Another case of Misuse of benefits meant for Disabled

Dear friends,

Equalising opportunities provided by way of positive discrimination by the Govt. to its employees with disabilities can often be misused, by vested interests. Therefore proper mapping of people with disabilities is all the more important. This is height of carelessness of the BSA that 24 transfers were made on the basis of fake certificates without even verifying as to how suddenly so many teachers became disabled! It wouldn't have come to the notice had suddenly so many applications were made on the common ground of disability to stop their transfers.

Even for the employees with disabilities, the rules are very clear that they can be transferred close to their native places among various institutions. No one can claim to continue at single school through out.

We learnt about similar case in Bihar last year or so. This indicates for some tough mechanism of verifications and harsher punishments in case of misuse by the State. All these teachers should not only be prosecuted under the provisions of Indian Penal Code but also under the provisions of Persons with Disabilities Act-1995 and be suspended with immediate effect. The vigilance department should reach the root of this malaise as to who coordinated such mass practice. There must be someone within the department advising teachers to adopt this measure!

To sum up, need to have a database of PWDs district wise on the line of Himachal Pradesh and Chandigarh is all the more important. Also organisations working for transparency, disability should use RTI and ensure social audit that such misuse is checked in the bud. A strict action in this case can send alarming signals to future criminals!

regards

SC Vashishth, Advocate-Disability Rights

09811125521

To read from Source Click here: Indian Express

‘Disability’ enables teachers to tweak transfers in Pratapgarh

08 October 2009

Physical disability, often regarded as a curse, is coming handy for hundreds of government teachers in Pratapgarh, who are using it as a pretext to seek transfers.

Of the 469 assistant teachers who received promotion this July, 130 have sought transfers, producing fake certificates of disabilities. Or like Girish Chandra, a teacher at Antpur primary school at Mandhata, they produce fake disability certificates to cancel transfers.

Chandra submitted his application to the office of Basic Shiksha Adhikari (BSA). Chandra is not handicapped, said the BSA office, which had ordered an inquiry after some teachers made a written representation to check the malpractice.

Another teacher, Indrasen Singh, got posting at his village Pure Chauhan from Rainia on this ground. He has even joined duty. Yet another teacher, Rama Shukla, sought transfer with a fake certificate. “The teachers had not produced any such certificate at the time of getting the government job,” said a teacher.

“They did not fill up the column of physical handicap. Suddenly, in contrast to the known 25 disabled teachers, 130 applications have been submitted in the office of the BSA seeking transfers.” These teachers have produced fake certificates because they want to stay near their villages, he added.

The BSA office woke up to the practice after approving 24 such transfers and the Basic Shikhsa Adhikary was charged with accepting bribes.

Denying the allegations, BSA Ashok Nath Tiwari said: “I have sent all such certificates to the Chief Medical Officer for verification. Now transfers will be done only after getting the verification. I will cancel the transfer done so far by me.” He added that legal action will be taken against teachers found guilty.

The CMO, Pratapgarh, Dr Madan Mohan, said he has not received any letter from the BSA, but if the BSA requested him, his office will do the verification. “A racket is being run at the office of BSA and CMO,” said Prabhakar Dwivedi, a teacher. “The CMO office issues fake certificates and the BSA office effects the transfers without verification. We will approach the district magistrate for an impartial inquiry,” he added.

On July 30, the government had promoted 496 assistant teachers in Pratapgarh district. As per government policy, transfer is mandatory with promotion. But despite accepting promotions, some teachers teaching at primary schools in their villages, were reluctant to join their new postings. A few wanted to get postings as per their wishes. But when the district administration mounted pressure on them to join their new postings, they submitted fake disability certificates and sought transfers.

The Right to Education Act 2009 set to be amended

Dear Friends,

There have been several voices against the RTE Bill which fail to die down- thanks to the ever vibrant disability sector. On 19th of September 2009, another Disability Rights Activists from across 15 Indian States assembled under the banner of Viklang Manch facilitated by Human Rights Law Network at Jantar Mantar, New Delhi. Before that the Manch had convened a two Day workshop on the issue which were inaugurated by none less than Chairperson- National Trust, Chairman-Rehabilitation Council of India and the Deputy Chief Commissioner -Disabilities besides Mr. Collin Gonsalves, Advocate.

