vinod tambe case judgements
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SHRI. VINOD SHAHAJI TAMBE V/S THE UNION OF INDIA Bombay(Civil) WP/3365/2013disabilityrightsthroughcourts.blogspot.inhttp://disabilityrightsthroughcourts.blogspot.in/2013/08/disabilities-cant-be-restricted-to.htmlDisabilities can't be restricted to those in the PwD Act 1995Dear Colleages,The present medical model of disability in the Disability Act and as understood by the Courts has some serious shortcomings. The etiology based labels or medical condition based labels are counterproductive so far as the constitutional mandate of ensuring equality and non-discrimination is concerned. The benefits of schemes meant for social justice can not be just restricted to persons whose condition or type of disability reflects in the law.What is needed is to look at the restrictions that the person faces in the community due to the particular condition. The forumula that Amended Americans with Disabilities Act (came in to force on Jan 01, 2009) adopts is quite reasonable. It accepts you for the disability benefits if :(a) If you have a physical or mental problem that substantially limits one or more of your “major life activities”.(b) You have a record of having had such a problem in the past.(c) Other people think you have such a problem, even if you do not actually have it.What are major life activitiesSome of the “major life activities” covered by ADA include but are not limited to caring for yourself, doing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.The amended ADA has made some major changes to the way the definition of disability had been interpreted under ADA in the past. The 2008 Amendments Act includes major body functions, including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, brain and nervous system, respiratory, circulatory, endocrine, and reproductive systems. These changes can help people with cancer, because in the past they often had a hard time meeting the definition of disability.Bombay High Court sets a precedentThe Bombay HC has in the below case issued notices to the Coordination Committees - both Centre and State - established under the Persons with Disabilities (Equal opportunities, proteciton of Rights and full participation) Act 1995 Central Govt.to respond to a similar case wherein the petitioner Vinod Tambe - a personal rehabilitated after cancer - has sought benefits available to persons with disabities under the Act.Hon'ble Chief Justice Mohit Shah has been known to be a very sensitive judge so far as matter related to those with disabilities and marginalised segments are concerned. He has been known to take suo moto notice of matters affecting the rights of disabled while he was with Gujarat High Court and championed the cause of persons with disabilities.Disabilities Act not superseding but supplementingThe Maharasthra Government had through a circular issued by the director of employment exchange on November 21, 1983, instructed all district employment officers to register cancer-cured persons as handicapped persons. And the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 being a beneficial legislation only supplemented what existed before and by its enactment, no pre-existing right could be taken away by the state in such a blatant manner. Therefore, even if if caner-cured is not included in the medical definitions of the Disabilities Act, the said category continues to get the benefits, technically.Other unreported casesI personally know of a case in Valsad, Gujarat where a gentleman met with a serious car accident during which a metal rod of the car entered his body from a little lower than the urinal part on the front side of the body and came out from the spinal cord i.e. back side of his boTRANSCRIPT
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INTHEHIGHCOURTOFJUDICATUREATBOMBAYAPPELLATECIVILJURISDICTION
WRITPETITIONNO.3365OF2013
ShriVinodShahajiTambe ..PetitionerVs.
TheUnionofIndia&Anr. ...Respondents
Mr.M.S.Karnik,forthepetitioner.Mr.S.M.PatilforrespondentNo.2.
CORAM:MOHITS.SHAH,C.J.&M.S.SANKLECHA,J.
DATE:12July2013P.C.
LeavetoaddtheCentralCoordinationCommitteeestablished
under the Persons with Disabilities (Equal Opportunities, Protection of
RightsandFullParticipation)Act,1995(hereinafterreferredtoasthe
DisabilitiesAct)andStateCoordinationCommittee establishedunder
thesameAct.
2. Learnedcounselforthepetitionersubmitsthatthepetitioner
wasdiagnosedtobesufferingwithbloodcancerin1977andwastreated
attheTataMemorialHospital,Mumbai. Thepetitionerwasdeclaredas
CancerCuredHandicap(PHPCO)aspercertificatedated16March2005.
