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Archives for : Disability

I’m A Disabled Woman Who’s NOT Celebrating Meryl Streep’s Golden Globes Speech

flickr/Movies in LA

We must move beyond surface-level speeches, and engage in the very real fight ahead.

The Internet is in a tizzy over Meryl Streep’s Golden Globes speech, hailing her as a hero for taking on President-elect Donald Trump. Her words renewed the fury over Trump’s mocking of disabled reporter Serge Kovaleski — a fury that’s become an old, tired tale.

Well over a year after the mocking incident occurred, mainstream media and people around the globe continue to point to it as the number-one demonstration of Trump’s egregious character flaws. In fact, in August 2016, just a few months prior to the election, a Bloomberg poll indicated that out of all the appalling things Trump had said and done up to that point, his worst offense was imitating Kovaleski.

And now, here we are, just days away from inauguration, still fixating on this one instance of Trump’s behavior amid a laundry list of other abhorrent actions and statements, including lies, deception, threats to national security, racism, homophobia, xenophobia, misogyny…the list goes on. In no way does this detract from the fact that mocking someone with a disability is a clear moral failing, but why is it the one that so many people consider the worst?

The outrage over the mocking stems from a perception of disability that is stigmatizing in and of itself.

The outrage over the mocking stems from a perception of disability that is stigmatizing in and of itself: We’re a defenseless group, already leading pitiable lives. Never mind that Kovaleski is a successful, established reporter. Because of his disability, he’s viewed as an underdog. Streep’s speech directly played into this stigma, referring to Kovaleski as “someone [Trump] out-ranked in privilege, power, and the capacity to fight back.” Though that’s true in that Kovaleski is just a journalist while Trump is a wealthy President-elect with a major following and constant media coverage, it’s evident that Streep meant what she said in reference to Kovaleski’s disability. Kovaleski has now become a shallow symbol of disability, a poor guy being bullied, while the rest of his humanity is ignored.

People are praising Streep for her activism and her allyship in bringing up disability during her speech, and yet all she did was exactly the same thing the media has been doing for months: touching on disability at a surface level without ever moving beyond discussion of mocking Kovaleski to discussions of major disability rights issues.

This superficial discussion is completely unproductive, and it isn’t leading to meaningful progress in the fight against the discrimination and human rights violations that the disability community experiences every single day.

In the end, all Streep accomplished was eliciting a few defensive, insulting tweets from Trump that once again denied that he mocked the reporter. We’ve been here before. Anger over mocking Kovaleski, much like a lot of the anger directed at Trump, has become part of a cyclical argument that’s going nowhere.

This presidency is real. It’s happening. No amount of outrage over Trump’s mocking of disability prevented it from happening, and no amount of outrage is going to undo his election. And now, while non-disabled celebrities like Meryl Streep are getting kudos for trying to be the voice of the people by touching on an incident that has zero impact on policy, no real change is being made. It’s troubling, because the disability community is in need of major change. While most people are stuck on this one ableist incident of bullying, disabled people are out there advocating for issues that are literally a matter of life and death.

No amount of outrage over Trump’s mocking of disability prevented his presidency from happening, and no amount of outrage is going to undo his election.

As Trump’s presidency quickly approaches, disabled people are fearful that GOP efforts to repeal the Affordable Care Act will eliminate access to life-sustaining comprehensive health care and medications. We’re also worried about the Trump administration’s proposed changes to how Medicaid is financed, which will inevitably lead to cuts in services that disabled people rely on daily. Not to mention, we’re concerned about equal employment opportunities, accessibility, poverty, and incarceration, to name just a few critical issues.

We’re also advocating for inclusion in all areas of life, including the arts. Think about it: How incredibly sad that the only mention of disability at a Hollywood event was in reference to something Donald Trump did back in 2015. This lack of disability representation in mainstream media is a constant problem; it’s both a cause and effect of societal prejudices surrounding disability.

Why were there no visibly disabled people strolling down the red carpet or being awarded for their acting talents? When will the day after the Golden Globes become a time to celebrate someone with a disability winning an award for best actor or actress?

How incredibly sad that the only mention of disability at a Hollywood event was in reference to something Donald Trump did back in 2015.

Disability is still such a rarity in Hollywood, and in most cases, it comes up only when non-disabled actors portray the disability experience in overly-inspirational or pitiful ways (in movies like Me Before You or Million Dollar Baby). And so, here we are, celebrating Meryl Streep as progressive for putting old news about disability back into the spotlight for a fleeting moment, while in reality, we’ve still got so far to go.

I understand Streep was giving a speech at an awards show, not a policy forum, and that she was modeling how celebrities can use their platforms to spread important social justice messages. But it’s up to all of us — especially people like Streep, who are in positions of privilege and power — to move beyond the redundant discussion of Trump mocking a disabled reporter and dig deeper into disability issues.

It’s time to recognize that the Trump administration is imminent, sound the alarm, and fight harder than ever to protect and defend the rights of the disability community.https://theestablishment.co/im-a-disabled-woman-who-s-not-celebrating-meryl-streep-s-golden-globes-speech-8d67173122e7#.wleg1daqv

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Chhattisgarh – Darkness falls: thousands go blind, no relief in sight #WTFnew

Darkness falls: thousands go blind in Chhattisgarh

Malik/Catch News

Chhattisgarh‘s region of Janjgir-Champa has long been famous for paddy cultivation. It is now also emerging as state’s power hub with several power plants coming up in the area during the recent years.

While fuelling economic growth of the resource-rich state and giving employment to hundreds of impoverished Adivasis, these electricity projects are also turning many local residents blind. Thousands of people are suffering from cataract due to dust and ash emitted from the power plants.

Yet the district hospital does not have even a single eye surgeon for the past 14 months. Dr A L Korram was the last eye specialist to serve at this hospital.

It is common knowledge that 90% of cataract patients can be treated if provided right treatment on time.

A survey conducted by the state health department reveal only a few cataract operations have been carried out in Janjgir-Champa region during the past four years. Meanwhile, the disease has reached its last stage in over 5,000 patients for the want of treatment. The only way to prevent their eyes from going dark is to ensure that an operation is done as soon as possible.

“90% of cataract patients can be treated if provided right treatment on time “

Kunwar Bai (65) is one such patient. She has spent her life living below the poverty line. At the dusk of her life, she desperately needs a cataract operation. However, the government hospital does not have a doctor that could cure her and going to a private hospital is beyond her means.

This leaves Kunwar Bai with only one option; to wait for her eyes to completely turn blind. Many young people working in power plants are facing the same predicament.

“The number of eye patients is increasing due to ash and dust emitted from chimneys of power plants. Every year, around 1.6% people of Janjgir-Champa district are turning blind. People living near industrial areas are the worst sufferers. Areas like Malkharauda, Dabhra, Pamgarh, Bamhanidih are most affected by this pollution, says Dr Prabir Chatterjee, who works with the Chhattisgarh State Health Resource Centre.

THE EYE CAMP BAN

According to district’s Chief Medical Officer (CMO) Dr V Jaiprakash, five letters have been sent to the administration during the past 14 months asking for the appointment of an eye surgeon at the district hospital. But, there has been no action so far.

The ongoing ban over government eye camps is only aggravating the situation. These camps were discontinued after several cases of negligence came to light during 2012 to 2015. Around 60 patients completely lost their eyesight during this period due to mistreatment in these camps. The official blames lack of facilities and dereliction of duty on the part of the doctors for these figures.

“Eye camps were banned in the state after 60 people lost their eyesight due to mistreatment”

Most numbers of such cases were recorded in Durg district‘s Balod and Dhamtari region’s Bagbahra. The state government had to face the ire of the people due to these eye camps. It responded by scrapping these camps altogether. There is no doubt that eye camps could have saved many patients from blindness in Janjgir-Champa.

“Any eye patient will now only be treated at a regular hospital equipped with proper facilities for eye operations,” claims Dr Subhash Mishra, the state in charge of the National Programme for Control of Blindness.

“We have received instructions from the central government for qualitative eye surgeries,” Dr Mishra adds. Interestingly, the government never shies away from issuing such guidelines. Yet, it takes no measures for the appointment of doctors for the same purpose.

A POOR RECORD

Chhattisgarh is already at the bottom of the list of states with the most number of eye diseases. The state fares at a poor 20th spot in terms of eye donation. The data released by the state health department reveals only 83 people have donated their eyes during the past one year. Chhattisgarh is also lagging in the target of providing free spectacles for the school children.

The government had aimed to distribute free spectacles to 21,070 children in 2016. However, only 7,202 could get this benefit during this period. Similarly, there are no special units for eye operations in the government hospitals of Bijapur, Sukma, Surajpur, Balrampur, Baloda Bazar and Mungeli.

http://www.catchnews.com/india-news/darkness-falls-thousands-go-blind-in-chhattisgarh-no-relief-in-sight-1482151308.html?pg=2

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Disability activists submit Memorandum demanding amendments in Draft Bill

 

 

 

 

Representational Pic

Representational Pic

A delegation of representatives of disability rights organisations that held a meeting at Jantar Mantar today met the Union Minister for Social Justice & Empowerment, Shri Thawar Chand Gehlot and submitted the following memorandum, highlighting certain concerns that are yet to be addressed or have not been addressed properly by the official amendments proposed to be moved on the Rights of Persons with Disabilities Bill, 2014.

