You may find this information useful which also contains the High Court
Order in connection with the discriminatory policy of LIC.
Date: Thu, 26 Apr 2012 18:28:51 +0800
From: [email protected]
To: [email protected]
Subject:
Draft Guidelines for Conducting Examinations (Practicals and/or Theory) of
V
I Candidates - Blind, Low Vision Persons.
Background:
These guidelines are being issued by the Ministry of Social Justice and
Empowerment, Government of India on the basis of the state's legal
obligations towards persons with disability. Most specifically,
obligations
and rights enshrined in the constitution of India, the Persons with
Disabilities - Equal Opportunities, Protection of Rights and Full
Participation Act (1995) and the Right to Education Act 2009. These
guidelines are also in alignment with India's obligations under the United
Nations Conventions on the Rights of Persons with Disabilities (UNCRPD)
2006
guaranteeing all human rights and fundamental freedoms at the place of
study
and work. It will hence apply to all examining authorities be they
educational or conducting competitive exams. These guidelines need to be
understood in that spirit of seeking to provide the appropriate reasonable
accommodation and opportunity to effectively participate in the
examination
process. The examining authorities have the freedom on a case by case
basis
to further interpret the guidelines in the spirit of helping special needs
persons to be able to give their exams freely and fairly. Hence a rigid
interpretation which tends to be disabling needs to be avoided. In all
interpretation the onus needs to be given to making the examination
process
conducive and barrier free for the candidate.
These guidelines are being framed for visually impaired persons
specifically. The Ministry or examination bodies can borrow the same for
other persons with disabilities with additional specification that will
need
to be made for persons with other disabilities.
Draft Guidelines
1. These guidelines are applicable across India to all examination
authorities, educational bodies, schools, colleges, universities,
competitive exam bodies and any other exam taking institution that
conducts
an exam within the geographical limits of India.
2. These guidelines apply to theory, practicals and multiple choice
examinations. Both paper tests as well as electronic examinations.
3. The facility of Scribe/Reader/Lab Assistant is permitted to any
person
who has disability of 40% or more if so desired by the person.
4. The candidate has the discretion of opting for his own
scribe/reader/lab assistant or requests the Examination Body for the same.
The candidates' preference for the same will be recorded by the
examination
authority at the time of filling up the application form for
competitive/mass scale examination or at the time of admission
registration
form or as a separate application system set up by the examination
authority
as may be most feasible. The said procedure needs to be completed one
week
prior to the examination.
5. The examining body to maintain a panel of scribe/ reader/lab
assistant
at the District/Division/State level as per the requirements of the
examination. A scribe/ reader/lab assistant provided by the examining body
needs to fulfill the following criteria.
· Fluency in reading and writing in the language of the test being
taken
· Fluency in reading and writing of the subject matter of the test
· Speed of writing with eligible handwriting
· Efficiency in use of computer in case it is a computer test
The candidate will be allowed to meet the scribe/ reader/lab assistant 3
days prior to the date of the examination so that the candidate gets a
chance to check and verify whether the scribe is suitable or not.
(Question for consideration - The writer will be free to test the
candidate
in meeting the fluency of subject and language criteria. If the candidate
is
not satisfied with the writer provided, the candidate can put in a request
for an alternative writer which the examination authority shall provide.
What should be the pass/fail criteria on a test?)
6. In case of candidate bringing their own reader/writer/lab assistant
the
following criteria will apply
a. For all examination and tests up to 8th standard - It is
impractical
in the candidate's interest for a younger student to be a writer. A
standard
3 child cannot be expected to function as a writer for a standard 4 child.
In such situations, it would be incumbent on the school authorities to
create a panel of writers. For example: from other teachers, parents or
community members who could be part of the writer/reader/ lab assistant
pool. At the school level the examination authority has to provide a
writer
unless the candidate makes a specific request that he/she will arrange a
writer on one's own. Upon making such a request the candidate will be
allowed to use their own writer for whom there will not be any
age/educational criteria. The school has to ensure proper invigilation.
b. For all examination from 8th standard up to post graduation the
candidate and writer are of the same stream, educational qualifications of
writer should be one year below that of the candidate. This means that if
the student is appearing for a Second Year B.A examination, if his writer
Arts stream he can be up to first year. However, this condition will not
be
applicable if they are of different streams. That is if a Second year B.A
student uses a writer from the Bsc stream the writer can be from a higher
grade (T.Y.B.Sc./M.Sc etc) as well. Apart from this, no other restrictions
such as marks obtained by the writer/reader/ lab assistant are to be
imposed.
