coordination Committee shall consist of
      1. The Minister in-charge of the Department of Social Welfare in the State Government, Chairperson, ex-officio;
      2. The Minister of State in-charge of the Department of Social Welfare, if any, Vice-Chairperson, ex-officio;
      3. Secretaries to the State Government in-charge of the Departments of Welfare, Education, Woman and Child Development, Expenditure, Personnel Training and Public Grievances, Health Rural Development, Industrial Development, Urban Affairs and Employment, Science and Technology, Public Enterprises, by whatever name called, Members ex-officio;
      4. Secretary of any other Department which the State Government considers necessary, Member, ex-officio;
      5. Chairman Bureau of Public Enterprises (by whatever name called) Member, ex-officio;
      6. Five persons, as far as practicable, being persons with disabilities, to represent non-governmental organisations or associations which are concerned with disabilities, to be nominated by the State Government, one from each area of disability, Members;Provided that while nominating persons under this clause, the State Government shall nominate at least one woman and one person belonging to Scheduled Castes or Scheduled Tribes.
      7. Three Members of State Legislature, of whom two shall be elected by the Legislative Assembly and one by the Legislative Council, if any;
      8. Three persons to be nominated by that State Government to represent agriculture,
      9. industry or trade or any other interest, which in the opinion of State Government ought to be represented, Members, ex-officio;
      10. The Commissioner, Member, ex-officio;
      11. Secretary to the State Government dealing with the welfare of the handicapped, Member Secretary, ex-officio;
    3. Notwithstanding anything contained in this section, no State Coordination Committee shall be constituted for a Union Territory and in relation to a Union Territory, the Central Coordination Committee shall exercise the functions and perform the functions of a State Coordination Committee for the Union Territory.
      Provided that in relation to a Union Territory, the Central Coordination Committee may delegate all or any of its powers and functions under this sub section to such person or body of persons as the Central Government may specify.
  22. Terms and conditions of service of Members—
    1. Save as otherwise provided by or under this Act, a Member of State Coordination Committee nominated under clause (f) or clause (h) of sub-section (2) of section 13 shall hold office for a term of three years from the date of his nomination: Provided that such a Member shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office.
    2. The term of office of an ex-officio Member shall come to an end as soon as he ceases to hold the office by virtue of which he was so nominated.
    3. The State Government may, if it thinks fit, remove any Member nominated under clause (f) or clause (h) or sub-section (2) of section 13, before the expiry of his term of office after giving him a reasonable opportunity of showing cause against the same.
    4. A Member nominated under clause (f) or clause (h) of sub-section (2) of section 13 may, at any time, resign his office by writing under his hand addressed to the State Government and the seat of the said Member shall thereupon become vacant.
    5. A casual vacancy in the State Coordination Committee shall be filled by a fresh nomination and the person nominated to fill the vacancy shall hold office only for the remainder of the term for which the Member in whose place he was so nominated.
    6. A Member nominated under clause (f) and clause (h) of sub-section (2) of section 13 shall be eligible for renomination.
    7. Members nominated under clause (f) and clause (h) of sub-section (2) of section 13 shall receive such allowances as may be prescribed by the State Government.
  23. Disqualifications—
    1. No person shall be a Member of the State Coordination Committee, who-
      1. is, or at any time, has been adjudged insolvent or has suspended payment of his debts or has compounded with his creditors, or
      2. is of unsound mind and stands so declared by a competent court, or
      3. is or has been convicted of an offence which in the opinion of the State Government involves moral turpitude, or
      4. is or at any time has been convicted of an offence under this Act, or
      5. has so abused, in the opinion of the State Government, his position as a member
    2. as to render his continuance in the State Coordination Committee detrimental to the interests of the general public.
    3. No order of removal shall be made by the State Government under this section unless the Member concerned has been given a reasonable opportunity of showing cause against the same.
    4. Notwithstanding anything contained in sub-section (1) or sub-section (6) of section 14, a Member who has been removed under this section shall not be eligible for renomination as a Member.
  24. Meetings of the State Coordination Committee -

    The State Coordination Committee shall meet at least once in every six months and shall observe such rules of procedure in regard to the transaction of business at its meetings as may be prescribed.
  25. Functions of State Coordination Committee -

    The function of the State Coordination Committee shall be to serve as the State focal point on disability matters and facilitate the continuous evolution of a comprehensive policy towards solving the problems faced by persons with disabilities. In particular,the State Coordination Committee may, within the State perform all or any of the following functions, namely—
    1. review and coordinate the activities of all the Departments of Government and other Governmental and non-Governmental Organisations which are dealing with matters relating to persons with disabilities;
    2. develop a State policy to address issues faced by persons with disabilities;
    3. advise the State Government on the formulation of policies, programmes, legislation and projects with respect to disability;
    4. review in consultation with the donor agencies, their funding policies from the perspective of their impact on persons with disabilities;
    5. take such other steps to ensure barrier free environment in public place, work places, public utilities, schools and other institutions;
    6. monitor and evaluate the impact of policies and programmes designed for achieving equality and full participation of persons with disabilities;
    7. to perform such other functions as may be prescribed by the State Government.
  26. State Executive Committee (SEC)—
    1. The State Government shall constitute a committee to be known as the State Executive Committee to perform the functions assigned to it under this Act.
    2. The State Executive Committee shall consist of -
      1. the Secretary, Department of Social Welfare, Chairperson, ex-officio;
      2. the Commissioner, Member, ex officio;
      3. nine persons not below the rank of a Joint Secretary to the State Government, to represent Departments of Health, Finance, Rural Development, Education, Welfare, Personnel Public Grievances, Urban Affairs Labour and Employment, Science and Technology, Members, ex officio;
      4. one person to be nominated by the State Government to represent the interest, which in the opinion of the State Government ought to be represented, Member;
      5. five persons, as far as practicable being persons with disabilities, to represent non-governmental organisations or associations which are concerned with disabilities, to be nominated by the State Government, one from each area of disability, Members;
      6. Provided that while nominating persons under this clause, the State Government shall nominate at least one woman and one person belonging to Scheduled Castes or Scheduled Tribes;
      7. Joint Secretary dealing with the disability division in the Department of Welfare, Member- Secretary, ex officio;
    3. Members nominated under clause (d) and clause (e) of sub-section (2) shall receive such allowances as may be prescribed by the State Government.
    4. A Member nominated under clause (d) or clause (e) may at any time resign his office by writing under his hand addressed to the State Government and the seat of the said Member shall thereupon become vacant.
  27. Functions of the State Executive Committee—

    The State Executive Committee shall be the executive body of the State Coordination Committee and shall be responsible for carrying out the decisions of the State Coordination Committee, and shall also perform such other functions as may be delegated to it by the State Coordination Committee.
  28. Temporary association of persons with State Executive Committee for particular purposes—

    The State Executive Committee may associate with itself any person whose assistance or advice it may desire to obtain in performing any of its functions under this Act, who shall have the right to take part in the discussions of the State Executive Committee , but shall not have a right to vote at a meeting of the said Committee, and shall not be a member for any other purpose.
  29. Ultimate power with Central and State Governments
    In the performance of its functions under this Act,—
    1. the Central Coordination Committee shall be bound by such directions in writing, as the Central Government may give to it, and
    2. the State Coordination Committee shall be bound by such directions in writing, as the Central Coordination Committee or the State Government may give to it.
      Provided that where a direction given by the State Government is inconsistent with any direction given by the Central Committee, the matter shall be referred to the Central Government for its decision.
  30. The Chief Commissioner for persons with disabilities -
    1. The Central Government may, by notification, appoint a Chief Commissioner for persons with disabilities for the purposes of this Act.
    2. A person shall not be qualified for appointment as the Chief Commissioner unless he has special knowledge or practical experience in respect of matters relating to rehabilitation.
    3. The salary and allowances payable to and other terms and conditions of service (including pension, gratuity and other retirement benefits) of the Chief Commissioner shall be such as may be prescribed by the Central Government.
    4. The Central Government shall determine the nature and categories of officers and other employees required to assist the Chief Commissioner in the discharge of his functions and provide the Chief Commissioner with such officers and other employees as it thinks fit.
    5. The officers and employees provided to the Chief Commissioner shall discharge their functions under the general superintendence of the Chief Commissioner.
    6. The salaries and allowances and other conditions of service of officers and employees provided to the Chief Commissioner shall be such as may be prescribed by the Central Government.
  31. Functions of the Chief Commissioner—
    The Chief Commissioner shall—
    1. coordinate the work of the Commissioners;
    2. monitor the utilisation of funds disbursed by the Central Government;
    3. take steps to safeguard the rights and facilities made available to persons with disabilities;
    4. submit reports to the Central Government on the implementation of the Act at such intervals as that Government may prescribe.
  32. Chief Commissioner to look into complaints with respect to deprivation of rights of persons with disabilities -
    Without prejudice to the provisions of section 58 the Chief Commissioner may of his own motion or on the application of any aggrieved person or otherwise look into complaints with respect to matters relating to -
    1. deprivation of rights of persons with disabilities;
    2. non-implementation of laws, rules, bye-laws, executive orders, guidelines or instructions made or issued by the appropriate Governments and the local authorities for the welfare and protection of rights of persons with disabilities; and take up the matter with the appropriate authorities.
      Commissioners for the disabled
  33. Powers of the Commissioner -
    The Commissioner within the State shall -
    1. coordinate with the departments of the State Government for the programmes and schemes for the benefit of persons with disabilities;
    2. monitor the utilisation of funds disbursed by the State Government;
    3. take steps to safeguard the rights and facilities made available to persons with disabilities;
    4. submit reports to the State Government on the implementation of the Act at such intervals as that Government may prescribe and forward a copy thereof to the Chief Commissioner.
  34. Commissioner to look into complaints with respect to matters relating to deprivation of rights of persons with disabilities—
    Without prejudice to the provisions of section 61 the Commissioner may of his own motion or on the application of any aggrieved persons or otherwise look into complaints with respect to matters relating to—
    1. deprivation of rights of persons with disabilities;
    2. non-implementation of laws, rules, bye-laws, regulations, executive orders, guidelines or instructions made or issued by the appropriate Governments and the local authorities for the welfare and protection of rights of persons with disabilities; and take up the matter with the appropriate authorities.
  35. Who is the appropriate government ?
    "appropriate Government" means—
    1. in relation to the Central Government or any establishment wholly or substantially financed by that Government, or a Cantonment Board constituted under the Cantonment Act, 1924, (2 of 1924) the Central Government;
    2. in relation to a State Government or any establishment wholly or substantially financed by that Government, or any local authority, other than a Cantonment Board, the State Government;
    3. in respect of the Central Coordination Committee and the Central Executive Committee, the Central Government;
    4. in respect of the State Coordination Committee and the State Executive Committee, the State Government;
  36. Disabilities - Prevention and early detection
    Appropriate Government and local authorities to take certain steps for the prevention of occurrence of disabilities—Within the limits of their economic capacity and development, the appropriate Governments and the local authorities, with a view to preventing the occurrence of disabilities, shall—
    1. undertake or cause to be undertaken surveys, investigations and research concerning the cause of occurrence of disabilities;
    2. promote various methods of preventing disabilities;
    3. screen all the children at least once in a year for the purpose of identifying "at risk" cases;
    4. provide facilities for training to the staff at the primary health centres;
    5. sponsor or cause to be sponsored awareness campaigns and dis-seminate or cause to be disseminated information for general hygiene, health and sanitation;
    6. take measures for pre-natal, perinatal and post- natal care of mother and child;
    7. educate the public through the pre-schools, schools, primary health centres, village level workers and anganwadi workers;
    8. create awareness amongst the masses through television, radio and other mass media on the causes of disabilities and the preventive measures to be adopted.
  37. Education for children with disabilities
    Appropriate Governments and local authorities to provide children with disabilities free education, etc.- The appropriate Governments and the local authorities shall-
    1. ensure that every child with a disability has access to free education in an appropriate environment till he attains the age of eighteen years;
    2. endeavour to promote the integration of students with disabilities in the normal schools;
    3. promote setting up of special schools in Government and private sector for those in need of special education, in such a manner that children with disabilities living in any part of the country have access to such schools.
    4. endeavour to equip the special schools for children with disabilities with vocational training facilities.
      Non-formal Education for the disabled
  38. Appropriate Governments and local authorities to make schemes and programmes for non-formal education, etc.—
    The appropriate Governments and the local authorities shall by notification make schemes for-
    1. conducting part - time classes in respect of children with disabilities who having completed education up to class fifth and could not continue their studies on a whole-time basis;
    2. conducting special part-time classes for providing functional literacy for children in the age group of sixteen and above;
    3. imparting non-formal education by utilizing the available man power in rural areas after giving them appropriate orientation;
    4. imparting education through open schools or open universities;
    5. conducting classes and discussions through interactive electronic or other media;
    6. providing every child with disability free of cost special books and equipments needed for his education.
    7. Teaching Aids
  39. Research for designing and developing new assistive devices, teaching aids, etc.—

    The appropriate Governments shall initiate or cause to be initiated research by official and non-governmental agencies for the purpose of designing and developing new assistive devices, teaching aids, special teaching materials or such other items as are necessary to give a child with disability equal opportunities in education.

    Teacher's Training Institution
  40. Appropriate Governments to set up teachers' training institutions to develop trained manpower for schools for children with disabilities—
    The appropriate Governments shall set up adequate number of teachers' training institutions and assist the national institutes and other voluntary organisations to develop teacher' training programmes specializing in disabilities so that requisite trained man power is available for special schools and integrated schools for children with disabilities.
  41. Appropriate Governments to prepare a comprehensive education scheme providing for transport facilities, supply of books, etc.—
    The appropriate Governments shall by notification prepare a comprehensive education scheme which shall make provision for -
    1. transport facilities to the children with disabilities or in the alternative financial incentives to parents or guardians to enable their children with disabilities to attend schools;
    2. the removal of architectural barriers from schools, colleges or other institutions imparting vocational and professional training.
    3. the supply of books, uniforms and other materials to children with disabilities attending school;
    4. the grant of scholarship to students with disabilities;
    5. setting up of appropriate fora for the redressal of grievances of parents regarding the placement of their children with disabilities;
    6. suitable modification in the examination system to eliminate purely mathematical questions for the benefit of blind students and students with low vision;
    7. restructuring of curriculum for the benefit of children with disabilities;
    8. restructuring the curriculum for benefit of students with hearing impairment to facilitate them to take only one language as part of their curriculum.
      Reservation of Posts for the disabled
  42. Identification of posts which can be reserved for persons with disabilities—
    Appropriate Governments shall—
    1. identify posts, in the establishments, which can be reserved for the persons with disability;
    2. at periodical intervals not exceeding three years, review the list of posts identified and up date the list taking into consideration the developments in technology.
  43. Reservation of Posts—
    Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent, each shall be reserved for persons suffering from -
    1. blindness or low vision;
    2. hearing impairment;
    3. locomotor disability or cerebral palsy, in the posts identified for each disability;
      The appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.
  44. Special Employment Exchange—
    The appropriate Government may, by notification, require that from such date as may be specified, by notification, the employer in every establishment shall furnish such information or return as may be prescribed in relation to vacancies appointed for persons with disability that have occurred or are about to occur in that establishment to such Special Employment Exchange as may be prescribed and the establishment shall thereupon comply with such requisition. The form in which and the intervals of time for which information or returns shall be furnished and the particulars, they shall contain shall be such as may be prescribed.
  45. Power to inspect record or document in possession of any establishment—
    Any person authorised by the Special Employment Exchange in writing, shall have access to any relevant record or document in the possession of any establishment and may enter at any reasonable time any premises where he believes such record or document to be, and inspect or take copies of relevant records or documents or ask any question necessary for obtaining any information.
    Filling up of Vacancies for the disabled
  46. Vacancies not filled up to be carried forward -

    Where in any recruitment year any vacancy under section 33, cannot be filled up due to non-availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange among the three categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability;

    Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the three categories with the prior approval of the appropriate Government.
  47. Employers to maintain records -
    1. Every employer shall maintain such record in relation to the person with disability employed in his establishment in such form and in such manner as may be prescribed by the appropriate Government.
    2. The records maintained under sub-section (1) shall be open to inspection at all reasonable hours by such persons as may be authorised in this behalf by general or special order by the appropriate Government.
  48. Vacancies to be reserved in educational institutions and poverty alleviation schemes -

    The appropriate Governments and local authorities shall reserve not less than three per cent in all poverty alleviation schemes for the benefit of persons with disabilities. All Government educational institutions and other educational institutions receiving aid from the Government, shall reserve not less than 3% seats for persons with disablities.

    The Calcutta High Court in a recent decision (AIR 2000 Cal 202) has upheld the provision of 3 per cent reservation in educational institutions for handicapped students. But the Gauhati High Court in a recent decision (AIR 2000 Gauhati-1) has held that the legislature never intended to reserve seats in institutions covering scientific, technical and super technical areas while considering 3 per cent reservation for admission to MBBS course.

