Thursday, October 31, 2019

Suo Motu Vs. Principal Secretary, Health & Family Welfare Department | Case No. No. 1253/1121/2019/10/ 7334-7363 | Dated: 30/10/2019



In the Court of State Commissioner for Persons with Disabilities
National Capital Territory of Delhi
25-D, Mata Sundari Road, Near Guru Nanak Eye Centre, New Delhi-02
Phone-23216003-04, Telefax: 23216005Email: comdis.delhi@nic.in
[Vested with powers of Civil Court under
 the Rights of Persons with Disabilities Act, 2016)

Case No. No. 1253/1121/2019/10/ 7334-7363          Dated:    30/10/2019

In the matter of:

Suo-motu
Versus
The Principal Secretary,
Health & Family Welfare Department,
Govt. of NCT of Delhi,
9th Floor, A-Wing, Delhi Secretariat,
I.P. Estate New Delhi- 110002                            ………………..Respondent No. 1


The Medical Superintendent, Officer-in-Charge,
All India Institute of Medical Science,
Ansari Nagar,
New Delhi-110029                                                  ……………..Respondent No. 2

The Medical Superintendent/ Officer-in-Charge,
Safdarjung Hospital,
New Delhi-110029                                              ………………..Respondent No. 3

The Medical Superintendent/ Officer-in-Charge,
Dr. Ram Manohar Lohia Hospital, Govt. of India,
New Delhi-110001                                               ………………..Respondent No. 4

The Medical Superintendent/ Officer-in-Charge,
Lady Harding Medical College & Smt. S.K. Hospital,
New Delhi-110001                                                 ………………..Respondent No. 5
  
The Medical Superintendent,
Babu Jagjivan Ram Hospital,
Jahangirpuri, Delhi-110033                                    ………………..Respondent No. 6

The Medical Superintendent,
Guru Gobind Singh Govt. Hospital,
Raghubir Nagar, New Delhi-110027                      ………………..Respondent No. 7

The Medical Superintendent,
Rao Tula Ram Memorial Hospital,
Jafferpur, New Delhi-110073                                ………………..Respondent No. 8

The Medical Superintendent,
Bhagwan Mahavir Hospital, H-4/5,
Guru Harkishan Marg,
Pitampura, Delhi-110034                                       ………………..Respondent No. 9

The Medical Superintendent,
Aurna Asaf Ali Govt. Hospital,
5, Rajpur Road, Delhi-110054                                  …………..Respondent No. 10

The Medical Superintendent,
Guru Teg Bahadur Hospital, Govt. of NCT of Delhi,
Dilshad Garden, Delhi-110095                                   …………..Respondent No. 11

The Medical Superintendent,
Swami Dayanand Hospital,
Shahdara, Delhi-110095                                             …………..Respondent No. 12

The Medical Superintendent,
Lal Bahadur Hospital,
Khichripur, Delhi-110091                                             ..………..Respondent No. 13

The Medical Superintendent,
Dr. Hedgewar Arogya Sansthan,
Karkardooma, Delhi-110032                                     …………..Respondent No. 14

The Medical Superintendent,
Govind Ballabh Pant of Post Graduate 
Medical Education & Research (GIPMER),
1, Jawahar Lal Nehru Marg,
New Delhi-110002                                               ………………..Respondent No. 15

The Medical Superintendent,
Jag Pravesh Chandra Hospital,
Shastri Park, Delhi-110053                                 ………………..Respondent No. 16

The Medical Superintendent,
Dr. Baba Saheb Ambedkar Hospital,
Sector-06, Rohini, Delhi-110085                          ………………..Respondent No. 17

The Medical Superintendent,
Deen Dayal Upadhyay Hospital,
Hari Nagar, New Delhi-110064                            ………………..Respondent No. 18

The Medical Superintendent,
Sardar Vallabh Bhai Hospital,
East Patel Nagar,  New Delhi-110008                 ........................Respondent No. 19

The Medical Superintendent,
Sanjay Gandhi Memorial Hospital,
Mangolpuri, Delhi-110083                                 ………………..Respondent No. 20

The Medical Superintendent,
Institute of Human Behaviour 
& Allied Sciences (IHBAS),
Dilshad Garden, Delhi-110095                          ………………..Respondent No. 21