c. For all other examinations such as all competitive examinations,
all
job examination, the writer will be one grade below the qualifying year
for
the examination but not less than 10th standard. That is in all cases the
writer will be one grade/class lower than the grade eligible to give the
exam i.e if the entrance exam is permitted for third year degree students
a
writer up to 2nd year Degree College is permitted to write. But in all
cases
where the eligibility for the examination is less than 10th grade the
writer
up to 10th grade will be permitted. For all examinations where eligibility
criteria for the examination is 7th, 8th, 9th or 10th standard, writers up
to 10th standard can write. i.e even examination with eligibility of 7th
standard can use a 10th standard writer.
7. The candidate is permitted to take more than one scribe/reader/lab
assistant for writing different papers. The candidate choosing their own
writers will have to submit any one of the writers most readily available
bonafide proof (college id/bonafide certificate/mark sheet) at the time of
opting for the preference as per the system mention in point 4 along with
a
letter from the writer saying that the information provided by him/her is
true and he/she meets the eligibility of the writer for the said
examination. (Question for consideration - Do we want to keep this letter
as
criteria?)
8. There will be flexibility in accommodating any last minute change in
scribe/reader/lab assistant. For any last minute change the candidate can
bring a new writer with any of their most readily available bonafide proof
(college id/bonafide certificate/mark sheet). For emergency situations the
examination bodies will also at all times keep a pool of
writers/readers/lab
assistants that can be utilized. The examination authorities'
writers/readers/lab assistant eligibility is only to be measured as per
point 5 and hence it would be easy for the authorities to keep a pool of
qualified teachers/supervisors etc who can come in for an emergency.
9. Visually impaired persons will be given the option of choosing the
mode
for taking the examinations i.e. use of writer/scribe, using the computer
or
in large print or even by recording the answers. The candidate will also
have the option of selecting for a question paper in alternative formats -
Braille, large font, electronic copy. Large font specification needs to be
mentioned by the candidate. A maximum font size of 20 can be requested
for.
The candidates' preference for the same will be recorded by the
examination
authority at the time of filling up the application form for
competitive/mass scale examination or at the time of admission
registration
form or as a separate application system set up by the examination
authority
as may be most feasible.
10. In case of candidates using a computer, the candidates should be
allowed
to check the computer system, one day in advance so that the problems, if
any in the software/system could be rectified. (Question for
consideration -
IF DISSATISFIED WHAT IS THE PROCEDURE? Also the detailing of this section
how much do we want?)
§ The examination authority makes available a computer with
minimum
512 RAM and MS office installed and a functional printer and headphones.
§ As far as possible, the government authority/examination board
to
be able to provide basic open source screen reading software and screen
magnification software on the computer. Should the same not be possible
the
student aspiring to give exam on computer is requested to bring their own
screen reader/ magnifier software.
§ The candidate should be allowed to install the screen
reading/magnifying software a day in advance on the computer provided with
printer installed
§ The candidates are allowed to install any specific technology
which they possess which they find essential to access the basic word
reading programme and carry out proof reading.
§ Access to the computer is to be given at least 20 minutes before
start of the examination.
§ In case of power failure, the time of power failure is to be
noted and the same amount of time augmented in the end time of the paper.
§ UPS /invertors for back up support must be installed and
connected
at the centre. Enough power back-up needs to be provided for the
examination
centre.
§ Two printers may be kept for taking the final print-outs of the
answer sheets.
§ The computer examination is permitted for subjects in English or
Hindi or any other language in which screen reader support is available.
§ A soft copy accessible version of the question paper is provided
at the start of the examination
§ Same rule of 20 min extra time per hour will apply to computer
examinations also.
11. In case of visual based questions, the candidate should be given
alternative text based non- visual questions. A facility for the request
for
the same (non visual alternative questions) needs to be provided at the
time
of filling up the examination form/course registration form. The candidate
will have the freedom to opt for the visual questions if they so choose.
The
said preference will be recorded in the appropriate form.
12. The disability certificate issued by the competent medical authority
at
any place should be accepted across the country.
13. Compensatory time of 20 minutes per hour of examination will be
granted
for persons who are making use of scribe/reader/lab assistant. This will
hold true for both theory and practical examinations. All the candidates
with disability not availing the facility of scribe will also be allowed
the
compensatory time of 20 minutes per hour.
