Social Jurist, A Lawyers Group vs Union Of India (Uoi) And Anr.
2002 Latest Caselaw 1345 Del

JUDGMENT

A.K. Sikri, J.

1. It is the common experience of several persons with disabilities that they are unable to lead a full life due to societal barriers and discrimination faced by them in employment, access to public spaces, transportation etc. Persons with disability are most neglected lot not only in the society but also in the family. More often they are an object of pity. There are hardly any meaningful attempts to assimilate them in the mainstream of the Nation's life. The apathy towards their problems is so pervasive that even the number of disabled persons existing in the country is not well documented.

2. T.R. Dye, Policy Analyst, in his book Understanding Public Policy' says :

"Conditions in society which are not defined as a problem and for which alternatives are never proposed, never become policy issues. Government does nothing and conditions remain the same."

3. This statement amply applies in the case of the disabled. At least this was the position till few years ago. The condition of the disabled in the society was not defined as a problem, and therefore, it did not become public issue. It is not that this problem was not addressed. Various NGOs, Authors, Human Rights Groups have been focussing on this problem from time to time and for quite sometime. But it was not defined as a problem which could become public issue. Until the realisation dawned on the Government and the policy makers that the right of the disabled was also a human right issue.

4. Asian and Pacific countries, primarily with this end in view, started decade of disabled persons from 1993 which is to go up to the year 2002. For this purpose a meeting was held in Beijing on 1st to 5th December, 1992 called the "Meet to Launch the Asian and Pacific Decades of Disabled persons". In this meeting Asian and Pacific countries adopted the Proclamation on the "full participation and equality of people with disabilities in the Asian and Pacific regions". To give effect to this proclamation Parliament in India passed the enactment known as "Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1955" (hereinafter referred to as 'the Act').

5. Various kinds of rights are recognised in this legislation which is on the Statute book for last about 6 years now but the question is as to whether the Act is implemented in its true spirit and the rights conferred upon disabled under this Act have been translated into reality? Whether the disabled are able to reap the fruits of this legislation? The present case is a pointer to the fact that all is still not well.

6. Unless the mindset of the public changes; unless the attitude of the persons and officials who are given the duty of implementation of this Act changes, whatever rights are granted to the disabled under the Act, would remain on paper.

7. The present case demonstrates as to how basic requirement as contemplated under the Act which would put wheels for the Statute to move on its right track was not done. Even when a brand new car of a good model is brought unless the ignition is put on and the engine of the car started, the car cannot move and it would remain a showpiece for admiration but of no use. That is what was happening which compelled the petitioner to file the instant writ petition in the nature of Public Interest.

8. Section 2(p) of the aforesaid Act defines 'Medical Authority' which is to be specified by a Notification to be issued by the appropriate Government for the purpose of this Act. It has to be any hospital or any institution. It is this 'Medical Authority' which is competent to issue certificates to persons with disability specifying the extent of disability being suffered by such persons. Unless such a medical authority is so specified which is competent to issue a certificate and unless such a certificate is provided to a disabled person he would not be in a position to claim various benefits provided under the Act. However, for last more than six years, this did not occur to the authorities that the basic requirement is to specify such medical authorities by means of a Notification to enable the disabled persons to obtain certificates and then file avail the benefits of the same. This problem was brought to this court by means of present writ petition.

9. The notice in this writ petition was issued to the Union of India as well as the Delhi Government on 21st February, 2002. It was expected that after the issuance of notice, the Government machinery would move and do the needful suo moto. However, nothing was done till July, 2002 even when during this period the matter came up for hearing 2-3 times. On 10th July, 2002, this court gave the direction to the respondents to the following effect:-

"Let the matter appear on 31st July, 2002 under the heading After Notice Miscellaneous Matters.

Within one week from date, the respondents must file counter affidavits annexing therewith all the Notifications issued in terms of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Reply/rejoinder thereto be filed within one week thereafter."

