Courts make important decisions about Rights of Persons with Disability, dereliction of duty by government officials,invocation of sedition laws,rights of LGBT community.
Sai Krishna Muthyanolla
February 18, 2021
Supreme Court: Conflating the rights of PwDs with the notion of benchmark disabilities does a dis-service
In the case Vikash Kumar vs. Union Public Service Commission & Ors, the Supreme court held that conflating the rights and entitlements of persons with disabilities (PwDs) with the notion of benchmark disabilities does dis-service to the purpose underlying the enactment of the Rights of Persons with Disabilities Act, 2016 (RPwD Act).
While examining the contours of the case, the bench of Justices D Y Chandrachud, Indira Banerjee, and Sanjiv Khanna held that through a maze of statutes, rules, and regulations, the case raises core issues about the actual realization of equal opportunity and access to people with disability.
The court was hearing the case of a citizen who suffers from a writer’s cramp and was denied a scribe in the civil services examination. The appellant has a disability in the form of dysgraphia, commonly known as a Writer’s Cramp. For the Civil Services Examination (CSE) 2018, the appellant declared himself to be a person with a benchmark disability of 40% or more and requested the UPSC to provide him with a scribe for the examination. On 15 March 2018, UPSC rejected the request on the ground that a scribe could be provided only to blind candidates and candidates with a locomotor disability or cerebral palsy with impairment of at least 40%, as per the CSE Notification 2018, and that the appellant did not meet this criterion.
Aggrieved by the denial of the services of a scribe for the CSE 2018, the appellant moved the Tribunal. With an interim order, the Tribunal directed the UPSC to provide him a scribe to enable him to appear for the preliminary examination. The results were published on 14 July 2018, but the appellant’s result was withheld. On 07 August 2018, the Tribunal dismissed the application filed by the appellant on the ground that, since Ram Manohar Lohia Hospital had refused to issue a disability certificate, the appellant could not claim access to a scribe as a disabled candidate. The Tribunal refrained from interfering in the rules enshrined in the CSE notification 2018.
Thereafter, the appellant instituted a writ petition before the High Court of Delhi and challenged the legality of the CSE Rules 2018. Meanwhile, he obtained a medical certificate on 27 August 2018 from the National Institute of Mental Health and Neuro Sciences (NIMHANS), Bangalore, declaring that he has a Writer’s Cramp and would require a scribe during his examinations. A Division Bench of the High Court of Delhi, on 25 September 2018, declined to interfere with the order of the Tribunal on the ground that the appellant had not qualified at the Preliminary Examination for CSE 2018 and thus, the relief seeking an amendment of the CSE Rules 2018 to provide scribes to candidates with specific disabilities was rendered otiose.
After that, the appellant challenged the order of the High Court in Supreme Court. On 16 January 2020, the All India Institute of Medical Sciences (AIIMS) was directed to constitute a medical board to evaluate the condition of the appellant. Their report, as mentioned in the judgement, opines that while he does not suffer from a “benchmark disability”, the appellant is a ‘person with disability’ under the Rights of Persons with Disability (RPwD) Act, 2016. The extent of the disability was assessed at 6%.
Upon examining all submissions, the Supreme Court opined that although the RPwD Act 2016 & relevant guidelines envisage the provision of a scribe to candidates with benchmark disabilities in written examinations, the policy also recognises that there should be a measure of flexibility to accommodate specific needs on a case-to-case basis. In this backdrop, the judgement directs that benchmark disability is not a precondition to obtaining a scribe. Conflating the rights and entitlements of persons with disabilities with the notion of benchmark disabilities does dis-service to the purpose underlying the enactment of the RPwD Act 2016.
The bench highlights that under Section 20 of the RPwD 2016 Act, every government establishment is required to provide “reasonable accommodation” and a conducive environment to employees with disabilities. “Reasonable accommodation” as defined in Section 20(2) means necessary and appropriate modifications and adjustments to ensure that persons with disabilities enjoy their rights equally with others.
Taking note of this principle, the bench also observed that the V Surendra Mohan vs. State of Tamil Nadu judgment does not discuss this principle even though it was rendered after the enactment of the RPwD act 2016. The apex court held that Surendra Mohan’s judgement would no longer be a binding precedent, in the light of the RPwD act 2016. In this judgement, the supreme court had held that a judicial officer in a State has to possess reasonable faculties of hearing, sight, and speech in order to hear cases and write judgments and, therefore, stipulating a limit of 50% disability in hearing impairment or visual impairment as a condition to be eligible for the post. The judgement was delivered by a two-judge bench comprising Justice Ashok Bhushan and Justice KM Joseph while dismissing the appeal filed by a V. Surendra Mohan, who was held ineligible for the post of judicial officer (civil judge) as it was found that he was having 70% disability.
In conclusion,
Madras HC: Negligence and dereliction of duty by government officials is serious misconduct
In the case Union of India v. Kommu Sumathi & Ors., the high court held that one cannot approach the Court in a routine or mechanical manner with a huge delay in filing an appeal.
The high court was hearing a Civil Appeal filed by Southern Railways of the Indian Railways, with an application to condone the delay of 264 days in filing the said appeal.
The department submitted that the submission of the civil appeal was delayed by 264 days because of the delay in getting the opinion for filing an appeal.