14. The candidates will be allowed to use assistive devices like talking
calculator (in cases where calculators are allowed for giving exams),
Taylor
frame, Braille slate, abacus, geometry kit, Braille measuring tape and
electronic devices. etc.
15. Proper seating arrangement (preferably on the ground floor) to be made
prior to the commencement of examination to avoid confusion or distraction
during the day of the exam. The time of giving the question papers should
be
marked accurately and timely supply of supplementary papers should be
ensured.
16. The question papers and answer papers will have rules related to
extra
time, exemption of visual questions and use of scribe printed on them. The
answer paper will have a marking spot that specifies candidate with visual
impairment. This is to avoid any confusion for the supervisor and
evaluator
in appropriately checking and marking.
17. The examining body to provide reading material in Braille or E-Text or
large and bold font or on computers having suitable screen reading
softwares
for open book examination. Similarly online examination should be in
accessible format i.e. websites, question papers and all other study
material should be accessible as per the international accessibility
standards laid down in this regard.
18. For practical examinations the candidate be permitted to use a lab
assistant to make observational recordings wherever required. The
qualification rule of the lab assistant will be same as point 6.
19. For practicals and experiments, the visually impaired student be
allowed
to use material converted wherever possible into accessible formats such
as
tactile diagrams, large font and expanded size diagrams, Braille,
accessible
equipments etc. The same will be worked on by the examination authorities
in partnership with resource centers. The Examination bodies to work with
partnerships with resource centers to make the material available to them.
20. Visually impaired candidates will be allowed to feel objects and any
other practical apparatus for identification and any other purpose of the
examination
21. If any experiment contains visual content to a large extent the
student
will be examined on that experiments or that aspect of the experiment
through a viva. The competent authority after consultation with
appropriate
agencies on visual impairment will specify the experiments in the syllabus
which involve visual content to a large extent for the information of the
visually impaired student and the examiners. The said information will be
specified in the syllabus published and practical manuals published at the
beginning of the year itself.
22. Practicals on computer programs need to be made accessible with a
screen
reader/magnifier/suitable assistive technology program.
23. Visually Impaired students should be allowed to use a word processor
program to type his/her Journals and then print outs can be either filed
as
a Journal or they can be pasted in a regular Journal. In absence of
computer
facility the student will be allowed a use of assistant to write the
journal. No criteria will apply to who the assistant will be as this is
out
of class work.
24. Visually impaired students will be exempted from drawing diagrams in
the
journal. For low vision students who are comfortable drawing diagrams,
they
may be permitted to do so. Students not drawing diagrams, In place of the
diagram a description of the same will be written. If the student wishes
he/she may attach any tactile diagrams used by him/her to study. For the
purpose of evaluation the marks for diagrams will be compensated by the
written explanations.
25. Each examination authority to assign within its existing system an
officer on special duty who will be exclusively responsible to processing
requests of students with special needs and addressing concerns, providing
services and ensuring appropriate implementation of these rules. The
contact
information of the said officer need to be published in all
application/admission forms, brochures, website, directories and any other
suitable places. The said officer needs to be appointed at the examination
centre/district/state level as per the existing system of the examination
body. (Question for consideration - How better can we suggest this
system?)
26. Question for consideration - Still to be debated - make practicals as
stated above or VIVA? Viva up to 10th/12th standard and accessible
practical
as mentioned above for higher standards?
27. Question for consideration - FEES OF WRITERS? How much? Who is to
provide this? Compulsory or optional?
28. The said guidelines will be reviewed on a 5 yearly basis to keep up
with
new technologies and services available in the field as also advances in
the
educational systems. The review will be conducted by the Ministry of
Social
Justice and Empowerment in consultation with all relevant stakeholders.
End of points.
IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 15th February,
2012 + W.P.(C) No.10323/2009 % VIKAS GUPTA ....Petitioner Through: Mr.
Pankaj Sinha, Adv. Versus UOI & ANR. ..... Respondents Through: Mr. B.V.
Niren, CGSC CORAM :- HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE
RAJIV SAHAI ENDLAW JUDGMENT RAJIV SAHAI ENDLAW, J. 1. This writ petition
filed in public interest seeks mandamus to the respondent Postal Life
Insurance Directorate, Department of Posts, Government of India to keep
the
maximum sum assured for disabled persons at `5,00,000/-, at par with
non-disabled persons and to reduce the premium for disabled persons by
bringing it at par with that for non-disabled persons.
