NATIONAL SYMPOSIUM ON 'DISABILITY AND THE LAW' FOR PERSONS WITH HEARING IMPAIRMENTS
ORGANISED BY
HUMAN RIGHTS LAW NETWORK
SUPPORTED BY
SIR RATAN TATA TRUST
AT INDIAN SOCIAL INSTITUTE, NEW DELHI ON 25TH AND 26TH NOVEMBER, 2006
MINUTES OF MEETING
DAY 1 25th November, 2006
WELCOME ADDRESS BY ROMA BHAGAT, OF DISABILITY RIGHTS INITIATIVE
I welcome you all to this National Symposium on "Disability and the Law" for the hearing impaired. The chief justice of Delhi Justice Vijender Jain has arrived to deliver the inaugural address and we warmly welcome him. Justice Jain is now being sent to Punjab & Haryana high court as chief justice and he is here with us today. I now invite Deepika Dsouza, Executive Director, Human Rights Law Network, to address the gathering.
ADDRESS DELIVERED BY MS. DEEPIKA D'SOUZA, EXECUTIVE DIRECTOR, HRLN
The Human Rights Law Network is a network of social activists, lawyers, and researchers around the country who work on Human Rights issues. We use the legal system to help the marginal and vulnerable to fight for their rights. This Symposium is a step in that direction. HRLN has done a similar Symposium with the Blind groups last year.
Since we have activists with hearing impairments from around 20 states of the country sitting with us, we are happy that we will use the next two days to build links with your states as well.
HRLN's work on disability started in 2000 when we had a conference on Globalization, Social movement and Law. It was then that we realized that Disability is a newly emerging area of human rights and it was important that Human Rights groups work on this issue. At the Panchgani Conclave, we had a conference on Disability and after that we have progressed substantially in this area with disability groups around the country. We have done the case on elections on the right to vote for the disabled.
Shakeel from HRLN Hyderabad got a landmark victory of getting dwarfs included into the disabled category. Many of our units are involved in the application of quota/ reservation for disabled people and in getting the same implemented. We have a case in Chennai wherein the court was asked to direct the Government to provide access to disabled persons in places of religious worship. Our work with the deaf groups grew out of a lecture series in 2004 when we had the deaf activist from the United States Jeff Rosen. He was president of the National Council for the disabled, a National body which advises the President of the United States on matters related to disability. His being deaf focused our attention on the issue of deaf and the problems they faced. While the disabled are the marginalized groups in society, the deaf are often more marginalized. We noticed that even among the disability groups there is very little sensitivity on issues of deaf. That forced our focus and our thinking that we should do something on disability in relation to the hearing impaired. Today is the effort in that direction.
This Symposium would not have been possible without the help of all our partners who have helped us bring people from all over the country and we hope that we use these two days to build a national network. Jeff Rosen said that the only way to get your right is to mobilize and fight for that”. How do we form the national network? What are the critical issues that we are going to take up after this? How do we link with the lawyers and take some critical cases in the courts as well?
Thank you.
INTRODUCTION OF CHIEF JUSTICE VIJENDER JAIN BY ROMA BHAGAT
Chief Justice Vijender Jain has been a part of the justice system and we extremely appreciate all that he has done in this court on several occasions. He is extremely humane and he listens not only with his ears but also with his mind and therefore, it is my great pleasure not only to welcome him but also to now request him to address the gathering.
INAUGURAL ADDRESS BY CHIEF JUSTICE VIJENDER JAIN
It is indeed a pleasure for me to be with you today this morning and I must say that this is my first meeting with the hearing impaired audience and therefore, I have been instructed to speak slowly so that my language which is being translated by our friend Arun Rao can reach you. Roma Bhagat came to tell me that I have to come. As a matter of fact I have to speak in a National Conference at 10.30 am at the Vigyan Bhavan with reference to Terrorism and Criminal Justice System as a Inaugural speaker. But when she told me that these two days of the National Workshop are dedicated for a meaningful dialogue for the purposes of understanding the problem of deaf and mute people I thought that I will be failing in my duty if I do not associate with the problem which has got a Human perspective.
Laws are not sufficient to translate into reality what is required for disabled people. We have to change the mindset of the people of our neighbourhood, family, friends, environment, if these laws can have any meaningful enforcement. Cases do come to the court, either on account of private litigation or on account of public interest litigation. Supreme Court and the High Courts, issue directions. Sometimes directions are implemented, sometimes directions are not implemented. Therefore, what is required is the sensitivity of those who are in the society and they must share the trauma and anguish of the disabled people.
I think Roma Bhagat, Colin Gonsalves, Ashok Agrawal, are in the audience and I will now no more be dealing with the cases in Delhi High Court as I will be of to Chandigarh. I had laid down in one matter filed by Javed Abidi and others which are also connected with it, that it is not only the question of providing jobs in terms of the reservation of the statute. It has to be society and the State, which has to provide overall living conditions where a person with disability should not feel that he is a second grade citizen of this country.
I was told that for the deaf people there is not a single university or a college in this country. There are very few interpreters of the language which can be communicated to the deaf people. When we talk of taking India to a great height we must not forget that a very large number of our population who are disabled are not left behind otherwise taking a few to the top echelons will not serve the purpose for which India attained independence or our constitution provided Article 14, 16, 39(a).
As a matter of fact, Dsouza, Gonsalves and Bhagat all that you are doing is asking the state to perform its Constitutional mandate in terms of these Articles. If you see Article 39(a) of the Constitution of India it says that Access to Justice and Equality for Opportunities has to be provided to all the citizens irrespective of any disability. All the subsequent lawswhich have been enacted providing reservation of 3% or whatever percentage is to get enforcement of the Constitutional mandate.
I raise my voice in unison with all of you and I am sure that by the initiative of all who are assembled here, you will create an impact on the Lawmakers, Interpreters of the law i.e. the Courts, as well as Enforcement Agencies. I will be glad to do in my individual capacity whatever I can in taking the voice of the mute people forward. I will do whatever is possible in establishment of at least a department in the universities and ensure that efforts should be made that enough number of interpreters could be trained so as people without voice have voice in the affairs of the nation.
Thank you very much for giving me this opportunity of speaking to all of you.
VOTE OF THANKS BY MR. COLIN GONSALVES, FOUNDER DIRECTOR, HRLN
We are all so happy to hear the kind and thoughtful words of the chief justice and I am sure that what we told him today will carry very far because the Chief Justice has a long and illustrious career ahead of him. I hope and I know in my heart that he will do many things as a Judge for the disability sector and specially for the deaf.
His words about the Education Sector are particularly relevant. In Delhi in the 3% disability reservation the reservation for the deaf had been taken away virtually and that 3% is divided between the blind and the locomotor disabled. Why should they take away our 1% right in the Educational Institutions in Delhi? If in the premier Institutions they take away 1% reservation what hope can we have for the rest of the country?
Thank you once again, Chief Justice for coming to talk to all of us. We are aware that you are the inaugural speaker at this very big Conference where people are coming from all over the country and yet you have taken time to come here. Thank you very much Sir and good luck in your future posting as Chief Justice of the Punjab and Haryana High Court.
PRESENTATION BY MR. COLIN GONSALVES ON — CONSTITUTION — WITH REFERENCE TO STATUS OF RIGHTS OF PERSONS WITH DISABILITIES
Of all the Disabilities in the Disability Sector we are treated worse than the blind and worse than the locomotor disabled and Government just does not understand. How will a little child even get education if there is no sign language interpreter? If I go to the Airport, Hospital, Bank, Employment Exchange, Vocational Training Centers where is the sign language interpreter? Particularly with schools how will we ever get education at this rate?