The activists were angry and the unrest has grown over a period of time because of failure of the bureaucracy in treating the disabled with dignity and respect besides Govt. of India's failure to implement a major enabling legislation called the Persons with Disabilities Act.

The activists handed over memorandum to the PMO. To visit various pictures of the agitation at Jantar Mantar click here.

The agitation was a final nail in the series of agitations earlier organised by AARTH-ASTHA , AADI, NCPEDP and other organisations in the sector. The very next day on 21st September, 2009 Mr. Sibal indicated that Govt. was seriously considering amending the RTE Act to include the concerns of the disability sector.

Now when the Govt. is seriously considering amendments in RTE Act, the Sector should reach out with one voice through a larger consultation so that no one is left out. The pursuit should be to address not only the Act but also suggest what ought to be there in the sub-rules of the Act so that the provisions that are included are implementable.

Here is a recent news which to me is no where indicative of its subject, though it spells out again the seriousness that the Ministry of Education is showing now.

regards

SC Vashishth

09811125521

Disabled children not to be in 'disadvantaged' class

5 Oct 2009, 0411 hrs IST, Urmi A Goswami, ET Bureau

Click here to read from Source

NEW DELHI: The Manmohan Singh government plans to amend the Right of Children to Free and Compulsory Education Act, 2009 to broaden the ambit of “disadvantaged” children to include children with disabilities. It would like to introduce the amendments in the winter session of Parliament.

The ministry of human resource development (HRD) will be seeking Cabinet approval shortly for the changes. This move would allow differently-abled children from economically weaker and disadvantaged sections to take advantage of the 25% seats set aside in private unaided school under Clause 12 of the Act. This had been a key demand of disability activists when they met HRD minister Kapil Sibal. The ministry also plans to introduce changes in Clause 3 of the Act to extend the right to free and compulsory education to children suffering from disabilities as defined in the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999.

This Act deals with severe mental retardation and goes beyond the scope of the Disabilities Act. At present, the Right of Children to Free and Compulsory Education Act is applicable to differently-abled children covered by the Disabilities Act.

This move by the ministry of human resource development is in response to the protests by disability activists in August, just ahead of the legislation being taken up for discussion in the Lok Sabha. At the time, the ministry had suggested that it could amend the Act after due consultation with those who work and research on issues relating to the education of children suffering from severe mental disabilities.

The ministry had also considered a higher outlay for home-based education, which many children with severe disabilities require. This effort to draw in larger number of children with disability also comes on the back of data gathered by a survey conducted by the IMRB.

The survey found that 34.12% of children with disability were out of school. The national average for children in the age group of 6 to 13 years is 4.22%. This figure is lower than the situation in 2005 when IMRB found the percentage of children out of school at 38.13. The highest concentration of out of school children is among those with visual disabilities (46%) and multiple disabilities (58.57%).

Dear Friends,

Our archaic laws still exists while new ones keep coming but there is hardly an attempt to scrap or amend the old laws. This often leads to situations like this. In the instant case while a family wanted to adopt a girl child under the new child friendly legislation called Juvenile Justice (Care and Protection of Children) Act of 2000 but they couldn't because the archaic law on adoption named Hindu Adoption and Maintenance Act came in the way.

The family had to approach the court to get the matter settled but why can't such exercise be carried out while notifying the new law that no relevant existing law is in contradiction of the law, so that a process to amend /scrap the old law could be taken then and there. Well, in the instant case, the Hon'ble Supreme court finally held that the New law will override the old provisions of Hindu Adoption and Maintenance Act.

Also it is all the more important to do this in view of the paradigm shift that we see in the status of SC/ST, gays, HIV patients, the women, the disabled, the elderly and those who were not in the mainstream till now, with the introduction of new laws, signing of new international treaties, landmark judgements from the Supreme Court of India etc.

In fact, a detailed exercise is needed by the Union Ministry of Law and also by the Law Ministries in various Indian States to ensure that no existing laws/rules/practices/norms etc are in contradiction the new socio-economic and legal order based on equal rights and non-discrimination.

regards

SC Vashishth, Advocate

To read from source click here

MUMBAI: Hindus who have always wanted to adopt a girl even though they already have a daughter can now do just that. The Hindu adoption law prohibits same gender adoptions but, in a landmark judgment this week, the Bombay High Court has thrown open the legal doors to allow Hindus adopt a child of the same gender as their existing one.