2. The case, as set out in the writ petition is that Postal Life Insurance
Policy is issued by the respondents for the benefit of employees of Post
and
Telecommunication Department and other government employees; that the said
Policy makes a distinction between disabled and non-disabled employees;
whereas non-disabled employees can avail a maximum insurance of
`5,00,000/-,
the maximum sum insured for disabled employees is `1,00,000/- only; not
only
so, the disabled employees have to pay an extra premium also. The
petitioner
contends that the discrimination so meted out to the disabled employees is
violative of Article 14 of the Constitution of India and the
classification
of the disabled and non-disabled employees in the matter of issuance of
insurance policy is not based on any reasonable differentia and has no
nexus
with the purpose for which such insurance policies are issued. It is yet
further contended that the same is violative of The Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 enacted in culmination of the decisions taken in
the United Nations Convention on the Rights of Persons with Disabilities,
to
which India is a signatory.
3. Notice of the petition was issued. From time to time, assurance was
meted
out that the grievance in the writ petition was being looked into and
appropriate steps shall be taken. On 06.01.2010 the counsel for the
respondent informed that a decision had been taken in principle for
providing the insurance cover at par with the non-disabled employees and a
decision on the issue of additional premium will also be taken shortly
thereafter. On 20.01.2010 the learned Additional Solicitor General (ASG)
appearing for the respondents placed on record a copy of the Notification
dated 04.01.2010 issued by the Directorate of Postal Life Insurance to the
effect that the maximum limit of insurance for disabled persons had been
brought at par with non-disabled persons. Time was sought to obtain
instructions on whether the disparity in the matter of payment of premium
had been removed or not. 4. An affidavit dated 09.02.2010 was thereafter
filed by the GM (PLI), Postal Life Insurance Directorate stating that some
extra premium was charged from the persons with disability since disabled
persons are more prone to accidental risks as compared to non-disabled
persons. It was inter alia stated in the said affidavit:-
"5. That as regards the issue of extra premium it is submitted that the
Insurance Policy is a contract between the insurer and the insured. It
identifies the insured, the insuring company, risks covered, policy period
and premium amount. The Insurance Policy is binding on both the insurer
and
insured. In the insurance business a pool is created through contributions
made by persons seeking to protect themselves from common risk.
Premium is collected by insurance companies which also act as trustee to
the
pool. Any loss to the insured in case of happening of an uncertain event
is
paid out of this pool. It works on the principle of risk sharing.
Therefore
prejudice would be caused to the normal insured persons in case of any
casualty of the disabled persons. As disabled persons are more prone to
accidental risks as compared to normal persons and the amount which is to
be
paid to the family of the deceased would be paid out of the same pool. 6.
That the extra premium payable by the disabled person is marginally
different from extra premium payable by normal persons as specified in
Rule
14 of Post Office Life Insurance Fund. Also in case of LIC insurance,
numerical loading of under-writing system is followed." 5. It was however
the contention of the counsel for the petitioner that there was no
empirical
evidence to support such averment. The petitioner in response dated
08.03.2010 to the aforesaid affidavit of the respondents has inter alia
stated as under:
"4. The extra premium clause has no scientific base nor can be justified
by
any legal enactment. On the contrary, such a stand alone stipulation for
Persons with Disabilities in form of a special scheme in the Postal Life
Insurance for Government employees is discriminatory, non-inclusive,
unjust
and violates principles of natural justice of equity and fairness and
above
all it runs against the mandate of the Persons with Disability Act and the
UN Convention on the Right of Persons with Disabilities that India is a
proud signatory to. Further, it specifically violates Articles 3 and 25(e)
of the United Nations Convention on the Rights of Persons with
Disabilities
(hereinafter referred to as UNCRPD). 5. That contents of para 5 are
admitted
to the extent that any loss to the insured in case of happening of an
uncertain event is paid out of this pool and that it works on the
Principle
of risk sharing. However, it is strongly denied that prejudice would be
caused to the normal insured persons in case of any casualty of the
disabled
persons as disabled persons are more prone to accidental risks as compared
to normal persons and the amount which is to be paid to the family of the
deceased would be paid out of the same pool. On the contrary, it is
submitted that there is no empirical study or data to support or
substantiate such a baseless, false & biased view which only reinforces
the
stereotypes about persons with disability and their proneness to accident.