 

The Minister assured to look into the specific suggestions that had been made.

 

Those who went to meet the minister are Shri S K Rungta, Secretary of the National Federation of the Blind, Shri Kanti Ganguly, General Secretary of the National Platform for the Rights of the Disabled and Ms. Seema Baquer from The Leprosy Mission Trust of India.

 

Text of Memorandum

 

Shri Thawar Chand Gehlot

Minister for Social Justice & Empowerment

Government of India

 

Dear Shri Gehlot ji,

 

At the outset we would like to express our thanks to you for ensuring that many of the concerns expressed by the disability sector with regard to the inadequacies in the Rights of Persons have been addressed in the official amendments proposed to be moved in the Rajya Sabha.

 

However, there are certain concerns which have not been addressed or have been addressed inadequately to which we would like to draw your attention.

1.    One of the major concerns that disability rights organisations had was with regard to the Section 3(3) of the 2014 Bill which states that “No person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is appropriate to achieve a legitimate aim.” This clause we had opined gives unfettered power to the implementing authorities to discriminate against persons with disabilities, on the pretext of serving a “legitimate aim”. The amendment proposed to this section, which replaces “appropriate to achieve a legitimate aim” with “a proportionate means of achieving” does not alter the provision in any manner.

 

We would strongly recommend that the proviso to section 3(3) be deleted.

 

2.    We would request you to restore the provision of 5 per cent reservation in higher educational institutions and employment as provided for in the Bill. With the ambit of the categories covered having increased, if atleast a percentage that looks proportionate is not provided for, the number of actual beneficiaries will get limited. Moreover, as you will appreciate, for the disabled the major avenue of employment is the government sector.

 

We would therefore recommend that the provision of 5 per cent reservation as given in the Bill be restored.

 

3.    There is some ambiguity with regard to the amendment suggested to Section 33 (1). It is stated that “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 percent each shall be reserved for persons with benchmark disabilities under ……….”

 

You will appreciate that the provision in the 1995 Act of reservation against identified posts were misinterpreted to read as though reservations were applicable only to identified posts. We apprehend the same fate if the provisio that “total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities” is kept.

 

 

4.    We also find that an amendment proposes that in Section 33 (1) (b) instead of “hearing impairment and speech impairment”, “deaf and hard of hearing” is being introduced.

 

We feel that the original proposal should be maintained.

 

5.    We are also not in agreement with the proposed amendment to do away with the provision of a National Commission for Persons with Disabilities as well as State Commissions.

 

We recommend that these provisions should continue to be in the Bill.

 

6.    Also with regard to reservation in promotions, the proposed amendment restricts reservations in promotions to “instructions issued by the appropriate government from time to time.”

 

The amendment should be in tune with the Supreme Court judgement on the issue.

 

7.    About grant of full legal capacity to persons with disabilities the amendments talk of granting total support and limited guardianship in the same breadth. This is in contravention of the provisions of UNCRPD. Schemes and policies for providing support should be ensured.

 

We therefore request you to seriously consider these concerns raised by us and move necessary official amendments to strengthen the Bill further.

 

With regards,

 

Signatory Organisations:

 

1.                National Platform for the Rights of the Disabled

2.                National Federation of the Blind

3.                All India Federation of Deaf

4.                National Association of the Blind

5.                Rashtriya Viklang Manch

6.                Federation of Disability Rights

7.                Parivar- National Confederation of Parents Organisations of PwIDDs

8.                Human Rights Law Network

9.                Disabled Employees Association of Railways

10.          Northern Railway Physically Handicapped Employees Association

11.          Sense International

12.          CREA

13.          Families Alliance on Mental Illness, National Network 

14.          The Leprosy Mission Trust of India

15. Disabled Helpline

 

 

Contact address: 36, Pt. Ravishankar Shukla Lane, New Delhi

Tel. 9868768543 (Muralidharan); 9312607540 (SK Rungta)

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Burden of birth: Where a pregnancy costs a mother her life #Vaw

  • Sanchita Sharma, Shivpuri & Sheopur, Madhya Pradesh
  • |

Banbari Adivasi’s unnamed granddaughter died of severe malnutrition after mother Jasoda, 19, died at childbirth. “When her mother died, there was no one to feed her,” says Adivasi, 42. (Virendra Singh Gosain/Hindustan Times)

Earlier this month, Banbari Adivasi’s unnamed granddaughter died of severe malnutrition, starving for days after her 19-year-old mother, Jasoda, died at childbirth.

“My son Sajjan works as a labourer in Rajasthan and after his wife’s death, went back and left the baby girl with us,” said Banbari, a 42-year-old resident of Shivpuri in northern Madhya Pradesh’s rural hinterlands. He has tuberculosis and is too ill to continue working as a labourer.

As his wife Ramkumari, 35, now supports the family by going to the forest to forage for fruits, roots and honey to sell, Banbari’s job is to stay home with his five other children and newborn grandchild. “When her mother died, there was no one to feed her.”

In desperation, Banbari even considered giving away the little baby to another family, but then she fell ill. “I tried, but I did not know how to look after the baby,” he says. Admitting the baby to the SNCU (special new born care unit) at the district hospital in Shivpuri could not save her life.

Jasoda and her daughter aren’t the only ones. Each year, 55,000 women die in India from preventable pregnancy-related causes. In most cases, infections and disease are compounded by chronic hunger and malnutrition – and a lack of access to affordable pre-birth healthcare services because of corruption or caste bias.

 

The maternal mortality rate (MMR) — deaths per 100,000 live births — fell from 212 in 2007 to 167 in 2013 but too many women are dying still.

And as the maternal death rates remain the highest in the populous states of Assam, Bihar, Madhya Pradesh, Odisha, Rajasthan and Uttar Pradesh, the total number of women dying is also high.

To tackle this, Prime Minister Narendra Modi launched the Pradhan Mantri Surakshit Matritva Abhiyan two weeks ago to provide free antenatal – before childbirth – care to pregnant women on the 9th of every month at government health centres and hospitals across India’s 687 districts.

Building on the National Health Mission’s flagship Janani Suraksha Yojana (JSY), all pregnant women must be given a physical and abdominal examination, a tetanus shot and 100 iron-folic acid tablets.

They must also be tested for anaemia, high blood pressure, high blood sugar (gestational diabetes) and other problems linked with pregnancy to lower India’s MMR and infant mortality rate (deaths of children under five years of age per 1,000 live births).

Motherless child

Women in the lowest socio-economic sections in India are two-and-a-half times more likely to die of childbirth, largely because they don’t get the medical support they need to deliver a healthy baby. Jasoda’s death is a case in point.

“Maternal deaths are not just about a woman dying, it also adversely affects the health of newborn and surviving children, who get trapped in a vicious cycle of malnutrition, stunting and wasting,” says Ajay Yadav, founder of the NGO Badlav (Change), who has been working on health and nutrition in Madhya Pradesh.

Incomplete antental care also lowers the chances of the mother’s and child’s survival. Malti Adivasi, 19, wife of Ram Lakhan, 25, lost her nine-month-old daughter Lakshmi to malnutrition earlier this year. She had delivered in a hospital but was not given iron-and-folic acid tablets or advice on feeding her baby after delivery. Lakshmi was given the BCG vaccine against tuberculosis and polio vaccine at birth, after which she got no vaccinations.

“Malnutrition begins after six months when the baby needs additional nutrition, which the mother is not able to provide. That’s when weight drops and wasting sets in, making the baby susceptible to infections such as pneumonia and diarrhoea,” said Pramod Tiwari from the Manav Foundation, Sheopur.

State of care

Frequent infections aggravate chronic hunger with most severe acute malnutrition deaths taking place between nine months and five years.

Apart from saving mothers, antenatal care and institutional deliveries boost chances of newborn survival. The mother gets a tetanus toxoid shot to lower risk of infection during delivery, iron and folic acid to boost blood haemoglobin levels, and nutritional advice on feeding the newborn within the first hour of birth.

Breast milk contains all the nutrients a baby needs in the first six months of life and nursing a newborn within one hour of birth delivers highly nutritious colostrum (first milk) that protects against common childhood infections such as diarrhoea and pneumonia and boosts mental and physical development.

Under the JSY, all services for the mother and her newborn are free and incentives are given to families to opt for institutional deliveries, yet corruption and apathy in the public health system make the poor hesitant in accepting services.

“Hospital staff sometimes demand a bribe up to Rs 500 for a delivery because they know mothers get Rs 1,400 for an institutional delivery. But since that money is transferred directly to the parents’ bank account, villagers have no money to give hospital and clinic and so they opt for home deliveries,” says Yadav.