    It has been held by the Rajasthan High Court (AIR 2001 Rajasthan 261) that handicapped candidates seeking admission to post-graduate medical courses are entitled to 3 per cent reservation in Government aided institutions. The reservation of three per cent seats for persons with disabilities is available in all Government educational institutions and other educational institutions receiving aid from Governments. It cannot be said that reservation of 3 per cent depends on constitution of Central Co-ordination Committee and State Co-ordination Committees and after making schemes and programmes in this regard.

    According to the Court, a close scrutiny of the provisions, contemplated under the Act leads towards an irresistible conclusion that under the said Act, Parliament has conferred two kinds of benefits for persons with disabiilities: one, inter-dependent on the constitution of Co-ordination committees by appropriate Government and flow from making of schemes and programmes, where as, other kind of benefits, specially, not less than three per cent reservation of seats in Government aided institutions flow from the date of enforcement of the said Act, that is, with effect from 7th February, 1996. Former benefit conferred for persons with disabilities, under said Act depends upon the constitution of Co-ordination Committees by appropriate Governments and making of the schemes and programmes, but at least, the latter benefit of reservation of not less than three per cent seats in all Government educational institutions and other educational institutions, receiving aid from Government, is not inter-dependent either on constitution of Co-ordination Committees by appropriate Governments, or from the date of making schemes and programmes. Reservation of three per cent seats in all educational institutions, receiving aid from Government, from the date of enforcement of the Act does not require framing of any scheme and programmes.

    It has also been held that it is true that Section 39 ought to have been placed under Chapter-V below Section 31 of the Act, but its effect cannot be allowed to be nullified simply because, instead of placing it under Chapter-V, Parliament has placed it under Chapter VI of the aforesaid Act.

    It has been held by a division bench of the Kerala High Court (AIR 2001 Kerala 356) that Section 39 is not intended to reserve seats in medical, engineering and allied professional courses since S.39 comes within Chapter VI with the heading 'Employment'. Section 39 obliges to reserve 3% vacancies or posts in all Government or other educational institutions which receive aid from the Government and not for the purpose of reservation for admission to professional degree courses.

    It cannot be visualized that the legislature had ever intended said reservation to persons who are having disability ranging from 40% to 100% be admitted to professional courses and to ear-mark quota for them without laying down any guide-lines. When the scope of Section 39 is seen in the light of the heading given to that Chapter as well as in the light of the various provisions which precede and succeed Section 39, it can be said that the word 'seats' appearing in Section 39 would mean only 'Vacancies' or posts since the heading of that chapter deals with only 'employment'. The State Government is legally obliged to reserve seats not only to orthopaedically and physically handicapped persons, but to other categories of persons also under the mandatory and other reservation clauses. If 3% seats are earmarked for persons with disabilities as contended by the petitioners, it would upset the entire scheme of reservation.
  49. Employment Schemes for persons with disabilities
    1. The appropriate Governments and local authorities shall by notification formulate schemes for ensuring employment of persons with disabilities, and such schemes may provide for—
      1. the training and welfare of persons with disabilities;
      2. the relaxation of upper age limit;
      3. regulating the employment;
      4. health and safety measures and creation of non-handicapping environment in places where persons with disabilities are employed;
      5. the manner in which and the persons by whom the cost of operating the schemes is to be defrayed; and
      6. constituting the authority responsible for the administration of the scheme.
  50. Incentives to employers to ensure five per cent of the work force is composed of persons with disabilities -

    The appropriate Governments and the local authorities shall, within the limits of their economic capacity and development, provide incentives to employers both in public and private sectors to ensure that at least five per cent of their work force is composed of persons with disabilities.

    Allotment of land to the disablied
  51. Schemes for preferential allotment of land for certain purposes -

    The appropriate Governments and local authorities shall by notification frame schemes in favour of persons with disabilities, for the preferential allotment of land at concessional rates for—
    1. house;
    2. setting up business;
    3. setting up of special recreation centres;
    4. establishment of research centres;
    5. establishment of factories by entrepreneurs with disabilities;
      The Allahabad High Court in a recent decision (AIR 2000 All 258) has held that concession in rates of plots for the disabled should be made available even where no scheme has been made by the state government.
  52. There shall be no discrimination against persons with disabilities

    Transport establishments and appropriate governments shall take the following special measures for the benefit of persons with disabilities -
    1. adapt rail compartments, buses, vessels and aircrafts in such a way as to permit easy access to such persons; and adopt toilets in rail compartments, vessels, aircraft and waiting rooms in such a way as to permit wheel chair users to use them conveniently.
    2. Appropriate Governments and local authorities shall instal auditing signals at red lights in public roads for blind persons. They shall also take measures for causing curb cuts and slopes to be made in pavements for the easy access of wheel chair users;
    3. braille symbols and auditory signals in elevators or lifts; engraving on Zebra Crossings on edges of railway platforms for the blind.
    4. make ramps in public buildings, hospitals, health centres and other rehabilitation institutions. Further the Government shall not dispense with, or reduce in rank an employee who acquires a disability during his service. If unsuitable for the post he was holding he can be shifted to some other post with the same pay scale and service benefits or be kept in a supernumerary post. He cannot be denied promotion merely on the ground of his disability.
  53. Recognition of Institutions for persons with disabilities -
    The State Government shall appoint any authority as it deems fit to be a `competent authority' for the purposes of this Act.
  54. No person to establish or maintain an institution for persons with disabilities except in accordance with a certificate of registration -

    Except as otherwise provided under this Act, no person shall establish or maintain any institution for persons with disabilities except under and in accordance with a certificate of registration issued in this behalf by the competent authority. A person maintaining an institution for persons with disabilities immediately before the commencement of this Act may continue to maintain such institution for a period of six months from such commencement and if he has made an application for such certificate under this section within the said period of six months, till the disposal of such application.
  55. Certificate of registration -
    1. Every application for a certificate of registration shall be made to the competent authority in such form and in such manner as may be prescribed by the State Government.
    2. On receipt of an application under sub-section (1) the competent authority shall make such enquiries as it may deem fit and where it is satisfied that the applicant has complied with the requirements of this Act and the rules made thereunder it shall grant a certificate of registration to the applicant and where it is not so satisfied the competent authority shall, by order, refuse to grant the certificate applied for. Before making any order refusing to grant a certificate the competent authority shall give to the applicant a reasonable opportunity of being heard and every order of refusal to grant a certificate shall be communicated to the applicant in such manner as may be prescribed by the State Government.
    3. No certificate of registration shall be granted under sub-section (2) unless the institution with respect to which an application has been made is in a position to provide such facilities and maintain such standards as may be prescribed by the State Government.
    4. A certificate of registration granted under this section -
      1. (a) shall, unless revoked under section 53, remain in force for such period as may be prescribed by the State Government.
      2. (b) may be renewed from time to time for a like period; and
      3. (c) shall be in such form and shall be subject to such conditions as may be prescribed by the State Government.
    5. An application for renewal of a certificate of registration shall be made not less than sixty days before the period of validity.
    6. The certificate of registration shall be displayed by the institution in a conspicuous place.
  56. Revocation of certificate—
    1. The competent authority may, if it has reasonable cause to believe that the holder of the certificate of registration granted under sub-section (2) of section 52 has -
      1. made a statement in relation to any application for the issue or renewal of the certificate which is incorrect or false in material particulars; or
      2. committed or has caused to be committed any breach of rules or any conditions subject to which the certificate was granted;
      3. it may, after making such inquiry, as it deems fit, by order, revoke the certificate;
        Provided that no such order shall be made until an opportunity is given to the holder of the certificate to show cause as to why the certificate should not be revoked.
    2. Where a certificate inrespect of an institution has been revoked under sub-section (1), such institution shall cease to function from the date of such revocation;
      Provided that where an appeal lies under section 54 against the order ofrevocation such institution shall cease to function—
      1. where no appeal has been preferred immediately on the expiry of the period prescribed for the filing of such appeal, or
      2. where such appeal has been preferred, but the order of revocation has been upheld, from the date of the order of appeal.
    3. On the revocation of a certificate in respect of an institution, the competent authority may direct that any person with disability who is an inmate of such institution on the date of such revocation shall be—
      1. restored to the custody of her or his parent, spouse or lawful guardian, as the case may be, or
      2. transferred to any other institution specified by the competent authority.
    4. (4) Every institution which holds a certificate of registration which is revoked under this section shall, immediately after such revocation, surrender such certificate to the competent authority.
  57. Appeal—
    1. Any person aggrieved by the order of the competent authority refusing to grant a certificate or revoking a certificate may, within such period as may be prescribed by the State Government, prefer an appeal to that Government against such refusal or revocation.
    2. The order of the State Government on such appeal shall be final.
  58. Act not to apply to institutions established or maintained by the Central or State Government
    — Nothing contained in this Chapter shall apply to an institution for persons with disabilities established or maintained by the Central Government or State Government.
  59. Institution for persons with severe disabilities
    1. The appropriate Government may establish and maintain institutions for persons with severe disabilities at such place as it thinks fit. "Person with severe disability" means a persons with eighty per cent, or more of one or more disabilities.
    2. Where, the appropriate Government is of opinion that any institution other than an institution, established by it as aforesaid, is fit for the rehabilitation of the persons with severe disabilities, the Government may recognise such institution as an institution for persons with severe disabilities for the purpose of this Act. No institution shall be recognised under this section unless such institution has complied with the requirements of this Act and the rules made thereunder.
  60. Rehabilitation of persons with disabilities—
    The appropriate Governments and the local authorities shall within the limits of their economic capacity and development undertake or cause to be undertaken rehabilitation of all persons with disabilities, and shall grant financial assistance to non-governmental organisations and while formulating rehabilitation policies shall consult the non-governmental organisations working for the cause of persons with disabilities.
  61. Insurance scheme for employees with disabilities—
    The appropriate Government shall by notification frame an insurance scheme for the benefit of its employees with disabilities, or may instead of framing an insurance scheme frame an alternative security scheme for its employees with disabilities.
  62. Unemployment allowance—
    The appropriate Governments shall within the limits of their economic capacity and development shall by notification frame a scheme for payment of an unemployment allowance to persons with disabilities registered with the Special Employment Exchange for more than two years and who could not be placed in any gainful occupation.
  63. The Disabilities Act is a Special Act-
    The provisions of this Act, or the rules made thereunder shall be in addition to, and not in derogation of any other law for the time being in force or any rules, order or any instructions issued thereunder, enacted or issued for the benefit of persons with disabilities.
  64. Rules for better implementation of Act-
    1. The appropriate Government may, by notification, make rules for carrying out the provisions of this Act.
    2. In particular, such rules may provide for all or any of the following matters, namely:-

      a. the manner in which a State Government or a Union Territory shall be chosen under clause (k) of sub-section (2) of Section 3;
      b. allowances which members shall receive under sub-section (7) of section 4;
      c. rules of procedure which the Central Coordination Committee shall observe in regard to the transaction of business in its meetings under section 7;
      d. such other functions which the Central Coordination Committee may perform under clause (h) of sub-section (2) of section 8;
      e. the manner in which a State Government or a Union Territory shall be chosen under clause (h) of sub- section (2) of Section 9;
      f. the allowances which the Members shall receive under sub-section (3) of section 9;
      g. rules of procedure which the Central Executive Committee shall observe in regard to transaction of business at its meetings under section 11;
      h. the manner and purposes for which a person may be associated under sub-section (1) of section 12;
      i. fees and allowances which a person associated with the Central Executive Committee shall receive under sub-section (3) of Section 12;
      j. allowances which members shall receive under sub-section (7) of section 14;
      k. rules of procedure which a State Coordination Committee shall observe in regard to transaction of business in its meetings under section 17;
      l. such other functions which a State Coordination Committee may perform under clause (g) of sub- section (2) of section 18;
      m. the allowances which members shall receive under sub-section (3) of section 19;
      n. rules of procedure which a State Executive Committee shall observe in regard to transaction of business at its meetings under section 21;
      o. the manner and purposes for which a person may be associated under sub-section (1) of section 22;
      p. fees and allowances which a person associated with the State Executive Committee may receive under sub-section (3) of section 22;
      q. information or return which the employer in every establishment should furnish and the Special Employment Exchange to which such information or return shall be furnished under sub-section (1) of section 34;
      r. the form and the manner in which record shall be maintained by an employer under sub-section (1) of section 37;
      s. the form and manner in which an application shall be made under sub-section (1) of section 52;
      t. the manner in which an order of refusal shall be communicated under sub-section (2) of section 52;
      u. facilities or standards required to be provided or maintained under sub-section (3) of section 52;
      v. the period for which a certificate of registration shall be valid under clause (a) of sub-section (4) of section 52;
      w. the form in which and conditions subject to which a certificate of registration shall be granted under clause (c) of sub-section (4) of section 52;
      x. period within which an appeal shall lie under sub-section (1) of section 54;
      y. the manner in which an institution for persons with severe disabilities shall be maintained and conditions which have to be satisfied under sub-section (3) of section 56;
      z. the salary, allowances and other terms and conditions of service of the Chief Commissioner under sub-section (3) of section 57;
      za. the salary, allowances and other conditions of service of officers and employees under sub- section (6) of section 57;
      ab. intervals at which the Chief Commissioner shall report to the Central Government under clause (d) of section 58;
      zc. the salary, allowances and other terms and conditions of service of the Commissioner under sub-section (3) of section 60;
      zd. the salary, allowances and other conditions of service of officers and employees under sub- section (6) of section 60;
      ze. intervals within which the Commissioner shall report to the State Government under clause (d) of section 61;
      zf. the form and time in which annual report shall be prepared under sub-section (1) of section 64;
      zg. the form and time in which annual report shall be prepared under sub-section (1) of section 65;
      zh. any other matter which is required to be or may be prescribed.
    3. Every notification made by the Central Government under the proviso to section 33, proviso to sub-section (2) of section 47, every scheme framed by it under section 27, section 30, sub section (1) of section 38, section 42, section 43, section 67, section 68 and every rule made by it under sub-section (1), shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule, notification or scheme, both Houses agree that the rule, notification or scheme should not be made, the rule, notification or scheme shall thereafter have effect only in such modified form or be of no effect, as the case may be so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule, notification or scheme, as the case may be.
    4. Every notification made by the State Government under the proviso to section 33, proviso to sub-section (2) of section 47, every scheme made by it under section 27, section 30, sub-section (1) of section 38, section 42, section 43, section 67, section 68 and every rule made by it under sub-section (1), shall be laid, as soon as may be after it is made, before each House of State Legislature, where it consists of two Houses or where such legislature consists of one House before that House.
Rights of the Disabled under the Persons with Disabilities Act, 1995

The cardinal rights of the disabled which are enshrined in the name of the Act itself are as follows:
  1. Rights to Equal opportunity with the non-disabled.
  2. Right to Protection of the legal rights of the disabled.
  3. Right to Full participation in the affairs of the life at par with those who are non-disabled.
  4. The disabled have been statutorily recognised by this Act and the various forms of disability have been given legal definition.
  5. The disabled have the right to be taken care of and rehabilitated in the mainstream of life in terms of this Act and the Government and other authorities and establishments covered by this Act have an obligation to fulfil their duties towards the disabled in the light of the provisions contained in this Act.
  6. It is the duty of the central and State Governments to take preventive steps so that the occurrence of disabilities is arrested, provide training to the staff at primary health centres, improve hygiene health and sanitation measures, screen children at least once a year to identify risky cases, provide for prenatal, perinatal and postnatal care of mother and child and create awareness amongst the people on the causes and measures to be taken to prevent disability.
  7. Every child with disability is entitled to free education in appropriate environment upto the age of 18 years and the Government should set up special schools for imparting special education, promote integration of disabled students in normal schools and provide opportunities for vocational training to disabled children.
  8. Disabled children having studied upto fifth class can continue their education as part-time students, through open schools or open universities and are entitled to special books and equipments free of cost from the Government.
  9. It is the Government's duty to develop new assistive devices, teaching aids and special teaching material so that disabled children may have equal opportunities in education. The Government has to set up teacher training institutions for training children with disabilities and prepare comprehensive education schemes providing for transport facilities to disabled children to attend school, provide books, uniforms, other materials to them, scholarships, restructured curricula and amanuensis for blind students.
  10. There shall be reservation of posts for the disabled upto one percent each for those who have blindness, impaired hearing or cerebral palsy for which posts will be identified by the Government every three years. Vacancies not filled up can be carried forward to the next year.
  11. Special Employment Exchange to provide for the disabled who seek employment has to be set up by the Government.
  12. All Government educational institutions and aided institutions shall reserve upto 3% seats for persons with disabilities. Vacancies are to be reserved in poverty alleviation schemes. Incentives are also to be given to employers to ensure that 5% of workforce is composed of disabled persons.
  13. Disabled persons will also be entitled to preferential allotment of land at concessional rates for housing and for rehabilitation purposes.
  14. There shall be no discrimination of the disabled in transport faciliites, traffic signals on the road, or in built environments. Neither shall there be any discrimination of the disabled in matters of government employment.
  15. The Government will regulate recognition of institutions for the disabled or for those with severe disability.
  16. The Chief Commissioner and the State Commissioners will look into the complaints with respect to matters relating to deprivation of rights of the disabled.
  17. The Government and local authorities shall undertake rehabilitation of the disabled, grant aid to non-Government organisations, devise insurance Schemes for the disabled employees and also frame unemployment allowance scheme for the disabled.
  18. Those who avail or attempt to avail benefits meant for the disabled in a fraudulent manner are punishable with imprisonment upto 2 years or with payment of fine upto Rs20,000/-.
4. THE NATIONAL TRUST FOR WELFARE OF PERSONS WITH AUTISM, CEREBRAL PALSY, MENTAL RETARDATION AND MULTIPLE DISABILITIES ACT. 1999

Salient Features

OBJECTS OF THE ACT

This Act provides for the constitution of a national body for the Welfare of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities. Such a national body will be a trust whose objects shall be as under :
  1. to enable and empower persons with disability to live as independently and as fully as possible within and as close to the community to which they belong;
  2. to strengthen facilities to provide support to persons with disability to live within their own families;
  3. to extend support to registered organisations to provide need based services during the period of crisis in the family of persons with disability;
  4. to deal with problems of persons with disability who do not have family support;
  5. to promote measures for the care and protection of persons with disability in the event of death of their parent or guardian;
  6. to evolve procedure for the appointment of guardians and trustees for persons with disability requiring such protection;
  7. to facilitate the realisation of equal opportunities, protection of rights and full participation of persons with disability; and
  8. to do any other act which is incidental to the aforesaid objects.
The Act received the assent of the President on 30th December, 1999 and extends to the whole of India.