Therefore it is highly discriminatory hence, void in law and against the
Constitution of India & UNCRPD. It is further submitted that right to
equality and non-discrimination are inalienable rights which cannot be
taken
away by any contract."
6. On 10.03.2010, the learned ASG again sought time to explain the basis
for
the charge of higher premium from persons with disability. Thereafter also
from time to time, it was stated on behalf of the respondent that the
matter
of higher premium for the disabled persons was under consideration of the
concerned authorities. 7. The respondents in yet another affidavit dated
01.02.2011 inter alia stated as under: "3. That the Insurance Policy is a
contract between the Insurer and the insured and is binding on both. That
the Insurance business has a common pool created through contributions
made
by persons seeking to protect themselves from common risk. The premium is
collected in furtherance of this objective according to different schemes
for different category. 4. That regarding the extra premium demanded for
the
category of Disabled / differently abled persons, the extent of handicap
differs from one person to another. Hence it has been decided that the
premium shall be decided upon the health profile of the individual
proponent".
The petitioner in response dated 24.05.2011 to the above has inter alia
stated as under: "4. It is further submitted that charging extra premium
from employees with disabilities is a direct discrimination with them on
the
basis of disability which is in direct conflict with Article 2 of UNCRPD
set
out as under: "Discrimination on the basis of disability" means any
distinction, exclusion or restriction on the basis of disability which has
the purpose or effect of impairing or nullifying the recognition,
enjoyment
or exercise, on an equal basis with others, of all human rights and
fundamental freedoms in the political, economic, social, cultural, civil
or
any other field. It includes all forms of discrimination, including denial
of reasonable accommodation;"
5. The justification of health profile put forward by the respondents is
faulty for they seem to treat disability as a negative health profile. It
is
submitted that living with disability is distinct from suffering from a
disease, while the respondent seem to consider both as synonymous. An
employee with visual impairment or with hearing impairment or with
neurological impairment also enjoys good health like anybody else.
Therefore, an employee living with a disability will not mean that he /
she
is suffering from a disease and prone to life risks or susceptible to die
pre-maturely. Such a conclusion on the part of respondent is illogical,
arbitrary, have no empirical base and without any understanding of
disability. Therefore, such a conclusion is required to be struck down.
6. It is further submitted that letter received from the LIC under RTI
reveals that the LIC has the mortality rate (empirical data) for persons
who
have availed the insurance policies from the Corporation. However, LIC
categorically states that it doesn't maintain separate data for
handicapped
category. This clearly shows that PLI is following the pattern which has
been decided by LIC arbitrarily and without applying any sound mind." 9.
On
28.09.2011, a categorical statement was made by the learned ASG (and as
recorded in the order of that date) that no extra premium is collected
from
the differently abled persons. The respondent was asked to put the said
stand on affidavit. 10. However in the affidavit dated 30.11.2011 filed in
pursuance to above, it is stated:-
"3. That in view of the above submission made by the answering respondents
and the direction of the Hon'ble Court, the deponent herein submits that
the
"Post Office Life Insurance Rules - 2011", deals with the relevant schemes
for healthy persons and physically handicapped persons. Rule 13 of the
Post
Office Life Insurance Rules provides for the medical schemes. As per Rules
13, for the Postal Life Insurance Schemes for sum assured of more than ` 1
lakh and for Rural Postal Life Insurance Schemes with sum assured of `
25,000/-, a proposer must undergo a medical examination by the prescribed
medical authority and must be declared fit for such insurance by the said
authority. The medical examination is done thoroughly to ensure that the
proposer does not suffer from any adverse medical conditions.
4. Rule 14 deals with non-medical schemes of Postal Life Insurance. Any
person whose age on next birthday does not exceed 35 years (with the
exclusion of handicapped person) and whose insurance proposal has not been
turned down by any insurance company operating in India may apply for
non-medical policy with maximum sum assured of ` 1 lakh. In Rule 15, in
Rural Postal Life Insurance any person whose age on next birthday does not
exceed 35 years and who is eligible for Rural Postal Life Insurance (with
the exclusion of handicapped person) and whose proposal has not been
turned
down by any insurance company operating in India may apply for non-medical
insurance with maximum sum assured of ` 25,000/-. In case of non-medical
policy of PLI and RPLI, a self declaration is taken from the proposer that
he is medically fit at the time of proposal. 5. That physically
handicapped
persons are covered under Rule 17 of the Post Office Life Insurance Rules.