“Caste plays a role in the exclusion from health services, with marginalised tribes like the Saharias losing out both nutritionally, socially and economically,” says Yadav. “Unless delivery becomes inclusive, children will continue to be orphaned.”

Case study: Halki Adivasi, 25

Halki Adivasi delivered a baby boy last month and grieved for her 18-month-old baby girl Parvati three weeks later.

Three of her six children died between the ages of six months and one year over the past five years and now she lives in her one-room mud and thatch hut with her newborn, her husband Vishnu, 30, and two surviving children, son Radhay Shyam,8, and daughter Anjani, 7.

Halki’s baby boy Anand was born at home at 2 am but the umbilical cord was cut eight hours later because her husband Vishnu Adivasi, 30, could not get a midwife. She has three babies and has lost another three to malnutrition in Bhairopura village in Madhya Pradesh’s Shivpuri district. (Virendra Singh Gosain/Hindustan Times)

The family is clueless about what killed their children. “They fell ill and died,” is all he knows.

None of the children have ever been vaccinated, including her month-old son Anand.

Since no government health worker has ever visited their home, Halki missed all three of the antenatal screening benefits she is supposed to get free under the Janani Suraksha Yojana (JSY) for mother and newborn health.

Halki delivered at home at 2am “the day before dushherra” and lay with her baby with the umbilical cord attached all night till a birthing assistant reached her the next morning at 11 am and cut the cord.

“I went looking for a midwife at night but she couldn’t come till the next morning, so we had to wait,” said her husband Vishnu Adivasi, 30, who works as a daily labourer.

Like it happened to many other women living in Bhairopura village in Madhya Pradesh’s Shivpuri district, Halki’s pregnancy slipped between the cracks and she did not get iron and folic acid supplementation and tetanus toxoid vaccination. The family will also not get the Rs 1,400 given to every mother who delivers in a government institution.http://www.hindustantimes.com/india-news/burden-of-birth-where-a-pregnancy-cost-a-mother-her-life/story-sCN3g6P12U8Pm7g1kvtj5O.html

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Disability activists demand Govt’s Clear Stand on RPD Bill

 

The Rights of Persons with Disabilities Bill – RPD Bill  was disabilityintroduced in the Rajya Sabha in February 2014 was sent to the Department Related Standing Committee, which submitted its report and recommendations in May 2015.

 

It is regrettable that even after the passage of eighteen months the government is still to spell out its stand with regard to various concerns about the Bill that disability rights organisations have raised; the recommendations of the Standing Committee and the action that it proposes to take. This is inexplicable. In its absence, disability rights organisations are unable to frame their response.

 

A countrywide campaign has been launched by national level disability organisations centering around the demand that the government should make public its stand with regard to the Bill and the amendments it proposes to make through an Action Taken Report. It should be taken up in the forthcoming Winter Session of Parliament for discussion.

 

  • As part of this campaign, representatives of these organisations would be meeting Members of Parliament urging them to raise the issue in parliament and exert pressure on the government.
  • Demonstrations will be held in all state capitals on November 21.
  • Coinciding with World Disability Day, on December 3, 2016, thousands of disabled persons will rally in Delhi for a huge demonstration before parliament.

 

 

  1. National Platform for the Rights of the Disabled
  2. National Federation of the Blind
  3. All India Federation of Deaf

 

 

  1. National Association of the Blind
  2. Rashtriya Viklang Manch
  3. Parivar- National Confederation of Parents Organisations of PwIDDs
  4. Human Rights Law Network
  5. Federation of Disability Rights
  6. Disabled Employees Association of Railways
  7. Sense International
  8. The Leprosy Mission Trust of India
  9. CREA
  10. JNU Visually Challenged Students Forum
  11. Yes We Can
  12. Delhi Viklang Adhikar Manch

 

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Women of Fukushima Invite Modi: Come and See the Destruction, Don’t Buy Nukes From Japan!

Message from Lalita Ramdas
Coalition for Nuclear Disarmament and Peace


Dear friends,I have just read this deeply moving and passionate appeal written by the women of Fukushima, clearly calling the attention of the world, especially the people of Asia, and particularly our Prime Minister as he prepares to visit Japan later this week, and according to media reports, sign the India-Japan Nuclear Agreement.

I was in Fukushima earlier this year. It was one of the most educative experiences of my life. We visited shattered homes and families, were witness to miles of devastated landscape, thousands and thousands of black bags containing radioactive materials where there should have been fields and crops. I met and spoke to many of the women who have signed on to this letter ……women and mothers deeply impacted and anxious on behalf of the kind of future this scenario offers for their children and grandchildren.

As the women who wrote this letter urge, before our Prime Minister signs the nuclear deal with Japan, he also needs to see this reality, to talk with the people who are still suffering from the devastation and see the human and economic costs of the accident at the Fukushima Daiichi nuclear power plant in 2011, in order to understand exactly what could happen to his own people if he moves ahead with his nuclear program.

The message from the people of Fukushima is powerful, one which none of us, especially our government, can afford to ignore. I hope that the Indian media publicizes it widely.

Yours Sincerely,

Lalita Ramdas

Indian PM Narendra Modi will visit Japan from 10-12 November, 2016. Civil society organisations of Japan have launched this petition to oppose the India-Japan Nuclear Agreement which the two governments are supposed to finalise during this visit. More than 1900 people have signed it already.Please sign and share widely

To the Honorable Prime Minister Narendra Modi,

We are women living in Fukushima prefecture, where a massive accident unparalleled in history occurred on March 11, 2011, at Tokyo Electric Power Company’s Fukushima Daiichi Nuclear Power Station.

As a result of this accident our lives changed dramatically. Among us, there are those who lost their homes, those who lost their jobs, those who lost their hometowns and friends, those who lost their future, those who lost their joy in life, and those who lost their very lives. All of this was taken by the nuclear accident.

no-to-india-japan-agreement

Even now, some five and a half years after this accident, the accident is still unresolved. We live surrounded by radioactive debris which emanated from the reactor. Even as our government pushes us to return to our homelands, many people think of their children’s health, and they feel that they cannot return to their original homes. At the current stage, in Fukushima prefecture alone, some 174 children have been found to have contracted thyroid cancer. We are deeply worried about the wide-ranging health hazards that will appear in the years to come.

Presently court proceedings to determine legal responsibility for the nuclear accident itself have not yet been opened, and the accident’s cause, the question of human error, the question of whether the accident was handled appropriately, have not yet been clarified. Now, the problem of restarting nuclear power plants across Japan has surfaced, and battles are being fought through the courts to keep these plants from restarting. As with Takahama Nuclear Power Station, some nuclear plants’ operation has been suspended.

Under these circumstances, the fact that Japan is attempting to sell nuclear power plants to other countries, is embarrassing and most unfortunate. When we consider that a similar type accident might happen at one of India’s nuclear power plants, we are filled with concern. That is, as women who experienced firsthand the suffering that the Fukushima accident has brought, we do not wish anyone in the world to have the same experience we did.

Mr. Modi, we would like to invite you to visit Fukushima and see its condition firsthand. The destroyed reactor, the towns where people can no longer live that have become like abandoned towns, the mountains of radioactive rubble, the towering incinerators, and children who can no longer play freely outside. After you have seen the reality of Fukushima, then we urge you to think carefully about the nuclear cooperation agreement.Nuclear power plants will not bring happiness to your citizens. We who experienced the injury of the nuclear accident, we came to understand this through our own bodies and lives.

Mr. Modi, for the Indian people and the future of India, please do not sign the India-Japan Nuclear Cooperation Agreement. We beseech you to make a wise judgment.

Fukushima Women Against Nukes
Fukushima Women Against Nukes is a network of women that started in September 2012, using various direct actions such as sit-ins, demonstrations as well as petitioning TEPCO and others to demand justice for everything that the Fukushima Daiichi disaster has taken away from them. They are also strongly opposed to restarting any of Japan’s nuclear reactors and are working for a nuclear free world (website: http://onna100nin.seesaa.net)

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Delhi HC Highlights Deficiencies In Persons With Disabilities (PWD) Act , Suggests Reforms

“Study the problems which have resulted in total exclusion and denial of persons suffering from mental illness the benefits of reservation under Section 33 of the PWD Act and also determine if the threshold of 40% under the PWD Act needs revision based on which an appropriate law could be made, or existing law amended”, said Justice Ravindra Bhat.

A Division Bench of Delhi High Court comprising Justices S. Ravindra Bhat and Deepa Sharma on Thursday highlighted deficiencies in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act 1995, and suggested reforms to the same.