In the verdict, the HC allowed a recent petition by Mumbai-based actor couple (names withheld on request) to be legally declared as adoptive parents of a girl they had taken in as their ward over four years ago under the Juvenile Justice Act.

The couple had a two-year-old biological daughter of their own when they sought and were allowed by the court in 2005 to become guardians of a year-old destitute baby girl. Stating that courts must harmonise personal laws with secular legislation, Justice D Y Chandrachud held the Juvenile Justice (Care and Protection of Children) Act of 2000 — a secular law enabling rehabilitation of abandoned children through adoption — would prevail over the Hindu Adoption and Maintenance Act (Hama), a personal law that has placed certain restrictions on adoption.

Justice Chandrachud took up the Pathaks’ issue seriously as it “involved the larger issue of encouraging adoption and giving an abandoned child a chance in life’’. He looked closely at adoption laws under their various avtars and at the Indian Constitution as well as the Convention on the Rights of the Child which India had ratified in 1992 before ruling that “adoption is a facet of right to life and that freedom and dignity are the foremost values of governance in civil society and freedom and dignity of the young must count above all’’.

This was the first time the court was interpreting provisions of two conflicting legal provisions on adoption; it had a 54-year-old Hindu Adoption Act and the more progressive nine-year-old Juvenile Justice Act, which introduced adoption of abandoned children and gave it a wider platform. The Hindu law places stringent conditions and prohibits adoption of a child of the same gender where an adoptive father or mother already have a child living at that time.

For instance, if the adoption is of a daughter the adoptive parent must not have a Hindu daughter or a son’s daughter living at the time of adoption. Conditions are stricter while adopting a son and adoptive parents must not have a Hindu son, a grandson or even a great-grandson alive.

The Juvenile Justice Act, a countrywide beneficial social law, came in 2000 and introduced a ‘child-friendly’ approach towards adoption “in the interest of ultimate rehabilitation of a narrow sub-class of children who are orphaned, abandoned or surrendered’’.

The HC, after hearing advocate Vishal Kanade for Pathak, held: “Right to life includes rights of parents and of individuals, women and men, who wish to adopt to give meaning to their lives on the one hand and, on the other hand, is the right of abandoned children who are in need of special care and protection."

We need watch dogs and tab keepers to keep the disabilty movement vibrant

Dear Friends,

I appreciate such vigilant players in the disability sector. Such advocacy gives strength to the overall vibrancy of the Indian disability sector. We need to keep tab on various promises, laws and rules. Often, it is forgotten as new pressing issues overwhelm us. That is why the importance of such tab keepers.

If this fund is directed to the sector, we can have as many special schools, inclusive schools and accessibility around us besides vocational training and employment opportunities for Indians with disabilities. I know how many genuine organisations are not able to provide services due to resource crunch and delay in Govt. funding. The grants do not reach them even after the passage of the year for which they were required. The rampant corruption in providing support and grants. Each time, the authorities hide behind the excuses of their limited economic capacities when it comes to ensuring accessibility in infrastructure and providing support services.

The banks should be penalised for these lapses and made to pay interest at market rate for amassing the money for so long.

Also, we can't expect the CAG to be wise enough to know the needs and intricacies of the issues involved in the Disability Sector. Therefore, I would suggest that with CAG as its head, we could have membership from the disability sector to suggest and plan on how to spend the amount bring cheers in the lives of those experiencing disabilities and their families.

In addition to MSJE's funding, this money could be utilised for the special projects like vocational training, improving employement facilities, creating barrier free environment and more particularly towards the social security systems for those with no help from any corner. The constitution of such a board will also reduce the bureacratic hurdles that we often see in other departments especially in ministries like MSJE and the likes.

Congratulations Collin, once again!

Here is the news:
Banks pocketing funds meant for disabled
TNN 5 September 2009, 02:41 am IST

NEW DELHI: Banks and financial institutions have been pocketing an estimated Rs 724 crore annually by rounding up interest tax collections since 1993 despite a Supreme Court directive in 2004 that this money be used for creating a fund for implementation of the Disabilities Act to benefit disabled persons.