The high court held that such an administrative delay is unacceptable. If the officials working in the legal section of the department are not vigilant, they must be held responsible and they are accountable for the lapses, negligence, and dereliction of duty.
In refusing to condone the long delay in the absence of any acceptable reason, Justice SM Subramaniam observed that the concerned officials must be prosecuted under the Discipline and Appeal Rules and the financial loss is to be recovered from those officials by conducting an enquiry.
The judgement condemns the delay and emphasizes that the authorities cannot approach the Court in a routine or mechanical manner with a huge delay in filing an appeal. Negligence and dereliction of duty are serious misconducts and therefore any such lapse is to be enquired and all appropriate actions are to be initiated to ensure appropriate disciplinary proceedings. Parties are expected to file their respective appeals within the period of limitation stipulated in the statute. In case of certain unforeseen circumstances that may cause delay, they have to be truthfully explained in the affidavit filed in support of the miscellaneous petition.
In conclusion, the high court held that the reasons stated in the affidavit filed in support of the miscellaneous petition are neither valid nor acceptable and therefore, the petition stands dismissed.
Madras HC: Neither the Government nor its officials are interested in the welfare of the citizens and honouring orders of the court.
In another case concerning administrative delays, District Collector, Dindigul District and another vs. Saraswathi and others, the Madras high court came down heavily on state government officials for delaying the disbursement of compensation, by 54 years, for a piece of land acquired to set up a bus depot.
The land in question was acquired by the Government for the formation of the Bus Depot at Palani in August 1967. Originally, the Land Acquisition Officer fixed a sum of Rs. 1.70 per sq. feet. This award was passed in October 1971. The compensation was enhanced to Rs. 7.82 per sq. feet in July 2004 i.e., nearly 30 years after the award by the Land Acquisition Officer. The said fixation was challenged, and the appeal filed by the Land Acquisition Officer was dismissed confirming the award in January 2017. Consequently, it was also undertaken that the said amount would be paid on or before 10 January 2019. The said amount was not paid as directed. The Revenue Divisional officer, Dindigul, filed this application seeking further extension of time.
Upon examining all submissions, the high court observed that the orders of the high court to satisfy the said compensation award were repeatedly not honoured. Noting the delay of 54 years in providing compensation, the judgement opines that neither the Government nor its officials are interested in the welfare of the citizens and honouring orders of this court. In conclusion, the court directs that the state must comply with the award by 25 March 2021 and if the entire balance compensation is not deposited by that day, the District Collector, Dindigul shall appear in person before the court on the following day.
Delhi HC: The law of sedition cannot be invoked to muzzle miscreants
In the case Swaroom Ram vs. State, the high court held that the law of sedition is a powerful tool in the hands of the state to maintain peace and order in the society. However, it cannot be invoked under the pretense of muzzling miscreants.
The high court was hearing a bail plea filed by the petitioner, a 21-year-old labourer who was accused of sedition and forgery for posting a fake video on his Facebook page relating to the senior officer of Delhi.
The submissions from the petitioner expressed that the material alleged against the applicant/accused is innocuous in nature and in fact an expression of emotions uttered in disagreement with government policies. The submissions from the state’s side alleged that the petitioner has not only made a sensational Facebook post with an intent to spread disaffection against the State but has also committed forgery.
The high court held that the law of sedition cannot be invoked to quieten the disquiet under the pretense of muzzling the miscreants. In the absence of any call, incitement, or instigation to create disorder or disturbance of public peace by resorting to violence or any allusion, the charges of sedition cannot be invoked against the petitioner.
The judgement also highlighted that the alleged offence of forgery would also not be attracted in this case as the post was not created or executed under the authority of the petitioner, the post was only shared by the petitioner. However, the judgement notes that allegations against the petitioner for spreading rumours under Section 505 IPC seems to bear force but that is a bailable offence. In view of this, the Court granted bail to the accused on his furnishing bail bond in the sum of Rs. 50,000 with one surety in the like amount.
Allahabad HC: Display of affection amongst the members of the LGBT community towards their partners in the public cannot be bogged down by majority perception.
In the case of Pramod Kumar Sharma vs. State of UP and others, the high court held that affection amongst the members of the LGBT community cannot be bogged down by majority perception and highlighted that the sexual orientation of the person is his individual choice.
The high court was hearing a petition filed against the cancellation of the appointment of the petitioner (dated 11.06.2019) from the post of Home Guard passed by the District Commandant of Home Guards, Bulandshahar, Uttar Pradesh.
The appointment of the petitioner to the post of Home Guard was cancelled on account of some video that was made viral by someone. The sexual orientation of the petitioner was stated, and the petitioner was said to be indulgent in the untoward activity. The high court held that this was in complete violation of the observations of the Apex Court in Navtej Singh Johar v. Union of India reported in (2018), which pronounces that the sexual orientation of the person is his individual choice and any act of treating it as an offence would be interference in the right of the privacy of the person concerned.
The Bench of Justice Sunita Agarwal observed that any display of affection amongst the members of the LGBT community towards their partners in the public cannot be bogged down by majority perception.
In conclusion, the high court quashed the appointment cancellation order passed by the District Commandant of Home Guards, Bulandshahar, and directed the Commandant General of Home Guards, Lucknow to take the petitioner back in service with immediate effect. The judgement also mentions that the petitioner shall be entitled to all admissible dues and honorarium.
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