Justice S. Ravindra Bhat noted such deficiencies in the provisions relating to providing reservations as well as with the common minimum threshold of 40% disability. “Whilst it is within executive domain to categorize which post can be suitable for what kind of person or persons with disability, the absolute minimum threshold of 40% in the case of certain kinds of disabilities could be the barrier – unwitting though the case may be, and eliminate from the post identification exercise persons with such disabilities altogether. This clearly has a discriminatory result, and an indirect discriminatory effect,” the Court observed.
It however, noted that it was incapable of providing judicial redress or severe the provisions. “What the court can and proposes, is to direct the respondent and the Central Government to, with the aid of appropriate subject experts in mental illness and disorders, study the problems which have resulted in total exclusion and denial of persons suffering from mental illness the benefits of reservation under Section 33 of the PWD Act and also determine if the threshold of 40% under the PWD Act needs revision based on which an appropriate law could be made, or existing law amended,” the Court concluded.
The appellant, Mr. Jadhav Vishwas Haridas had lived with acute phases of mental illness since 1996-97 until 2006. He was therefore a “person with mental impairment/disability” within the meaning of the PWD Act. In terms of the IDEA scale, the disability suffered by him was above 40%, rendering him ineligible to receive benefits in terms of reservation in employment and education.
He claimed that due to his illness, he could not be successful in employment (Central Civil Service) exams, despite appearing for the examination seven times. Post 2006, when his condition improved, he found no assistance to compensate for the time lost in combating the mental illness.
He had now challenged a Single Judge order dismissing his challenge to Section 33 of the PWD Act. Section 33 only lists i) blindness or low vision, ii) Hearing impairment and iii) Locomotor disability or cerebral palsy as the disabilities for which at least one per cent vacancies must be reserved.
Mr. Jadhav had demanded that the provision be declared unconstitutional to the extent that it excludes persons with mental illness for the purpose of job reservations. He had also brought to the notice of the Court that there was no compensatory mechanism, in terms of time lost while fighting the disability and inter alia sought other consequential reliefs. His petition was however rejected, ruling that no statutory or constitutional right of his was violated.
Responding to the challenge, the State had argued that the relief sought by the petitioner was already the subject matter of a pending legislation before the Parliament. The Single Judge had accepted these contentions and observed that the Court was not empowered to lay out a time schedule for enactment of a law or making changes in existing legislation.

While the High Court agreed with the Single Judge’s conclusions, it did not approve of the plea’s disposal without considering other reliefs demanded by the petitioner.
During the hearing, the Court noted that the Respondents were unable to shed any light on the reason for exclusion of those suffering from mental illness from the list of reserved categories entitled to reservations.
It thereafter opined that a 40% disability test to provide reservations in employment may be impracticable. “Hence it is the opinion of this Court that in a country where 26,810,557 individuals suffer from different disabilities, a one size fit all model might not be the most efficient. That 40% on the IDEA scale makes individuals more or less employable cannot be held ideal. The legislature may consider to create a model where individuals suffering from different disabilities may be recognized and given benefits in terms of education, employment, health etc. which are suitable to their individual condition. The benchmarking through the IDEA scale may have to vary depending on different disabilities,” it observed.
With regard to the penalty of bar from appearing in public employment, the Court was of the opinion that the Central Administrative Tribunal (CAT) may consider in its discretion the proportionality of such imposition having regard to all the facts of the case.

livelaw.in/delhi-hc-highlights-deficiencies-persons-disabilities-pwd-act-suggests-reforms/

Read the Judgment here.

IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 03.05.2016 Pronounced on: 27.10.2016

LPA 222/2013, C.M. APPL.6087-6089/2013, 12337/2013 & 3344/2014

JADHAV VISHWAS HARIDAS …………Appellant 

Through: Ms. Meenakshi Arora, Sr. Advocate with Sh. M.G. Kapoor, Sh. Raj Patil and Ms. Aditi Deshpande, Advocates.

Versus

 

UNION PUBLIC SERVICE COMMISSION AND ORS ……..Respondents 

Through: Sh. Naresh Kaushik, Advocate, for UPSC. Sh. Ajay Digpaul, CGSC with Ms. Mohita, Advocate, for UOI.

CORAM: HON’BLE MR. JUSTICE S. RAVINDRA BHAT HON’BLE MS. JUSTICE DEEPA SHARMA 

  1. JUSTICE S. RAVINDRA BHAT
  1. The appellant, in this Letters Patent Appeal is aggrieved by the judgment of a learned Single Judge, dismissing his petition W.P.(C)447/2013 under Article 226 of the Constitution of India wherein a challenge was laid to Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act 1995 (“PWD Act”) as being unconstitutional to the extent that it excludes persons with mental illness for the purpose of job reservations. It was also challenged that there was no compensatory mechanism – in terms of time lost while fighting the disability and inter alia sought other consequential reliefs. The impugned judgment rejected the writ petition holding that no statutory or constitutional right of the petitioner was violated.

The facts

  1. The Appellant has lived with acute phases of mental illness [psychiatric disorder i.e. a severe depression with obsessive-compulsive disorder (OCD)] since 1996-97 until 2006; he belongs to a notified other backward class (“OBC”). Therefore, he was a “person with mental impairment/disability” within the meaning of the PWD Act. In terms of the IDEA scale, the disability suffered by the Appellant over the years was above 40% rendering him ineligible to receive benefits in terms of reservation in employment and education. He claims that due to his mental illness, he wasted several years of his life in the attempt to excel in employment (Central Civil Service) exams. He had appeared seven times (the maximum attempts an OBC candidate is allowed) in the combined Civil Services Examination but had failed on each occasion. Post 2006 when his condition improved he found no assistance to compensate for the time lost in combating the mental illness; more so, he was unable to attempt the examination again through the “Physically Disabled” (PD) quota. He consequently urges that if the PWD Act is not amended to include reservations in government jobs for similarly situated individuals as him, i.e. those who suffer mental illness, it would be arbitrary and discriminatory.
  1. Despite his disability, the Appellant claims that he prepared and appeared for the civil services exams in 2004, 2005, 2006 and 2007. Though he qualified in the preliminary examination, he was unable to clear the mains examination. In 2008, he cleared the mains examination but was not called for training since he stood lower in the OBC merit (he scored 1110/2300). He contends that had he been allowed to appear from the Physically Disabled Category, he would have been selected as he had scored far above the last candidate selected from the Physically Disabled Category (991/2300). In his final attempt the appellant obtained 875/2000 whereas the last candidate in the physical disability category scored only 723/2000. In 2011 when the appellant attempted to register for the Civil Services Exam, his form was rejected stating “Already availed maximum number of chances available to your category/(illegible) entry.”
  1. The Appellant claims that he visited Delhi and informed the Union Public Service Commission (UPSC) about his disability through his representation dated 15.04.2011 and requested for consideration of his candidature as a person with disability and grant him the benefit of additional attempts that he lost due to his mental illness. However, no such relief was provided. It is argued that the PWD Act mentions “mental illness” as a disability under Section 2(i) but provides no rehabilitation or benefits in terms of age relaxation/reservations in jobs (thereby denying persons similarly situated as him) a level playing field and equal opportunities. Further, the appellant states that Section 33 of the PWD Act which directs the Government to reserve in every establishment, a percentage of vacancies for persons with disabilities does not extend such reservation to those rehabilitated after mental illness. Section 33 only lists i) blindness or low vision, ii) Hearing impairment and iii) Locomotor disability or cerebral palsy as the disabilities for which at least one per cent vacancies must be reserved.
  1. The petitioner, had, before the learned Single Judge admitted that, pursuant to being a signatory to an international convention, an amendment to the PWD Act was pending before the Parliament; this amendment seeks to include persons with mental disabilities the benefit of reservation in employment. Counsel for the respondents argued before the learned Single Judge that when the relief sought by the petitioner is already a subject matter of a pending legislation before the Parliament, the Court could not grant such relief only on the basis of an international treaty considering that various administrative actions would be required like identification of jobs/ areas etc before the passing of an act giving effect to such international treaty.
  1. The learned Single Judge, agreeing with the counsel for respondents held that once the entitlement the petitioner seeks, is the subject matter of a pending legislation- where the intent of such legislation is to give effect to an international treaty, then the Court cannot direct employment purely on the basis of the international treaty. The learned Single Judge dismissed the petition by stating that it was not in the jurisdiction of the Court to lay out a time schedule for enactment of a law or making changes in existing legislation, by the concerned legislature and hence no statutory or constitutional right of the petitioner was violated.
  1. Ms. Meenakshi Arora, learned senior counsel for the appellant, urges that the impugned judgment is unsustainable. It is argued that the question of constitutionality of a provision is independent of whether amendment of legislation is proposed or not. It was argued that once Parliament had classified four broad heads of disability and defined the threshold limit for the purpose of disability, the question of further classification for the purposes of reservation in public employment did not arise. Counsel stresses that the petitioner admittedly fell within the category of disabled person. However, the further threshold that such individuals had to have a minimum percentage of the specified disability, and more crucially, the category of disability (though applicable uniformly) also has a discriminatory effect. It is urged that the two levels of over classification, i.e firstly confining state employment reservation only to two categories and denying to other categories, especially those with mental disabilities and further prescribing a minimum threshold has the effect of completely eliminating those with mental disabilities. Having once classified those with mental disabilities as persons with disabilities, the denial of employment reservation and prescription of minimum level of disability in their case, is discriminatory. It is argued that Section 33 of the PWD Act, to the extent it denies person with mental illness reservation in the employment is void and has to be suitably read down.
  1. It is argued that the object of the PWD Act was to ensure not only equality and elimination of barriers that disabled persons face, but also to see that they live independent lives with dignity in accordance with their choice. Various benefits are mandated, including educational provisions, measures to remove physical barriers to access to buildings and public spaces, provision of special amenities such as toilets, etc. Counsel contended that the inaction of the respondents in bringing the PWD Act in line with the Convention on the Right of Persons with Disabilities (2006) should not result in discrimination against those who fulfil the disability criteria but are denied the benefit of reservation.
  1. Learned senior counsel, relied on Union of India and Another Vs. National Federation of the Blind & Ors (2013) 10 SCC 772 to argue that all kinds of disabilities are to be reckoned for the purpose of providing reservation in public employment. The further restrictive approach adopted by the respondents, in limiting reservations in employment to only three categories, i.e locomotor disability, hearing disability and vision impaired individuals, is a hyper classification which is contrary to both Articles 14 and 16 of the Constitution of India.
  1. Mr. Naresh Kaushik, learned counsel appearing for the UPSC, argues that the claim in the present proceeding emanated out of a demand that reservation to those other than the three categories specified by the PWD Act should be provided. It was submitted that there is well-settled authority for the proposition that Parliament cannot be directed to make legislation; the task of the court is to see whether enacted law is contrary to any known constitutional principles. It was secondly argued that Parliament was cognizant of India’s obligations under the international conventions and treaties to which it was a party; precisely for that reason, the PWD Act was brought into force. Therefore, the Act cannot be faulted for not having provided something, which is to the petitioner/appellant’s liking, or not providing something, which is of use to him.
  1. The respondents further submitted that the appellant had availed of seven chances; in none of them did he mention that he was a disabled candidate. His explanation that the kind or category of disability was not provided for in the form made available to the candidates, for that purpose, is of no avail. Furthermore, the petitioner cannot say that he could not avail the requisite chances because as an OBC candidate, he did avail more chances than were available to open category candidates. Having so benefitted, he cannot complain that in a given examination, some PWD quota candidate secured less marks or percentage than him and was nevertheless provided employment in the quota made available to him or her. It is further submitted that the petitioner cannot seek relief in respect of the matter for which he has approached the Central Administrative Tribunal, i.e the debarment from exam for a tenure, given the non-disclosure of material facts in his form.