The Medical Superintendent,
 Lok Nayak Jai Prakash Hospital,
New Delhi-110002                                              ………………..Respondent No. 22

The Medical Superintendent,
Janakpuri Super Speciality Hospital Societ,
(An Autonomous Institute), Under Govt. of NCT of Delhi,
Delhi-110058                                                      ………………..Respondent No. 23

The Medical Superintendent,
Pt. Madan Mohan Malaviya Hospital,
Malviya Nagar, New Delhi-110017                     ………………..Respondent No. 24

The Medical Superintendent,
Maharishi Valmiki Hospital,
Pooth Khurd, Delhi-110039                                ………………..Respondent No. 25

The Medical Superintendent,
Satyawadi Raja Harishchandra Hospital,
Plot No-30, Sector A7, Narela,
Delhi-110040                                                       ………………..Respondent No. 26

The Medical Superintendent,
Hindu Rao Hospital,
37-38, Subji Mandi,
Malka Ganj, New Delhi-110007                          ………………..Respondent No. 27

The Medical Superintendent,
Chacha Nehru Bal Chikitsalaya,
Geeta Colony, New Delhi-110031                       ………………..Respondent No. 28

                                    ORDER

Dr. Satendra Singh, MD, Associate Professor Physiology, University College of Medical Sciences & GTB Hospital, Delhi, and Domain Expert, State Advisory Committee to assist the State Commissioner for Persons with Disabilities, NCT of Delhi vide his email dated 28/10/2019 brought to the notice of this court that “Deaf Blindness” as a category has been excluded in Form-VI of Delhi Rights of Person with Disabilities Rules, 2018 (Delhi RPwD Rules) and Rights of Person with Disabilities Rules, 2017(RPwD Rules) though “deaf blindness” is a specified disability in the schedule to the Rights of Persons with Disabilities Act, 2016, herewith refer to as the Act as well as in Section 34(1) (e).

2.              He further informed that as per the said Rules, a certificate of disability for multiple disability is to be issued in Form-VI but it nowhere mentions the category “deaf blindness”. Because of this technical flaw, the certificate is issued either for blindness or for deaf.He has come across instances of people with “deaf blindness” who are forced to carry a certificate for ‘blindness’ and another for ‘deafness’. Separate certificates do not reflect the actual extent of restrictions that persons with “deaf blindness” experience due to environmental, informational and other associated barriers. It will also lead to incorrect data.

3.              Dr. Satendra Singh has requested to take up the issue and iron-out the deficiency in Form-VI of Delhi RPwD Rules,2018 and also to suggest amendment in the RPwD Rules, 2017.

4.              It is observed that in the Schedule to the Act has grouped the 21 specified disabilities in five groups namely, (i) Physical disability (ii) Intellectual disability, (iii) Mental behaviour, (iv) Disability caused due to (a) Chronic neurological conditions&(b) Blood disorder,(v) Multiple disabilities.
Multiple disabilities has been defined as “(more than one of the above specified disabilities)including deaf blindness which means a condition in which a person may have combination of hearing and visual impairments causing severe communication, developmental, and educational problems.”

5.             The provision for certification of specified disabilities in Section 58 of the Act is reproduced below:-

(1)    Any person with specified disability, may apply, in such manner as may be prescribed by the Central Government, to a certifying       authority having jurisdiction, for issuing of a certificate of disability.
(2)      On receipt of an application under sub-section (1), the      certifying     authority shall assess the disability of the          concerned    person in     accordance with relevant guidelines notified under section 56, and    shall, after such assessment, as the case may be,—
(a)      Issue a certificate of disability to such person, in such form as may be prescribed by the Central Government.”

6.             Section-100 (h) of the Act mandates the Central Govt. to make no rules on the manner of application for issuance of certificate of disability under sub-section (1) and form of certificate of disability under sub-section (2) of section 58.

7.             In view of the above provisions in the Schedule, Section 58 and Section 100(h) of the Act, for any change in the rules or in the form of disability,Central Government alone has jurisdiction. The Government of NCT of Delhi cannot change or modify the form of certificate of disability.