DEFINITIONS—
  1. "autism" means a condition of uneven skill development primarily affecting the communication and social abilities of a person, marked by repetitive and ritualistic behaviour;
  2. "cerebral palsy" means a group of non-progressive conditions of a person characterised by abnormal motor control posture resulting from brain insult or injuries occurring in the prenatal, perinatal or infant period of development;
  3. "mental retardation" means a condition of arrested or incomplete development of mind of a person which is specially characterised by sub-normality of intelligence;
  4. "multiple disabilities" means a combination of two or more disabilities as defined in
    clause (i) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. These are blindness, low vision, leprosy cured, hearing impairment, locomotor disability, mental retardation and mental illness;
  5. "person with disability" means a person suffering from any of the conditions relating to autism, cerebral palsy, mental retardation or a combination of any two or more of such conditions and includes a person suffering from severe multiple disability;
  6. "professional" means a person who is having special expertise in a field which would promote the welfare of persons with disability;
  7. "registered organisation" means an association of persons with disabilty or an association of parents of persons with disabilty or a voluntary organisation, as the case may be, registered under section 12 of this Act;
  8. "severe disability" means disability with eighty percent or more of one or more of multiple disabilities;
  9. "Trust" means the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability constituted under sub-section (1) of section 3 of this Act.
CREATION OF NATIONAL TRUST AND BOARD OF TRUSTEES—

The Central Government shall constitute a National Trust for Welfare of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities. The said trust will be a body corporate having perpetual succession and a common seal with power to hold and dispose movable and immovable property and to contract and to sue or be sued by its name. The head office of the Trust will be at New Delhi and branch offices at other places. This Trust has been constituted.

The management, general superintendence and control of the trust shall vest in a Board of trustees consisting of a Chairperson and nine other persons from registered organisations, voluntary organisation or associations of parents of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities. In addition, there will be 8 persons not below the rank of Joint Secretary to the Government of India from various Ministries and three persons representing associations of trade, commerce and industry. The Chief Executive Officer of the Trust will be an Officer of the rank of Joint Secretary of Government of India who shall also be member-Secretary. The Board of trustees may also take in advisors and consultants not exceeding 8 in number.

CHAIRPERSON—

The Chairperson to be appointed by the Central Government to the Board of trustees shall hold office for 3 years and shall be ineligible after attaining the age of 65 years. He shall not have any financial or other interest in the trust and shall not be a beneficiary of the Trust. The Chairperson shall preside at the meetings of the Board and may resign his office in writing addressed to the Central Government. The Board of trustees may by general or special order in writing delegate to the Chairperson such of its powers as can be delegated. The Chairperson has to authenticate all orders and decisions and instruments issued in the name of the trust. The Board has to hold meetings once in three months and take decision by majority of votes with the Chairperson having a casting vote.

MEMBERS OF THE BOARD—

Members have to be less then 65 years in age and can hold office for a term of 3 years. They cannot have any financial or other interest in the trust nor can be beneficiary thereof. A Member may resign from office in writing if he is of unsound mind, convicted of an offence involving moral turpitude or has been adjudicated an insolvent. A member will cease to be a member of the Board if he remains absent from 3 consecutive meetings of the Board, becomes disqualified or resigns. A member shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code.

CHIEF EXECUTIVE OFFICER—

A Chief Executive Officer shall be appointed by the Central Government to perform duties and exercise power under the direction of the Board or as may be delegated to him by the Chairperson. Such delegation can be made in accordance with regulations to be made in this behalf. The Chief Executive Officer is also a public servant with in the meaning of Section 21 of Indian Penal Code. The Board may with approval of the Central Government appoint other officers and employees of the Trust.

VACANCIES—

The seat of a member shall stand vacated, if he becomes disqualified, absents himself from 3 consecutive meetings of the board or tenders his resignation. Any vacancy of a member in the Board shall not affect any act or proceeding of the Board.

POWERS AND DUTIES OF THE BOARD OR TRUSTEES—

It shall be the duty of the Board to receive from the Central Government the corpus fund of Rs. 100 Crores to be utilised to provide for adequate standard of living for persons with disability from the income from such corpus fund. It shall also have the power to receive bequests of movable property (including money) from any person for the benefit of the disabled. Besides, the Board will receive finance from the Central Government for disbursement to registered organisations for carrying out any approved programme such as for promoting independent living in the Community for disabled persons by creating conducive environment, providing counselling, setting up of adult training units, foster care homes, hostels and residential homes, development of self help groups and setting up of Local Level Committees for approving guardians for persons with disability. Preference will be given to women with disability, persons with severe disability and to senior citizens above 65 years age with disability. The Board has to prepare every year annual reports of its activities during the previous year for being sent to the Central Government which shall cause it to be laid before each House of Parliament. It shall also furnish to the Central Government other reports and returns as may be required by that Government. The Central Government can also issue directions to the Board in writing from time to time on questions of policy. The Central Government can also issue notice to the Board asking it why it should not be superceded on complaints received against it. The Central Government can supercede the Board for a period up to 6 months. The Central Government can also reconstitute the Board.

REGISTRATION OF ASSOCIATIONS WITH THE BOARD—

Any Association of persons with disabilty or any association of parents of disabled persons or Voluntary Organisations can apply to the Board for registration. If application is genuine and is accompanied with necessary documents and fees, the association will be registered. Upon registration, the association can have access to or obtain copy of any book and documents maintained by the Board. The Board will determine the prefunding status of registered organisations seeking financial assistance in accordance with regulations. The Board will also hold every year a meeting of registered organisations.

LOCAL LEVEL COMMITTEES—

The Board will have to constitute Local Level Committees for different areas comprising of District Magistrate or the District Commissioner along with one representative from a registered organisation and a person with disability for a period of 3 years to act as a Local Level Committee. These Local Level Committees have to meet at least once in 3 months.

APPOINTMENT OF GUARDIANS FOR PERSONS WITH DISABILITY—

A parent or relative of a person with disability may apply to the Local Level Committee for appointment of a guardian for a person with disability. A registered organisation can also make such an application with consent of the natural guardian of the disabled person. The Local Level committee will examine whether the person with disability needs a guardian and for what purpose and also lay down the duties of the guardian. The guardian will be responsible for the maintenance of the person with disability. The guardian will also submit to the Local level Committee inventory and annual accounts of the property and assets, claims and liabilities in respect of such person with disability. A guardian so appointed can be removed for negligence or for misappropriating the property of the person with disability.

FINANCE AND ACCOUNTS OF THE BOARD—

There shall be constituted a fund to be called the National Trust for Welfare of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Fund in which moneys received from the Central Government or by way of grants, gifts donations shall be credited. The Board shall prepare the budget for each financial year, maintain accounts of the Trust which will be audited by the Comptroller and Auditor General of India. The annual report of the Trust shall be forwarded to the Central Government which shall cause the same to be laid before the Parliament.

RULES AND REGULATIONS—

The Central Government has been given power to make rules for carrying out the provisions of the Act. The Board has been given power to make regulations with the previous approval of the Central Government. Both the rules and regulations are to be placed before both Houses of Parliament during session for a total period of 30 days before they are enforced.

RIGHTS OF THE DISABLED UNDER THE NATIONAL TRUST ETC. ACT, 1999
  1. The Central Government has the obligation to set up, in accordance with this Act and for the purpose of the benefit of the disabled the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability at New Delhi.
  2. The National Trust created by the Central Government has to ensure that the objects for which it has been set up as enshrined in Section 10 of this Act have to be fulfilled.
  3. It is the obligation of the Board of Trustees of the National Trust to make arrangements for adequate standard of living of any beneficiary named in any bequest received by it, and to provide financial assistance to registered organisations for carrying out any approved programme for the benefit of the disabled.
  4. Disabled persons have the right to be placed under guardian appointed by the Local Level Committees in accordance with the provisions of the Act. The guardians so appointed will have the obligation to be responsible for the person and property of their disabled wards and be accountable for the same.
  5. A disabled person has the right to have his guardian removed where the guardian is abusing or neglecting him or is misappropriating or neglecting the property of the disabled person.
  6. Where the Board of Trustees is unable to perform or has persistently made default in the performance of duties imposed on it, a registered organisation for the disabled can complain to the Central Government to have the Board of Trustees superceded and/or reconstituted.
  7. The National Trust shall be bound by the provisions of this Act as to its accountability, monitoring, finance, accounts and audit.
Part-III Rights of the Disabled as
enshrined in International Instruments of the U.N. INTERNATIONAL
HUMAN RIGHTS INSTRUMENTS


(1) UN DECLARATION ON THE RIGHTS OF MENTALLY RETARDED PERSONS

The General Assembly

Mindful of the pledge of the States Members of the United Nations under the Charter to take joint and separate action in co-operation with the Organisation to promote higher standards of living full employment and conditions of economic and social progress and development.

Reaffirming faith in human rights and fundamental freedoms and in the principles of peace, of the dignity and worth of the human person and of social justice proclaimed in the Charter.

Recalling the principles of the Universal Declaration of Human Rights, the International Covenants on Human Rights, the Declaration of the Rights of the Child and the standards already set for social progress in the constitutions, conventions, recommendations and resolutions of the International Labour Organisation, the United Nations Educational, Scientific and Cultural Organisation, the World Health Organisation, the United Nations Children's Fund and other organisations concerned.

Emphasizing that the Declaration on Social Progress and Development has proclaimed the necessity of protecting the rights and assuring the welfare and rehabilitation of the physically and mentally disadvantaged.

Bearing in mind the necessity of assisting retarded persons to develop their abilities in various fields of activities and of promoting their integration as far as possible in normal life.

Aware that certain countries, at their present stage of development can devote only limited efforts to this end.

Proclaims this Declaration on the Rights of Mentally Retarded Persons and calls for national and international action to ensure that it will be used as a common basis and frame of reference for the protection of these rights:
  1. 1. The mentally retarded person has, to the maximum degree of feasibility, the same rights as other human beings.
  2. 2. The mentally retarded person has a right to proper medical care and physical therapy and to such education, training, rehabilitation and guidance as will enable him to develop his ability and maximum potential.
  3. 3. The mentally retarded person has a right to economic security and to a decent standard of living. He has a right to perform productive work or to engage in any other meaningful occupation to the fullest possible extent of his capabilities.
  4. 4. Whenever possible, the mentally retarded person should live with his own family or with foster parents and participate in different forms of community life. The family with which he lives should receive assistance. If care in an institution becomes necessary, it should be provided in surroundings and other circumstances as close as possible to those of normal life.
  5. 5. The mentally retarded person has a right to a qualified guardian when this is required to protect his personal well being and interests.
  6. 6. The mentally retarded person has a right to protection from exploitation abuse and degrading treatment. If prosecuted for any offence, he shall have a right to due process of law with full recognition being given to his degree of mental responsibility.
  7. 7. Whenever mentally retarded persons are unable, because of the severity of their handicap, to exercise all their rights in a meaningful way or it should become necessary to restrict or deny some or all of these rights, the procedure used for that restriction of denial of rights must contain proper legal safeguards against every form of abuse. This procedure must be based on an evaluation of the social capability of the mentally retarded person by qualified experts and must be subject to periodic review and to the right of appeal to higher authorities.
    (2027th plenary meeting- 20 December 1971)
(2) UN DECLARATION ON THE RIGHTS OF DISABLED PERSONS

The General Assembly:

Mindful of the pledge made by Member States, under the Charter of the United Nations, to take joint and separate action in co-operation with the Organisation to promote higher standards of living, full employment and conditions of economic and social progress and development.

Reaffirming its faith in human rights and fundamental freedoms and in the principles of peace, of the dignity and worth of the human person and of social justice proclaimed in the Charter.

Recalling the principles of the Universal Declaration of Human Rights, the International Covenants on Human Rights, the Declaration of the Rights of the Child and the Declaration on the Rights of Mentally Retarded Persons, as well as the standards already set for social progress in the constitutions, conventions, recommendations and resolutions of the International Labour Organisation, the United Nations Educational, Scientific and Cultural Organisation, the World Health Organisation, the United Nations Children's Fund and other organisations concerned.

Recalling also Economic and Social Council resolution 1921 (LVIII) of 6 May 1975 on the prevention of disability and the rehabilitation of disabled persons.

Emphasizing that the Declaration on Social Progress and Development has proclaimed the necessity of protecting the rights and assuring the welfare and rehabilitation of the physically and mentally disadvantaged.

Bearing in mind the necessity of preventing physical and mental disabilities and of assisting disabled persons to develop their abilities in the most varied fields of activities and of promoting their integration as far as possible in normal life.

Aware that certain countries, at their present stage of development, can devote only limited efforts to this end.

Proclaims this Declaration on the Rights of Disabled Persons and calls for national and international action to ensure that it will be used as a common basis and frame of reference for the protection of these rights:
  1. The term "disabled person" means any person unable to ensure by himself or herself, wholly or partly, the necessities of a normal individual and/or social life, as a result of a deficiency, either congenital or not, in his or her physical or mental capabilities.
  2. Disabled persons shall enjoy all the rights set forth in this Declaration. These rights shall be granted to all disabled persons without any exception whatsoever and without distinction or discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, state of wealth, birth or any other situation applying either to the disabled person himself or herself or his or her family.
  3. Disabled persons have the inherent right to respect for their human dignity. Disabled persons, whatever the origin, nature and seriousness of their handicaps and disabilities, have the same fundamental rights as their fellow-citizens of the same age, which implies first and foremost the right to enjoy a decent life, as normal and full as possible.
  4. Disabled persons have the same civil and political rights as other human beings, paragraph 7 of the Declaration on the Right of Mentally Retarded Persons applies to any possible limitation or suppression of those rights for mentally disabled persons.
  5. Disabled persons are entitled to the measures designed to enable them to become as self-reliant as possible.
  6. Disabled persons have the right to medical psychological and functional treatment, including prosthetic and orthetic appliances, to medical and social rehabilitation, education, vocational training and rehabilitation, aid, counselling, placement services and other services which will enable them to develop their capabilities and skills to the maximum and will hasten the process of their social integration or reintegration.
  7. Disabled persons have the right to economic and social security and to a decent level of living. They have the right, according to their capabilities, to secure and retain employment or to engage in a useful, productive and remunerative occupation and to join trade unions.
  8. Disabled persons are entitled to have their special needs taken into consideration at all stages of economic and social planning.
  9. Disabled persons have the right to live with their families or with foster parents and to participate in all social, creative or recreational activities. No disabled person shall be subjected, as far as his or her residence is concerned, to differential treatment other than that required by his or her condition or by the improvement which he or she may derive therefrom. If the stay of a disabled person in a specialized establishment is indispensable, the environment and living conditions therein shall be as close as possible to those of the normal life of a person of his or her age.
  10. Disabled persons shall be protected against all exploitation, all regulations and all treatment of a discriminatory, abusive or degrading nature.
  11. 11. Disabled persons shall be able to avail themselves of qualified legal aid when such aid proves indispensable for the protection of their persons and property. If judicial proceedings are instituted against them, the legal procedure applied shall take their physical and mental condition fully into account.
  12. Organisations of disabled persons may be usefully consulted in all matters regarding the rights of disabled persons.
  13. Disabled persons, their families and communities shall be fully informed, by all appropriate means, of the rights contained in this Declaration.
    (2433rd plenary meeting- 9th December 1975)
Part-IV COURT CASES ON RIGHTS OF PERSONS
WITH DISABILITY

Introduction

In the ensuing pages will be found several decisions of the High Courts and the Supreme Court in which the rights of the persons with disability have been upheld in different situations. In deciding these cases the courts have confirmed, explained and expounded the rights of persons with disability as enshrined in the provisions of the Constitution, PWD Act, 1995, the Mental Health Act, 1987 and the National Trust Act, 1999. An insight into these court cases and the approach of the courts aimed towards protection of the rights of persons with disability will be found immensely encouraging and interesting. Infact, prior to 1995 there were not many cases coming up before the courts questioning instances of discrimination against or deprivation of the rights of persons with disability. The above legislation's and greater awareness about the rights of the disabled have made these rights more justifiable.