As per Rule 17, physically handicapped persons are assured under the
"Scheme
for Physically Handicapped" and have to undergo a special medical
examination in order to determine the exact nature and extent of their
handicap and its bearing on the life insured. The said Rule covers both
congenital and non-congenital handicaps and is complete scheme for all
kinds
of handicapped persons. The premium in respect of the policy taken under
the
scheme is determined by the accepting authority based on the report of the
medical examination. A copy of the relevant provisions of the Post Office
Life Insurance Rules - 2011 has been annexed herewith and marked as
ANNEXURE
-R1.
6. That the premium to be charged from proposer with any adverse medical
history and physically handicapped persons is directly based on their
physical condition as ascertained by the medical authorities under the
Special medication examination undergone by the person concerned. Thus the
distinction made between a healthy person and persons with adverse medical
history and physically handicapped persons is absolutely reasonable and
fair. It is imperative for the Medical authorities to determine the exact
nature and extent of the handicap and its bearing on the life being
insured
as there is always the risk that the person may be suffering from a
handicap
due to which life risk is increasing. This would in turn affect the life
span adversely of the person concerned. Therefore, it is not only fair but
also reasonable to have different premiums applicable to medically fit
persons as opposed to persons with adverse medical history and physically
handicapped persons." 11. We have heard the counsel for the parties. At
the
outset, we express our displeasure at the respondents, inspite of
unequivocal statement made before this Court on 28.09.2011 to the effect
that no extra premium is charged from the differently abled persons, upon
being directed to file an affidavit in confirmation of the same, having
turned turtle, falsifying not only the statement made before this Court
but
also purporting to justify the same.
12. The counsel for the petitioner has contended that a higher premium for
life insurance cannot be claimed merely for the reason of the insured
suffering from a disability, as is being done. It is argued that a
disability does not per se shorten the life and thus affect the risk
insured. To demonstrate the same, it is urged that a blind or a deaf or a
dumb person has the same life expectancy as a person with sight, hearing
and
speaking ability. The discrimination is urged to be also in violation of
the
Disabilities Act and of the U.N. Convention aforesaid. Attention has been
particularly invited to: (i) Article 2 of the U.N. Convention (supra)
defining "Discrimination on the basis of Disability" as any distinction,
exclusion or restriction on the basis of disability having the effect of
nullifying enjoyment on equal basis of human rights and as including all
forms of discrimination; (ii) Article 4 of the Convention whereunder the
signatories thereto had undertaken to take all appropriate measures to
abolish existing laws, regulations, practices constituting discrimination
against persons with disability; (iii) Article 25 of the Convention
whereunder the signatories thereto had undertaken to prohibit
discrimination
against persons with disabilities in the provision of health insurance and
life insurance where such insurance is permitted by national law and to
provide such insurance in a fair and reasonable manner.
13. The counsel for the petitioner has also contended that the respondent
inspite of numerous opportunities has failed to place any data before this
Court to demonstrate that life expectancy of a person with disability is
less than that of a non-disabled person. He has also placed on record a
plethora of other material in this regard. 14. Per contra, the counsel for
the respondents has argued that the higher premium charged from the
persons
with disability is owing to assessment of their life status and not on
account of disability and thus it is wrong to contend that there is any
discrimination on account of disability. 15. However, a perusal of the
Post
Office Life Insurance Rules, 2011 notified on 28.04.2011 shows that Rules
14
& 15 thereof expressly exclude handicapped persons; Rule 17 thereof
provides
for "Scheme of PLI for Physically Handicapped Persons"; such persons are
required to undergo a special medical examination to determine the exact
nature and extent of their handicap and its bearing on the life being
insured. Premium in respect of such policies is to be "determined by the
accepting authority".