I am doing a case concerning the Delhi University. They are supposed to have 3% reservation for teachers. There was a Judge in the High Court who 10 years ago gave an order that you must have disabled teachers and Lecturers. Till today there are so many Colleges without a single disabled lecturer.
While doing that case I found that of the 3% reservation provided to disabled, 1% is for the deaf. They have cancelled that 1% and distributed it to the blind and locomotor disabled. When we saw the photograph of your demonstration outside the Chief Commissioner's office, where you locked his office, and when you had the demonstration outside the Planning Commission and the police came and tried to pull you all away. We will use the Constitution. We will also fight on the streets. Fighting for our Rights means fighting on the streets. Constitution is a very powerful tool. There are two clauses. Article 14 says no discrimination, equal treatment, it is the Equality clause. Article 21 is the Right to Life and Life means as a human being with full opportunity — Education, etc. The Public Interest Petition is a tool under the Constitution. I want many ideas of PILs. It is very simple. Anybody can do it. Any deaf person can file a Public Interest Petition. It is not expensive. It can be sometimes very quick. Within the next two days, we will discuss many things like Education, Health, Legal Rights, Transportation, Sign Language Interpreters, and Reservation in Employment. But let us not only discuss, but also plan ahead for many PILs.
I will tell you 2 – 3 things. Anybody can file a PIL. A deaf person, an organization working for the deaf, NGO, social worker, lawyer, teacher, anybody. You have to file the case in the High Court and it has to be against the government or a government funded body. HRLN lawyers are here from different parts of the country, they have come from 20 states. You can talk to them and they will also talk to you so that you can plan what PIL you want to do.
Let me give you some ideas on what sort of PILs you can do. In many parts of the world a deaf person can get a driving licence. How many deaf people have a driving licence here? But in India they don’t give you a driving licence. Abroad a deaf person can drive and can get an International driving licence. You need to have special mirrors and you can signal with lights. An International licence given in Europe is valid in India. So a Britisher and an American deaf can drive in India but an Indian who is hearing impaired cannot drive in India. We went to the Supreme Court and the Court said first you make a representation to the Government and if the Government does not listen to you then you come back. There have been some wrong reports in the newspapers. The Supreme Court only said first you approach the Government and try to convince them to give you the licence to drive. Now Arun is going to have a meeting with some officials and if they say no we are going back to the Supreme Court.
Deaf people are provided licence but in a clandestine manner. All states should have the same procedures for issuing licenses. It should be clear communication to all of them. I have a normal licence. But I obtained it by using corrupt means. If I give the money I will get a licence and when later the police catch us, it becomes very difficult to fight with them though we do manage to get our licence back. I want Government should solve the problems.
I will not go into the details of the driving licence. I will tell the power of using the PIL and how and where you can use this. So that when we go back we can have practical impact in our states. First take Education. Can you have a situation where all the Universities, Schools, Colleges will not have a sign language interpreter? Is it just? Equality clause Article 14, is it equal? Article 21 Right to Life – Are they treating me like a human being? What will a deaf student do when he comes to attend a class? If he cannot lip read what will he do?
- Teachers are required to be qualified but they are not required to know Sign Language. Even in the schools for the deaf they don’t know sign language. This is the worst atrocity against our people and we will go back to each High Court and pull the Universities/ Colleges to Court that discrimination against deaf people is due to lack of sign language interpreters.
We took the interview of Rajesh Kumar Khandelwal as to how he was treated in a government school. That is one area.
Now let us look at Hospitals. Can you go to a Hospital and get proper treatment? If you go to AIIMS will any Doctor listen to you, can any Doctor understand you? In such a huge hospital like AIIMS, will a single Doctor understand what is the problem of a deaf who is suffering? No. how will you get a symptom from a patient? How are you feeling inside, where is it paining? How the Doctor will understand?
Look at the Airports. In a particular case one deaf person was sitting at the Airport and waiting for Jet Airways. The person from Jet Airways told him that he will tell when the flight will take off because the flight had been delayed. Saying this he went away. When the flight was about to take off, an announcement was made. But the deaf kept on waiting for the person to come and tell him. Is it not possible to have sign language interpreters to appear on the screen and tell about the announcements? It can be done.
Similarly in the case of Railway Stations There are many cases of discrimination. You stand in one line, they will tell you to stand in the other line and when you reach the counter they cannot understand you and they will ask you to wait in a rude way.
So we are not going to tolerate this. We are going to fight with our fists if necessary. We will go to the court and wear a band but we will fight with our fists. As Arun Rao and Javed Abidi led us, the Police and the Administration must know that the deaf people are not mild people. We are not timid people, shy people, we are not afraid.
Take Stillman's case. Stillman was caught in a narcotics smuggling case, he was totally deaf and he was implicated falsely. His sentence was pronounced without Stillman having been given the chance to plead his case with the help of an interpreter.
How can you try a person in a criminal case where he can get life sentence, without any body interpreting for him? He was convicted and when the matter came to Supreme Court, the judge said "we know many disabled people are criminals". Ultimately the embassy intervened and he is now free but he was sentenced to life.
I am coming from Calcutta. There is only one school for the deaf upto 8th class. After much protesting, it was raised upto Class 10th. The orthopaedically and visually handicapped can study in other schools without interpreters. But in normal schools there is no place for the deaf and dumb. They are totally isolated hence they can't study.
Similarly in hospitals now a system has been evolved wherein there is a board consisting of three Doctors. These Doctors issue the handicapped certificates to the persons on their personal discretion. If a Doctor likes any particular person who is disabled less than 30%, he will be given a certificate stating disability of more than 30%. Added to this, there are many severely handicapped persons who don’t receive this certificate. Whatever orders are issued by the Social Welfare Ministry are lost in the office of the Ministers of the State. The rules do not come to the Secretariat and Departments. There are certain cases, wherein to obtain a particular handicapped certificate, you need to appear for exams. But when a rule has been framed that the exam is free of cost, but still money is demanded. They don't have proper information.
The Commissioner has power to take decisions, but the problem is that he is a West Bengal PCS officer. What will happen if the mistake is committed by higher officers and concerned Ministers?
I passed my LLB from delhi university long back but I was given exemption to appear by the academic council – I need not attend group coachings etc
This is Mr. Raghava from Chennai. Mr. Raghava is President of All India Deaf Bank Employees Association. He has filed a case in the High Court and then has come to the Supreme Court. The case is about the State Executive Committee constituted under the PWD Act which states that the SEC must have a disabled person in the committee. He is a leading person in the State of Tamilnadu representing the deaf community. They did not take him rather they took a non hearing impaired person who had political connections. That case on the implementation of the Act is now in the Supreme Court.
Mani Ram's case is well known. Everybody in the disability sector is aware of the discrimination which has been meted out to Mani Ram. He led the interview marks in the country in the Civil Services Examination. A Deaf person who leads in the interviews. He is so inspirational that the interview team of the UPSC gave him the highest marks in the whole country and yet they have not given him the service that is due to him because of a distinction between partially deaf and deaf. The whole system of partially disabled, fully disabled, partially blind, fully blind, partially deaf, fully deaf and the discrimination between them is also now pending in the High Court. But we are determined to do something in this case. He will become a leader in this movement. Because if after passing your exam, and coming top we will not allow the government to discriminate against him. Everywhere people say merit, but when we win on merit we will not allow people to be pushed off.
