Justice Sunanda Bhandare Foundation v. Union Of India & Another

Dipak Misra, J.

1. The instant interlocutory application was filed to issue directions to the Central Government, State Governments and Union Territories to comply with the judgment rendered in Justice Sunanda Bhandare Foundation v. Union of India and Another, (2014) 14 SCC 383 [LQ/SC/2014/322] . In the said case, a three-Judge Bench took note of various orders passed in the writ petition, especially the prayer for implementation of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for brevity, the 1995 Act) and for declaration that denial of appointment to the visually disabled persons in the faculties and college of various universities in the identified posts is violative of their fundamental rights guaranteed under Articles 14 and 15 read with Article 41 of the Constitution of India and opined that the 1995 Act is to be treated as an enactment for empowerment of the persons under disability and further expressed its concern with regard to the apathy shown by various State Governments and the instrumentalities of the States.

2. Sitting in a time-machine, we may make a fruitful reference to the decision rendered in Union of India and Another v. National Federation of the Blind and Others, (2013) 10 SCC 772 [LQ/SC/2013/1160] . The Court, in the said case, after referring to Section 33 of the 1995 Act, which dealt with reservation of posts and adverting to various aspects, directed as follows:-

"In our opinion, in order to ensure proper implementation of the reservation policy for the disabled and to protect their rights, it is necessary to issue the following directions:

(i) We hereby direct the appellant herein to issue an appropriate order modifying the OM dated 29.12.2005 and the subsequent OMs consistent with this Courts Order within three months from the date of passing of this judgment.

(ii) We hereby direct the "appropriate Government" to compute the number of vacancies available in all the "establishments" and further identify the posts for disabled persons within a period of three months from today and implement the same without default.

(iii) The appellant herein shall issue instructions to all the departments/public sector undertakings/Government companies declaring that the non observance of the scheme of reservation for persons with disabilities should be considered as an act of non- obedience and Nodal Officer in department/public sector undertakings/ Government companies, responsible for the proper strict implementation of reservation for person with disabilities, be departmentally proceeded against for the default."

3. In the said case, the Court laying emphasis on the concept of employment, expressed thus:-

"Employment is a key factor in the empowerment and inclusion of people with disabilities. It is an alarming reality that the disabled people are out of job not because their disability comes in the way of their functioning rather it is social and practical barriers that prevent them from joining the workforce. As a result, many disabled people live in poverty and in deplorable conditions. They are denied the right to make a useful contribution to their own lives and to the lives of their families and community.

The Union of India, the State Governments as well as the Union Territories have a categorical obligation under the Constitution of India and under various International treaties relating to human rights in general and treaties for disabled persons in particular, to protect the rights of disabled persons. Even though the was enacted way back in 1995, the disabled people have failed to get required benefit until today."

4. In the case of the present petitioner, that is, Justice Sunanda Bhandare Foundation (supra), the three-Judge Bench was concerned with the implementation of the 1995 Act. In that context, it observed as under:-

"Be that as it may, the beneficial provisions of the 1995 Act cannot be allowed to remain only on paper for years and thereby defeating the very purpose of such law and legislative policy. The Union, States, Union Territories and all those upon whom obligation has been cast under the 1995 Act have to effectively implement it. As a matter of fact, the role of the governments in the matter such as this has to be proactive. In the matters of providing relief to those who are differently abled, the approach and attitude of the executive must be liberal and relief oriented and not obstructive or lethargic. A little concern for this class who are differently abled can do wonders in their life and help them stand on their own and not remain on mercy of others. A welfare State, that India is, must accord its best and special attention to a section of our society which comprises of differently abled citizens. This is true equality and effective conferment of equal opportunity."

5. Proceeding further, it expressed its agony in the following manner:-

"More than 18 years have passed since the 1995 Act came to be passed and yet we are confronted with the problem of implementation of the 1995 Act in its letter and spirit by the Union, States, Union Territories and other establishments to which it is made applicable."

6. After expression of the said anguish, the Court issued the following directions:-

"In our view, the 1995 Act has to be implemented in the letter and spirit by the Central Government, State Governments and Union Territories without any delay, if not implemented so far.

The Secretary, Ministry of Welfare, Government of India, the Chief Secretaries of the States, the Administrators of the Union Territories, the Chief Commissioner of the Union of India and the Commissioners of the State Governments and the Union Territories shall ensure implementation of the 1995 Act in all respects including with regard to visually disabled persons within the above time."

7. It is submitted by Ms. Manali Singhal, learned counsel appearing for the petitioner that after the judgment was delivered, applications were filed by the petitioner to file the compliance report. Learned counsel for the petitioner has filed a revised convenience chart depicting compliance of the 1995 Act. The final observations made by the learned counsel has been produced before us in a tabular chart. We think it appropriate to reproduce the same:-

chart

Learned counsel for the petitioner submits that there has been no complete compliance of the judgments passed by this Court. She has submitted that the reasons for non-compliance are the perceptible though all the States and Union Territories should have complied with the various provisions of the 1995 Act.