16. The "physically handicapped persons" are thus indeed being treated
separately by the respondents and the respondents have in affidavits
(supra)
already admitted to charging higher premium from them justifying the same
on
the higher risk being insured. 17. The question which thus arises is
whether
in the matter of life insurance, such classification of persons with
physical disability can be said to be discriminatory. 18. The Disabilities
Act though in the Preamble thereof proclaims to have been enacted to
ensure
equality the people with disabilities but in Chapter VIII thereof titled
"Non-Discrimination" only deals with non-discrimination in transport,
non-discrimination on the road, non-discrimination in the built
environment
and non-discrimination in Government employment and does not provide for
non-discrimination in the matter of insurance. 19. The counsel for the
petitioner has referred to:- (a) State of Orissa v. Dr. Binapani Dei AIR
1967 SC 1269 - to contend that not only the judicial authorities but also
the quasi judicial and administrative authorities are obliged to follow
the
requisites of Article 14 of the Constitution;
(b) Govind A. Mane v. State of Maharashtra (2000) 4 SCC 200
and Satyawati Sharma v. UOI AIR 2008 SC 3148 to contend that though
Article
14 does not prohibit classification, the same must be founded on an
intelligible differentia having a rational nexus to the object sought to
be
achieved - that the classification based on employees" / person"s
disability
is neither reasonable nor has any rational nexus to the object sought to
be
achieved by the Policy; (c) Dr. K.R. Lakshmanan v. State of Tamil Nadu AIR
1996 SC 1153 where the legislation was struck down for being violative of
Article 14 of the Constitution; (d) Transport Corporation of India v.
Employees' State Insurance Corporation AIR 2000 SC 238 where the
notification issued under the Employees" State Insurance Act, 1948
covering
the main establishments in Andhra Pradesh was held to be applicable also
to
employees of the branch offices situated in Bombay; (e) Zee Telefilms Ltd.
v. UOI AIR 2005 SC 2677 to contend that the classification under the
policy
is not based on hard facts and is based on mere surmises; and
(f) Superintendent, Central Prison, Fatehgarh v. Dr. Ram Manohar Lohia
AIR
1960 SC 633 to contend that the instant policy is invalid in so far as it
contravenes Article 14 by classifying the beneficiaries of the scheme
based
on physical disability.
20. We find that in the matter of insurance, the Apex Court in LIC of
India
v. Consumer Education and Research Centre (1995) 5 SCC 482 observed that
authorities in the field of insurance owe a public duty to evolve their
policies subject to such reasonable, just and fair terms and conditions
accessible to all the segments of the society for insuring the lives of
eligible persons. It was further held that the eligibility conditions must
be conformable to the Preamble, Fundamental Rights and the Directive
Principles of the Constitution. The Supreme Court observed that, the
Preamble, the arch of the Constitution, assures socio-economic justice to
all the Indian citizens in matters of equality of status and of
opportunity
with assurance to dignity of the individual; Article 14 provides equality
before law and its equal protection; Article 19 assures freedom with right
to residence and settlement in any part of the country and Article 21 by
receiving expansive interpretation of right to life extends to right to
livelihood; Article 38 in the Chapter of Directive Principles enjoins the
State to promote the welfare of the people by securing and protecting
effective social order in which socio-economic justice shall inform all
the
institutions of national life - it enjoins to eliminate inequality in
status, to provide facilities and opportunities among the individuals and
groups of people living in any part of the country. Reference was also
made
to Article 39 which assures to secure the right to livelihood, health and
strength of workers, men and women. It was further held that the material
resources of the community are required to be so distributed as best to
sub
serve the common good. Reference was made to Article 41 assuring social
security and Article 47 imposing a positive duty on the State to raise the
standard of living and to improve public health. Reliance was also placed
on
several Articles of Universal Declaration of Human Rights to apply the
said
principles. It was held that though a contract of insurance is a bilateral
agreement on human life upon payment of premia but the insurer is not
entitled to impose unconstitutional conditions which deny the right of
entering into the contract, limiting only to a class of persons under a
particular policy. It was held that insurance being a social security
measure should be consistent with the constitutional animation and
conscience of socio-economic justice adumbrated in the Constitution. It
was
further observed that over-emphasis on classification would inevitably
result in substitution of the doctrine of equality enshrined in Article 14
with the doctrine of classification. Dealing with the arguments of the
insurer, it was held that though for the insurer, to successfully operate
the life insurance it is necessary to forecast mortality among insured
lives
within a relatively narrow margin of error and to this end the insurer is
entitled to scrutinize the medical history of the lives to be covered
under
the appropriate policy but it was held that the insurer cannot adopt a
soft
and easy course as in that case of restricting insurance to those in
employment of government, semi-government and reputed commercial firms and
thereby excluding lives in vast rural and urban areas engaged in
unorganized
or self-employed sectors. Such an action of the insurer was held amenable
to
judicial review. The policy, confining insurance to salaried class from
government, semi-government or reputed commercial firms was thus held to
be
discriminatory and offending Article 14 and struck down. In our opinion
the
aforesaid judgment of the Apex Court applies on all fours to the facts of
the present case also.