I did not want to make an academic speech. I want you to know how to use Article 14, 21. File a PIL in anybody's name. If you don't have a lawyer we will give you one from HRLN but even if you don't have a lawyer we want you to be able to stand up in the High Court and defend yourself. Raghava has argued many cases. That is no reason why a deaf person cannot go up. Take a sign language interpreter with you and argue your case in the High Court. It will be great fun if any of you come to the Supreme Court to take up the challenge. We will help you argue your case yourself. I will be next to you to argue your case and we will have a sign language interpreter for the judge. It will create history. For the first time in the history of India we will have a deaf person argue his case himself before the Supreme Court.
Deaf people want to study Law and want to become lawyers in Bombay but Governments councel in Colleges refuse. They say that deaf people cannot do law.
I emphasise to all of you to take up each of these cases. Wherever you feel angry, and injustice has been meted out to you and you are bitter about the injustice, immediately we will take up a case in the High Court. Everybody says that deaf people cannot do this/ that. We say deaf people can also become the Prime Minister of India and all that the people say about us is rubbish. Let us do hundreds of cases that is why we have called all our lawyers here from all over the country - Port Blair, Sikkim, Kerala, etc.
The deaf people are the best people in the world according to American Research. In India the Government says deaf people cannot, and this is the opposite of the research findings in America.
This is my first exposure to a gathering like this. We have been talking about deaf persons, interpreters, sign language etc. We have another category of deaf people who can talk very well without sign language. So they are also deaf people but slightly different from many people here who cannot talk but can use only sign language. My request is that HRLN should take into account those people who cannot hear but who can talk. My son is an example of this kind. He is profoundly deaf but he has done MCA from regular university and is now employed as Team Leader in Infosys. But he continues to be called the deaf. The people who have passed UPSC exams are the people who cannot hear but they can talk.
I am a deaf teacher in the school. Children don’t understand everything. I face lot of problems because the communication is not very clear so I am very sad about it. There is no responsible person to watch and teach these children. In the hostel, the food facilities for the children is not up to the mark and there is nobody to take care of these things.
The teachers and Principal do not understand what the children say in the school. It is a serious problem. Teachers are teaching and nobody understands them and they beat the children on their elbows, backs, and abuse the children. They don’t give them proper food in the hostels. Nobody is supervising these children. The teachers are sleeping and not teaching. There is a lot of confusion. They don’t teach them proper chapters and from proper books. They leave the children to their fate. So many children are quitting the school. Please help us.
INTRODUCTION OF ADVOCATE ASHOK AGARWAL, ADVISOR, SOCIAL JURISTS
Mr. Ashok Agarwal is a person who needs no introduction. He is the Founder of Social Jurist and has done a lot of work in the area of free education for the underprivileged. He has done a lot of PILs on disability. He is very closely connected to the cause of disability. He will speak on the PWD Act, the main legislation for persons with disabilities.
PRESENTATION BY ADVOCATE ASHOK AGARWAL ON THE PERSONS WITH DISABILITIES (EQUAL OPPORTUNITIES, PROTECTION OF RIGHTS, AND FULL PARTICIPATION) ACT
I have lot of concern for problems faced by persons with disabilities. I have very little knowledge about disability. My belief is reaffirmed after coming here that I need to know more about disability and because as a lawyer unless you know more facts and true facts you will not be able to put your case before the Courts, even if you know the law about that.
Though the law is one, it is applied differently to different situations on different facts. Therefore, before filing any petition in any court or taking up any cause legally you have to be very clear about the facts and then you decide in what manner this particular law will apply and what ultimately you are going to get out of it.
I will not go about the figures of disability or persons with hearing impairment problems. I am not sure about the correctness of the figures given by the Census conducted by our government. It always misleads people on facts and figures. I will also not go in detail on the Constitutional provisions because Colin has dealt with it and summarized it in a beautiful way. I say that PWD Act is based on social philosophy of our Constitution. In other words it is a point of Social Justice. I would like to share few cases though there are lots of cases in different High Courts and Supreme Court. As Colin said wherever you feel angry, hurt, a feeling of injustice, you should go to the court. Making of law is one thing and development of law is another thing. Development of law always takes place in the court room. Fortunately, these days the media is very much taking up those cases which are particularly coming to the courts. Though we have seen that media is owned and run by corporate bodies who are not much interested in social issues but interested in making money, sensational news, but on the other hand it has also been noticed that whenever some matter comes to the court on social issue whether it relates to PWD or other problems media is taking it up. Around 1/4th or some pages are covered with the legal news.
As far as the law is concerned the PWD Act, I would only say that there should be a provision for accountability. We should demand that the duties which are entrusted on the Government authorities and when they don't perform those, there should be a penal provision. We can learn from the penal provision incorporated in RTI Act. It has been working to some extent. This Act also contains a provision for immunity and no accountability and it becomes very difficult for a citizen to take the Government authorities to task and they can easily delay anything for a longer time.
We have witnessed this in the issue of disability certificates. The PWD Act deals with the disability certificate and in the absence of this certificate it says you will not be entitled to any benefit. This Act came in 1995 and became enforceable on 7.2.1996. For eight years, after enactment of this Act, the government did not start implementing it for the reason that you will find that this disability certificate has to be in terms of the provision of this Act and not otherwise. You meet with an accident, go to a doctor and get the disability certificate. That will not be a disability certificate valid for the purpose of PWD Act. U/s 2(b) says specified by notification 'Medical Authorities' and those authorities will constitute Medical Boards and only those boards will be entitled to issue certificates which will be valid.
For eight years nothing happened. I filed a PIL in Delhi High Court. I found that in a resettlement colony where one government hospital is there, many persons with disability were approaching that hospital for the certificate and there was a Board which was constituted by the government of Delhi for the purpose of recruitment as it has been happening for several years. The government employee has to go to the medical board for check up. People were thinking that this is a medical board for the issue of disability certificate. They said we don't have an orthopaedic expert in the board hence we can't issue the said certificate. The Medical Superintendent wrote a letter to Secretary of Health to depute an orthopaedic expert in the board so that we may be able to issue certificates. He did not receive any reply for one year. When I looked into the papers, I thought this is a very serious problem. At that time I was not conscious that there should be Medical Authorities and Medical Authorities must not have been created by the Government. As usual we think that if there is a law, it must be working, whatever they are required to do etc. But I thought that all hospitals whether central government or Delhi Government or Municipal hospitals must be entitled to issue disability certificates so that persons with disability should not run to far away and distant places again and again and face harassment. With that point of view I filed the case that the Medical orthopaedic expert has not been appointed to the board and the hospital has been unable to give the certificates. So please do something. During the course of proceedings, I realized that the Government has not yet issued any notification constituting Medical Authorities. Since they have not been constituted there is no question of Medical Boards. When this point was raised in the case a dispute between the Health Ministry and the Social Justice Ministry started. The Government lawyer told the High Court that we are not sure which authority, which Ministry has to issue the notification. Minister of Social Justice said Health Ministry has to issue and Health Ministry wrote a letter that you have to issue. This has been going on for 8 – 9 years. This shows how much the Government concern is there. Therefore we have to be very blunt if we have to achieve our rights.
The High Court passed an order saying Secretary's of both the Ministries should be present on the next date of hearing who would sort out this issue. In the next date of hearing the Health Ministry issued the notification stating the Central Hospitals specified as Medical Authorities and the High Court in its judgment said that it is a car which has not yet started. Then by notification it started. But still I feel that the notification does not cover all the hospitals. I propose that you should check up in your respective states how many hospitals are covered. To my mind all the Government hospitals and Municipal hospitals should be entitled to issue certificates.