8. It is necessary to mention here that we have reproduced the tabular chart so that each State can know what the other States have done and who has failed to comply and take steps on the path of complete compliance. Before they could do what the 1995 Act envisages, the Parliament, realizing the national need of the rights of the persons under disability and commitment to the Convention of the United Nations General Assembly, repealed the 1995 Act and brought in The Rights of Persons with Disabilities Act, 2016 (for short, the 2016 Act). The said 2016 Act has been brought into existence to give effect to the United Nation Convention on the Rights of Persons with Disabilities and for matters connected therewith or incidental thereto. We think it appropriate to reproduce the preamble of the:-

"An Act to give effect to the United Nations Convention on the Rights of Persons with Disabilities and for matters connected therewith or incidental thereto.

WHEREAS the United Nations General Assembly adopted its Convention on the Rights of Persons with Disabilities on the 13th day of December, 2006;

AND WHEREAS the aforesaid Convention lays down the following principles for empowerment of persons with disabilities,

(a) respect for inherent dignity, individual autonomy including the freedom to make ones own choices, and independence of persons;

(b) non-discrimination;

(c) full and effective participation and inclusion in society;

(d) respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;

(e) equality of opportunity;

(f) accessibility;

(g) equality between men and women;

(h) respect for the evolving capacities of children with disabilities and resect for the right of children with disabilities to preserve their identities;

AND WHEREAS India is a signatory to the said Convention;

AND WHEREAS India ratified the said Convention on the 1st day of October, 2007;

AND WHEREAS it is considered necessary to implement the Convention aforesaid.

Be it enacted by Parliament in the Sixty-seventh Year of the Republic of India as follows:"

9. The 2016 Act visualizes a sea change and conceives of actualization of the benefits engrafted under the said Act. The whole grammar of benefit has been changed for the better, and responsibilities of many have been encompassed. In such a situation, it becomes obligatory to scan the anatomy of significant provisions of the and see that the same are implemented. The laudable policy inherent within the framework of the legislation should be implemented and not become a distant dream. Immediacy of action is the warrant.

10. We may note with profit that sub-section (2) of Section 1 of the 2016 Act stipulates that the said Act shall come into force on such date as the Government may, by notification in the Official Gazette, appoint.

11. Ms. V. Mohana, learned senior counsel appearing for the Union of India has filed the Gazette Notification issued by the Ministry of Social Justice and Empowerment dated 19th April, 2017, which provides as follows:-

"In exercise of the powers conferred by sub-section (2) of Section 1 of the Rights of Persons with Disabilities Act, 2016 (49 of 2016), the Central Government hereby appoints 19th day of April, 2017, as the date on which the said Act shall come into force."

Thus, the has come into force with effect from 19th April, 2017.

12. Sections 2(c), 2(h), 2(k), 2(m), 2(v) and 2(zb) define "barrier", "discrimination", Government establishment", "inclusive education", "private establishment" and "Special Employment Exchange" respectively. Ms. Manali Singhal, learned counsel appearing for the petitioner would submit that the preamble of the 2016 Act and the dictionary clause have expanded the horizon of the rights of the persons with disabilities.

13. In this context, Sections 2(p), 2(r) and 2(s) are worthy of reference. They read as under:-

"2(p) "local authority" means a Municipality or a Panchayat, as defined in clause (e) and clause (f) of article 243P of the Constitution; a Cantonment Board constituted under the Cantonments Act, 2006; and any other authority established under an Act of Parliament or a State Legislature to administer the civic affairs;

2(r) "person with benchmark disability" means a person with not less than forty per cent of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority;

2(s) "persons with disability" means a person with long-term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others."

14. Section 12 deals with access to justice. It reads as follows:-

"Access to justice

(1) The appropriate Government shall ensure that persons with disabilities are able to exercise the right to access any court, tribunal, authority, commission or any other body having judicial or quasi-judicial or investigative powers without discrimination on the basis of disability.

(2) The appropriate Government shall take steps to put in place suitable support measures for persons with disabilities specially those living outside family and those disabled requiring high support for exercising legal rights.

(3) The National Legal Services Authority and the State Legal Services Authorities constituted under the Legal Services Authorities Act, 1987 (39 of 1987) shall make provisions including reasonable accommodation to ensure that persons with disabilities have access to any scheme, programme, facility or service offered by them equally with others."

(4) The appropriate Government shall take steps to -

(a) ensure that all their public documents are in accessible formats;

(b) ensure that the filing departments, registry or any other office of records are supplied with necessary equipment to enable filing, storing and referring to the documents and evidence in accessible formats; and

(c) make available all necessary facilities and equipment to facilitate recording of testimonies, arguments or opinion given by persons with disabilities in their preferred language and means of communications."

15. Section 16(d) deals with the duty of educational institutions. Section 17 lays postulates for specific measures to promote and facilitate inclusive education. Section 18 deals with the adult education and provides that the appropriate government and the local authorities shall take measures to promote, protect and ensure participation of persons with disabilities in adult education and continuing education programmes equally with others. Section 19 deals with vocational training and self-employment.