21. Our further research shows:-
that the European Court of Justice (Grand Chamber) in Association belge
des
Consommateurs Test-Achats ASBL Vs. Conseil des ministres [2011] 2 CM LR 38
of the European Union held differences in insurance premiums on account of
gender to be violative of the prohibition against the discrimination on
the
basis of sex. The argument of women being at greater risk on account of
pregnancy and maternity was negatived by observing that "though the costs
related to pregnancy and maternity for obvious biological reasons can
arise
only in the case of women but must not result in differences in premiums
and
that the fact that male insured persons are enlisted to finance the costs
related to pregnancy and maternity is of course justified by the principle
of causation. It is true that only women can become pregnant, but every
pregnancy also involves a man."
b. Literature from America also shows that though in the past
discrimination
against persons suffering from mental illness existed but the tide of
discrimination is starting to turn. Laws like the Americans with
Disabilities Act, 1990, the Mental Health Parity Act, 1996 and other such
State laws show an increased awareness of the problems of discrimination
against those with mental illness and have given the lawyers tools for
combating discrimination. The Americans with Disabilities Act offers
strong
protections for the disabled in many areas which have overcome much of the
discrimination that occurs with insurance and has become a foundation for
opposing insurance discrimination based on mental disability. It has been
held that discrimination on the basis of mental disability wrongly
deprives
full insurance benefits to the majority of individuals suffering from
mental
illness. It has further been held that denial of insurance benefits
violates
the principles behind federal and state laws created to eradicate
discrimination based on mental illness. Society has been held to be best
served by an insurance system that gives people suffering from any illness
the chance to return to a healthy and productive life.
c. In Thanda Wai v. All State Insurance Co. reported in 75 F Supp. 2d 1
(D.D.C. 1999) before the United States District Court, District of
Columbia
- the mandatory insurance coverage was denied to the landlords for having
let out the house to those suffering from disability. It was the stand of
the United States in that case that the same was discriminatory and
violative of the provisions of Americans with Disabilities Act, 1990 and
the
Fair Housing Act, 1968. It was further stated that such statutes are to be
interpreted broadly to further their underlying purposes. The provision in
the statute prohibiting disability based discrimination was held to cover
discrimination in the matter of insurance policy. Disability based
discrimination in the terms and conditions of insurance policies were
argued
to constitute an infringement of the full and equal enjoyment of the
insurance company"s goods, services, privileges & advantages. It was yet
further argued that outright rejection of a person based on their
disability
plainly constitutes a denial of full and equal enjoyment of insurance
company"s goods and services. The importance of insurance to individuals
with disabilities was described by observing "there can hardly be a
service
more central to the day to day life of a seriously disabled person than
insurance - for it is often insurance coverage that will determine a
disabled person"s ability to prevent the disability from limiting his or
her
participation in society. The Court held that although insurance policies
are not expressly mentioned in the text of Fair Housing Act, denial of
insurance on the basis of disability was nevertheless violative of the
provisions thereof and would make a dwelling unavailable to persons with
disability. 22. It would thus be seen that disability per se cannot be the
basis of discrimination in the matter of insurance. This Court is
therefore
unable to uphold the action of the respondents and/or the provisions of
the
Rules (supra) which create persons with disabilities class unto
themselves.
The same undoubtedly is a violation of the Disabilities Act even though
not
expressly dealing with the matter of insurance. The persons with
disability
cannot be grouped together for the purpose of insurance. They are to be
treated similarly as others/non-disabled persons and just like in the case
of non-disabled persons, the insurance risk is assessed on an individual
basis, are liable to be similarly assessed; while so assessing, depending
upon the risk assured and the risk assessed, premium is to be computed.
We therefore allow this writ petition and direct the respondents to treat
persons with disability at par with the non-disabled persons in the matter
of Postal Life Insurance by providing them with the same maximum cover and
charging them the same premium as being charged from non-disabled persons,
regard of course being had to the risk, depending on assessment of
individual cases. The petition is disposed of with no order as to costs.
RAJIV SAHAI ENDLAW, J ACTING CHIEF JUSTICE FEBRUARY 15, 2012 "gsr"/pp
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