Then we deal with Education. It is a field in which I am seriously working. I know the vulnerable position of the children with disabilities. The background paper says that 2 crore children with disabilities are suffering. I came across a letter of 1999 of HRD Minister written to different states which says there are two crore children with disabilities in this country and less than 1% are going to school. This is the state of affairs in 1999. Not much improvement has taken place because the same conditions prevail. In a case of appointment of teachers, it struck me and I told the judge that the children with disabilities had no facilities- ramps, special toilets in the schools. At that time also I thought how it is possible that it is not there. Then I realized that not even a single school of the Government or the Municipal authorities had such facilities. Moreover, the school buildings which were constructed at that time, even those provisions were not being followed in that. Only after the High Court intervened, that now only 20% schools have such facilities. I have seen that new buildings coming up with such ramps and special toilets. This is happening in Delhi and other states.
The problem is that the vulnerable section belongs to the weaker sections. The rich manage to get admission here and there. Many Private schools are running facilities for this. But with regard to children with disabilities belonging to weaker sections, the government schools are totally insensitive. More work has to be done. We say that girls are vulnerable but children with disability as a class is the most vulnerable section as far as education is concerned. If you don't give education to children, other things won't work. It is only with education that a child or anyone can stand up for the future.
A Chapter in the Act deals with Prevention and early detection of disability. Government has not done much except in Polio cases where many questions are raised. I am told that in case of hearing impairments 75% problem comes up due to lack of medical care after birth because Public Health Centres are not equipped and 25% of the problems arise when the child is born but that is also preventive. This problem is highly preventive and if the government acts in terms of this provision of the Act by ensuring early diagnosis then this disability can be minimized.
If you don’t push the Government the Government will not move. It will only move to the extent you push it. We have to be very active in keeping them moving. Until and unless this approach is changed and the entire system and their mindset changed and then only will the system start working in itself. Even thereafter also we have to keep a very strong watch on that. They did not do it and we filed public interest litigation and then also in that case the problem came whether the scheme had to be notified by the Ministry of Education or by Social Justice Ministry. Then again the High Court issued the order asking the Secretaries of both the Ministry of HRD and Social Justice asking them to be present on the next date of hearing and only thereafter on 4.11.2004 the notification came up detailing the scheme of Education for children with disabilities. I don’t think the people know about it or even if people know about it nothing further has happened. The burden on us is more and more if we really want something changed.
I will now relate a story of a Muslim girl, Sholay, who was 60% paralysed and got about 86% marks in Class IV in a school in UP. She is a Muslim girl and the second factor is she lives in a jhuggi jhopri colony. She is a daughter of a rag picker and above all she is disabled. She got these marks and she came back to her house and she was the only girl in the family who got education, Through the intervention of some NGO she asked her parents that she would like to continue to study. She was taken to the Municipal school of Jahangirpuri resettlement colony of Delhi. None of the schools took her saying that she appears to be over age. But it was the disability which was coming in the way of her admission. When I filed a petition in the High Court and it issued notice, the next day the entire school management went to her house and requested her to take admission. She said, "I will ask my Ashok uncle" whether to go to school or not and she telephoned me and I told her that it is not a prestige issue and asked her to go and take admission. There were large number of children who were denied admission in such a manner but all of them got admission in the school and there was a change in the shift in the policy itself that age is no bar. Secondly, disability is no bar for admission. We are in the 21st century and we have to fight and we have to tell the Government about all these things.
I also did a case for a person who was hearing impaired. He was a Scientist, probably in the A or B grade, in the Defence Ministry's DRDO department and he was selected by the Board not in a quota of reservation but in general category. After he was selected his case was sent for medical examination. In medical examination they didn’t apply the relaxation formula. He told about his disability. Ultimately he was denied appointment. I took up this matter with the Commissioner of disability and he passed an order saying that he is entitled for appointment. The DRDO argued that if he stood on the border and there is a war then he will not be able to hear anything. The order was passed. Unfortunately the order was not implemented as the Commissioner has no power for enforcement. Then I filed a petition in the High Court placing the order of the commissioner saying that he should be given appointment. Then the High Court issued notice and it was only after the High Court issued notice and media highlighted it the appointment was given and now the gentleman is working.
Another case is about Affirmative Action in a scheme of reservation and concessions in plots. Earlier there was no concession at all for the persons with disabilities. Section 43 of the Act talks about reservation and concessional allotment of land to the disabled. The Government at one point thought there was no provision for concession and that the Act only talks of reservations. They themselves, the Government, make the laws and do not know how to interpret them. Either they don't read it or they don't understand, but it is there in the Act. It was the High Court and Justice Bhatt had passed the order and he directed that the Government was under mandate under this Act to frame the scheme. Ultimately, very recently, a month or two ago, the government came up with the scheme. Technically it will apply to Delhi because it was the DDA scheme which was approved by the Central Government and the Central Government had issued notification about that. But by implication it can be applied to all over the country. It says that in case of shop there will be 5% reservation. Earlier it was only 1% and in case of plot or the flat earlier it was 1%. Now also it is 1%. But on account of concession where there is no provision earlier, the scheme says that 5% rebate will be given on purchase of shop/ plot or shop or flat upto a maximum of Rs. 1 lakh. That means if you purchase a flat for Rs. 20 lakh you will get a rebate of Rs. 1 lakh. To my mind it should not be less than 10% as it was proposed by the Delhi Government earlier under the scheme which was disapproved by the Central Government. But somehow it has started.
Another case we are dealing with is access, where justice Jain was dealing with the case and he was taking to task the Airlines, Railways, Municipal authorities, Government authorities that the situation is not barrier free. Large number of orders have been passed, and something has happened, but the problem as a lawyer is that we don't get proper feedback, even if your lawyer is sincere and wants to do something. If he is not equipped properly with the facts and material, either the things will get delayed or you will not get a good order. Therefore, I request the non-lawyers particularly working on this field is that you should give good feedback to your lawyer. Unless we have true facts / material, even if you have a good law, it will be useless and the benefit will not come to you.
As I have participated today in your meeting, I have benefited, I came to know lot of things. Now I see that it is really a very serious area and lot of things should be done. Similarly lawyers should be involved in this and the non-lawyers should help the lawyers. There should be a communicative coordination, because many people are taking up things in different states and in the Supreme Court, but the communication gap is very large. Hence firstly there are small number of cases and secondly we are activists, but we don’t know what is happening. So the communication should be very strong between the lawyers and the activists. I know that out of court also you have to fight. But the courts can be used. Court is also a part of state which represents a different class. But I see that something is happening from the courts and let us take advantage of that as long as it is possible and make the people empowered, but they can get empowered only when people go to the Courts for protection of their rights. If you are only moving the courts and not going to the people, then you are not empowering them but yourself. Therefore lawyers also have a duty. I am happy that large number of young lawyers are here and we can expect from them that they will take this fight forward. Lawyers are very important. They must fight very vigorously for all the weaker sections of society and importantly for the persons with disabilities and hearing impaired people in particular.
Fight in one area has a relationship with the fight in another area. If we are fighting for the implementation of the Employment Guarantee Act, it has a relation with education of children also. All sections are important but you can also concentrate on one thing so that something solid should come. You need to educate yourself also. But activists in this field should also cooperate and help the lawyer and tell him timely correctly and guide him. If we help each other we shall be helping the nation and ultimately we are helping the entire people who are being deprived.
Thank you.
The deaf blind have a particular problem because they have to apply for two sets of certificates. That is what we found in Bombay. There is no category for deaf blind in the current provision for certificates.
I have to look into that.
We have a problem with the railway concession form. Even the Doctors are not aware of the Disability Certificate and other formalities that they are required to undergo in the form of affixing correct stamp, etc.