In certain cases the reader will find divergence of views of different high courts. The decisions have been placed in chronological order as far as possible and the crux of the decision has been highlighted. Certain decisions prior to 1995 have been given at the end. With the addition of the court decisions, the book's value to the reader is expected to go up.

1. WHAT CONCESSIONS AND FACILITIES BE PROVIDED FOR PERSONS WITH DISABILITY WHILE TRAVELLING BY AIR? _SUPREME COURT DIRECTIONS
Javed Abidi
Versus
Union of India & others
(Air 1999 Sc 512)

Mr Javed Abidi, who is orthopaedically handicapped with locomotor disability filed a petition under Article 32 of the Constitution before the Supreme Court of India. In the petition, he asked the court to direct the Union Government and the State Governments to implement the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. He also prayed for directions to the Indian Airlines to immediately provide aisle chairs in every aircraft, provide ambulift in all airports of the country, and to provide 50% concession to all disabled persons as otherwise to provide such concession only to visually impaired persons would be discriminatory.

Both the Central Government and the State Governments in the affidavits filed before the court stated that they had set up Central and State Co-ordination Committees as envisaged in the said Act. In the affidavit filed on behalf of Indian Airlines, it was stated that it had taken steps to provide aisle chairs in the aircrafts and ambulifts at different airports, at least in the major airports. Having regard to the statements made in these affidavits, the court felt that it was not necessary to issue any directions in this behalf.

However, in regard to the question of concession of 50% on air-tickets, the Court took the view that bearing in mind the discomfort and harassment a person suffering from locomotor disability would face while traveling by train particularly to far off places, it was necessary to direct the Indian Airlines to grant the same concession which the Airlines was giving to those suffering from blindness to those suffering from locomotor disability to the extent of 80% and above for traveling by air within the country. It would of course be necessary for such person with locomotor disability to furnish requisite medical certificate from the Chief District Medical officer to the effect that the person concerned is suffering the disability to the extent of 80%. The District Medical officer will constitute a Board with a Specialist in Orthopaedics and another suitable Specialist who will examine the person and issue the medical certificate. In taking this view, the Court rejected the contention that Indian Airlines was not in feasible economic condition to give such concession, or that the concession to blind persons was being given prior to the above PWD Act coming into force or that it would result in discrimination with other disabled persons. Such direction was given, according to the court, keeping in view the broad objectives of the PWD Act to create barrier free environment and make special provisions for the integration of persons with disability into the social mainstream.

2. DOES THE PWD ACT, 1995 ENVISAGE 3% RESERVATION FOR ADMISSION TO M.B.B.S. COURSE? NO, SAYS GAUHATI HIGH COURT

Binita Senapati
Versus
State of Assam & others
(Air 2000 Gau 1)

Binita Senapati is a handicapped person suffering from shortening of the right lower limb with moderate stiffness of the right hip and the percentage of her disability has been certified by the Medical Authority as of 45%. After passing her Higher Secondary (Science) Examination, she applied for admission to the M.B.B.S. course in the three medical colleges in the State of Assam on the plea that there is 3% seat reservation for disabled persons for admission to M.B.B.S. course as per Section 39 of the Persons with Disabilities (Equal Opportunities, Protection of Rights, and Full participation) Act, 1995. As admission was denied to her, she filed a petition before the Gauhati High Court challenging such decision.

Before the High Court the petitioner took the plea that the Medical College of Assam and Regional Dental College (Regulation of admission of undergraduate students) Rules, 1996 did not include disability for the reserved categories though all the Engineering colleges of Assam have reserved one seat for the Physically handicapped persons in each Engineering college as contained in the Brochure issued by the Director of Technical Education. Even one seat for each course of Science and Arts has been reserved in the Govt. College, Guwahati for the physically handicapped person vide College Admission prospectus. Even in the Application form for admission to the M.B.B.S. course she did not find any column in which she would have stated that she was physically handicapped.

After examining the objects, scheme and the provisions of the said Act of 1995, the Court held that Chapter V of the Act titled "Education" nowhere provides for reservation of seats for candidates in educational institutions including institutions of scientific, technical and super technical areas.

According to the Court, the petitioner had relied on Section 39 of the Act which falls in Chapter VI under the title "Employment" in which all the provisions deal with employment alone. By Section 39 of the said Act 3% vacancies in Government educational institutions and other institutions have been reserved for appointment of persons with disabilities covering both teaching and non-teaching staff. According to the Court, therefore, the contention of the petitioner will render redundant and otiose the provisions of Chapter V of the Act. Besides that, the legislature never intended for reservation of seats in the institutions covering scientific, technical and super technical areas. Rejecting the petition the Court held that extending the benefit of the Act for the purpose of admission to medical college may not be in conformity with the intention of the legislature.

3. CAN THE STATE PRESCRIBE RESERVATION FOR ADMISSION TO MEDICAL COURSES FOR HILL CANDIDATES IN PREFERENCE TO THOSE WHO ARE PHYSICALLY HANDICAPPED? NO, SAYS CALCUTTA HIGH COURT

The Deputy Secretary (Mart) Deptt of H&FW
Versus
Ms Sanchita Biswas & Ors
(Air 2000 Cal. 202)

Ms. Sanchita Biswas, a physically handicapped candidate appeared in the Joint Entrance Examination in 1997 for admission to the Medical College but was not successful. For admission to Medical College some seats had been reserved for the nominees of Central and State Government, Donors and for those belonging to SC/ST. In fact, after the Examination was over, the State Government reserved further 8 seats for hill candidates. However, there was no reservation for those who were physically handicapped. By a writ petition she challenged the non-reservation of seats for the physically handicapped on the ground that Sections 32 and 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 as also the Constitution cast an obligation upon the State to provide for reservation of seats for handicapped candidates to the extent of 3% of the total seats in medical colleges and universities. Her petition was partly allowed by the Single Judge of the Calcutta High Court who directed the State Government to prepare a Special list for the physically handicapped candidates for the year 1996-97 and ascertain and inform the petitioner if she was successful in obtaining qualifying marks and whether she comes within 3% of the total intake of students in that special list in the year 1998-99. The Single Judge also quashed the reservation created for candidates from the hill regions. Against the judgement of the Single Judge, the State Government appealed before a bench of two judges in the same High Court. This bench agreed with the view taken by the Single Judge and held that in the prescribed form for appearing at the Joint Entrance Examination there is a space to indicate whether the petitioner is physically handicapped. Having indicated that she is a physically handicapped candidate in the Form she sat for the examination reasonably expecting some protective leniency in her favour and was quite unaware of the protective rules of reservation in favour of hill candidates. The Bench also rejected the contention of the State that the petitioner cannot be allowed to challenge the selection process after having participated in the selection process unsuccessfully. The directions given by the Single Judge in regard to the petitioner were upheld.

4. WHETHER BOTH RESERVATION AND CONCESSIONAL RATES FOR LAND ALLOTMENT BE MADE IN FAVOUR OF HANDICAPPED PERSONS? _ YES, SAYS THE ALLAHABAD HIGH COURT

National Federation of Blinds, Uttar Pradesh
Versus
State of Uttar Pradesh & others
(Air 2000 Allahabad 258)

Dr. Pramod Kumar Singh, a blind person is working as a lecturer imparting education to post-graduate classes. He applied for a plot of land to be leased out to him by the Lucknow Development Authority under the Scheme known as Shikshak Vihar, Janakipuram Extension, Sitapur Road, Lucknow. After payment of the registration charges and completion of formalities, he was allotted plot No. 1/10, Section 1-B type plot measuring 288 sq.meters and the allotment order was issued to him.

He filed a writ petition before the Allahabad High Court (Lucknow Bench) challenging the non-grant to him of the plot at concessional rates in accordance with Section 43 of the Persons with Disabilities (Equal Opportunities, Protection of rights and Full Participation) Act, 1995. Section 43 of the Act deals with Scheme for preferential allotment of land for certain purposes. Under the provisions of this section the State Government and the local authorities have to frame schemes in favour of persons with disabilities for preferential allotment of land at concessional rates of, interalia, houses. After considering the matter in the light of the provisions of the said Act, the High Court allowed the writ petition. It was observed that it is unfortunate that the State Government or the development bodies have not framed any scheme for the benefit of persons with disability but non-framing of such schemes would not in any way negate the provisions of Section 43 of the Act. The Court further held that it is a matter of common knowledge that the Lucknow Development Authority gives land and houses at concessional rates to various categories such as legislators, journalists, freedom fighters, their own employees but no reason has been given in the order of the said Authority as to why persons with disability should be denied the concessional rates for allotment of lands and houses. The said Authority merely says that blind persons will get preference in the matter of allotment but they will not be given any discount concession in the rates. Holding that such an order runs counter to the provisions of Section 43 of the said Act, the writ petition was allowed and the Lucknow Development Authority and the State Government of U.P were directed not only to give preference in the matter of allotment of land and houses to handicapped persons but also to provide concessional rates to handicapped persons. The State Government of U.P. was also directed to frame a Scheme in favour of persons who suffer from disabilities along the above lines.

5. WHETHER RESERVATION OF 3 PERCENT SEATS FOR ADMISSION TO POST-GRADUATE MEDICAL COURSE IS MANDATORY EVEN IF SUCH RESERVATIONS ARE NOT PROVIDED IN THE ADMISSION ORDINANCES? _ YES, SAYS THE RAJASTHAN HIGH COURT

Dr. Vijay K. Agarwal
Versus
State of Rajasthan & others
(Air 2001 Rajasthan 261)

Dr. Vijay K Agarwal, is an orthopaedically handicapped person who completed the M.B.B.S. course from the University of Rajasthan against a seat reserved for the physically handicapped. He also completed his internship and thereafter applied for admission to Post Graduate Medical Course but was refused admission against the reserved category for the physically handicapped as under the University Ordinances there was no reservation provided for the physically handicapped person. Accordingly, he filed a writ petition before the Rajasthan High Court praying for a direction that he may be admitted against mandatory reservation to be provided by Section 39 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Before the High Court, the University informed the Court that the relevant Ordinances had been amended to provide for reservation for the physically handicapped persons but since such amendment had prospective effect, no benefit could be given of the same to the petitioner. It was argued before the High Court that Section 39 of the Act falls under Chapter VI which deals with `employment' whereas Chapter V of the Act deals with education and hence the petitioner could not take benefit of Section 39 of the Act. It was also urged that the reservation of 3% was dependant upon constitution of Central and State Co-ordination Committees under the provisions of the Act. Negating these arguments, the High Court held that reservation of 3% seats in all Government educational institutions is not inter-dependant either on the constitution of Co-ordination Committees or from the date of framing of Schemes and programmes for the benefit of persons with disability but from the date of enforcement of the Act that is, 7-2-1996. It was also held that Section 33 of the Act dealt with reservation relating to employment and it has nothing to do with Section 39 which clearly mandates that all Government educational institutions and other educational institutions receiving aid from the Government shall reserve not less than 3% seats for persons with disability. It is true that Section 39 ought to have been placed under Chapter-V but its effect cannot be allowed to be nullified simply because, instead of placing it under Chapter V, Parliament has placed it under Chapter _VI of the Act. Allowing the writ petition the University was directed to admit the petitioner within three weeks in PG Medical course preferably in paediatrics.

6. THREE PERCENT RESERVATION PROVIDED UNDER SECTION 39 OF THE PWD ACT IS NOT INTENDED TO RESERVE SEATS IN MEDICAL, ENGINEERING AND ALLIED PROFESSIONAL COURSES SAYS THE KERALA HIGH COURT

State of Kerala & others
Versus
Mary Joseph (Minor) & Others
(Air 2001 Kerala 356)

Ms. Mary Joseph filed a writ petition before the Kerala High Court for a declaration that persons with disabilities are entitled to not less than 3% of the total available seats in Government Colleges for the year 2000-2001 as per Section 39 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and sought quashing of various provisions of the Prospectus as it did not provide for such reservation. The learned Single Judge disposed the Writ Petition holding that there was a clear illegality and that the Government should see that in future years it is corrected. He did not pass a general order as only the petitioner had challenged the position. However, the State Government of Kerala preferred an appeal from the order of the Single Judge to the division bench of the same High Court. After considering the various provisions of the said Act in the light of the objects and reasons of the Act, the Division bench took the view that Section 39 is not intended to reserve seats in medical, engineering and allied professional course since Section 39 comes within the Chapter VI with the heading `employment'. According to the High court, section 39 obliges the State to reserve 3% vacancies or posts in all Government or other educational institutions which receive aid from the Government and not for the purpose of reservation for admission to professional degree courses. The court rejected the argument made on behalf of the student that the legislature intended reservation to persons having disability ranging from 40% to 100% as that would upset the entire scheme of reservation. The word `seats' appearing in section 39 according to the High Court, if seen in the light of the chapter heading and other preceding and succeeding provisions would mean only `vacancies' or posts. So far as Ms. Mary Joseph was concerned, the High court did not consider it necessary to disturb her admission as she had already done one year of studies.

7. SPECIAL DIRECTIONS ISSUED BY THE SUPREME COURT FOR IMPLEMENTATION OF THE MENTAL HEALTH ACT,1987 THE PWD ACT,1995 AND THE NATIONAL TRUST ACT,1999 BASED ON NEWSPAPER REPORT

In Re: Death of 25 Chained Imates in Asylum Fire in Tamil Nadu
(Air 2002 Sc 979)

Taking note of a newspaper item about a gruesome tragedy in which more than 25 mentally challenged patients housed in a mental asylum in Tamil Nadu were charred to dealth as they had failed to escape due to the fact that they had been chained to poles or beds, the Supreme Court of India issued notices to the State of Tamil Nadu and the Central Government. The Court appointed a `friend of the court' to make a prima facie examination and submit a report on the basis of which it issued notices to other States also. It was reported to the court that the Mental Health Act, 1987 had not been implemented by the Central/State Governments. Realizing the urgency about implementation of the said Act it was stated on behalf of the Central Government that the Act would be implemented in right earnest. After examining the provisions of the Act, the Supreme Court issued specific directions to all State Governments and Union territories to take a survey of bodies providing psychiatric mental health care, grant them licenses on fulfillment of minimum prescribed standards, a nodal agency involving the Chief Secretary or Additional Secretary be designated to coordinate implementation of the Act of 1987 as also the Person with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 as also of the National Trust for Welfare of Persons with autism, cerebral palsy, mental retardation and multiple disabilities Act, 1999. Such Nodal agency is to be set up at the Central level also. At least one Central Government run mental hospital to be set up in each State and Union Territory within definite time schedule. The States and the Union Territories are also to take steps to set up such hospitals to be run under them. It was also directed that awareness campaign with special rural focus on the rights of the mentally challenged persons should be carried out and that chaining of mentally challenged persons is illegal and that mental patients should be sent to doctors and not to temples or darghas. With a view to monitoring such steps the States/Union territories were directed to file compliance reports and affidavits in the court. 8. Further directions issued by the Supreme Court under the Mental Health Act, 1987

In Re: Death of 25 chained inmates in Asylum fire in Tamil Nadu
with
Saarthak Registered Society and another
Versus
Union of India & Others
(AIR 2002 SC 3693)