10. However, to the dismay of this court, when the matter came for hearing on 31st July, 2002 the counsel for the respondent No. 1, i.e., Union of India showed his helplessness by stating that the respondent was at loss to find out as to whether it was the Ministry of Health and Family Welfare which was required to issue such a Notification or this job was that of the Ministry of Social Justice and Empowerment. The Health Ministry was of the opinion that since implementation of this Act was the responsibility of the Ministry of Social Justice and Empowerment, Notification be issued by that Ministry whereas the latter Ministry was of the opinion that since it was a health related matter, it is the Ministry of Health and Family Welfare whose obligation it was to issue such a Notification. In anguish the following order dated 31st July, 2002 was passed:

"It is stated by learned counsel that respondent No. 2 has filed an affidavit. However, the same is not on record. Let learned counsel ensure that the said affidavit is brought on record.

Learned counsel for respondent No. 1/UOI states that a letter has been received from the Government of India, Ministry of Health and Family Welfare dated 21st May, 2002 addressed to the Joint Secretary of the Ministry of Social Justice and Empowerment to the effect that the matters under the Act are required to be implemented by the latter Ministry.

In that view of the matter, the Secretary of the Ministry of Social Justice and Empowerment is also imp leaded as a party in the writ petition. However, the learned counsel for respondent No. 1/UOI also states that a letter dated 5th July, 2002 is received stating that the matter relates to the Health Ministry.

In this view of the matter, the Joint Secretaries of the Ministry of Health as also the Ministry of Social Justice and Empowerment are directed to be personally remain present on 9th August, 2002 with their records.

Let a copy of the order be given dusty to learned counsel for respondent No. 1/UOI for communication to the concerned Joint Secretaries."

11. Strangely, only when such orders are passed that the bureaucracy starts functioning. Once the presence of two Joint Secretaries are ordered, they now resolved the matter with such an ease, which was uptil now an intricate issue according to them. Because when the matter came up for hearing on 9th August, 2002 the counsel for the respondent No. 1, i.e., Union of India produced an order dated 6th August, 2002 constituting the Medical Boards in the hospitals under the control of the Government of India to give disability certificates as per the provisions of this Act. Annexure to this order gives the list of five hospitals and the authorities of these hospitals which are competent to issue certificates of the disability in the nature of Mental Retardation, Visual Disability, Speech & Hearing Disability, Locomotor Disability and Multiple Disability. Likewise, the learned counsel for the respondent No. 2 produced an order dated 8th August, 2002 giving the list of nine such hospitals competent to issue these certificates.

12. However, it seems that although the aforesaid orders are issued hurriedly, the orders are not in complete conformity with the requirement of the Act as pointed out by the learned counsel for the petitioner. As per Section 2(p) of the Act such hospitals and institutions specified for the the purpose of this Act are to be constituted by means of a Notification to be issued by the appropriate Government. The order dated 6th August, 2002 issued by the respondent No. 1 stipulates that it is in accordance with the instructions issued by the Government of India in the Notification No. 16-18/97-NI.I in Section-1, Part-I of the Gazetted of India dated 1st June, 2001. A perusal of the said Notification shows that guidelines for evaluation of various disabilities and procedure for certification are provided therein. However, as far as constitution of Medical authorities is concerned, as per Section 2(p) of the Act, a Notification is required and not simply an order of the nature produced by the Union of India as well as the Delhi Government. In view of this position in law, learned counsel for the respondents stated at the bar that the required Notification would be issued.

13. In these circumstances, this writ petition is disposed of with the direction to the respondents to issue a formal Notification in conformity with the provisions of Section 2(p) of the Act. The respondents are also directed to give wider publicity to the constitution of the aforesaid medical authorities by using electronic as well as print media so that as the disabled persons who need the required certificates know from where they can obtain such certificates after getting themselves examined. The factum of the aforesaid hospitals constituted as medical authorities within the meaning of Section 2(p) of the Act should also be displayed on the notice boards of the hospitals as well as prominent places in the hospital premises. We hope and trust that the authorities shall promptly act and shall not be lagging in implementing these directions.