Apart from making a confrontation, we should cultivate a habit of making representations. Since it is a developing thing, it is no use blaming the authorities all the time, people do not know many things. Even when they understand the problems, they do not know the solution. So we have to offer them solutions failing which we should take legal recourse.
There is a demand from the disability sector that there has to be a uniform disability certificate. Different places are giving different kinds of certificates which is creating lot of confusion and complication. That should be taken into consideration and join with the other groups within the disability sector so that it becomes a common / minimum demand that we can put forth.
Not only common certificate, it should be a computerized certificate, so that the persons who are not eligible should not get the benefit, because it is always at the cost of persons who are eligible.
The Persons with Disability Act includes the hearing impaired in it but the Act in itself has nothing which the hearing impaired can use as far as the concessions are concerned or anything. Would you like anything to be added to the forthcoming amendments that are proposed? As far as the concessions, most of the government G.Os, mostly they mention blind and orthopaedically disabled for concessions. The hearing impaired are not mentioned anywhere. So we should have uniform concession rates for all disabilities because there is lot of discrepancy within the concessions given e.g. the blind get concession in the airfare but the other disabilities do not get. This should be looked into.
I would like to say that the Act does not discriminate between various categories of disabilities. The discrimination is coming from the Government orders. So the Government should be taken to task for doing this. There is no mandate anywhere. There is nothing mentioned that the hearing impaired shall not get a railway concession and the blind shall get, etc.
Firstly we talked about the ignorance of the PWD Act. I did my training in 1996 when the Act was just passed so we were taught about it. But the professionals / teachers of the deaf who did their training before 1996 have not ever heard about this Act and they are supposed to tell about it to the students and to the parents. So something needs to be done for the in service professionals to appraise them about the existence of this Act and update it. We are dealing with the adults and I am from the system through which these adults have come from 3 – 20 years and I am part of that system which has let these deaf down. I am teacher of the deaf and now am a consultant. I am part of the cruel system. My teachers training programme did not teach me to communicate with the deaf. My training does not even today does it. So the demand for the movement has come from the deaf associations or from humane teachers. The students nod their heads as if they have understood everything. We know why the reading and writing skills of the deaf is poor and why the associations of deaf have to conduct literacy classes, because I am the part of this system. But about the rights we need to appraise the professionals about the existence of these classes.
Children should be in school. When they are not in school, even if the teachers are not trained it will be of no use. Even if the children are not there, the teachers should be trained. But it will become a force. Children should be in full force and simultaneously they should be trained. Wherever extra special teacher is not required and where even a normal teacher can do that will be the best course. I feel that it will lessen the financial burden. If even one teacher can do that exercise it will be beneficial. If in addition special teachers are required, those should be provided.
Considering you are in the education field, in states like Kerala, Karnataka and across the south, the persons with hearing impairment are not given admission in B.Ed and TTC courses. The argument is how can they teach and how can they convey to the students. I am sure that given a chance they will be able to prove themselves. There are people who were actually trained abroad and came back and became teachers. This point needs to be taken to the High Courts. When we were discussing Amendment to the PWD Act in Andhra Pradesh, we came to know that the Government is planning to ban the use of sign language in schools because they feel that persons with hearing impairment will then sit in a group and they will mingle among themselves and there won’t be proper inclusion. We in the hearing impaired sector need to know, because once this happens then it will affect others.
We are filing a case in the Supreme Court that all teachers of deaf must compulsory learn the sign language as part of the communication programme. Right now there are no communication strategies outlined by the B.Ed. course. Right now we are looking at the categoric illiteracy, functional literacy of any virtually deaf person across the board. Only till 8 there is a class and after 8 they have to join the class-IV job of jamadars, somewhere.
The problem in our country is absence of opportunity. Even without giving an opportunity a person is condemned that you cannot do. You have to give the opportunity.
There seems to be a lot of double speak in the Government because on the one hand you are saying that AP government is planning to ban the sign language and on the other hand as far as NCERT is concerned, when asked for the budget allocation the response of NCERT was that there was no need for it because sign language and Braille for all students in regular schools whether hearing impaired or visually impaired or not has already taken place and it is going to be introduced very shortly, probably in the next year's curriculum itself at the Class IV level. So if we are going to teach all Grade IV children then why we should remove the use of sign language is a little strange.
I filed a PIL in Gujarat High Court and an affidavit was filed by the Gujarat Government. In Gujarat in 2001 a massive earthquake hit and thousands died and thousands were rendered disabled due to injury. At the very same time the Railways had undertaken the task of conversion of meter gage to broad gage. The Railway line from Ahmedabad to Bhuj and Ahmedabad to New Delhi had been converted from meter gage to broad gage but the height of the platforms were not raised. In the reply the railway administration accepted the demand and said the height will be raised. At the same time they also said that they have decided certain short term and long term plans. In their affidavit they said the short term plans are providing standard ramps, earmarking two plots for parking of vehicles of disabled persons and providing non slippery pathway from parking to building, providing signages, provision of atleast one drinking tap suitable for use by disabled person, provision of at least one disabled friendly toilet on the ground floor, "May I Help You"? boards, lowering of booking counters.
The long-term plans are providing inter-platform connectivity, engraving the platform edge, standard ramp with railing for barrier free entry. In the long-term plan the target has been set up for March 2008 necessary planning is made and the work shall be completed as per the target. They also said the railways allows physically challenged person to take an escort with him / her while traveling by train at half the rate.
The railways said that the platforms have been divided into three categories looking at the size of the city. The Act does not talk of discrimination. So far the larger cities are concerned, the platforms are of high level, smaller towns have medium level platforms and the villages have platforms at rail level. But Section 44 does not make any discrimination between the platforms. If a person has to travel from A station to B station then that itself would amount to discrimination. The railways have invited suggestions
This is going to be the national problem but we are looking at the deaf problems. What you are talking of pertains to locomotor disabled persons. This could be discussed in internal discussion.
In Delhi High Court also the Railways are filing so many affidavits, so please compare it what they have said in Delhi and Ahmedabad. That will help.
They talk of 50% concession for the disabled in Railways but whether it is available for the escort of a deaf person also is to be seen.
The concessions currently apply to deaf persons. If my daughter is deaf and has to be taken to Madras then I will escort her and I have to pay full fare for myself. So a discussion is required. I will not like my deaf or handicapped child to go anywhere alone. The escort should also be issued a ticket — two way. Presently the blind and orthopaedically handicappedand also the mentally handicapped are getting an escort. So this is the discrimination.
As far as the railway PIL is concerned, when you are looking at the accessibility issues and the guidelines are available they are heavily tilted to the persons with orthopaedic disability and the visually impaired.
It is the mindset of the people, they don’t understand what people are facing the other side. It is not that there is anything illegal.
When an audiologist tests a hearing impaired person, they mention the hearing loss in decibles, when a disability certificate is issued they convert it into percentage. So the complaint from the parent is that a deaf child with hearing impairment mentioned as less than 100%and the persons who are competent enough to convert decibles to percentage is a big issue. Parents complaint that their child is denied railway concession because it is not 100%. The child is profoundly deaf with more than 90 db loss but the medical authority at the commissioner wrote 75% disability. Most of the parents then again go the authorities to get it 100% written to avail the concession. If a child utters "papa" in that office, the authorities deny him the opportunity to avail the concession. This renders the efforts of the teachers to teach the child speaks totally useless, as they are not issued the certificate. Something is to be done about it.
There is a very foolish system which has come to place. For purpose of disability certificate there has been categorization. Under it below 100% it is 75 – 80%. The authorities refuse to believe that there can’t be any category between 100 to 80%. Therefore if you have even a little bit of sight or hearing then you are categorized between 75 to 80%.