Analysis and Findings

  1. Article 1 of the Universal Declaration of Human Rights proclaims that “all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” Resolution 3447 (XXX) of the General Assembly of the United Nations dated 9th December 1975, entitled “Declaration on the Rights of Disabled Persons” recognized the need for special provisions for the empowerment of disabled persons and ensure dignity to them. The proclamation on the Full Participation and Equality of People with Disabilities in the Asia and Pacific Region, at Beijing [hereafter “Beijing Proclamation”], to which India was a party, was adopted on 1-5 th December, 1992. The Economic and Social Commission for Asia and the Pacific Region is the next important watershed moment in the move to extend equality and dignity as well as to ensure full participation of persons with disabilities in all walks of life. The PWD Act was enacted as an instance of legislative intervention to secure and achieve the goals pledged in the Proclamation.
  1. The Single Judge’s conclusions that the Court cannot direct Parliament or a legislature to amend the law, or enact a new law, are unexceptionable. Yet the writ petition, in this Court’s opinion, could not have been disposed off only with respect to claim/relief (a), given that reliefs, i.e. directions to the respondents to make “reasonable accommodation” in the light of provisions of UNCRDP and a further direction to increase the number of attempts available to persons with disabilities, were sought in the alternative.
  1. Undoubtedly, till Parliament enacts a law and gives effect to a treaty, its provisions cannot have application per se – this much is clear from Article 253 of the Constitution of India and the judgment of the Supreme Court in Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd. 2008 (13) SCC 30. However, the relief claimed in this case had, in this Court’s opinion, some roots in enacted and existing law – especially Section 32 of the PWD Act. It is, therefore, essential to consider the appellant’s contentions regarding violation of Article 14 of the Constitution of India and whether any other alternative relief should be given.
  1. Since, in this case, the provisions of the PWD Act are in question, it would be useful to extract some of them. They are as below:

(1) Disability is defined by the Act under Section 2 (i) as
“Disability” means 

“Disability” means 

  1. i) blindness; 
  2. ii) low vision; 

iii) leprosy-cured; 

  1. iv) hearing impairment; 
  2. v) locomotor disability; 
  3. vi) mental retardation; 

vii) mental illness;” 

(2) Section 2(j) defines employer: 

“employer” means,- 

  1. i) in relation to a Government, the authority notified by the Head of the Department in this behalf or where no such authority is notified, the Head of the Department; and 
  2. ii) in relation to an establishment, the Chief Executive Officer of that establishment;” 

(3) Under Section 2 (k) an establishment is defined as follows: 

“establishment” means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956) and includes Departments of a Government;” 

(4) Mental illness is defined as follows: 

“(q) “Mental illness” means any mental disorder other than mental retardation” 

(5) Mental retardation has been defined in the following terms: 

“(r) “Mental retardation” means a condition of arrested or incomplete development of mind of a person which is specially characterized by sub normality of intelligence;” 

(6) A person with disability is defined by the Act in the following terms: 

“(t) “person with disability‟ means a person suffering from not less than forty per cent of any disability as certified by a medical authority” 

(7) Chapter VI of the Act deals with the employment of persons with disabilities. The relevant Sections of the said Chapter are as under:- 

“32. Identification of posts which can be reserved for persons with disabilities. – Appropriate Governments shall- 

(a) identify posts, in the establishments, which can be reserved for the persons with disability; 

(b) 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. 

  1. 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- 

(i) blindness or low vision; 

(ii) hearing impairment; 

(iii) locomotor disability or cerebral palsy, in the posts 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. 

  1. 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.”

  1. In National Federation of the Blind & Ors (supra) relied on by the appellant, the Supreme Court held as follows:

“a reading of Section 33, at the outset, establishes vividly the intention of the legislature viz., reservation of 3% for differently abled persons should have to be computed on the basis of total vacancies in the strength of a cadre and not just on the basis of the vacancies available in the identified posts. There is no ambiguity in the language of Section 33 and from the construction of the said statutory provision only one meaning is possible. 

31) A perusal of Section 33 of the Act reveals that this section has been divided into three parts. The first part is “every appropriate Government shall appoint in every establishment such percentage of vacancies not less than 3% for persons or class of persons with disability.” It is evident from this part that it mandates every appropriate Government shall appoint a minimum of 3% vacancies in its establishments for persons with disabilities. In this light, the contention of the Union of India that reservation in terms of Section 33 has to be computed against identified posts only is not tenable by any method of interpretation of this part of the Section. 

32) The second part of this section starts as follows: “…of which one percent each shall be reserved for persons suffering from blindness or low vision, hearing impairment & locomotor disability or cerebral palsy in the posts identified for each disability.” From the above, it is clear that it deals with distribution of 3% posts in every establishment among 3 categories of disabilities. It starts from the word “of which”. The word “of which” has to relate to appointing not less than 3% vacancies in an establishment and, in any way, it does not refer to the identified posts. In fact, the contention of the Union of India is sought to be justified by bringing the last portion of the second part of the section viz. “….identified posts” in this very first part which deals with the statutory obligation imposed upon the appropriate Government to “appoint not less than 3% vacancies for the persons or class of persons with disabilities.” In our considered view, it is not plausible in the light of established rules of interpretation. The minimum level of representation of persons with disabilities has been provided in this very first part and the second part deals with the distribution of this 3% among the three categories of disabilities. Further, in the last portion of the second part the words used are “in the identified posts for each disability” and not “of identified posts”. This can only mean that out of minimum 3% of vacancies of posts in the establishments 1% each has to be given to each of the 3 categories of disability viz., blind and low vision, hearing impaired and locomotor disabled or cerebral palsy separately and the number of appointments equivalent to the 1% for each disability out of total 3% has to be made against the vacancies in the identified posts. The attempt to read identified posts in the first part itself and also to read the same to have any relation with the computation of reservation is completely misconceived. 

33) The third part of the Section is the proviso which reads thus: “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.” The proviso also justifies the above said interpretation that the computation of reservation has to be against the total number vacancies in the cadre strength and not against the identified posts. Had the legislature intended to mandate for computation of reservation against the identified posts only, there was no need for inserting the proviso to Section which empowers the appropriate Government to exempt any establishment either partly or fully from the purview of the Section subject to such conditions contained in the notification to be issued in the Official Gazette in this behalf. Certainly, the legislature did not intend to give such arbitrary power for exemption from reservation for persons with disabilities to be exercised by the appropriate Government when the computation is intended to be made against the identified posts.”