After hearing the Additional Solicitor General of India in the matter the Supreme Court gave the following directions on 12.4.2002.
  1. In continuation of our order dated 5th February, 2002 and considering, various provisions of the Mental Health Act, 1987, particularly S.5 which inter alia provides that Central Government may in any part of India or State Government may within the limits of its jurisdiction establish or maintain psychiatric hospital or psychiatric nursing homes for the admission, treatment and care of mentally ill persons at such places as it thinks fit, it is directed as under:
  2. Every State and Union Territory 9(UT) shall undertake a comprehensive need assessment survey and file the report thereof on the following aspects:
    1. Estimated availability of Mental Health Resource personnel in the State, including psychiatrists, psychologists, psychiatric social workers and psychiatric nurses in both the public and private (licensed) sector.
    2. Type of mental Health Delivery System available in the State, including the available bed strength, outpatient services and rehabilitation services in the public and private (licensed) Sector;
    3. An estimate of the Mental Health Services (including personnel and facilities) that would be required having regard to the population of the State and the incidence of mental illness.
  3. The Chief Secretary of each State and Administrator/Commissioner of every UT shall file an affidavit stating clearly.
    1. Whether any minimum standards have been prescribed for licensing of Mental Health Institutions in the State/UT and in case such minimum standards have been prescribed full details thereof.
    2. Whether each of the existing registered Mental Health Institutions in the State/UT, whether private or run by the State, meet such minimum prescribed standards as on date of passing this order and if not, what steps have been taken to ensure compliance of licensing conditions and/or withdrawal of the licence.
    3. How many unregistered bodies, by whatsoever name called, purporting to offer psychiatric/mental health care exist in the State on date of this order and whether any of them comply with minimum standards and are entitled to grant of licence and if not, whether steps have been taken to close down the same;
    4. Whether any mentally challenged person has been found to be chained in any part of the State/UT;
    5. Conclusions on the basis of the Need Assessment Survey undertaken in terms of direction (1) above.
    It is made clear that each affidavit must specifically and comprehensively deal with each of the queries set out above.
  4. The report of Need Assessment Survey and affidavit as set out in directions (1) and (2) above shall be submitted to the Health Secretary, Union of India so as to reach him latest by 1st July, 2002. The Health Secretary, Union of India shall thereafter compile and collate the information as above and present the same in the form of a self-explanatory note/chart to this Court along with his conclusions, The affidavits filed by the State/UTs shall be annexed to the note/chart. The Health Secretary, Union of India shall file the said note/chart in this Court by 15th July, 2002.
    It is further directed that the Chief Secretaries of all State and Commissioners of all UTs who fail to file such affidavit with the Health Secretary, Union of India by 1st July, 2002 shall have to personally remain present on the next date of hearing and explain the default.
  5. Further, Union of India is directed—
    1. To frame a policy and initiate steps for establishment of at least one Central Government run Mental Health Hospital in each State (as provided under S.5 of the Act;)
    2. To examine the feasibility of formulating uniform rules regarding standard of services for both public and private sector Mental Health Institute;
    3. To constitute a committee to give recommendations on the issue of care of mentally challenged persons who have no immediate relatives or who have been abandoned by relatives;
    4. To frame norms for non-Government Organizations working in the field of Mental Health and to ensure that the services rendered by them are supervised by qualified/trained persons.
  6. All State Government are also directed to frame policy and initiate steps for establishment of at least one State Government run Mental health Hospital in each State. It is clarified that a Mental Health Hospital as stated above means a full-fledged Hospital catering only to mentally challenged persons and does not include a separate psychiatric ward in a Medical College or Government Hospital.
  7. LEGAL AID
    Under S.43 of the Mental health Act (MHA), a patient is required to apply to the Magistrate in order to be discharged. The procedure prescribed under the section, on occasions causes difficulties to the patients in as much as many patients may not be in a position to make the requisite applications before a Magistrate, nor would they be aware of their rights, and the procedure to seek discharge.
    Hence it is directed that two members of the Legal Aid Board of each State be appointed to make monthly visit to such Institutions, so as to assist the patients and their relatives in applying for discharge from the Institutions if they have fully recovered, and do not require institutional assistance any longer or to find out whether as a matter of fact they require any such treatment as in door patients.
  8. RIGHTS
    1. Informing Patients of their Rights
      Patients and their guardians shall be explained their rights by a team of 2 members of the Legal Aid Board and a Judicial Officer, under the Mental Health Act , in a language known to them, at the time of the admission to any Institute. They should also be informed whom to approach in case their rights are being infringed.
    2. Inspection by the Board of Visitors
    3. Section 37 provides for inspection of psychiatric hospital and psychiatric nursing home. In view of the said section a Board of Visitors must be formed by the State Mental Health Authority in very State within a time bound period, and a compliance report be filed to this Court. The Board of Visitors shall be required to visit every State or Private Institution for the time being at least once every month. The membership of the Board of Visitors is contained in S.37 of the Mental Health Act, 1987, which includes:-
      1. Not less than 5 members
      2. At least one psychiatrist
      3. Two social workers preferably with knowledge of the issues in the hospital and may be from the NGO Sector.
      4. Head of Medical Services or their nominees (preferably a psychiatrist) as ex-officio member of Board of Visitors in the State. The Board of Visitors should also include:
        1. The Additional District Judge, and/or Chief Judicial Magistrate, and/or the President of the Bar Association of the area;
        2. State Disability Commissioner or his/her nominee.
          A monthly record of visits of the Board of Visitors and a quarterly report should be filed with the State Mental Health Authority.
          Further it has been suggested by the learned counsel for the parties that appropriate norms be prescribed for maintenance of Mental Hospitals and Institutions for which various suggestions are made by the learned counsel for the parties but are not discussed at present as it is for the concerned authorities to first frame such norms.
  9. A Scheme may be envisaged for rehabilitation process for those who are not having any backing or lack support in the community. The Scheme may be on the basis of quarter-way homes (Supported Shared Home Like Accommodation) for all patients ready to be discharged, but are not being discharged due to family not taking them back, or lack of support in the community, should be placed in a home like accommodation created on the hospital campus itself. This accommodation could be an existing ward converted to have a home like environment, with patients being taught housekeeping skills, cooking, shopping and also encouraged to take up responsibilities in the hospital for which they should be paid for and then gradually encouraged to go to the community for work.

    Learned Amicus Curiae Dr. Singhvi rightly submitted that if any suggestions are made by any interested parties, the same may be submitted through Mr. Pranab Kumar Mullick, (Amicus Curiae) and we order accordingly.


  1. Order accordingly.
9. Whether an employee may be adjusted in suitable post with protection of pay after one arm was amputated due to sarcoma (cancer)? Yes, Says the Supreme Court

Narendra Kumar Chandla
Versus
State of Haryana
(AIR 1995 SC 519)

The employee in this case was working as a Sub-Station Attendant in the pay scale of Rs. 1400-2300. He had to be operated for Chondrosarcoma and was treated at Tata Memorial Hospital, Bombay. He was discharged with his right arm completely amputated due to said sarcoma. The doctor recommended that he can resume his normal duties and can work properly with his left arm. Subsequently, he was absorbed as Carrier Attendant in the pay scale of Rs. 825-1300. Feeling dis-satisfied the employee approached the High Court which dismissed the Writ Petition in limine.

On appeal before the Supreme Court a direction was given to the employer the State Electricity Board to constitute a three-member Board with two doctors and one Executive Engineer to examine and report whether the employee can discharge the duties of Sub-Station Attendant or any other equivalent post carrying pay-scale of Rs. 1400-2300. After taking the employee to Sub-Station to assess his capability in the operation of some installations, the Medical Board came to the conclusion that he was unable to perform efficiently. It was also found that the employee's handling of the installations would be risky both to the man and the machine. The Board further concluded that the employee cannot discharge the duties of Sub-Station Attendant nor any lower post of Foreman Grade-III, C`harge man, Rigger, Crane Driver, Welder etc. as these posts involved similar duties. However, since the employee could write English and Hindi with his left hand, it was felt that he could be considered for clerical or non-technical post subject to his meeting educational and administrative requirements.

After considering the material on record relating to the qualifications of the employee the Supreme Court felt that as per requirements for the post of UDC, he did not possess the qualifications of a graduate or post graduate and as such no direction could be given for his absorption as U.D.C as requested by his counsel.
However, the Supreme Court observed as follows:

"Article 21 of the Constitution protects the right to livelihood as an integral fact of right to life. When an employee is afflicted with unfortunate disease due to which, when he is unable to perform the duties of the post he was holding, the employer must make every endeavour to adjust him in a post in which the employee would be suitable to discharge the duties as a Carrier Attendant. Since he is a matriculate, he is eligible for the post of LDC for which apart from matriculation, passing in typing test either in English or Hindi at 30/15 words per minute speed is necessary. For a clerk, typing generally is not a must. In view of the facts and circumstances of the case, we direct the respondent Board to relax his passing of typing test and to appoint him as a LDC. Admittedly, on the date when he had unfortunate operation, he was drawing the salary in the pay scale of Rs. 1400-2300. Necessarily, therefore, his last drawn pay has to be protected. Since he has been rehabilitated in the post of LDC, we direct the respondent to appoint him to the post of LDC protecting his scale of pay of Rs. 1400-2300 and direct to pay all the arrears of salary".
(It is interesting to note that this case embodies the principles which later find their place in the PWD Act, 1995.)

10. Whether a colour blind SELECTEE FOR the post of Agricultural officer, Class-II may be given appointment? Yes, SAYS THE Supreme Court

Nandkumar Narayan rao Ghodmare
Versus
State of Maharashtra & Others (1995) 6 SCC 720

In this case, the appellant, a handicapped candidate due to colour blindness was selected by the Public Service Commission to the post of Agricultural Officer_Class II but appointment could not be made on account of his handicap. Before the Supreme Court in appeal from the Bombay High Court, the petitioner was asked to give the nature of duties he has to perform and whether his colour-blindness would interfere with the discharge of duties. The State of Maharashtra was also asked to furnish its stand in this behalf, after getting the petitioner examined by an expert Government Ophthalmologist or Board. As per the affidavit filed by the petitioner, there were 35 posts in the Department and only 5 posts required perfect vision without colour-blindness while colour-blindness was not an impediment for him to be appointed. Despite the Court's directions, no action was taken by the State Government. Accordingly, the Supreme Court deemed it just and proper to direct the Government to appoint the appellant to any of the posts of Agricultural officer of class II service other than the 5 posts mentioned by him in his affidavit of which a copy has to be filed with the concerned Department. It was further directed that appointment be made within two months.

11. Whether in the facts and circumstances, the respondent was entitled to disability pension? No, Says, the Supreme Court

Union of India
Versus
Dhir Singh China 2003 (1) SCALE 606

Shri Dhir Singh China, an officer of the Indian Army was superannuated from service on 31st August, 1994 after serving for 30 years. Just before retirement on 11th August, 1994 he suffered a heart attack and underwent a by-pass surgery. He also suffered from Open Angle glaucoma in both eyes. In 1997, he claimed disability pension in addition to service pension which was rejected and he filed a writ petition in the High Court relying on his entitlement to Regulation 53 of the Pension Regulations and Rule 4 of the Entitlement Rules for casualty Pensioners Awards, 1982 which read as follows:-

Regulation 53 of the Regulations provided as follows:-

"Officers compulsorily retired on account of age or on completion of tenure.

"53"
An officer compulsorily retired on account of age or on completion of tenure, if suffering on retirement from a disability attributable to or aggravated by military service and recorded by service medical authority may at the discretion of the President, be granted in addition to retiring pension admissible, a disability element as if he/she had been retired on account of disability, according to accepted degree of disablement at the time of retirement."

Rule 4 of the Entitlement Rules reads as follows:-

"4"
Invaliding from service is a necessary condition for grant of disability pension. An individual who, at the time of his release under the Release Regulations, is in a lower medical category than that in which he was recruited will be treated as invalidated from service. JCO/OR and equivalents in other services who are placed permanently in a medical category other than "A" and are discharged because no alternative employment suitable to their low medical category can be provided, as well as those who having been retained in alternative employment but are discharged before the completion of their engagement will be deemed to have been invalided out of service".

The learned Single Judge who heard the writ petition accepted the contention of the respondent that apart from Regulation 53, under Rule 4 of the Entitlement Rules, an individual, who at the time of his release under the release regulations, is in a lower medical category than that in which he was recruited, is treated to be invalidated from service. He, therefore, held that the moment an officer is reduced to the inferior category in the medical chart, it automatically amounts to invalidation and consequently he would be entitled to disability pension in addition to the regular service pension.

The Union of India went in appeal against the order of the Single Judge and the Division Bench held that the respondent was entitled to disability pension under Regulation 53. The Supreme Court in further appeal took the view that Rule 4 of the Entitlement Rules was not applicable to the case of the Respondent. So far as Regulation 53, the Supreme Court held that the said Regulation provides that on an officer being compulsorily retired on account of age or on completion of tenure, if suffering on retirement from a disability attributable to or aggravated by military service and recorded by service medical authority, he may be granted, in addition to retiring pension, a disability element as if he had been retired on account of disability. It is not in dispute that the respondent was compulsorily retired on attaining the age of superannuation. The question, therefore, which arises for consideration is whether he was suffering on retirement, from a disability attributable to or aggravated by military service and recorded by service medical authority. We have already referred to the opinion of the Medical Board which found that the two disabilities from which the respondent was suffering were not attributable to or aggravated by military service. Clearly therefore, the opinion of the Medical Board ruled out the applicability of Regulation 53 to the case of the respondent. The diseases from which he was suffering were not found to be attributable to or aggravated by military service, and were in the nature of constitutional diseases. Such being the opinion of the Medical Board, in our view the respondent can derive no benefit from Regulation 53. The opinion of the Medical Board has not been assailed in these proceedings and, therefore, must be accepted.

12. Is Schizophrenia equal to mental illness under the Mental Health Act, 1987? No, Says the Supreme Court

State of Himachal Pradesh
Versus
Gian Chand (2001) 6 SCC 71)

In this case the Sessions Court had convicted a person accused of raping a girl of 5 ½ years on the basis of statements of witnesses, the medical reports and the First Information Report. The judgement of the Sessions Court was set aside by the High Court in appeal which had doubted the prosecution story on the ground of delay in filing the FIR which had not been properly explained to the High Court, difference about the place where the rape was committed in the statement of witness and the contents of the FIR, non-examination of some witnesses by the prosecution, absence of marks of external injury on the person of the accused, and that the accused's plea that he was suffering from "some mental disorder" at the time of the incident. In Appeal before the Supreme Court by the State of H.P. the doubts of the High Court were dispelled by the Supreme Court which allowed the appeal, quashed the High Court judgement and upheld the conviction of the accused by the Sessions Court.

On the question of the accused suffering from "some mental disorder", before the Sessions court, the accused had been allowed to be examined by a psychiatrist on a requisition made by the jail authorities. The accused was diagnosed to be a case of `Schizophrenia' and necessary treatment was prescribed for him. Before the commencement of the trial, the Sessions Court had also held an enquiry under Section 329 of the Criminal Procedure Code to find out if the accused was fit and capable of defending himself, and a finding was recorded that he was fit to make his defence. The accused pleaded for his exoneration relying on Section 84 of the Indian Penal Code, 1860 which provides that nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.

The Supreme Court while dealing with the above question about the accused suffering from Schizophrenia held as follows:

"The plea raised before and entertained by the High Court, in the present case was one about accused suffering from schizophrenia. Schizophrenia is one of a group of severe emotional disorders, usually of psychotic proportions, characterized by misinterpretation and retreat from reality, delusions, hallucinations, ambivalence, inappropriate affect and withdrawn, bizarre or regressive behaviour, popularly and erroneously called split personality. (See Medical Legal Dictionary, Sloane _ Dockland page. 628). We are not persuaded to hold even prima facie, on the material available on record, that the accused was suffering from unsoundness of mind and that too of a nature which would have rendered him incapable of knowing the nature of the act which he was doing or incapable of distinguishing between wrong or right as per law. The entire discussion by the High Court on this aspect of the case was irrelevant and meaningless."

13. Can the benefit of S.47 PWD Act, 1995 be denied when disability was acquired during service? No, Says the Supreme Court.

Kunal Singh
Versus
Union of India and another
AIR 2003 SC 1623

In this case the appellant, a constable in the Special Service Bureau suffered an injury in his left leg during service and since medical help did not cure, his left leg was amputated as gangrene had set in resulting from the injury. On the basis of the report of the Medical Board he was declared permanently incapacitated for further service as per Order of termination passed by the Commandant, Group Centre, SSB. Under Rule 38 of the Central Civil Services Pension Rules, 1972 he was granted invalidity pension.

The appellant challenged his order of termination by a writ petition before the High Court of H.P on the ground that it was arbitrary and that he could have been assigned with alternative duty which he could discharge keeping in view the extent of his disability and having regard to his having put in 17 years of unblemished service. The High Court took the view that as he had been permanently invalidated on the basis of medical opinion, there was no scope for him to continue any further in service of any kind in the SSB and dismissed his writ petition. On appeal to the Supreme Court, his counsel relied on the protection from service available to a person who acquires disability during service as available under Section 47 of the Persons with disabilities (Equal Opportunities, Protection of Rights and full participation) Act, 1995. Though such reliance was not placed before the High Court and therefore could not have been raised before the Supreme Court, since it involved a question of law the Supreme Court allowed his counsel to raise the plea of protection under Section 47 of the above Act.