Thelearnedcounselhasrelieduponthecirculardated21November1983
issued by the Director of Employment Exchange of the State of
Maharashtrainstructingall theDistrictEmploymentOfficerstoregister
thecancercuredpersonsashandicappedpersons. Thelearnedcounsel
submitsthatitisthusthepolicyoftheStatetorecognizethecancercured
persons as handicappedpersons. But the State Government has now
adoptedthestandthatinviewoftheenactmentoftheDisabilities Act,
theCircularstandssupersededandthatthedefinitionofdisabilitiesinthe
Disabilities Act,. 1995does not cover the petitioner's case. It is even
submittedintheaffidavitfiledbytheStateGovernmentthatdefinitionof
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disabilityenshrinedintheAmendmentBill,2012alsodoesnotcover
thedisabilitysufferedbythepetitionerand,therefore,alsothepetitioner
isnotentitledtoseekanyreliefasprayedinthepetition. Thelearned
counsel states that the copy of the Government Resolution dated 24
October1983referredtointheaforesaidCircularcouldnotbeobtained
bythepetitioner.
3. Learned counsel submits that the respondent authorities
erredinapplyingverynarrowdefinitionofthetermdisability.Learned
counselsubmitsthatdisabilityhasbeendefinedunderSection2(i)ofthe
Actasunder:
(i)disabilitymeans
(i)blindness;
(ii) lowvision;
(iii) leprosycured;
(iv) hearingimpairment;
(v) locomotordisability;
(vi) mentalretardation;
(vii) mentalillness.
ThelocomotordisabilityisdefinedinSection2(o)asunder:
(o)locomotordisabilitymeansdisabilityofthebones,jointsormusclesleadingtosubstantialrestrictionofthemovementofthelimbsoranyformofcerebralpalsy.
Learnedcounsel submits that apersonwhohassufferedbloodcancer
even after getting cured does suffer from disabilities arising from
weaknessofthebones,jointsormusclesleadingtosubstantialrestriction
ofthemovementofthelimbsand,therefore,thepetitionerissuffering
fromlocomotordisabilityasindicatedabove.
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4. Learnedcounselfurthersubmitsthattherearevariousother
forms of disabilities which would be covered by the definition of
disabilityundertheDisabilitiesAct,1995 aswellasRightofPersons
withDisabilitiesBill,2012,butbecauseofthenarrowinterpretationbeing
placedbytherespondentauthoritiesonthedefinitions,largenumberof
personsaredeprivedofthebenefitswhichwouldotherwisebeavailable
tothem.
Forinstance,thereisadiseasecalledHunter'sSyndrome.
Hunter'sSyndromeisararegeneticdisorderthatoccurswhenanenzyme
the body needs is missing or not generated enough. This leads to
progressive damageaffecting mental development andorgan function.
Therefore,thoughsuchapatientmaybetreatedaspartiallycoveredby
thedefinitionofdisability becauseofhearing impairment ormental
retardationyetwherethehearingdisabilitymaybeassessedatlessthan
40degreeandmentalretardationisalsoseparatelyassessedatlessthan
40 degree, the cumulative effect of hearing impairment and mental
retardationisnottakenintoaccountwhichwouldenablesuchaperson
toqualify tobetreatedas disabled. Thusonaccountof thenarrow
interpretationbeingplacedbytheauthorities,suchpersonsdonotfall
withinthedefinitionofpersonswithdisability.
5. Learnedcounselhasinvitedourattentiontotheprovisions
oftheRightofPersonswithDisabilitiesBill,2012particularlydefinitions
ofdisabilityinclausesx,yandzofSection2oftheBill,whichread
asunder:
(x)'personwithbenchmarkdisability'meansapersonwithnotlessthanfortypercentofaspecifieddisability,ascertifiedbyacompetentauthority;(y) 'person with disability' means a person with long termphysical,mental, intellectual orsensory impairmentwhich, ininteraction with various barriers, may hinder his full andeffectiveparticipationinsocietyonanequalbasiswithothers;(z) 'personwithdisability havinghis support needs' meansa
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personwithbenchmarkdisabilitywhoiscertifiedundersection44torequire highsupportonanongoingbasis, andmay, inparticular,includesuchpersonsconfinedtotheirhomesorlivingin institutions, or who may be concealed, neglected orsegregated,ordestituteorhomeless.