  1. The Act is an instance of benevolent social legislation. The Supreme Court has emphasized that such benevolent enactments ought to be given liberal and expansive interpretation, and not narrow or restrictive construction (Madan Singh Shekhawat v. Union of India, 1999 (6) SCC 459; Deepal Girishbhai Soni v. United India Insurance Co. Ltd. AIR 2004 SC 2107; and Babu Parasakaikadi v. Babu AIR 2004 SC 754). If this Court were to agree with the Respondents, the interpretation would defeat the objective of enacting Section 33. As the court is interpreting a benevolent social welfare legislation, its purpose must be given the paramount consideration. Section 33 is not an exhaustive list of all sub-categories within the meaning of disability and to that extent is merely illustrative. If separate quotas are not provided, there is a danger of the disability quota being availed of only by one category of disabled; the other groups could be disadvantaged because of their condition. What the section, however, mandates is that minimum reservation to the extent of 3% should be made of which one per cent each should be set apart for the three enumerated categories. The equalizing principle which suffuses the entire enactmentright from its objective, to reservations, to ensuring non-discrimination at the workplace and promoting a barrier-less physical environment, cannot in the opinion of the court, be read as confining the state’s responsibility to providing reservations for only three distinct categories, when there can possibly be others as well.
  1. The structure of Section 33 supports this Court’s conclusion: the controlling phrase is the obligation to reserve “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…” for the enumerated three categories, i.e vision impairment, locomotor disability and hearing impairment. The clear allusion of “such percentage” of vacancies and the further reference in favour of “persons or class of persons with disability” leaves no doubt that the obligation to provide reservations is not only to the three enumerated categories, or only to the extent of 3 percent, but a wider one. However, the further statutory interdict of ensuring one per cent each to the three enumerated categories, is to ensure that such quantum is assured to those with disabilities of that kind or category- in their case, the reservation to that extent is obligatory and compulsive.
  1. There is no doubt that the appellant’s grievance about his inability to obtain any effective aid from the PWD Act leaves him no benefit. To that extent, the court’s interpretation of the obligation to provide benefits for all, is helpful. However, to yield any significant result, this court should also be able to conclude that the omission to provide reservation for other categories or spelling out a similar mandate (not less than one percent) is discriminatory. Here, the court experiences difficulty in arriving at such a conclusion. It is one thing to say that all persons with disabilities are to be treated alike; however, to enable each one of them equal rights to reservation, it is also essential to recognize that the kinds of disabilities might also differ. The mechanism provided by Parliament, i.e first through identification of posts, (that can be manned or filled by persons with disability) is equally part of the PWD Act. In National Federation of the Blind (supra), the court held that total vacancies available in a cadre should be reckoned to the extent that the construction benefits persons with disability. However, the post identification exercise under Section 32 requires an in-depth analysis of the nature of duties and responsibilities attached to the particular post or posts, which might then be recommended for inclusion (for the purpose of PWD reservation). Now, this exercise has not been challenged. The rationale for such provision appears to be the assumption (not entirely unfounded) that certain posts, by the nature of duties attached are unsuitable to persons with disabilities (a glaring example could be the post of a pilot vis-à-vis a person with severe visual impairment given that a person with disability should have an impairment of not less than 40%). The post identification exercise under Section 32 in this case – which resulted in the omission to include mental illness as a category of disability for the purpose of reservations under the civil services, has resulted in eliminating the appellant from consideration for reservation under Section
  1. The legitimacy of this exercise cannot be challenged. At the same time, during the hearing the respondents were unable to shed any light as to why those suffering from mental illness have not been included in the list of reserved categories entitled to reservations.
  1. By Section 2(q) “Mental illness” is defined as “any mental disorder other than mental retardation”. Though not illuminating, the clear demarcation between mental retardation on the one hand and mental disorder (not amounting to retardation) is to a certain extent helpful. Oxford English dictionary defines mental disorder as “A condition which causes serious disorder in a person’s behaviour or thinking” (https://en.oxforddictionaries.com/definition/mental_illness accessed at 17:50 hrs, 14 October, 2016). The Mental Health Act defines a “mentally ill” person as one “who is in need of treatment by person of any mental disorder other than mental retardation”. Now, there are two paradoxes at work here – the first is that  those with mental illness are altogether excluded from consideration for any employment under the Section 33 reservation; two, and importantly, that mental disorders are of varied severity and extent. Even mental illness can differ significantly as to use of a person’s skills acquired during one’s life time. For instance, severe depression or disorders such as schizophrenia could seem as complete barriers to jobs. However, the severity of those conditions may vary, as well as their extent: they may be temporary and entirely brought under control. To club all these with the severest form of mental illness or disorder may be unjustified. The irony here is that someone with a fairly low degree of illness (say to the extent of 25% or 35%) would not fall within the definition of “person with disability” whereas one with a greater degree of disability (say 90% and total) may not be able to work at all, given the nature of illness. This is where the appellant’s grievance has to be addressed. The “one size fits all” assumption that one with disability should have at least 40% of that condition may be justified and work well for person with vision or hearing impairment or locomotor disability. However, applying that matrix to person with mental disability could eliminate him or her altogether from consideration (whereas one who may technically be a person with disability, may be excluded altogether because of its very nature and its hindrance to normal discharge of public employment functions). Yet again, there is the legislative mandate of carrying post identification exercise once in three years, having regard to advancement in technology. Now this mandate is useful not only in relation to availability of devices and tools such as hearing aids, etc (to enable hitherto unemployable persons with hearing disability for jobs which might now be conveniently performed by them) but also in relation to the kinds of medication and medical breakthrough resulting in ailments and conditions becoming amenable to treatment and control. If this mandate were to be given its logical effect, yet, the threshold of 40% disability might prove to be an additional barrier for those with mental illness or disorder.
  1. After the Beijing Proclamation, the United Nations Convention for rights of Persons with Disabilities-2006 was adopted; India ratified the convention on 1st October, 2007. Article 4 (1) obliges all state parties to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability and to that end State Parties undertook to “to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities”. The convention provided for the principle of equality and non-discrimination as follows: “Article 5 – Equality and non-discrimination 1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. 2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. 3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided. 4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.”
  1. The Office of the Registrar General & Census Commissioner of India released Data on Disability under the Census of India 2011. In the 2011 Census, information on eight types of disability was collected namely – 1) in seeing, 2) in hearing, 3) in speech, 4) in movement, 5) mental retardation, 6) mental illness, 7) any other, 8) multiple disability (Source: C-Series, Table C-20, Census of India 2011,http://www.censusindia.gov.in). The data highlights showed that a total of 26,810,557 individuals or 2.21% of the total population of India suffer from disabilities. Between the census conducted in 2001 and 2011, there has been an increase of 22.4% in the number of individuals suffering from disabilities. The number of individuals suffering from Mental Retardation or Mental Illness was estimated at 2,228,450. 8.3% of all disabled individuals in the country suffer from either Mental Retardation or Mental Illness. Further, individuals suffering from Multiple Disabilities were estimated at 2,116,487 (7.9% of all disabled individuals). Further the categories of Mental Retardation and Mental Illness were new categories introduced in the Census 2011 that need to be delved into further. Individuals suffering from specific Mental Disabilities require specific reservations and aid in terms of education and more importantly employment and these can only be provided by the State through the pending legislative proposals when the data collected is more detailed regarding the actual conditions of individuals.
  1. These figures show that there are a significant number of persons with disabilities who suffer from mental illness or disorder (over 2 million). Given these numbers, it cannot be said that Parliament intended that they should be kept out of any kind of public employment (regardless of its severity). The facts of this case highlight that what appears to be a standard norm for one category of persons with disability cannot be universally applied: the result would be the opposite, i.e, the total exclusion of that category in the exercise of post identification under Section 32.
  1. The Appellant relied on the Right of Persons with Disabilities Bill, 2012 which introduced drastic changes in the Persons with Disabilities Act, 1995 so as to make it in tandem with the UN Convention on the Rights of Persons with Disabilities. Currently, a further amended Right of Persons with Disabilities Bill, 2014 has been introduced in the Rajya Sabha but as yet not been passed. This Bill seeks to replace the Persons with Disabilities Act, 1995. Instead of seven disabilities specified in the Act, the bill covers 19 different conditions. The Bill confers several rights and entitlements to disabled persons and has been brought in to fulfill obligations under the international treaty that learned senior counsel for the appellant has referred to at numerous occasions in her arguments.
  1. In order to prescribe guidelines for evaluation and assessment of Mental illness and procedure for certification, a Committee was constituted by the Department of Health, Government of India vide Order dated 6th August, 2001 under the Chairmanship of Director General of Health Services on the basis of request made by the Ministry of Social Justice and Empowerment. The committee decided that the minimum degree of disability, in order to be eligible for any concessions or benefits would be 40% under the IDEA (Indian Disability Evaluation Assessment) scale ( http://www.ccdisabilities.nic.in/page.php?s=&t=pb&p=guide_mental– Office of The Chief Commissioner for Persons with Disabilities).
  1. It is the opinion of this Court that a blanket 40% disability test to provide reservations in employment may be impracticable. A particular disability suffered by an individual might require specific aid and comes with specific restrictions. An individual suffering from a visual disability could avail specific benefits in terms of reservations in employment, as his mental condition is normal. Such an individual might be suffering from a disability of over 40% on the IDEA scale but his employability may not be affected. On the other hand, a different individual suffering from another disability of above 40% on the IDEA scale might not be employable for certain positions as his mental condition could be adversely affected. Hence it is the opinion of this Court that in a country where 26,810,557 individuals suffer from different disabilities, a one size fit all model might not be the most efficient. That 40% on the IDEA scale makes individuals more or less employable cannot be held ideal. The legislature may consider to create a model where individuals suffering from different disabilities may be recognized and given benefits in terms of education, employment, health etc. which are suitable to their individual condition. The benchmarking through the IDEA scale may have to vary depending on different disabilities. However, this remains within the legislative domain and since there is a move to amend the Act, the court – in accordance with well settled principles on this subject cannot direct the enactment of legislation.
  2. This court, therefore, concludes that there is some deficiency in the existing law, i.e the PWD Act, both with respect to providing reservations as well as the classification of all persons with disabilities as one having at least 40% of any specified or enumerated condition, which can well be the reason for ultimate discrimination. Whilst it is within executive domain to categorize which post can be suitable for what kind of person or persons with disability, the absolute minimum threshold of 40% in the case of certain kinds of disabilities could be the barrier – unwitting though the case may be, and eliminate from the post identification exercise persons with such disabilities altogether. This clearly has a discriminatory result, and an indirect discriminatory effect. Having arrived at this conclusion, the court is conscious that neither is this result capable of judicial redress (as that would involve the court judicially enacting law, by reading words into the statutean entirely unwarranted intrusion into Parliamentary power) nor can existing law be suitably read down or severed. Furthermore, and more fundamentally, this court does not have empirical data or scientific medical expertise in the matter and would have to hazard conclusions based on some materials which it might source, or intuitively guess. Whatever be the manner of exercise of power, such assumption of quasi-executive and legislative power can prove to be a remedy worse than the disease.
  3. What the court can and proposes, is to direct the respondent and the Central Government to, with the aid of appropriate subject experts in mental illness and disorders, study the problems which have resulted in total exclusion and denial of persons suffering from mental illness the benefits of reservation under Section 33 of the PWD Act and also determine if the threshold of 40% under the PWD Act needs revision based on which an appropriate law could be made, or existing law amended.
  4. As far as the appellant’s grievance with respect to “lost opportunities” is concerned, this court is unable to redress the grievance. At the same time, this court notes that the appellant availed seven chances, and did not at the time when a person with a notified disability was appointed -with lower marks than him- articulate such grievance. That ground is consequently held to be meritless. As far as the penalty of bar from appearing in public employment goes, though the matter is not before us, the Court is of opinion that the Central Administrative Tribunal (CAT) may consider in its discretion the proportionality of such imposition having regard to all the facts of the case. However, this is only an observation and cannot be construed as a direction.
  5. For the foregoing reasons, the court is of opinion that though the appellant’s grievances are to an extent justified, the remedy lies in amending the law. The court commends the respondents to take action towards a proper evaluation of the matter, in the light of the observations in paras 28-30 above. The appeal is dismissed, subject to the above observations.
  1. RAVINDRA BHAT (JUDGE)          DEEPA SHARMA (JUDGE)