We have to make a difference between the law and policy and rules and regulations that came as a consequence of law. The law is there for barrier free environment. What it means and what it translates into is one thing. The translation is done by people who see only a ramp. Actually the barrier free environment means barrier free information also, freedom to move around and as such it has to include auditory signals for people who can’t see and it has to include visual signals for people who can’t hear. Therefore, the law at the present moment is there but the problem is with the implementation of the law and with the kind of governmental orders which are issued from time to time which do not take into account that the law is same for everybody and they created these differences and demarcation.
INTRODUCTION OF MS. VANDANA BEDI, MEMBER, CENTRAL EXECUTIVE COMMITTEE
Vandana Bedi has been working in the disability sector for a long time. She is a consultant in the disability sector for the last thirty years. She is also our member at the Central Executive Committee. She will speak on the chief commissioner's office and the state commissioner office from her perspective and as a member of the Central Executive Committee, what kind of problems are there on the functioning and what we should do and what we should look at.
PRESENTATION BY MS. VANDANA BEDI ON FUNCTIONING OF THE CHIEF COMMISSIONER AND STATE COMMISSIONERS , DISABILITIES:
I would like to reiterate that I am here as a person from the disability sector and not from the law side. Initially I will cover the roles and functions of the Chief Commissioner of persons with disabilities and State Commissioners and then move on to what is the current scenario in relation to those rules and functions and what we need to be doing towards these.
We are moving into the responsibility in the implementation of the PWD Act. That responsibility has been given to the so called Chief Commissioner at the Central level and the State Commissioners at the State level who report to the Central Coordination Committee at the Central level and the State Coordination Committees at the State level. The Central Executive Committee at the Central level and the State Executive Committee at the State level implement decisions made by the CCC at the Central level and the SCC at the state level. There is no mechanism beyond the Commissioners for the State. At the District level or Panchayat level or Block level there is no mechanism.
Only certain states on their own have formulated their own system. There is a nodal person which helps at the district or block level.
As far as the Chief Commissioner is concerned, first we need to understand how they are to be appointed under the Act. That has a role into our understanding of what they are telling us what they can and cannot do. Central and State governments may appoint a person as Commissioner for Disabilities for the purpose of this Act. The Act nowhere says a particular Ministry is to do these appointments. It only says Central and State Governments.
HRLN has raised a issue as to how do you interpret a Central and State Government. The disability sector needs to come out with final aspect and get it accepted from the court/ government. Secondly the person must have particular knowledge and practical experience in matters relating to rehabilitation. Thirdly is about the salaries, nature and category of officer/ employees required to assist CCPD and the State Commissioners to be decided by the respective Governments.
A CC is supposed to coordinate the work of the state level commissioners with State Government departments for programmes/ schemes for the benefit of persons with disability, secondly monitor the utilization of funds disbursed by the Central/ State Governments. Thirdly take steps to safeguard the rights and facilities made available to persons with disabilities. Next is to submit reports to the Central/State Government on implementation of the Act and prepare annual reports and table them in Parliament and State Legislature.
The CC and State Commissioners roles are similar except that the CC is the Central Government and the State Commissioner it is the State Government. The CC/ SC may on their own motion or on the application of aggrieved person look into the complaints with respect to matters relating to deprivation of rights of the persons with disability and non-implementation of laws/ rules/ regulations/ by -laws. If they are not followed by the departments/ or Private sectors, etc. they are supposed to take up those issues.
The roles have been written. But what are the powers of the Commissioners towards that. It is a very important power which is given under the CPC for summoning and enforcing the attendance of witnesses, requiring the discovery / production of any document, requisitioning of any public record or copy from any court/ office, receiving evidence on affidavits and issuing commissions for the examination of documents. Every proceeding before the commissioner shall be judicial and deemed to be of that of a Civil Court.
As a layperson I understand that it is quite an important power. We would like more than that.
Regarding appointment, we shall see the current scenario. Till now there have been 3 Chief Commissioners. The first one was Shri B.L. Sharma, Additional Secretary, M/o Social Justice & Empowerment. He came from another department so he had no special knowledge / experience in the disability sector. The rank of the CC is supposed to be equivalent to Secretary level. If an Addl. Secretary is posted who has to protect his/ her job for the future also, what will he do to this kind of work. Second was Uma Tuly from the disability sector. She had knowledge and practical experience in the sector of rehabilitation. We now have Manoj Kumar as the Chief Commissioner who was an unknown person in the disability sector and who ran a small NGO in Patna in Bihar.
Recommendations have been given in the amendments of the committee report which was set up in 1998 but nothing has been done till date and Government has asked for further amendments. In that it was recommended that the Chief Commissioner/ State Commissioner must be the persons who are also known to the disability sector and has fought for the rights of the disability sector. We understand that it is a rights based Act. So a Chief Commissioner/ State Commissioner must have fought for the rights of the disabled and be able to understand and execute the work of a Commissioner. The second Commissioner did not have a background in advocacy. The current commissioner Mr. Manoj Kumar has neither. As far as I know, he ran a small NGO in Patna unknown to disability sector has never been known for taking any rights issue for the disabled. The appointment is done by the Ministry of Social Justice and Empowerment but it should be actually be done by Parliament/ PM whoever is the appropriate authority but certainly not the Ministry of Social Justice & Empowerment. The appointment is to be made in consultation with the disability sector. Further it must be a person with disability because it is like a Commission. Can we ever think of a head of Womens Commission a man? It is not comprehensible. Similarly the head of the SC/ST Commission has to be a person from that minority. So how can a CC or State Commissioner be other than a person with disability particularly when we have so many distinguished people from that sector. This is important when the next appointment happens. As disabled people we have to come together to influence the appointment of Chief Commissioner. A lot is at stake and lot is in the hands of the Chief Commissioner.
It is to coordinate the work of State level Commissioners. In this regard the Chief Commissioner does have an odd meeting with the State Commissioners, monitor the utilization of the funds disbursed by the Central and State Governments. The situation is they have not monitored the utilization of funds given to CC office and Commissioner’s office at the State level because the review report of the Planning Commission and the Ministry shows that lot of funds were not utilized by the CC office. It only shows how they must have monitored the funds to be utilized by the other Ministries and departments for the benefit of the people with disabilities for the implementation of the Act.
Take steps to safeguard the rights and facilities made available to PWD. This is clear from the recent example of the hearing impaired who did not get appointments in the Civil services and the disability sector has been fighting that issue with some success not upto the satisfaction of the disability sector but still a good success all the same. But the CC office is hardly in the picture. I was told that he had received 2000 SMS from the disability sector about the issue of appointment of hearing impaired people in the Civil services. There was a dharna also and he then had to take a flight and come back in the evening because the PM had asked for the files. If the PM is in favour of these aspects, what is the CC doing in this regard whose job is only to look into these issues?
The Chief Commissioner is to submit report to the Central Government on implementation of the Act and prepare an annual report. The two reports of 2001-02 and 2004-05 (latest). In the latest report there has been some improvement and they have tried to cover names and few lines under each state and each chapter of the Act. But on reading it will become clear that they are trying to function like a service delivery organization. Their plan is to hold awareness raising workshops, meetings. it is a service delivery of a different kind. It has to flow from some system — from the policies, budget, ministries/ departments are supposed to do in India. They have covered ministries also. Under the M/o HRD they have written few lines saying that the ministry of HRD has decided to have so many schools/ teachers. But there is hardly any comment on what HRD has decided to do for children with disability for their education. The activities of HRD can be detailed in its annual report. They are supposed to report what they have done for the children with disabilities or adults in relation to Education/ Human Resource training which is absent.
