All Copying below a letter addressed to the Minister for Social Justice and Empowerment. Copying at Shri Prasanna Kumar Pincha's request. Regards Harish Kotian Quoting:
The Hon'ble Minister of Social Justice and Empowerment Govt. of India, New Delhi Subject: Some suggestions for urgent consideration by Govt. Respected sir! Warm greetings from New Delhi! The purpose of my addressing this mail to you is to request you to kindly examine the merit of my following suggestions which, to my mind, have significant implications on the lives of persons with disabilities: 1. Firstly, I would like to draw your esteemed attention to the recently pronounced judgment of the hon'ble supreme court of India in the matter of one Surendramohan Vs. the state of tamil Nadu and others. This is regarding appointment of a person with blindness to the post of Judicial Oficer (civil judge). Though I have not read the full text of the said judgment, I am aware that the said judgment was pronounced on the basis of the erstwhile Persons with Disabilities Act, 1995 albeit we now have in place a way more progressive piece of legislation, namely, the Rights of Persons with Disabilities Act, 2016. The Hon'ble supreme court held that the respondents were well within their right to fix minimum degree of disability at 50% in respect of persons with blindness and also in respect of persons with speech and hearing impairment. It further stated that some ability to see, hear or speak was necessary for the dispensation of justice. Thus, Shri Surendra Mohan whose degree of blindness is 70% was disqualified for appointment as judicial officer (civil judge). Here, it goes without saying that under the Rights of Persons with disabilities Act, 2016, the degree of disability is irrelevant in relation to benchmark disabilities whose definitions contain measurable parameters. The definitions of Blindness, low vision, Deafness and hard of hearing do contain measurable parameters. In other words, measurable parameters are in-built into the definitions of sensory disabilities in the RPD Act. Sir! My humble submission is that the aforesaid judgment will have adverse implications on the career prospects of persons with disabilities, more particularly, career prospects of persons with blindness. If I am not grossly mistaken, it is quite possible that some blind people, maybe very few in number are already working as judicial officers in states other than tamil Nadu. Besides, late Shri Sadhan gupta, a totally blind person and a bar-at-law, had served both as Additional Advocate-General and Advocate-General respectively of the govt. of west Bengal with high level of efficiency. He was also an elected member of Lok Sabha from West Bengal. Internationally speaking once upon a time, the Chief Justice of the Federal Court of Germany, which is the apex court of Germany was also a blind person. South Africa also had a blind person as one of the judges of the apex court there; and, I once had the honour of meeting him. Sir! To my mind, the said judgment of the Hon'ble supreme court of India in Surendramohan"s case will frustrate the very purpose of the Rights of Persons with Disabilities Act, 2016. The said judgment is liable to be misused against persons with disabilities in general and against persons with blindness in particular as this will provide a handle to the bureaucracy to deprive such persons from being employed in various streams, such as, the civil services, ministeriahl/clerical services, teaching services, ETC. for it may be prescribed that certain amount of the ability to see or hear, ETC. is necessary for such streams as well. This is a matter of grave concern. In the above view of the matter, I humbly suggest that the Department of Empowerment of Persons with Disabilities under your benign Ministry be pleased to study the judgment and file a review petition before a larger constitution bench of the Hon'ble supreme court taking, inter alia, the following grounds: 1. that there have been instances where blind persons have efficiently and successfully served as judicial officersand judges both in India and abroad. 1. That the said judgment was pronounced based on the erstwhile PWD Act which now stands repealed and replaced by the RPD Act as stated above. 1. That the RPD Act does not prescribe any degree of disability in relation to sensory disabilities as measurable parameters are in-built into their definitions. 1. That the said judgment will frustrate the very purpose of the RPD Act and it militates against the principles of equality and non-discrimination. 1. the said judgment will drastically reduce employment opportunities for persons with disabilities in general, and for the persons with blindness in particular; and that it is liable to be misused by the prospective employers against such persons. Depending on the outcome of the suggested review petition, if need be, the Ministry of Social Justice and empowerment Govt. of India should, through a legislative measure undo the possible catastrophic effect of the said judgment. 2. My second suggestion is with regard to the revised examination guidelines notified by the Department of Empowerment of Persons with Disabilities on 29th August, 2018 which has caused pronounced and simmering discontentment amongst the blind and other persons with disabilities. These guidelines pertain both to academics related as well as recruitment related examinations. In this context, we must not lose sight of the fact that what has been notified contains guidelines; and clearly, guidelines have no legal enforceability. The guidelines are a matter of discretion of the concerned authorities. After applying my mind to the issue, I feel that the concerns raised by a large segment of primary stakeholders do have some merit. Besides, the concerns expressed by some authorities which resulted in the revised guidelines also need to be addressed to the extent possible. Being a blind person myself, I know it for a fact firsthand how difficult it is in the first place to find an appropriate emanuensis/scribe/writer. This, actually accentuates the tension in the mind of the candidate before and at the time of the examination which candidates without disabilities do not have to undergo. Many deserving candidates may not be able to perform upto the optimum level of their merit and potential because of inefficient emanuensis/scribe/writer. In fact they badly suffer without any fault of theirs. It is equally true that the integrity of examination related issues raised by some authorities need to be addressed. I believe, this can be done in a variety of ways including by effectively strengthening the invigilation, and by more properly and comprehensively formulating the examination norms. It would also be in the fitness of things on my part to suggest that in order to ensure that the examination norms are uniformly enforced throughout the country without discrimination, we should have in place an Act of parliament which may be called the Examination Norms for Persons with disabilities Act. Once the norms become a law, the aggrieved candidate can approach the appropriate court/authority for relief. I feel that such a law should take care of the legitimate concerns of the primary stakeholders, i.e., persons with disabilities, ensuring the integrity of the examination. It is my belief that such a law is perfectly possible; and it should be put together after thorough and threadbare consultations with the representatives of the primary stakeholders. I would recommend formation of a committee for putting together a draft legislation. Here, it is pertinent to remember that though disability is a state subject under the Constitution of India, the Union parliament can now enact laws in the aftermath of India signing and ratifying the UN Convention on the rights of Persons with Disabilities. Just as the Rights of Persons with Disabilities Act, 2016 was enacted as a generic measure to harmonise the existing law on rights of persons with disabilities, another specific legislation can be enacted to harmonise the existing provisions with Articles, 24 on education, 26 on habilitation and rehabilitation, and 27 on work and employment of the United Nations Convention on the Rights of Persons with Disabilities. All this can be done under Article 253 of the Constitution of India which empowers the union parliament to enact legislation on subjects listed in the state and the concurrent lists also if it is necessary so to do to fulfill international obligation. I do fervently hope that the Govt. of India will seriously apply its mind to my aforesaid suggestions in the larger interests of persons with disabilities. I will gratefully appreciate a response to my suggestions. With very warm regards, Prasanna Kumar Pincha, Former Chief Commissioner for Persons with Disabilities, Govt. of India, New Delhi. Former Chairperson, National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities, Govt. of India, New Delhi. ________________________________ Caution: The Reserve Bank of India never sends mails, SMSs or makes calls asking for personal information such as your bank account details, passwords, etc. It never keeps or offers funds to anyone. Please do not respond in any manner to such offers, however official or attractive they may look. Notice: This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. If you are not the intended recipient, any dissemination, use, review, distribution, printing or copying of the information contained in this e-mail message and/or attachments to it are strictly prohibited. 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