OCTOBER 27, 2016

 

http://lobis.nic.in/ddir/dhc/SRB/judgement/27-10-2016/SRB27102016LPA2222013.pdf

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Pakistan SC cites Indian ruling to uphold death sentence for mentally ill man #WTFnews

Imtiaz Ahmad
mentalhealth
Islamabad : Pakistan’s Supreme Court has cited a judgement by its Indian counterpart to uphold the death sentence given to a mentally ill man suffering from paranoid schizophrenia, prompting an outcry from civil society activists.
A three-judge bench headed by Chief Justice Anwar Zaheer Jamali issued the order in the case of Imdad Ali, aged around 50 years, who was sentenced to death for the murder of a religious teacher in 2002. His sentence was upheld by all superior courts, including the Supreme Court and the president rejected his mercy petition.
In an order issued on Thursday, the Supreme Court cited the judgment of India’s Supreme Court in the 1977 case of Amrit Bhushan Gupta vs the Union of India, which was similar to Ali’s case. The Indian convict’s mother filed a petition in the Delhi high court, which said her son’s execution should be withheld because he was of unsound mind and suffering from schizophrenia.
The Delhi high court and India’s Supreme Court dismissed the mother’s plea, arguing the convict did not suffer from legal insanity during his trial or at the time the offence was committed.
Pakistan’s Supreme Court said a psychiatric disorder such as schizophrenia does not subjugate a death sentence. It observed in its 11-page judgment: “In our opinion, rules relating to mental sickness are not subjugative to delay the execution of death sentence which has been awarded to the convict.”
The top court noted that subordinate courts had discarded Ali’s plea of mental illness. “Schizophrenia is not a permanent mental disorder; rather it is an imbalance which can increase or decrease depending on the level of stress,” it added.
The court further said, “In recent years, the prognosis has been improved with drugs, by vigorous psychological and social managements, and rehabilitation. It is, therefore, a recoverable disease, which in all the cases, does not fall with the definition of ‘mental disorder’ as defined in the Mental Health Ordinance, 2001.”
Ali’s wife Safia Bano had approached the Supreme Court, claiming her husband was insane and his death sentence should be delayed till he received medical treatment so that he could make his will.
The judgment was criticised by civil society activists, who said such a ruling went against all international norms of justice.
The independent Human Rights Commission of Pakistan (HRCP) protested against the judgement. A spokesperson said mental illness and insanity were reasons for a court not to declare a person guilty of a crime. “This decision will have far reaching implications,” HRCP said.
Earlier, the watchdog Justice Project Pakistan (JPP) too filed an appeal against the Lahore high court’s order which dismissed pleas that Ali could not be executed because of his mental illness. JPP argued that the court should look into Ali’s medical condition and the extenuating circumstances that had aggravated his mental illness during his lengthy time on death row.
Ali hails from Burewala district of Punjab province. After warrants were issued for his execution on July 26, his wife filed a writ petition in the Lahore high court, which rejected her plea on August 23.
She then approached the Supreme Court with the same plea but the three-judge bench headed by Chief Justice Jamali upheld the death sentence.

hindustantimes.com/world-news/pakistan-sc-cites-indian-ruling-to-uphold-death-sentence-for-mentally-ill-man/story-CYpBHMT6sA3xwJDCb5lEWO.html
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The Trials of India’s Aging Population

The Trials of India’s Aging Population
An elderly man uses a stick as he walks past the construction site of a commercial building in Mumbai (October 10, 2011).
Image Credit: REUTERS/Danish Siddiqui

Population aging is gradually becoming a concern for both developed and developing nations. In India, the elderly depend upon the joint family system for care-giving support. However, factors such as industrialization, migration, and urbanization have disrupted the joint family system and resulted in the growth of nuclear families. In the process, the elderly are encountering both economic and emotional problems.

According to the 2011 census data, India is home to 104 million elderly people (aged 60 years and above), 53 million women and 51 million men. Most (71 percent) of the elderly reside in rural areas; 29 percent reside in urban areas. The 2011 census also revealed that 15 million elderly people live alone and three-fourths of them are women. Demographically, the proportion of India’s elderly population has increased from 5.6 percent in 1961 to 8.6 percent in 2011  according to the Ministry of Statistics and Program Implementation.

These statistics are indicative of the fact that the concerns of the elderly need to be addressed with priority. Amidst other concerns, the security of India’s older population requires immediate attention. Data from the National Crime Records Bureau (NCRB) over the years have highlighted rising crime against the elderly. Statistics from the NCRB’s recently released 2015 report demonstrate the fact that elderly lack security provisions in India.