On behalf of the Union of India, it was contended that the appellant was not a person with disability and was one who was permanently incapacitated and therefore could not avail of the protection under Section 47(2) of the above Act. It was also contended that as the appellant was getting invalidity pension under Rule 38 of the CCS (Pension) Rules, 1972 he could not take benefit of section 47(2) of the above Act.

Repelling both the contentions of the Union of India, the Supreme Court took into account the definitions of `disability', `locomotor disability' and `persons with disability' in the PWD Act, 1995 as also the definitions of these terms in the Nation Trust for welfare of persons with autism, cerebral palsy mental retardation and multiple disabilities Act, 1999 and held as follows:-

"It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that a person does not acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of section 47 clearly indicate its mandatory nature. The very opening part of the section reads "no establishment shall dispense with or reduce in rank, an employee who acquires a disability during his service". The section further provides that if an employee after acquiring disability is not suitable for the post he was holding, he could be shifted to some other post with the same pay scale and service benefits. If it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this it is also provided that no promotion shall be denied to a person merely on the ground of his disability as is evident from subsection (2) of section 47, which contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during service. In construing a provision of social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service. The argument of the counsel for the respondent on the basis of definition given in section 2 (t) of the Act that benefit of section 47 is not available to the appellant as he has suffered permanent invalidity cannot be accepted as the employee acquired disability during service within the meaning of `disability' as defined by section 2(i) of the said Act. The PWD Act is a Special legislation which prevails having regard to section 72 of the said Act which states that the Act is to be in addition to and not in derogation of any other law. The provisions of Section 47 of the Act therefore override Rule 38 of the CCS (Pension) Rules, 1972 under which the appellant was getting invalidity pension". The receipt of invalidity pension by the appellant cannot come in the way of the appellant being given the benefit of Section 47 of the Act. Accepting the appeal the Supreme Court set aside the order of termination of service and directed the employer to give relief in terms of section 47 of the Act.

14. Whether the University Grants Commission has provided for relaxation for blind/low vision persons in the reservations for identified teachings posts in accordance with Section 33 of the PWD Act, 1995? - Supreme Court

All India Confederation of the Blind & another
Versus
Union of India & another
2002(3) SCALE 397

In this Public Interest Writ Petition filed before the Supreme Court questioning non-compliance with the provisions of Section 33 of the PWD Act, 1995 in relation to teaching jobs for the blind/low vision, the Chief Commissioner for Persons with disabilities informed the Court that in pursuance to section 32 of the PWD Act, the Government of India has updated the list of identified posts. This list has been issued vide Extraordinary Gazette notification No. 178 dated 30.6.2001. In this list, the posts of University/College/School teacher for the blind and low vision have been listed at Sr. No. 24-27 at page 592. It was also brought to the notice of the Court that the University Grants Commission has extended 5% relaxation in cut off marks for persons with disabilities appearing in the NET for Junior Research fellowship and lectureship. This was in consonance with the Government policy for relaxation in the minimum standard when candidates belonging to reserved categories are not available on the basis of the general standard to fill all the vacancies reserved for them.

The relaxation extended to SC & ST candidates as per Maintenance of Standard 1998 of the Universities, provides for a 5% relaxation from 55% to 50% in the marks obtained at Master's Degree. Since reservation for the disabled is called horizontal reservation which cuts across all vertical categories such as SC, ST, OBC & General, therefore, all such blind/low-vision person who belonged to SC, ST vertical category would automatically enjoy the benefit of 5% relaxation at the minimum qualifying marks obtained at Master's Degree level. Thus, only the blind and low vision belonging to OBC & General categories are deprived of the relaxation of 5% marks at master's level.

The blind/low-vision and other visually disabled persons belonging to SC & ST category are in any case enjoying the benefit of 5% relaxation in marks obtained at the master's level for appearing in the NET examination conducted by the UGC. By extending the same relaxation to particularly blind/low-vision and in general all disabled at par with SC & ST disabled would bring parity amongst all persons with disabilities irrespective of their vertical categories.

In view of the above position, the Court observed that the grievance of the petitioner so far as University Grants Commission is concerned did not call for interference.

15. What relief may be provided in a case of weakening of Eyesight below prescribed standard or defect in eyesight developed during course of employment as bus driver? - Scheme provided by Supreme Court

Anand Bihari & others
Versus
Rajasthan State Road Transport Corporation
(1991) I.S.C.C. 731

This case demonstrates how the Supreme Court provided a scheme for relief to drivers disabled during the course of employment by striking down their termination and directing provision of alternative jobs, retirement benefits and additional compensation even though such disability was not covered by workmen's compensation Act, 1923 nor were the drivers entitled to retrenchment compensation under the Industrial Disputes Act, 1948. Infact, this case was decided much before the PWD Act, 1995 came into force.

The drivers in question had put in long service discharging their duties to the satisfaction of the RSRT Corporation. In 1987, their routine medical examination showed that they had developed defective eye sight and did not have the required vision for driving heavy motor vehicles. They were placed before a Medical Board constituted by the Corporation for testing their eyesight and the Board found them totally unfit for driving heavy motor vehicles like buses and asked them to show cause why their services be not terminated since they were found unfit for driving buses. The drivers submitted their explanation asking for a second test of their eyesight and also prayed that in case they were found unfit for driving the buses, they should be given some other job in the Corporation. The Corporation however, terminated their services as they were found not to have the standard eyesight required to drive the buses. The drivers challenged the decision of the Corporation by filing Writ Petitions in the High Court in which they contended that the termination amounted to `retrenchment' and as the corporation had not followed the mandatory provisions of Section 25-F of the Industrial Disputes Act, 1947, the termination was illegal. They also relied on an agreement between the drivers Union and the corporation in which it was provided that a driver found unfit to drive a bus should be posted as a helper. The Corporation contended that the termination did not amount to retrenchment and disputed the existence of the alleged agreement with the Union. The High Court upheld the contentions of the corporation but also added that in case the drivers apply to be absorbed as helpers their request may be considered sympathetically.

Before the Supreme Court the question of the Union's Agreement was not pressed. As for the termination, the Court held that the same did not amount to retrenchment and hence was not illegal.

Realizing that the drivers are exposed to occupational hazards which weakens their eyesight and renders them liable to termination while those in other works continue to work till their superannuation, the court felt that there was discrimination in respect of the drivers. Moreover, no special provision is made and no compensatory relief is provided in their service conditions for such premature incapacitation. Accordingly, the Supreme Court asked the Corporation to come up with a scheme for compensatory relief to the drivers but the corporation took an unhelpful stand in the matter. The court also realized that there was no compensation for the occupational loss of eyesight provided in the Employees State Insurance Corporation Act, 1948 or in the workmen's compensation Act, 1923. The Supreme Court therefore worked out a scheme for drivers as follows:

In view of the helplessness shown by the Corporation, we are constrained to evolve a scheme which, according to us, would give relief as best as it can to the workmen such as the ones involved in the present case. While evolving the Scheme and giving these directions we have kept in mind that the workmen concerned are incapacitated to work only as drivers and are not rendered incapable of taking any other job either in the Corporation or outside. Secondly, the workmen are at an advanced age of their life and it would be difficult for them to get a suitable alternative employment outside. Thirdly, we are also mindful of the fact that the relief made available under the scheme should not be such as would include the workmen to feign disability which, in the case of disability such as the present one viz. the development of defective eyesight. It may be easy to do. Bearing in mind all the aforesaid factors, we direct the Corporation as follows:
  1. (i) The Corporation shall in addition to giving each of the retired workmen his retirement benefits, offer him any other alternative job which may be available and which he is eligible to perform.
  2. (ii) In case no such alternative job is available, each of the workmen shall be paid along with his retirement benefits, an additional compensatory amount as follows:
    1. where the employees has put in 5 years or less than 5 years service, the amount of compensation shall be equivalent to 7 days' salary per year of the balance of his service;
    2. Where the employee has put in more than 5 years but less than 10 years service, the amount of compensation shall be equivalent to 15 days' salary per year of the balance of his service.
    3. Where the employee has put in more than 10 years' but less than 15 years' service, the amount of compensation shall be equivalent to 21 day's salary per year of the balance of his service.
    4. Where the employee has put in more than 15 years' service but less than 20 years' service, the amount of compensation shall be equivalent to one month's salary per year of the balance of his service;
    5. Where the employee has put in more than 20 years' service, the amount of compensation shall be equivalent to two month's salary per year of the balance of his service.
      The salary will mean the total monthly emoluments that the workman was drawing on the date of his retirement.
  3. If the alternative job is not available immediately but becomes available at a later date, the Corporation may offer it to the workman provided he refunds the proportionate compensatory amount.
  4. The option to accept either of the two relief, if an alternative job is offered by the Corporation, shall be that of the workman.
16. Whether a person suffering from "cerebral palsy" may be given three extra hours to write his examination for chartered accountancy? Yes, Says Bombay High Court

Section 27, P WD Act, 1995
Dhawal S Chotai
Versus
Union of India & others
(AIR 2003 Bombay 316)
The petitioner in this case is suffering from `cerebral palsy', a disability which affects the normal functioning of bones, muscles and joints and also the communication skills. Despite such handicap the Petitioner has passed B.Com Examination as also passed the Foundation Course for the Chartered Accountants course conducted by the Institute of chartered Accountants of India. He wants to appear for the Intermediate Examination known as "Professional Education-II" At the time of taking his B.Com Examination, at his request, the University of Mumbai allowed him three extra hours to write his papers in view of his aforesaid disability. However, the Institute of Chartered Accountants of India when requested by him, had agreed to give extra time of half-an-hour only for writing his papers. Aggrieved by such communication the petitioner filed the present writ petition.

Before the High Court, the Institute of Chartered Accountants contended that in a situation like this, at the most one hour could be granted and such decisions are taken on the basis of past resolutions of the Institute. It was contended that the Institute was a statutory body and hence cannot agree to any relaxations beyond the earlier decisions and if the court agrees one hour extra can be provided to the student petitioner.

On behalf of the petitioner, the attention of the court was invited to the definition of `cerebral palsy' as defined in section 1(2) (e ) of the PWD Act, 1995 and to the Regulations of the HSC Board which defines spastics as those suffering from cerebral palsy.

The court observed that Chapter V of the PWD Act 1995 makes beneficial provision in the matter of education. Section 27 directs the appropriate Government and local authorities to make schemes and programmes for non-formal education of children with cerebral palsy. The overall tenor of Chapter V of the Act is to make all necessary facilities available to the persons suffering from these disabilities even in the matter of education. It was also observed by the Court that the Institute of Chartered Accountants of India is a statutory authority and would fall amongst `other authorities' under Article 12 of the Constitution of India and would be bound by Article 21 of the Constitution which provides for right to life which means right to have a decent life. The right to receive education and facilities for it will have to be read in it. Accordingly, it was held that the Institute of Chartered Accountants of India ought to give the petitioner similar facility to write the examination for three extra hours as was given to him for the B.Com examination. This flows from the responsibility of that Institute as an authority under Article 12 read with Article 21 of the Constitution. The Court took into account the fact that the petitioner would write with his own hands, had earlier required three hours extra and that his disability is mentioned as 50% in the disability certificate issued by All India Institute of Physical Medicine and Rehabilitation, Mumbai.

The High Court further directed that the petitioner be allowed three hours extra to write his examination and all future examinations for the Chartered Accountants course and that the Examination Centre will provide all co-operation to the petitioner in continuing with the examination for three extra hours.

17. Supreme Court's Directives on Restructuring mismanaged Mental Asylum—Ranchi Manasik Arogyashala

Rakesh Chandra Narayan
Versus
State of Bihar & others
(AIR 1995 S.C. 208)

By the present writ petition under Article 32 of the Constitution, the deplorable state of management and administration at the Ranchi Manasik Arogyashala (RMA) was brought to the notice of the Supreme Court. The court felt that the administrative set up at RMA and control systems needed a strong second look. It directed the Union Health Secretary to make a comprehensive assessment of the present administrative set up and management of RMA and to submit a report to the court with his recommendations to ensure accountability and the discipline of the staff both medical and administrative and maximising the utility of the Institution to the public.

Accepting the report of Shri M.S. Dayal, Health Secretary dated 11th July, 1994 the court endorsed the recommendations made in the report. Notable recommendations were that RMA should be an autonomous institution managed by a Managing Committee chaired by the Divisional Commissioner, Ranchi and a Director with employees who will be civil servants of the Govt. of Bihar. Rules for the Managing Committee were also suggested. Discharging all sane persons with money for their travel home, reducing the number of indoor patients to 500, working out requirements of additional, technical, para professional staff, computerization of data on patients and enquiries into financial/accounting irregularities were some of the urgent measures that were recommended. The Bihar Government was directed to promulgate the Rules to the Dayal Report and till then to be treated as judicial directions. Towards expenses to be incurred on treatment of patients, the Health Secretary was directed to take this up with various States after determining their contribution and apportionment. He was also requested to monitor the affairs of the RMA and report to the court periodically.

As regards the state of affairs at Agra Manasik Arogyashala, in writ petition No. 448 of 1994 filed by Aman Hingorani against the Union of India (AIR 1995 SC 215), the Supreme Court issued similar directions as was done in the case of Ranchi Manasik Arogyashala that has been discussed in the above case.

18. What should be understood as "mental unsoundness" by the Courts?

Joshi Ram Kishan
Versus
Ms. Rukmini Devi (AIR 1949 Allahabad 449)

In this case a son resisted the attempt on the part of his mother to declare him insane under the Lunacy Act, 1912 and therefore incapable of managing his affairs. The court summarized the legal position with a view to evolve the test to be applied in such cases. In the light of those tests, courts are expected to consider the effect of the materials on record such as statements of witnesses, certificate as to condition of mind issued by the Civil Surgeon and accompanying circumstances. The Court held as follows:-

The expression "mental unsoundness" has not been defined in the Indian Lunacy Act itself. It was, however, explained in the case of Lalita Devi V. Nathuji Joshi, 1939 A.L.J. 149 at p.152: (AIR (26) 1939 All 333) on which great reliance has been placed by the learned counsel for the respondent. It was there pointed out on the authority of Taylor that the term "denoted an incapacity to manage affairs" and relying on In re Cowasjee Beramji Lilaoovala, 7 Bom. 15, it was observed that in S.1 of Act XXXIV of 1858 it comprehended.

"Imbecility whether congenital or arising from old age as well as lunacy or mental alienation resulting from disease".

The learned Judges further accepted the dictum of Lord Eldon in Ridgway V. Darwin, (1802) 8 Ves.65: (6 B.R.227) that the test was not whether the person in question "was absolutely insane, but the Court has thought itself authorized to issue a commission, provided it be made out that the party is unable to act with any proper or providential management, liable to be robbed by any one, under that imbecility of mind, not strictly insanity, but as to the mischief calling for as much protection as actual insanity".

It may be safely stated that the expression implies some unusual feature of the mind as has tended to make it different from the normal and has in effect impaired the man's capacity to look after his affairs in a manner in which another person without such mental irregularity would be able to do in a manner of his own. The idea suggests some derangement of the mind, whatever be its degree, and it is not to be confused with or taken as analogous to a mere mental weakness or lack of intelligence.

In Rameshwar Tewari Vs. Nageshwar Tewari 2 A.L.J. 154; (1905 A.WN. 43) it was held that a mere finding that the man is of "undeveloped mind or incapable of managing a large estate" was not enough, but that "it must be shown that he is subject to delusions". Again, in Upendra Mohan Roy Choudhury v. Narendra Mohan Roy Choudhry AIR(13) 1926 Cal. 155: (90 I.C. 878) it was pointed out that a person whose mental condition had been affected by the stroke of paralysis by which he suffered, and, both owing to this and owing to his age his memory has been seriously affected, and he was unable to recognise his relations, but was able to answer questions with regard to his estate with certain amount of intelligence and also questions with regard to his family, could not be said to be of unsound mind and incapable of managing his affairs. In Mahipati V. Mr. Changuns A.I.R.(21) 1934 Nag. 27 :( 30 N.L.R. 224) Pollock A.J.C. observed that a person who was not sufficiently intelligent to manage his own affairs was not necessarily of unsound mind. Teka Chand J. in the case of Mt. Teka Devi V. Gopal Das, A.I.R. (17) 1980 Lah.289;
(122 I.C. 570) already referred to by us emphasized that "in assuming transaction under the Lunacy Act, the Court must keep in view the distinction between mere weakness of Intellect and "lunacy" as understood in the Act. It is only with lunatics as defined in S.3 (5) that the Act is concerned".

"It is quite impossible to define the term insanity with any precision, for there is no definite dividing line between sanity and insanity- one state passing imperceptibly into the other.