8.             Rule, 18 of the RPwD Rules, 2017 and Rule 26 of the Delhi Persons with Disabilities, Rules, 2018 also provide that the medical authority or any other notified competent authority shall issue a certificate of disability in favour of an applicant in form V,VI, & VII, as the case may be.Since the Central Govt. alone is vested with the power to make changes in Rules including in relation to the forms of certificate of disability, if considered necessary,Department of Empowerment of Persons with Disabilities, Govt. of India may look into this matter.

9.             However,if any medical authority in NCT of Delhi is issuing separate certificates of disability for blindness and for deafness to persons who have ‘deaf blindness’, the same must be stopped forthwith.

10.           As regards the issue flagged by Dr. Satender Singh that Form VI does not mention “deaf blindness”, I am of the opinion that the intent of the legislation is to give “deaf blindness” an independent identity. Hence “deaf blindness” should be mentioned in Form-VI also at some place. To my mind, it could be mentioned either in Column-4 under ‘Diagnosis’ against ‘blindness’ and ‘deafness’ or in Column-5 meant for ‘indicating the permanent physical impairment/mental disability in (%). A person with “deaf blindness” will necessarily will have 100% disability and hence there is no need to calculate the total disability by combining the two conditions.

11.           For ready reference, Form-VI is reproduced below:

S.No.
Disability
Affected part of body
Diagnosis
Permanent Physical impairment/Mental Disability in (%) 1
1
Locomotor disability
@


2
Muscular Dystrophy



3
Leprosy cured



4
Dwarfism



5
Cerebral Palsy



6
Acid Attack Victim



7
Low vision
#


8
Blindness
#


9
Deaf
£


10
Hard of Hearing
£


11
Speech and Language disability



12
Intellectual Disability



13
Specific Learning Disability



14
Autism Spectrum Disorder



15
Mental illness



16
Chronic Neurological Conditions



17
Multiple sclerosis



18
Parkinson’s disease



19
Haemophilia



20
Thalassemia



21
Sickle Cell disease




12.           In light of the foregoing, It is recommended that the medical/certifying authorities in NCT of Delhi should issue the certificate of disability in in Form-VI in respect of persons with “deaf blindness” by ticking ‘Blindness’ at serial No. 8 as well as‘Deafness’ at serial No.9 and mention “deaf blindness” in column 4 or 5 which should be clearly legible.

13.           Department of Empowerment for Persons with Disabilities, Ministry of Social and Justice and Empowerment, Govt. of India, may consider issuing suitable advisory to the State Govts. and UT Administrations to ensure uniformity and to avoid inconvenience to persons with “deaf blindness”.

14.           The matter is disposed off accordingly.        

15.           Give under my hand and the seal of the Court this 30thOctober 2019.


 (T.D. Dhariyal)
State Commissioner for Persons with Disabilities

Copy to:-
1.    Secretary, Department of Empowerment for Persons with Disabilities, Ministry of Social & Justice & Empowerment, Govt. of India, Pt. Deendayal Antyodya Bhawan, CGO Complex, New Delhi-110003: for necessary action as deemed fit.

2.    Secretary, Department of Social Welfare, GNCT of Delhi, GLNS Complex, Delhi Gate, New Delhi-110002: for information and necessary.         



(T.D. Dhariyal)
State Commissioner for Persons with Disabilities


Wednesday, October 30, 2019

Suo Motu Vs. Chief Election Commissioner | Case No. 1252/1106/2019/10/7329-7333 | Dated: 29.10.2019




In the Court of State Commissioner for Persons with Disabilities
National Capital Territory of Delhi
25-D, Mata Sundari Road, Near Guru Nanak Eye Centre, New Delhi-110002
Phone: 011-23216001-02, Email: comdis.delhi@nic.in
[Vested with powers of Civil Court under the Rights of Persons with Disabilities Act, 2016]

Case No. 1252/1106/2019/10/7329-7333                                     Dated: 29.10.2019

In the matter of :

Suo-Motu
Vs.