"Though a Trust headed by the Comptroller and Auditor General (CAG) was set up, it appears that apart from starting a scholarship scheme for disabled students envisaging a maximum expenditure of Rs 1 crore per year from August 2008, nothing further seems to have been done," alleged a PIL in the Supreme Court on Friday.

Appearing for the petitioner, senior advocate Colin Gonsalves told a Bench comprising Chief Justice K G Balakrishnan and Justices P Sathasivam and B S Chauhan that the total sum due from the banks was now to the tune of Rs 10,000 crore and if it was given, implementation of the Disabilities Act would not require state funding at all. He showed the 2004 judgment of the apex court on this issue. This made the Bench issue notice to the Centre. In 2004, the SC had directed: "Despite the progressive stance of the court and the initiatives taken by the government, the implementation of the Disabilities Act is far from being satisfactory. The disabled are victims of discrimination in spite of beneficial provisions of the Act."

"We are therefore of the opinion that in the larger interest a fund for the aforementioned purpose be created with the amount at the hands of the Union of India and the appellants and other concerned banks, which may be managed by the CAG," it had said. "We would request the CAG to effect recoveries of all the excess amount realised by the Union of India by way of interest tax and interest by the banks and other financial institutions and create the corpus of such fund therefrom.

The appellants and other concerned banks are also hereby directed to contribute to the extent of Rs 50 lakh each in the said fund," the SC had said in its 2004 judgment. Gonsalves said as against Rs 5,000-10,000 crore which ought to have been collected, the amount collected is approximately Rs 150 crore of which Rs 1 crore has been earmarked for a scholarship scheme for disabled students.

Click here to read from the Source: The Times of India

Harmonizing Disability Act with UNCRPD

'Disability Act should conform to UN model'
Ashish Sinha
New Delhi, September 8, 2009

Click here to read from source: India Today

On a day Taare Zameen Par won the national award for being the 'best family welfare entertainment film', Prime Minister Manmohan Singh authenticated the need for an attitudinal shift towards persons with disabilities.At a conference of state welfare ministers, Singh said India lagged in adopting the correct - human rights - approach on the subject. He said the Persons with Disabilities (PWD) Act, 1995 would be "comprehensively" amended to conform to the UN Convention on the Rights of Persons with Disabilities (UNCRPD), enforced in May 2008. India is a UNCRPD signatory.

"I found in each one of them (persons with disabilities) a determination to live productive lives and make their individual contributions to society. We should give them every possible opportunity to do so. They need equal opportunities as equal citizens with special needs," he said.The UN convention redefines the old approach of viewing persons with disabilities as "objects" of charity, medical treatment and social protection.

The PWD Act, to a large extent, suffers from the same shortcoming with the state becoming the 'provider' - sometimes the 'facilitator' - for persons with disabilities. Experts said other legislations on the subject also suffer from the old mindset and rather than "comprehensive amendments", a new set of laws was necessary.The UN convention sees people with disabilities as "subjects" with rights, capable of claiming those rights and making decisions for their lives based on their free and informed consent as well as being active members of society.

"The PWD Act lists seven disabilities - blindness, low vision, leprosy- cured, hearing impairment, locomotor disability, mental retardation and mental illness. The UN convention doesn't restrict the definition. It talks of higher support need as a matter of right," said Poonam Natarajan, chairperson of the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities.

"A person is not disabled; it is the environment that makes him so. Their legal capacity must be redefined.They should have full control over decision-making and choices," she said. The Prime Minister described persons with disabilities as those having "evolving capacities". After enforcement of the UN convention, the focus shifted to providing equal opportunities to persons with disabilities so that their potential could be harnessed.

"The medico-charity model needs to be dumped. Disability, simply, is diversity. It means the right to live with dignity and equal opportunities. The mindset of the administrative machinery, however, is no different from most of society where stigma is associated with disability," said a senior IAS officer working in the sector.

Last year, the government had announced an incentive scheme to promote employment of persons with disabilities in the private sector. The Prime Minister pointed out the scheme hadn't made much headway. " This may partly have been because of the economic slowdown. But as our economy is now emerging from its slowdown phase, I urge the corporate sector to respond handsomely in the implementation of the scheme," he said.
Courtesy: Mail Today