The term insanity as ordinarily used connotes a fairly advanced degree of disorder or unsoundness of the mind. It has to be noted, however, that certain types of Insanity, for example, moral insanity, may co-exist with an apparently ordered mind. It is by means of the mind that an individual is able to adapt himself to his environment, and thus disorder or distress of the mind is shown primarily in disorder of thought and disorder of conduct. When that conduct becomes sufficiently disordered to bring the individual into conflict with his environment the law takes steps to place the person under care and restraint."

He then mentions the various terms used in describing disorders of observable conduct and they include: Dementia, Depression, Exaltation, Excitement and stupor, Delusions, Illusions, Hallucinations, Moral insanity and Impulse.

19. Can the State Reservation Policy give precedence to physically handicapped persons in preference to freedom fighters and ex-servicemen? Yes, Says, the Punjab High Court.

Jasphal
Versus
State of Haryana
(AIR 2002 Punjab & Haryana 240)

The Petitioner who was an ex-serviceman filed the present writ petition challenging his non-selection for admission to O.T. (Hindi) course of the State of Haryana even though there was provision of 1% reservation for ex-servicemen and their wards in the terms of the brochure issued in this behalf. Under the prospectus reservation to different categories was in the order i.e. Scheduled castes, Backward Classes, Physically handicapped (disability not less than 40%), dependants of freedom fighters and ex-servicemen and their wards. There was also 1% horizontal reservation of 1% for widows, legally deserted and legally divorced ladies. It was also mentioned that a candidate belonging to Reserve Category should clearly mention the category they belong to so that they could be given the benefit of reservation as per Haryana Govt. instructions. The High Court found that a bare perusal of the prospectus shows that the reservation of seats was subject to and is controlled by the reservation policy of the State Government. The brochure was published in May 2000 and the State Govt. instructions were issued on 7.8.2000 while the last date for submitting applications was 15.11.2000 and the entrance test was held on 17.12.2000. All concerned parties/ candidates were thus informed well in advance of the Reservation policy of the State Govt. dated 7.8.2000. Furthermore, the instructions were issued by the Govt. for compliance of the earlier decision taken by the Govt. on 5.5.1999 and in furtherance to the discharge of the statutory obligation upon the Central and State Govt. as provided under the PWD Act, 1995. The Govt. thus varied the reservations only to the extent that the physically handicapped category was given precedence over other categories. In the event physically handicapped categories were not available, seats were reverted back to the other categories like freedom fighters and ex-servicemen. Therefore, the decision of the State Govt. to effectively implement its policy to secure the interest of the physically handicapped cannot be termed as arbitrary or ill-founded. This does not offend the protection given under the principles of equality enshrined under Articles 14 and 16 of the Constitution of India. Since no seat of handicapped category remained unfilled or vacant which could be given to the petitioner, the writ petition was dismissed by the High Court.

20. Conflicting views on co-relation between sections 33 and 39 of the PWD Act, 1995 resolved by Supreme Court

All Kerala Parents Association for the hearing Impaired and another
Versus
State of Kerala & others
2002(7) SCALE 198

This was an appeal directed against the judgement of the Division Bench of the Kerala High Court holding that since Section 39 occurs in Chapter VI dealing with employment, the expression `seats' in section 39 would really mean `post' and the question of reservation of seats for appointment in educational institutions would not arise under section 39, as education has been dealt with in chapter V dealing with education. Taking a view in accordance with principles of statutory interpretation the Supreme Court held thus—

It is no doubt true that Chapter V deals with education containing section 26 to Section 31 and Chapter _VI deals with employment containing section 32 to section 41. In Chapter-VI itself so far as reservation in post is concerned, the same is provided in section 33. Section 33 is quoted herein below in extenso:

"Sec.33. Reservation of posts—Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from _
  1. blindness or low vision;
  2. hearing impairment;
  3. locomotor disability or cerebral palsy in the post identified for each disability: Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section".
2. Section 39 is reproduced herein below in extenso:

"Sec.39. All educational institutions to reserve seats for persons with disabilities - All Government educational institutions and other educational institutions receiving aid from the Government shall reserve not less than three percent seats for persons with disabilities".

The aforesaid section 39 unequivocally deals with the question of reservation of seats for persons with disabilities in educational institutions of the Government, as well as institutions receiving aid from the Government. The language is clear and unambiguous, which itself indicates the legislative intent. It is well settled that when the language of any statutory provisions is clear and unambiguous, it is not necessary to look for any extrinsic aid to find out the meaning of the statute inasmuch as the language used by the Legislature is the indication of the legislative intent. We fail to understand as to how and on what principles of construction the High Court has given a construction to the provisions of section 39 not only by doing violence to language of section 39 but also rewriting the provisions of section 39. If section 39, as has been constructed by the High Court, would be interpreted to mean it relates to employment merely because the provision occurs in the Chapter-VI dealing with employment then the "educational institutions" would have to be interpreted to mean the Government post and the question of receiving aid from the Government would not arise at all. Natural and ordinary meaning of words should not be departed from unless it can be shown that legal context in which the words are used requires a different meaning. We have therefore no hesitation to come to the conclusion that the High Court was wholly in error in construing section 39 of the Act to mean it relates to reservation in Government employment and not in relation to admission of students with disabilities in the Government institutions as well as educational institutions receiving aid from the Government. Further, reservation in Government employment is provided under Section 33 of the Act. We, therefore, set aside the impugned judgment of the Kerala High Court and hold that section 39 deals with the reservation of seats for persons with disabilities in Government educational institutions as well as educational institutions receiving aid from the Government, and necessarily therefore the provisions thereof must be complied with.

The appeal is accordingly allowed.

21. What is the legislative policy of precaution that the courts may exercise while declaring a person as a `lunatic' under the Lunacy Act, 1912? _ Views of Lahore High Court

Mst.Teka Devi
Versus
Gopal Das (AIR 1930 Lahore 289)

This was a case in which the Lahore High Court sounded the underlying precaution enjoined by the legislature as a preliminary condition to the final exercise of jurisdiction by the court in declaring a person as a lunatic. (This note of precaution is also relevant from the point of view of the Mental Health Act, 1987). The court observed as follows:

"It is, therefore, the duty of the Court before proceeding further, to determine judicially whether the person alleged to be incapable of managing himself or his affairs, is really a `lunatic' in this sense. Secondly, it must be remembered that this finding has got very far reaching consequences and must be given after very great care and deliberation. It may have the immediate effect of putting a human being under restraint. It might deprive him for a time, or for ever of the possession and management of his property. It will be read in proof of it in other proceedings. The Legislature has, therefore, laid down an elaborate procedure for conducting an enquiry into this matter, and this procedure must be strictly followed. The Court cannot and ought not to deal light heartedly with this important question, and it should not consider itself relieved of its responsibility by the mere circumstances that some or all the relatives of the person concerned have declared that he is `lunatic".

22. Is the action of the State Government in not making Any reservation for the handicapped persons for Admission to Post-Graduate course in Medicine, Surgery etc. violative of Section 39 of PWD ACT, 1995?

Dr. P.D. Benny
Versus
State of Kerala & others
(AIR 2003 Kerala 208)

In this case, the appellant who was afflicted with polio causing 60% handicap in his legs graduated in medicine from Calicut University and registered as a medical practitioner with the Medical Council of India after completing his internship in 1995.

"In April 2001, the State Government published a prospectus for admission to the Post Graduate Degree/Diploma Courses in Medical Sciences. While issuing this prospectus, reservations were made for various categories, like Scheduled Castes, Scheduled Tribes, Ex-servicemen and Service candidates. However, no reservation was made for the physically handicapped persons. The appellant submitted his application form. He did not claim the benefit of any reservation. However, in June, 2001, he filed a petition under Article 226 of the Constitution complaining that the State Government had failed to carry out its statutory obligation under the provisions of the 1995 Act. This action was arbitrary and violative of Article 14 of the Constitution. Thus, he prayed that a writ of mandamus be issued directing the respondents to modify the prospectus and to make a provision of "3% reservation for physically handicapped in the Medical P.G. Degree/Diploma Courses 2001 …….." He further prayed that the respondents be directed to consider his application in the quota for the physically handicapped.

The single judge before whom the matter came up dismissed the Writ Petition relying on the decision of the Division Bench of the same High Court in State of Kerala Vs. Mary Joseph (AIR 2001 Kerala 356). On appeal, the matter was placed before the Full Bench (3 judges) as the decision in Mary Joseph's case was challenged.

After hearing the respective contentions of the appellant and the State, the High Court did not consider it appropriate to interfere as it was a matter of policy and held that the decision has to be taken by the competent authority after examining the factual position.

However, in the matter of reservations for the physically handicapped the High Court made the following observations:-

The State cannot be compelled by the issue of a writ or direction to make a reservation of more than 3% seats for handicapped persons. In all educational institutions for admission to graduate course in medical college because number of seats in each speciality at each of the colleges is small and on account of the physical handicap the candidate are not in a position to seek admission to the specialities like General Surgery etc. Though the provision requires the Government to reserve not less than 3% seats in all educational institutions except those, which are not receiving any aid from it. Despite the language of the provision the Govt. has discretion in the matter. Further, each specialty constitutes a separate category. The number of seats in each specialty is low. Reservation of even one seat would exceed the prescribed percentage. It would lead to reservation of more than 3% to 100%. Still further, even if it is assumed that the pooling of seats is permissible, the reservation of 3% shall not be workable. Still further, the stipulation in S. 33 has also to be kept in view. Both the provisions of S.33 and S. 39 have to be harmonized. Other wise, the reservation of seats in Schools and Colleges would not lead to the fulfillment of the objects of helping the handicapped persons to get settled in life. However, these are matters, which have to be considered by the competent authority. In such a case, it could not be contended that a seat can be given in the field of General Medicine. The total number of seats for this subject in all the five colleges is 26. Even if it is assumed that the seats can be put together, reservation on one seat out of 26 would be in excess of the percentage prescribed under the provisions of S. 39. Since such reservation would not be in strict conformity with the provisions of the statute, no mandamus forcing the Govt. to do so can be issued. This is especially so because it would mean cancellation of the admission of some one who was admitted on merit in the year 2001. Each medical student at the Post Graduate level costs a substantial amount of money. Admission is given to the meritorious so that public funds are spent on the deserving. Persons with handicaps even if imparted the training may not be in a position to fully carry out all the onerous duties expected of medical officers with postgraduate qualifications.

23. SUPREME COURT DIRECTS CREATION OF RS. 723 CRORE CORPUS FUND FOR PHYSICALLY CHALLENGED

Indian Banks Association
Versus
Devkala Consultancy Services
(16-4-2004) (2004) 4 CLJ 80 (SC)

Devika Consultancy Services had filed a petition in the Karnataka High Court challenging the authority of banks to round up the existing interest rates to 0.25 percent of such rates as were less than 0.25 percent. Such rounding off was found necessary on account of the grossing up involved in calculating the incidence of tax. As the Reserve Bank of India had given its approval to such rounding off in April, 1993, the banks collected an amount of Rs. 723.99 crores, it was alleged. The High Court held that the action of the banks was illegal and accordingly directed that this excess amount be collected by the Union of India from the banks and deposited in Government funds. The Indian Banks Association which was a respondent in the writ court appealed to the Supreme Court by way of Special Leave. The Supreme Court upheld the judgement of the High Court and declared that the Reserve Bank of India could not have empowered the banks to charge something more from the borrowers by the process of rounding off of interest in exercise of their contractual powers vis-à-vis the Banking Regulation Act. Considering that there were more than five crores of borrowers of the banks, any directions to refund the amount would take a long time. The Court therefore directed that the amount accrued so far should be put in a corpus for the Welfare of the physically challenged. The Bench stated as follows:

"The CAG would be the Chairman of the said Trust and the Finance Secretary and the Law Secretary of the Union of India would be the ex-officio members thereof. The corpus so created might be invested in such a manner to enable the trustees to apply the same for the purpose of giving effect to the provisions of persons with Disabilities (Equal Opportunities Protection of Rights and full Participation) Act, 1995. The Court also directed the Indian Banks Association and other institutions concerned to contribute Rs. 50 lakhs each. "We are, therefore, of the opinion that in a larger interest, a fund for the aforementioned purpose should be created with the amount at the hands of the Union of India and the appellants and other concerned banks, which may be managed by the Comptroller and Auditor General of India. We would request the Comptroller and Auditor General of India to effect recoveries of all the excess amount realized by the Union of India by way of Interest Tax and interest by the banks and other financial institutions and create the corpus of such fund therefrom. The appellant and other concerned banks are also hereby directed to contribute to the extent of Rs. 50 lakhs each in the said fund. The comptroller and Auditor General of India would be the Chairman of the said Trust and the Finance Secretary and the Law Secretary of the Union of India would be the ex-officio members thereof. The corpus so created may be invested in such a manner so as to enable the trustees to apply the same for the purpose of giving effect to the aforementioned provisions of the 1995 Act. The Union of India, the Reserve Bank of India, the Appellant banks, other scheduled banks and financial institutions are directed to render all cooperation and assistance to the trustees. The committee as also the committees set up by the Central Government should act in close cooperation with each other. The Committee may, if it thinks proper, invest any amount in the Trust set up by the Central Government under the 1999 Act or any other scheme framed by the Central Government, as noticed hereinbefore. The trustees aforementioned with a view to give effect to this order may frame an appropriate scheme. In case of any difficulty, they may approach this court for any other or further order/orders or direction/directions. The Central Government, however, with a view to implement the aforementioned provisions may be amending the 1995 Act to provide for creation of such a fund and, in such an event, the statutory authority, if any, would be entitled to take over the corpus of the fund; but so long [as] no legislative step is taken in this behalf, this order shall remain in force."

24. SUPREME COURT OF NEPAL DIRECTS FREE EDUCATION TO ALL THOSE WHO ARE PHYSICALLY OR MENTALLY CHALLENGED.

Nepal Disabled Human Rights centre
Versus
Government of Nepal

Arising out of a writ petition filed before the Supreme Court of Nepal by Shri Shudarson Subedi and Babu Krishna Maharjanon on behalf of Nepal Disabled Human Rights Centre, a bench of two judges of the Supreme Court of Nepal has directed the Cabinet of Ministers and the Ministry of Education and sports, Higher Education Department, Special Education Council, Tribuwan University, Purbanchal University to provide free education to the disabled throughout Nepal. Relying on Article 11 of the Constitution of Nepal which says that Special provisions may be made by law for the protection among others, of those who are physically or mentally incapacitated, the Supreme Court ruled that the constitutional and legal provision should be implemented. Relying also on clauses 4, 5 and 6 of the Disabled Protection and Welfare Act, 2039 BS which provide for protection of equality and free education for the disabled respectively the above directives were issued. Following this decision, the Government of Nepal will have to make Separate regulation for training schools for the disabled.

25. Should the Railways provide reservation for blind hawkers while issuing licences for hawking and vending services at railway stations?

Hansraj (?) Gupta
Versus
The Concerned Manager,
Western Railway and others
(Bombay High Court)

A public interest petition was filed before the Bombay High Court to highlight the plight of blind hawkers in Greater Mumbai who sold their goods on railway platforms and in local and long distance trains in order to earn a living. It was pointed out that with avenues of income limited in view of their disability they were forced to take to hawking but in recent years the police had increased their enforcement against blind hawkers as against those who were not disabled hawkers. The court's attention was drawn to a report of the India Centre for Human Rights and law in which it was shown how the blind hawkers were exposed to constant police abuse, their goods being thrown before on-coming trains and being locked up and severely beaten for hawking. The Report further pointed out that 60% blind hawkers earned between Rs. 51 to 100 per day 83% took to hawking as jobs were not available or had been lost, railways suited and facilitated hawking with better landmarks for the blind and incidence of being looted was less in the envirous of the railways. The police targeted them as unlike normal hawkers they were unable to pay them hafta. It was prayed before the court that the Railway authorities and the Mumbai Municipal Corporation may be directed to issue licenses to blind hawkers to enable them to earn their living at par with other normal hawkers.

In their reply before the Court, the Mumbai Municipal Corporation stated that issue of licenses of hawkers had been stopped since 1979 though permission for P.C.O.Booths are given to blind/handicapped persons for operation on roads/footpaths as per guidelines. The Corporation had also demarcated hawking and non-hawking zones but that did not include blind hawkers. The Railways stated that 2% reservation is already given to physically handicapped persons in the matter of issue of licenses for hawking and vending.

In the view of the court, having regard to the provisions of Article 41 of the Constitution and the Persons with disabilities etc. Act, 1995 it was necessary to provide for reservation in grant of licenses for hawking/vending especially to blind persons who are unable to secure jobs in the public or private sectors. The court also directed the Mumbai Municipal Corporation to prepare a scheme for providing reservation to disabled hawkers including blind hawkers under Section 313 of the MMC Act which will be in addition to P.C.O. booths allocated to blind persons and to submit such scheme within six weeks. The Railways and the Municipal Corporation were restrained from taking any action against blind vendors/hawkers.