The Chief Election Commissioner,     ………        Respondent
Election Commission of India,
Nirvachan Sadan, Ashoka Road,
New Delhi- 110001.
ORDER

          Section 11 of the Rights of Persons with Disabilities Act, 2016, hereinafter referred to as Act provides, “The Election Commission of India and the State Election Commissions shall ensure that all polling stations are accessible to persons with disabilities and all materials related to the electoral process are easily understandable by and accessible to them”. The said provision would ensure accessible voting for persons with disabilities provided they are able to reach the polling station.

2.      As some persons with disabilities, especially Sr. Citizens with disabilities have serious problem in movement, they either cannot go to the polling station or are discouraged by their condition to be carried for casting their vote. It is also true of many seriously ill people who may be keen to cast their vote, yet cannot do so. Carrying them and making them to vote even with the best of transport facility, is against their dignity. Thus, they get deprived of their fundamental right.

3.      In light of the above, this court requested Chief Election Commissioner, Election Commission of India and the Chief Electoral Officer, Govt. of NCT of Delhi to make provisions for such persons with disabilities to cast their vote by Postal Ballot or any other technologically supported method that can enable them to cast their vote from their home/place of stay vide letter dated 08/08/2018 followed by another letter dated 25/03/2019.

4.      The Office of the Chief Electoral Officer, Delhi vide their letter dated 09/04/2019 also forwarded the letter dated 08/08/2018 of this court to Election Commission of India. The Election Commission of India and the Chief Electoral Officer, Delhi were also requested vide letter dated 11/04/2019  to expedite the matter and to intimate the action taken besides letting this court know the facilities that have been put in place or would be provided for the Lok Sabha Election 2019 like availability of Election Manifesto in accessible format & Audio Component with an earphone to the VVPAT to enable persons with blindness/low vision to know that their vote has gone to the candidate of their choice while ensuring protection of the secrecy of their ballot.

5.      Vide letter No. 491/ECI/LET/FUNC./SVEEP-II/PwD/2018/95 dated 24/04/2019, Election Commission of India informed that the following classes of electors are entitled for postal ballot: -
(i)      Service Voters, other than those who opt for proxy voting (Classified Service Voters)
(ii)      Special voters
(iii)     The wives of persons referred to in clauses (a) and (b) above
(iv)    Electors subjected to preventive detention
(v)     Voters on election duty
(vi)    Notified voters
          No other electors are entitled to cast their votes by Postal Ballot. It was further stated that the request made by this court requires amendments in the laws, which is beyond the jurisdiction of the Commission.

6.      It was suggested over phone to initiate the matter so that Ministry of Law and Justice, Govt. of India could consider it.

7.      Although the facility of postal ballot /technologically supported voting facility for persons with disabilities from their residence could not be extended in the Lok Sabha Election 2019, yet Ministry of Law and Justice (Legislative Department) after consulting the Election Commission of India has notified the Conduct of Elections (Amendment) Rules 2019 vide notification dated 22/10/2019. Through this amendment, persons with disabilities flagged as persons with disabilities in data base of electoral roll and Sr. Citizens above 80 years of age have been included in the definition of ‘Absentee Voters’ and thus entitled to cast his/her vote through postal ballot. Necessary amendments have been made to facilitate casting of vote by persons with disabilities and Sr. Citizens above 80 years of age through postal ballot.

8.      In view of the positive action by Election Commission of India, Chief Electoral Officer, NCT of Delhi and all other concerned, the matter is closed.

9.      Given under my hand and seal on 29th day of October 2019.



(T. D. Dhariyal)
State Commissioner for Persons with Disabilities

Copy (for information along with a copy of notification dated 22/10/2019) to:

1.   The Chief Secretary, Govt. of NCT of Delhi, 5th Level, Delhi Secretariat, I. P. Estate, Delhi-110002.
2.   The Chief Electoral Officer, GNCT of Delhi, Old St. Stephen’s College Building, Kashmere Gate, Delhi-110006.
3.   The Principal Secretary, Department of Law, Justice and Legislative Affairs, GNCT of Delhi, 8th Level, Delhi Secretariat, I. P. Estate, Delhi-110002
4.   The Secretary, Department of Social Welfare, GNCT of Delhi, GLNS Complex, Delhi Gate, Delhi-110002



(T. D. Dhariyal)
State Commissioner for Persons with Disabilities