Enjoying this article? Click here to subscribe for full access. Just $5 a month.Understanding NCRB Statistics

On August 30, 2016, the 63rd edition of “Crime in India,” an annual publication of National Crime Records Bureau, was published. Data from the NCRB report demonstrated that crimes against senior citizens rose by 10 percent in 2015 as compared to the previous year. A total of 20,532 cases of crimes committed against senior citizens were reported in 2015 as compared to 18,714 in 2014. Though the report has a detailed representation of crimes committed recorded against the elderly, only the States and Union Territories with highest rates of crime have been tabulated below:

Table 1: Crimes Committed against Senior Citizens in 2015

Sr No State/Union Territory Murder Cheating Robbery Grievous Hurt Other IPC Crimes Rate of Crime (per 100,00)
1 Andhra Pradesh 56 197 32 44 2495 51.6
2 Andaman & Nicobar Islands 3 0 0 2 12 47.2
3 Chandigarh 1 0 1 1 26 38.8
4 Chhattisgarh 63 46 9 27 1077 53.7
5 Delhi 14 123 145 9 1248 108.8
6 Goa 2 5 1 6 59 36.1
7 Madhya Pradesh 106 59 85 150 3456 60.5
8 Maharashtra 167 627 718 369 4561 41.1
9 Tamil Nadu 162 192 88 11 1947 25.9
10 Telangana 53 240 21 7 1519 44.1

Source: NCRB Report 2015

As Table 1 indicates, Delhi has the highest rate of crime followed by Madhya Pradesh and Chhattisgarh.  The case of Delhi is particularly alarming because even with the establishment of a Senior Citizens Security Cell at the Police Headquarters in 2004 crimes against the elderly continue to increase. The major reasons for the rising criminal offences against the elderly are vulnerability and lack of protection. As individuals grow older, they begin depending on their children or other family members to fulfill their needs as their physical abilities and health decline. The breaking up of the joint family system has resulted in adult children moving to new cities as their workplaces demand; in the process they are not able to fulfill filial obligations towards their older parents. Data indicates that 56 percent of older adults in India live only with their spouse rather than with children. Due to lack of support and security, older adults become susceptible to criminal activities.

Physical Abuse and the Elderly in India

In the context of criminal activities it is important to note that the elderly are often victims of physical abuse by both family members and outsiders. Interestingly even though the NCRB report provides a detailed list of crimes committed against elderly, it does not mention incidences of physical abuse experienced by older adults in India. The lack of detailed records for such cases of abuse could be attributed to a lack of reporting.

A recent study conducted by the Agewell Foundation revealed that two-thirds of the elderly are neglected by their family members and one-third have suffered physical and verbal abuse. Around 65 percent of the elderly indicated that they faced neglect in their old age and over half (54.1 percent) mentioned that they suffered abuse within their families. Every fourth senior citizen admitted that they are being exploited by their family members.

Additionally, the study also highlighted that 89.7 percent and 96.4 percent of the elderly faced abuse for financial and emotional reasons respectively. Lack of respect and property-related matters are considered to be the major reasons for elderly abuse by family members in India. Another important reason older adults in India are at high risk of abuse is because 73 percent of the elderly in India are illiterate. Studies have indicated that elderly with at least eight years of education are more likely to avoid abuse.

Statistics from the NCRB report and the Agewell Foundation study indicate that older adults in India face exploitation and mistreatment both from within and outside the family as well. In this context it is important to highlight the role of the State and understand the existing policies for older adults in India.

Policies for the Elderly in India

The Ministry of Social Justice and Empowerment has implemented a Central Sector Scheme of Integrated Program for Older Persons (IPOP) since 1992. The objective of this scheme was to improve the quality of life of senior citizens by providing basic amenities such as shelter, food, medical care, and entertainment opportunities with the help of the government, non-governmental organizations, (NGOs), Panchayati Raj institutions, and local bodies. This scheme, revised in 2008, also provides assistance for the maintenance of nursing homes, dementia centers, older widow care centers, and respite care homes.

In addition to the IPOP Scheme, the Maintenance and Welfare of Parents and Senior Citizens Act was enacted in December 2007 to ensure the well-being of older adults. This Act makes it mandatory for children and relatives to provide care facilities to their older parents or relatives after they reach the age of 60. This Act also gives older adults the right to revoke their property transfers in case of negligence. Additionally the Act also ensures that older adults receive protection of life and medical facilities from their family members. In cases of abuse the Act provides the older adult the right to avail themselves of penal provisions (although, as noted above, in reality such incidents are seldom reported).

International Perspective

The Indian State has considerable provisions for the elderly; however, the incidences of physical abuse and the growing crime rate highlight the fact that there is a clear lack of implementation. In fact it could be suggested that there is a lack of awareness among older adults regarding the existence of these policies. As per Indian tradition, older adults usually depend on their sons to fulfill their economic and emotional needs. Hence older adults in India are ill-prepared to live alone or make financial arrangements for themselves.

In contrast, other countries with aging populations have implemented policies to make older adults self-sufficient and independent. For instance, in 2000 Japan implemented a mandatory social long-term care insurance (LTCI) system. This system made institutional and home- and community-based services such home-help and rehabilitation services available to every individual aged 65 years or above who is certified to have physical or mental health needs irrespective of income levels and family support.

Similarly China, which long relied on the tradition of filial piety (adult children providing care to older parents), is shifting to long-term care goals by establishing alternative care giving arrangements. Through their Elder Care Home Without Walls Program the government of China has made trained service providers available for the elderly. These service providers are paid by the government and the elderly can use their services through phone calls to local government. Singapore, which faces a huge demographic shift and the rise of aging population, made it mandatory for all employees to contribute 18.5 percent of their income to the Singapore’s social security fund, known as the Central Provident Fund. Post-retirement individuals can avail themselves of the benefits of this fund.

In Europe, policies are designed to keep older adults active and engaged in their later life. For instance Nordic countries provide training and life-long learning to their older workers to keep them employed. Other European countries such as France, Germany, Poland, and Austria provide pension schemes and gradual retirement or retraining.

Drawing from the examples of these countries, the main aim is to make older adults self-sufficient and aid them in the aging process. In India, on the other hand, it seems that older adults do not avail themselves of the benefits of existing policies and are increasingly victims of abuse and crime.

Recently the government of India announced the launch of a strict National Policy for the Elderly to ensure protection of their rights. In addition to preventing crime, however, it is important for the government to adapt to the current needs of the elderly and formulate a national policy that will enable older adults to become independent and self-sufficient.

Jagriti Gangopadhyay is a Senior Research Associate at Ragiv Gandhi Institute of Contemporary Studies.

The Trials of India’s Aging Population

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India ranked 97th of 118 in global hunger index

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HIGHLIGHTS

TOI image used for representationTOI image used for representation

NEW DELHI: India continues to have serious levels of widespread hunger forcing it to be ranked a lowly 97 among 118 developing countries for which the Global Hunger Index (GHI) was calculated this year.

Countries worse than India include extremely poor African countries such as Niger, Chad, Ethiopia and Sierra Leone besides two of India’s neighbours: Afghanistan and Pakistan. Other neighbours Sri Lanka, Bangladesh, Nepal and China are all ranked above India.

The GHI is calculated by taking into account four key parameters: shares of undernourished population, wasted and stunted children aged under 5, and infant mortality rate of the same age group.

Of the 131 countries studied, data was available for 118 countries. This year, for the first time, two measures of child hunger -wasting and stunting -have been used to give a more complete picture. Wasting refers to low weight in relation to a child’s height, reflecting acute undernutrition.Stunting refers to the deficiency in height in relation to age, reflecting chronic undernutrition.

The International Food Policy Research Institute (IFPRI) makes the annual calculations of GHI. Basing its readings on the most recent data, the 2016 GHI for India was derived from the fact that an estimated 15% population is undernourished -lacking in adequate food intake, both in quantity and quality .

The share of under-5 children who are `wasted’ is about 15% while the share of children who are `stunted’ is a staggering 39%. This reflects widespread and chronic lack of balanced food. The under-5 mortality rate is 4.8% in India, partially reflecting the fatal synergy of inadequate nutrition and unhealthy environments.

Although India runs two of the world’s biggest children’s nutrition programmes, the ICDS for children under 6 years and the mid-day meal programme for school going kids up to the age of 14, malnutrition continues to haunt India.

Endemic poverty, unemployment, lack of sanitation and safe drinking water, and lack of effective healthcare are main factors for the sorry state. Compared with previous years, marked improvement has taken place in child stunting and under-5 mortality rates but the proportion of undernourished people has declined only marginally from 17% in 2000 to the current 15%. The share of wasted children has inched down similarly.

Top Comment

so much for the aache din and modi effect. since modi has come only the rich got richer, same as was the case during congress. good speeches and chest beating has been the hallmark of this governmentValent Mascarenhas

India was ranked 83 in 2000 and 102 in 2008 with GHI scores of 38.2 and 36 respectively. This implies that, while hunger lev els in India have diminished somewhat, the improvement has been outstripped by several other countries. Hence India’s ranking is worse today than it was 15 years ago. In fact, Bangladesh was ranked 84 with a score of 38.5 in 2000, just below India. But in 2016, it has improved beyond India with a GHI score of 27.1 and a rank of 90 to India’s 97.

Overall, global hunger levels are down by about 29% compared to 2000.Twenty countries, including Rwanda, Cambodia, and Myanmar, have reduced their GHI scores by over 50% each since 2000. And, for the second year in a row, no developing country for which data was available featured in the “extremely alarming” category .http://timesofindia.indiatimes.com/india/India-ranked-97th-of-118-in-global-hunger-index/articleshow/54822103.cms?from=mdr

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