ClauseshhofSection2oftheBill,readsasunder:
hh.'specifieddisability'means
i) autismspectrumdisorder;
ii) blindness;
iii) cerebralpalsy;
iv) chronicneurologicalconditions;
v) deafblindness;
vi) hemophilia;
vii) hearingimpairment;
viii) intellectualdisability;
ix) leprosycured;
x) locomotordisability;
xi) lowvision;
xii) mentalillness;
xiii) musculardystrophy;
xiv) multiplesclerosis;
xv) specificlearningdisability;
xvi) speechandlanguagedisability,and
xvii) thalassemia;
xviii) multipledisability;
asdefinedintheSchedule.
6. Learned counsel has also invited our attention to the
provisionsof Section8and16of theDisabilities Act, 1995which lay
down the functions of Central Coordination Committee and State
Coordination Committee particularly the function of facilitating the
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continuous evolution of a comprehensive policy towards solving the
problemsfacedbypersonswithdisabilitiesanddevelopingnationaland
Statepoliciestoaddressissuesfacedbypersonswithdisabilities,further
to advise the Central Government and State Government on the
formulationof policiesaswell asprogrammes, legislationandprojects
withrespecttodisability.
7. Inviewoftheabovesubmissions,noticetothenewlyadded
parties,returnableon7August2013. LearnedA.G.P.,waivesserviceof
noticeonStateCoordinationCommittee. Mr. Sethna, learnedcounsel
waives service of notice of Union of India and also of Central
CoordinationCommittee.
CHIEFJUSTICE
M.S.SANKLECHA,J.
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INTHEHIGHCOURTOFJUDICATUREATBOMBAYCIVILAPPELLATEJURISDICTION
WRITPETITIONNO.3365OF2013
Shri.VinodS.Tambe. ...Petitioner.VS.
TheUnionofIndiaandanr. ...Respondents.
Mr.SachinGitei/byShri.M.S.KarnikforthePetitioner.Mr.A.M.SethnaandS.D.BhosaleforRespondentNo.1.
CORAM:MOHITS.SHAH,C.J.AND M.S.SANKLECHA,J.
07August2013
PC:
Time limit granted earlier for carrying out the
amendmentisextendedupto13August2013.
Standoverto27August2013.
CHIEFJUSTICE
M.S.SANKLECHA,J.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CIVIL JURISDICTION
WRIT PETITION NO.3365 OF 2013
Vinod Shahaji Tambe ).. Petitioner
Versus
The Union of India and another ).. Respondents
Mr. M.S. Karnik for the Petitioner.Mr.A.M. Sethna with Mr.S.D. Bhosale for Respondent No.1.Mr. Jaydeep Deo, AGP, for Respondent No.2.
CORAM : MOHIT S. SHAH, C.J. & M.S. SANKLECHA, J.
DATE : 29 AUGUST 2013
P.C.
While adjourning the further hearing of this petition, in order
to enable the learned Counsel for the petitioner to make a representation to
the Union of India in the Ministry of Social Justice and Empowerment,
Department of Disability Affairs, we also expect the Central Co-ordination
Committee appointed under The Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995 to
look into the petitioner's representation and to make such recommendations
as it may consider appropriate. It may be pointed out that besides the
petitioner's case like cancer cured patients, various other disabilities such
as children suffering from Hunter's Syndrome should also be considered by
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the Central Co-ordination Committee whether they should be treated as
disability within the meaning of the term "specified disability" in clause
(hh) of Section 2 in the definition as provided in the Right of Persons with
Disabilities Bill, 2012 which is under consideration. For this purpose,
copy of our order dated 12 July 2013 shall also be forwarded to the Central
Co-ordination Committee along with the representation to be made by the
petitioner through his learned Advocate.
2. Stand over to 1 October 2013.
CHIEF JUSTICE
M.S. SANKLECHA, J.
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