26. Supreme Court directs availability of wooden ramps at polling stations

Disability Rights Group
Versus
Chief Election Commissioner & another
W.P.© 187 of 2004 dt. 19.4.2004
(Supreme Court of India)

The difficulties faced by persons with locomotor disability in entering polling stations to cast their votes in the absence of ramps was called into question in the present writ petition before the Supreme court just on the eve of the General Elections, 2004.

After hearing Counsels for the Election Commission and the Attorney General for the Union of India, the Supreme Court directed that the Chief Secretaries of the respective states shall ensure in co-ordination with the Chief Election Officers of those states that as far as possible, wooden ramps are made available for the elections to be held on 26th April, 2004. However, for the elections to be held on 5th and 10th May 2004, wooden ramps shall be provided at the polling stations so as to enable the disabled persons to easily reach the polling stations to cast their votes at least in the cities and urban areas.

27. S.47 PWD Act, 1995 held to be benevolent provision to be read keeping in view protecting rights of the disabled to lead a normal life _ AP High Court

Sivakumar N
Versus
APSRTC
(W.A.No. 1061/2000 dated 12.3.2001)

In this case the petitioner acquired disability during the course of service with the respondent Transport Corporation and as he was denied alternative employment had to file a writ petition before the High Court. The single judge after considering the matter directed that the case of the Petitioner may be considered by the Corporation for appointment to the post of `cleaner' or `conductor' in accordance with the existing rules and guidelines obtaining in the respondent Corporation. Aggrieved by such order the petitioner filed a Writ Appeal before the Division Bench of the High Court. His advocate drew the attention of the court to the fact that the petitioner was compelled to drive a jeep which was condemned and hence he could not be blamed for the accident which caused the disability. The court's attention was also drawn to the protection available to a person with disability under S. 47 of the PWD Act 1995 which provides for non-discrimination in Government employment. Relying on first proviso to sub-section (1) which provides that if an employee after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits, the court was requested to look into the matter from the angle of the above proviso. The Division Bench held as follows:- "It appears that the appellant herein had not raised the question of above proviso before the learned single judge. However, having regard to the fact that a beneficent legislation has been enacted for a person who has become disabled, we are of the opinion that the case of the appellant may be considered by the appropriate authority and the respondent Corporation having regard to the aforementioned provisions. Reliance was also placed on the decision in Sulochana Vs APSRTC (2000(4)ALD278 ) in which learned single judge of the same high court had held that such a benevolent provision has to be read keeping in view protection of the rights of the disabled to lead a normal life.

28. Directions issued for compliance with provisions of sections 32 and 33 of the PWD Act, 1995 _ Bombay High Court.

Ashok M. Shrimali & others
Versus
State Bank of India & others
(W.P. No. 410 of 1999 dated 16.6.99)

The Petitioner who was blind applied for the post of Probationary officer in the State Bank of India as he was well qualified having post graduate degree and sought permission to sit for the competitive examination for probationary officers on the ground that he was visually challenged. Thereupon the petitioner filed the present Writ Petition and sought protection of the PWD Act, 1995. By an interim order the High Court directed the State Bank of India to permit the petitioner to take the written examination for probationary officers. The petitioner appeared for the said examination with the help of a scribe.

The State Bank of India was directed by the High Court to submit an affidavit to show the different types of jobs identified in which persons who are physically challenged can be employed. In the affidavit so submitted the State Bank stated that a high powered committee was appointed to identify the posts for those who are visually challenged. It was also stated that such persons could be accomodated in the posts of telephone operator, enquiry counter and stenographer in the clerical cadre. Candidates who are blind or partially bind, otherwise eligible, would be permitted to complete alongwith other employees for promotion to Junior Management Grade Scale I but such candidates, would not be eligible for posts in Scale II and above as they involved higher responsibility and visual verification of vouchers and instruments to ensure their accuracy. It was also stated that the state of technology in India was not sufficiently developed to permit visually challenged persons from working with the computer. The Union of India to whom notice had been sent, however, was not represented before the court.

The High Court held that Section 32 of the PWD Act makes its mandatory for the appropriate

Government to identify posts in the establishment which can be reserved for persons with disability and to review the same at intervals of three years. Further, Section 33 of the Act, makes it mandatory for every establishment to reserve posts not exceeding 3% for persons with disability of which one percent should belong to blind persons or those having low vision. The High Court wanted to know what the Central Govt. has done in regard to its obligations under the above sections. Allowing the writ petition, the court directed the respondents to carry out identification of posts as required by section 32 of the Act and for reservation of posts as required by Section 33 of the Act within a period of six months. It was also clarified that the disposal of the Writ Petition does not preclude the State Bank of India from employing the Petitioner in an appropriate post consistent with the present policy and his results in the probationary officer's examinations.

29. Whether physically challenged person can be admitted to B.E. Computer Course? Yes, subject to his being found medically fit to pursue the course, says Delhi High Court.

Naveen Kumar A
Versus
University of Delhi
(C.W.P. 4657/2000 dated 24.11.2000)

At the entrance test for admission to B.E. Computer Course in Delhi University the petitioner who is physically challenged and moves in a wheel-chair secured 5016 rank of the 25000 candidates who sat for the test. By the present petition, he seeks reservation under section 39 of the PWD Act, 1995. The petitioner was opposed on the ground that section 39 relates to employment and is mentioned in Chapter 6 which states the heading "Employment", the petitioner has no vested right to claim a right of admission especially when the University Bulletin for admission did not provide for such reservation and the petitioner is so badly handicapped that he may not be able to pursue the course successfully. The petitioner may block a seat which otherwise may benefit another deserving candidate.

The High Court observed that good drafting of the Act would suggest that section 39 ought to have been included in chapter 5 which relates to education, as was submitted by the respondent. `But we see occasionally examples of bad drafting which simply cause some confusion. But bad drafting should not debar the clear intention of the legislator and if, intention appears to be clear and loud it has to be accepted irrespective of the bad drafting.' Section 39 obviously related to all educational institutions in view of the heading of the section and not to Employment Bureaus. Secondly, there is a reference to "seats" as against "vacancies" for a post which are required to be reserved by educational institutions. As such, Section 39 applies and as per Supreme Court directions all educational institutions are to reserve 3% to maximum of 50% seats for all reservations. As to absence of reservation in University Bulletin, it would not be correct to let Universities and all other educational institutions be free to add or delete any statutorily prescribed reservation in whatever manner they like whether they follow the legal provision or not. As the respondent had not admitted any physically handicapped student, the inference would be that such a seat is vacant and the petitioner could be considered for this class of reservation category. As to the condition of the petitioner disabling him to successfully pursue the course, it was agreed that he would be examined by the Medical Officer of the University. The extent of difficulties of the petitioner to move around in the laboratory and handling instruments while in a

Wheel Chair in the Delhi Engineering College Bawana Road had also to be looked into by the Medical officer. The question of admission was to be decided accordingly within 10 days, so directed the High Court.

30. Whether the Delhi Transport Corporation was justified in dispensing with the service of its employees after they incurred disability during course of service in violation of section 47 of the PWD Act, 1995?

Baljeet Singh
Versus
Delhi Transport Corporation
(C.W.P. 4278, 4304, 4166, 3015, 3032 of 1999 and 2002 and 5470 of 1998 decided on 10.12.1999)
Delhi High Court _2000(1) L.L.N. 564

Serving regular employees of the Delhi Transport Corporation who had acquired disability during service were discharged from service by way of premature retirement. They challenged the action of the employer on the ground of protection available to them under Section 47 of the PWD Act, 1995. Though separate Writ Petitions were filed, a common judgement was delivered by the High Court.

The petitioners challenged the act of the employer by alleging that in some cases the kind of disability suffered did not entitle the employer to impose premature retirement and in cases where the disability incurred incapacitated the employees from doing the same job that they were performing, alternative jobs could be given to them. The nature of disability from which the several petitioners suffered ranged from falling sick and developing chest infection, injury sustained in right eye while repairing bus, injury sustained on right ankle as steering wheel came out while driving heavy vehicle, injury sustained on spinal chord due to fall from roof of house, injury sustained by conductor while pushing bus alongwith other passengers, multiple fractures sustained on right leg due to impact from opposite vehicle, and injury (fracture) sustained in right leg after bus rammed into a tree. In all of these cases the Medical Officer of the Corporation declared the employees as medically unfit for service and premature retirement orders were issued which was challenged in the Writ Petitions.

The High Court traced the background of the circumstances which led to the passing of PWD Act 1995 for the benefit of persons with disability. It held that section 47 of the Act in clear terms mandates that no establishment shall dispense with or reduce in rank the employee who acquires disability during his service but that he should be shifted to some other post with same pay _scale and service benefits. Even if he cannot be adjusted against any post he should be kept on supernumerary post. The intention of the enactment is not to uproot those in employment. Even before the above enactment, courts have been passing appropriate order for rehabilitation of such employees who suffered disabilities during the course of their employment such as state of Haryana V. Narandra Kumar Chawla (1994) 4 SCC 460, Rampal V. DTC _1997 LIC, Phool Chand V. DTC, Inder Das V. DTC (C.W.P. 3700/97 dated 31.7.98). Allowing the petitions the Court quashed the orders of premature retirement and directed payment of wages to all employees from the time such payment had been stopped. The petitioners were also to be treated as in continuous service and wherever necessary alternative jobs are to be provided. Costs was also allowed to every petitioner of the amount of Rs. 3000/-.

The Counsel for the Respondent wanted the petitions to be dismissed as the Petitioners had the alternative remedy under Section 59 of the PWD Act, before the Chief Commissioner of disabilities who can look into complaints in relation to deprivation of rights of persons with disability and for non- implementation of laws etc. for the welfare and protection of these persons. The High Court, however, observed that the Chief Commissioner or the Commissioner has no power to declare invalid any order of termination of service or reduction in rank nor to enforce such order or direct an establishment to take back an employee where section 47 of the Act has been contravened. Contravention of a mandatory provision like section 47 cannot affect the maintainability of the Writ Petitions on the ground that alternative remedy is there.

31. Whether a person with disability may be admitted to the first MBBS course only after ascertaining that he/she will be in a position to undergo the medical course and will be able to discharge the functions of at least a physician?

Palak Kailashchandra Jain
Versus
Union of India
(S.C.A. 7410/2000 dated 27.11.2000)
Gujarat High Court

By the present Writ petition, the petitioner, a physically handicapped girl, seeks directions to the respondents to provide for at least 3% reservation of seats in favour of physically handicapped and disabled students for admission to Ist MBBS/BDS/B.Physio Courses at Government Medical Colleges and Govt. financed Institutes in Gujarat. She had secured 69.6% marks in the H.Sc. Examination and had sought admission to Ist MBBS under the centralised Admission scheme for the year 2000-2001. Reliance was placed by the Petitioner on Section 39 of the PWD Act, 1995 which required 3% reservation of seats for the physically handicapped. She also stated that the Chief Commissioner for Disabilities had issued instructions dated 17.8.99 to the Commissioner for disabilities in Gujarat that reservation stipulated in Section 39 covers all technical, professional and other Institutions of or aided by the Government. Her case was also recommended by the State Commissioner for disabilities to the Centralised Admission Committee.

On behalf of the Govt. it was submitted that Section 39 falls in Chapter VI of the Act pertaining to employment and not in Chapter V pertaining to education and hence its benefit was not available to the Petitioner Repelling this argument the Court observed that merely because Section 39 falls in Chapter VI with the heading `Employment,' it does not mean that Section 39 is concerned with employment. Sections 32 to 38 are intended to empower disabled persons in the employment market. The provisions of Section 39 are very clear and the legislative mandate is quite positive and emphatic that all Government educational institutions and aided institutions shall reserve 3% seats for persons with disabilities. The legislature has consciously used the word "seats" in respect of educational institutions as contrasted with "posts/vacancies" for employment. The court also found that the State of Gujarat had already provided for reservation of 3% Seats for disabled persons for admission to degree and diploma courses in engineering and pharmacy. Several other states had provided for 3% reservation for the disabled for admission to medical colleges. The Court also repelled the argument that the Medical Council of India at its meeting held on 5.11.99 had decided against reservation for persons with disability for admission to medical courses and for laying down in its Regulations that Selection of students to a Medical College should be based solely on merit as prescribed. The court observed that such decision of the Medical Council or the provision in its Regulation could not displace the Parliamentary mandate contained in section 39 of PWD Act for reservation of 3% seats in all educational institutions. The Court directed that reservations as per Section 39 of the Act may be provided for by the State by re-determining the percentage of seats to be reserved for various categories within the upper limit of 50% as prescribed by the Supreme Court. Further it was directed that respondents shall fill in one seat in the MBBS course from amongst disabled persons including the petitioner with the discretion resting with the Admission authority to consider whether the disabled candidate will be in a position to undergo the medical course and be able to discharge the functions of at least a physician. The petitioner was allowed on the above lines.

32. Whether blind candidates may be permitted to compete for the IAS and Allied Services, and if so, whether they be provided with facility of writing the Civil Services examination either in Braille-script or with the help of a scribe? Yes, says the Supreme Court

National Federation of Blind
Versus
Union Public Service Commission & others
AIR 1993 SC 1916 (Supreme Court of India)

On behalf of blind and partially blind persons, the National Federation of Blind filed a petition directly before the Supreme Court Under Article 32 of the Constitution. The petition sought directions to the Union of India and the Union Public Service Commission to permit blind candidates to compete for the I.A.S and Allied services, to provide them the facility of writing the Civil Services examination either in Braille-script or with the help of a scribe. Further, posts in Group A and B in the Government and in the public Sector undertakings which have been identified for blind persons be offered to them on preferential basis.

It was observed by the Court that measures were afoot to launch several schemes to education, train and provide employment to blind persons both at the Central and State Govt. levels. Reservations to the extent of3% vacancies in Group C and D posts in the Central Govt. had already been provided to blind and partially blind persons. So far as posts in Group A and B under the Central Govt., the standing committee of the Ministry of Welfare was asked in December 1985 to identify the posts which could be given to persons with disability. The Report of the said Committee, filed before the court, had identified 420 posts in respect of various categories of disability including those for blind and partially blind persons in Group A and B and in public Sector undertakings. The Committee recommended `reader allowance' for compensating reading deficiency and knowledge of typing to compensate for writing deficiency. The recommendations of the Committee was implemented by office Memorandum issued on 25.11.86 whereby Ministries/Departments were requested to identify the posts which can be held by physically handicapped persons at the time of sending their requisitions for filling vacancies to the UPSC on a preferential basis. It was urged before the Court that the above recommendations had not been implemented even though seven years had passed. The court commended the Govt. to implement the reservation/preference to the handicapped in Group A and B

posts expeditiously. The demand of blind candidates to write the Civil Services Examination in Braille script was considered legally, justified. Their right to compete for those identified posts in Group A and B alongwith other candidates was also held to be reasonable. It was however, made clear that once recruited to the lowest level of the service, the visually handicapped persons shall not be entitled to claim promotion to the higher posts in the service irrespective of the physical requirements of the jobs, and also if the Govt. finds that a particular post in the hierarchy of promotion was not suitable for the blind.

33. Can physical handicap of a selectee be a ground to drop her and give preference to an abled candidate?


N. Vijay Kumar
Versus
Registrar, High Court of Madras & others
W.P. Nos(3)3394,12574 of 1991 dated 11.2.99
Madras High Court _1999-2-L,W.19

For selection to the post of Librarian in the Madras High Court, respondent No.3 who was physically handicapped was found more suitable than the petitioner. Her selection was challenged by the Petitioner on several grounds one of which was her being physically handicapped. It was urged by the Petitioner that under Rule 6 of Madras High Court Service Rules, the appointing authority should be satisfied that the selected candidate is of sound health, active habits and free from bodily defect or infirmity. The High Court judge who interviewed the candidates was of the view that as compared with the petitioner the third respondent was more qualified having acquired two additional degrees i.e. B.G.L. in 1993and B.L. in 1994 and was found to be suitable for the post. The plea of the petitioner as to the third respondent (selectee) being physically handicapped was not sustainable in view of the provisions of the recent legislation PWD Act, 1995. Relaxation of age could be given to the selected candidate and even if the petitioner was a staff of the High Court, he cannot be appointed if he was not qualified for the post. Selection of the third respondent was upheld and the court refused to interfere in the matter and dismissed the petition. It was also observed that the third respondent was carrying on the responsibilities of a librarian for the last nine years without blemish, had earned gold medals despite her disability. In the view of the High Court, the petitioner should not have insulted the third respondent by pointing out her physical disability.

Source: http://www.rehabcouncil.nic.in/programmes/legal_rights.htm
Last Updated on Monday, 17 October 2011 12:10
 
Valid W3C XHTML 1.0 Transitional Valid CSS