16. Section 24 occurs in Chapter V, where the heading is social security, health, rehabilitation and recreation. Section 25 deals with health care. Section 31 deals with free education for children with benchmark disabilities. Section 32 which deals with reservation in higher educational institutions, reads as follows:-

"32. Reservation in higher educational institutions

(1) All Government institutions of higher education and other higher education institutions receiving aid from the Government shall reserve not less than five per cent. Seats for persons with benchmark disabilities.

(2) The persons with benchmark disabilities shall be given an upper age relaxation of five years for admission in institutions of higher education."

17. Section 33 deals with identification of posts for reservation and Section 34 provides for reservation. Section 35 dealt with incentives to employers in private sector. These provisions, being of significance, are reproduced below:-

"33. Identification of posts for reservation

The appropriate Government shall-

(i) identify posts in the establishments which can be held by respective category of persons with benchmark disabilities in respect of the vacancies reserved in accordance with the provisions of section 34;

(ii) constitute an expert committee with representation of persons with benchmark disabilities for identification of such posts; and

(iii) undertake periodic review of the identified posts at an interval not exceeding three years.

34. Reservation

(1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent. of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent. each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent. for persons with benchmark disabilities under clauses (d) and (e), namely:-

(a) blindness and low vision;

(b) deaf and hard of hearing;

(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;

(d) autism, intellectual disability, specific learning disability and mental illness;

(e) multiple disabilities from amongst persons under clauses ( a ) to ( d ) including deaf-blindness in the posts identified for each disabilities:

Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time:

Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section.

(2) Where in any recruitment year any vacancy cannot be filled up due to non- availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five 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 five categories with the prior approval of the appropriate Government.

(3) The appropriate Government may, by notification, provide for such relaxation of upper age limit for employment of persons with benchmark disability, as it thinks fit.

35. Incentives to employers in private sector

The appropriate Government and the local authorities shall, within the limit of their economic capacity and development, provide incentives to employer in private sector to ensure that at least five per cent of their work force is composed of persons with benchmark disability."

18. As is noticeable, under the 1995 Act, the Parliament had shown its concern and provided for reservation for many categories and this Court by various judgments had directed for implementation of the and some States have implemented the provisions to a certain extent.

19. We will be failing in our duty if we do not take note of Section 84 that makes provision for creation of special court for speedy trial to try the offences under the 2016 Act. Section 85 stipulates for appointment special public prosecutor. Thus, emphasis is on the special court, speedy trial and special public prosecutor.

20. Under Chapter XVI, offences and penalties have been dealt with. Section 89 provides for punishment for contravention of provisions of Act or rules or regulations made thereunder. The said Section reads as follows:-

"89. Punishment for contravention of provisions of Act or rules or regulations made thereunder

Any person who contravenes any of the provisions of this Act, or of any rule made thereunder shall for first contravention be punishable with fine which may extend to ten thousand rupees and for any subsequent contravention with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees."

21. Section 90 deals with offences by companies. It is extracted hereunder:-

"90. Offences by companies

Where an offence under this Act has been committed by a company, every person who at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. State Fund for persons with disabilities. Punishment for contravention of provisions of Act or rules or regulations made thereunder.

Explanation : For the purposes of this section,-

a) "company" means any body corporate and includes a firm or other association of individuals; and

(b) "director", in relation to a firm, means a partner in the firm."

22. Section 92 deals with punishment for offences of atrocities and Section 93 provides for punishment for failure to furnish information.

23. We have referred to certain provisions only to highlight that the 2016 Act has been enacted and it has many salient features. As we find, more rights have been conferred on the disabled persons and more categories have been added. That apart, access to justice, free education, role of local authorities, National fund and the State fund for persons with disabilities have been created. The 2016 Act is noticeably a sea change in the perception and requires a march forward look with regard to the persons with disabilities and the role of the States, local authorities, educational institutions and the companies. The statute operates in a broad spectrum and the stress is laid to protect the rights and provide punishment for their violation.

24. Regard being had to the change in core aspects, we think it apposite to direct all the States and the Union Territories to file compliance report keeping in view the provisions of the 2016 Act within twelve weeks hence. The States and the Union Territories must realize that under the 2016 Act their responsibilities have grown and they are required to actualize the purpose of the, for there is an accent on many a sphere with regard to the rights of the disabilities. When the law is so concerned for the disabled persons and makes provision, it is the obligation of the law executing authorities to give effect to the same in quite promptitude. The steps taken in this regard shall be concretely stated in the compliance report within the time stipulated. When we are directing the States, a duty is cast also on the States and its authorities to see that the statutory provisions that are enshrined and applicable to the cooperative societies, companies, firms, associations and establishments, institutions, are scrupulously followed. The State Governments shall take immediate steps to comply with the requirements of the 2016 Act and file the compliance report so that this Court can appreciate the progress made.

25. The compliance report to be filed by the States shall be supplied to the learned counsel for the petitioner, learned counsel for the Union of India as well as to the learned counsel for the applicant/intervenor so that they can assist the Court.

26. The Registry is directed to send a copy of the order passed today to the Chief Secretaries of the States and the Administrators of the Union Territories.

27. Let the matter be listed on 16th August, 2017.