The Act also states that the Commissioner may of its own motion or on the application of aggrieved persons may take up the issues of deprivation of rights of persons with disabilities and non-implementation of laws. It relates to the conviction, courage, passion of the CC. Before planning there should be awareness of the situation in the country and in the rural areas and remote areas. There is no system in the Chief Commissioner level or the State Commissioners level to get the feedback from the grassroot level. I do not know of any system in the Chief Commissioner’s office or in the Commissioner’s office through which they try to be in touch with the disability sector and the persons with disability continuously keep getting the problem – the disability certificate problem. It has been there for so many years. So many recommendations have been made to the Ministry, to the Chief Commissioner along with the suggestion as to what needs to be done, what has the Chief Commissioner done about it.
The Chief Commissioner attends the Central Coordination Committee and the Central Executive Committee meetings. I am present in the CEC meetings and I know their contribution. They don’t open their mouths.
From among the members, 5 are from the NGO sector, who can be hoped to speak anything because all others are from the Government and they don’t open their mouths. From the NGO sector unfortunately 2 of us open our mouth in the CEC. The situation of the other Committees is worse. We are not supported by others and even the Chief Commissioner. Nobody is there to listen at CEC level. So they need to be playing the main role in these committees. But they are passive participants. The Chairperson of the CCC is the Minister of Social Justice and Empowerment and in the CEC the chairperson is the Secretary of the Ministry of Social Justice and Empowerment and similarly at the state level. We suggest that the Chief Commissioner should play the main role in those committees.
The Chief Commissioner is the spokesperson of the disability community as well as the person who is supposed to safeguard the rights of the disabled people. Therefore, as far as he is concerned, his is the pivotal role which was discharged for a little while when the Chief Commissioner was taking institutions like IIM to Court, etc. After that he has sunk into apathy. He actually does not perform a significant role.
The Chief Commissioner has lot of powers, if the CC is supposed to monitor the ministries about their work in the disability sector and the utilization of funds. If the CC is supposed to do that, according to the Act the CC has to be directly accountable to the Parliament/ Parliamentary committee. That system is in existence with relation to the other Commissions. But the CC becomes a direct person of the Ministry of Social justice and Empowerment. The CC has not been courageous enough to insist on their power that is being given to them. In their annual report they take lot of credit for work as if that has been done by the CC’s office. They take credit for whatever disability sector has achieved. What can we do about it?
Firstly we need to know what are our rights or how we interpret our rights. Somebody commented about the hospital problem saying it is a social issue. That is how we degrade our rights. It is a rights issue. Any Doctor or Speech therapist are not supposed to work in an area where they do not know the language of the particular area. They have to know about the ways of communicating to the person. The medical profession comes under that category. A Doctor in the hospital has to know how to communicate with people of different types. If they do not the hospital system needs to have interpreters. So if we push it to the social side we will wait until the social attitude comes. Nobody has raised this problem before. It is a very genuine problem. A person with hearing impairment can actually die if his / her symptom need is not understood or he has not understood the medicines. This can be fatal. This is a very good case for a PIL. All hospitals/ medical places must have interpreters. They should know if a person is asking for a written communication, they must take out time and do it because it is their duty. This way we have to understand our rights. This gives us conviction, courage and motivation to move ahead and fight. Otherwise we move into the psyche of the oppressed. To develop this we need to read the psyche of the oppressed and we will learn a lot from it. Numerous times we fall into that category. So we need to understand the psyche of the oppressed and think how we need to move out of it.
With regard to the Chief Commissioner, a lot of money is being spent/ allocated, but not a lot in the true sense. But the sad part is whatever money is coming, not even half of it is getting utilized and a lot of money is spent on the salaries and maintenance of offices of CC and the state Commissioners. So not much change can be expected. The change has to come with people demanding it. Disabilities sector has to come together and special areas like hearing impaired sector i.e. the different sectors within the disability sector who understand their own sectoral issues much more importantly. But we should get together for each other. We will have to explain to the Planning Commission onwards what are the needs and what needs to be done. For this we need to educate ourselves.
Now the planning for the 11th five-year plan is going on and the Planning Commission is working on this plan. For the first time the disability sector has very strongly got involved in guiding the Planning Commission in what the disability sector wants for next 5 years, what kind of budget allocation it wants. We need to know what the Planning Commission has given to the disability sector when it comes out next year. Which ministries will implement them? What are the policies and programmes? We need to monitor that on a regular basis.
We now have Right to Information Act in place, which is a very positive Act. We need to read the Chief Commissioners office reports and see whatever they are claiming to have done is correct or not and also at what level they are planning. As Mr. Iyer of HRLN Ahmedabad, said what the Railway Ministry is claiming to be doing. We need to monitor those claims. Whether what they say exists and we need to bombard the State Commissioner and CC offices and tell them what we want from them. Chief Commissioner and Commissioners are full time workers for this Act and they are getting salaries for this purpose. We need to keep having these kinds of workshops where we continuously educate ourselves and learn from each other what is happening in the country and how we need to go about it and how it relates to us.
Thank you.
IN 1999 OR 2000 THE Supreme Court gave a direction to the Ministry because meetings of the Central Coordination Committee and the Central Executive Committee were not taking place. The Supreme Court directed the Chief Commissioner's office to hold the stipulated number of meetings in a year. This is the situation after that that inspite of the Supreme Court’s directions meetings are not being held. At all forums we need to raise this issue and at state level and central level.
As per the Act, in the Central Coordination Committee there are 17 persons that represent the government. For NGOs you have to select five persons, one for the blind, one for the orthopaedically handicapped, one for the deaf and mentally retarded persons. For mentally retarded persons I agree that to find representation from such persons is difficult but it is amazing that for deaf persons you are selecting a normal lady who is not hearing impaired to represent the community in the government. Suppose Swaminathan is there. He is a deaf Graduate working in Indian Overseas Bank and President of the Tamilnadu State Federation of Deaf. He can be nominated. Instead the Tamilnadu State Federation was discriminated and this normal lady was appointed to represent the deaf. I feel it is discrimination against deaf people. The High Court dismissed my case. It was a discriminatory order so I had to file the case in the Supreme Court. Why such things happen?
Laws are made and laws are broken. We have to take the people who break the laws to task. So you went to court and now you are in the Supreme Court. That is the way it should be as you are saying that hearing impaired can represent the community but unfortunately that is not the way it happened. That is the only answer to be given. There is no reason why a hearing impaired person should not be on the committee. That is what the law says but it is not happening. That is why we have to take recourse to court and other methods of advocacy.
Recently in the Planning Commission Steering committee meeting (there are steering committees to work out the strategies for the next five years). Now this time Mr. Narayanan a hearing impaired person and Secretary of the National Association of the Deaf, is a member of that committee set up by the Planning Commission. We are learning the methodologies of knowing how to get our issues understood and approved at such levels. Before that we had a demonstration that the disability sector is not being involved. So they became aware. Our chairperson of the steering committee, who is looking into the disability sector, was very angry as to how the disability sector could do this demonstration against the Planning Commission. The Planning Commission was amiss as to How can the disability sector hold the dharna against them. It has never happened in the history of India. Slowly the Chairperson changed and within few days he became pro-disability because we had members within the Planning Commission and when the steering committee was to start they were made to realize that Mr. Narayanan was present and there was no sign language interpreter. You should have seen how scared they felt. They were nervous that this is going to be a very big chaos and disability sector is going to be very angry because we have been talking about it. We have involved a hearing impaired person and then there is no interpreter. They, the Planning Commission, apologized ten times and they had to provide an interpreter. This is how along with the courts one will have to work and that we will have to make a lot of noise. Dr. Ahluwalia said we are not fully aware of these things. If you make lot of noise we will hear and do it. In India there are so many issues that whoever makes their noise gets heard and that is what Dr. Ahluwalia told us.
This is regarding the disability Commissioner in certain states. In the state of Gujarat the Commissioner himself says that he dissuades people from coming up and registering cases against anybody and he tries counseling. Is he authorized to do and if that happens what recourse is available to people?
No he is not authorized to do councelling. His job is to safeguard the rights of people with disability and part of that is to counsel them not to give up those rights. If that is denied the next course of action is to go to the next authority which is the High Court.
The earlier Commissioner said why should I meet with the jumping men, dancing men in a very derogatory manner when it came to disability. Now again it is a person who is not interested in the affairs of the persons with disabilities. They have approached the Minister and lot of other government bodies. Do they have a case to go to the High Court?
This is true in most of the cases. Karnataka is the only state where to an extent the Commissioner has been proactive, where he has actually called organizations which are giving legal aid to come and sit in his office and asking for help in helping the persons with disabilities or you can take the case to court.
Under RTI you can also ask for the records of the office of the state Commissioner. It will tell their own story. In offices of the Commissioner which are proactive, automatically you will be able to see large number of cases, large number of decisions having gone out and positive orders having been issued. The state commissioner of Karnataka is disgusted with the state government because they are not following the roster system and he has come against an order of the High Court of Karnataka in a Special Leave Petition in the Supreme Court. So automatically from your RTI you will be able to immediately, on paper, see the effectiveness or otherwise of the state Commissioner and say that this man is or is not effective in looking after the rights of the persons with disabilities and whether he should not be in this post at all.
This is with regard to disability Commissioner. Does the disability Commissioner have power to give any relief. We are discussing amongst ourselves that because the remedy is provided we have to exhaust the alternative remedy of first going to the disability Commissioner and then going to the High Court. But if he cannot give any effective relief then is it mandatory to go to the disability Commissioner by way of complaint or representation and then go to the High Court?
I have a lot of issues on that. If we look at the Disability Act and another Act which came in and which has something similar there is a hierarchy which we don't have i.e. Consumer Act. The Consumer Protection Act does not give the consumer court powers to execute a decree. They have powers to send the execution to the Civil Court. In the PWD Act it says that the Commissioner has wide powers of a Civil Court as far as entire gamut of actually conducting the case is concerned. Power to call witnesses, summon documents, etc. Then there is Section 62, which says that he has right to forward this to the appropriate authority. Taking these powers, reading them in the context of Section 62 and the fact that it says that it has right to pass an order, the Act specifies that he has right to pass an order and does not talk about implementation. Therefore that should be taken under Section 62 and we should file an execution petition saying that this was an order that was passed and it has not been acted upon. This is infringement of a right of the person with disability. Please send it to the Civil Court for execution and the execution will happen in the normal course. If the person does not comply he can be given free boarding and lodging by the government.
With regard to services. There are number of complaints of services not being given or they, the disabled, are sent from pillar to post. Also the practices followed are different in different parts of the country. Can we have some sort of guidelines and information in which the identity or disability criteria are laid down in the simplest manner in which a certificate should be issued. We should do some exercise on that.
We have realized that each state has its own individual problems with regard to services. There is no common formula that fits into it. Before we take any action in the disability sector, we should become conscious of the fact that from every state wee need to understand what are their limitations and what exactly are their needs. On an experimental basis, six mobile courts have been set up which will not only grant disability certificates but also all the other allied concessions either in one way and they will also take on record the representation from the disabled persons stating that the particular NGO etc. is entitled to act on their behalf. This may be a solution to atleast to the first step i.e. that there is no accessibility, no proper boards, no qualified people available to give those services. When people go to get them to actually avail of the opportunity, particularly in small rural areas and far flung areas. This is what the disability sector can push for.
Another point to be debated is whether we should ask for a Commission like Womens Commission or a separate Ministry for people with disabilities because there is a law. The Act is a law and Supreme Court judges understand it more in order to implement them. In a Commission there is always a judge who is normally a retired Supreme Court Judge. The level of the Chief Commissioner comes lower. They are not able to push for implementation of their orders. Should we now fight for a Commission so that other law people, like retired judges, can also enter the panel and influence all the various players.
POST LUNCH SESSIONS ON DAY ONE:
PRESENTATION ON PROPERTY AND INHERITANCE LAWS BY ADVOCATE ROMA BHAGAT, HRLN
This session is devoted to Property and Inheritance laws. I will speak on various kinds of Inheritance laws in our country. Inheritance laws are dependant upon the religion to which you belong. Because there is segregation based on your religion. First i will take the Hindu Succession Act. The Hindu Succession Act has been amended last year. I will give a brief about the position prior to amendment and what it is post amendment.
Prior to the amendment there was a concept call Hindu Undivided Family. So the family was one unit and the head of the family was Karta. His wife, his sons, were part of this HUF and they were the inheritors. The daughters did not have a share. Last year the Act was amended and now the daughters have been given full share in the HUF as also in other property which is self acquired to either the father or the mother. If a male Hindu dies there are two ways in which his property comes to his legal heirs. The first way is where he leaves a will and where he leaves a will there the will be supreme. Whatever he says in the Will if he does not want to leave it to any of his children but outside his family, he can do so. But with one exception that it was not originally created by any Act. It was created by the Supreme Court, which held that no male Hindu could leave a Will in which he did not give his wife atleast that one share as she would get from a normal succession Hindu Succession Act laws. Now the wife has to be given 1/3rd i.e. mandatory if he wants to make a Will he can do it as to the balance amount. In the HUF the main share in the HUF earlier used to be divided only between his sons and his wife. Now it will be divided among his wife as well as his sons and his daughters. The only person who does not get a share in the HUF is the mother of the deceased. If she is alive then she gets a share in his self acquired property but not in the undivided family property. If a man dies without leaving a Will then his sons, his daughters, wife and his mother all get 1 equal share in that property. Another provision has been introduced in the Act. If a man dies leaving his only Rs. 5000 then that entire amount will belong to his widow.
Under Muslim law no person is allowed to Will more than 1/3rd of their property. 2/3rd of the property has to go as per the Shariyat law of the Muslims and 1/3rd of the property he can will away to anybody whomsoever they may desire to. The property that goes according to the law i.e. it cannot be willed away. The daughter gets one share as compared to a son who gets double of her share — shares for every one share that the daughter gets. Wife also gets the same share as the daughter but there is a share for the mother also who also gets the same as the wife and the daughters. That is to say if a man has one son, two daughters, one wife and a mother at the time he dies then his mother, wife, two daughters and one son will constitute these shares out of which the son will get two shares and all the rest of the four women will get one share each.
Christians go as per the Indian Succession Act and as far as the Indian Succession Act is concerned, Christians have a right to Will away all their property to anybody whomsoever they may wish to do so if they don't leave behind a Will then a property of a christian will go to their wife and their children.
The grand children and grand grand children come into play if a Class-1 heirs are not present or if they don't exist. e.g. if a man didn't marry or after his first wife passed away before him and he has no surviving children, then his grand children would stand to inherit. If in any one of the categories any one child has passed away leaving behind some children then those children will inherit the share of the child who has passed away.
Enlighten us on the property and inheritance laws for women in the disability law.
There is nothing. Our experience is that I have personally met with lot of disabled people who have complaints on this issue and they say that their parents will make a Will subsequently to disinherit them. I think that is one of the things we must look for in the amendment of the Act that a disabled person's share in the inheritance cannot be Willed away which is like the wife’s share in the inheritance cannot be willed away.
The concept of guardianship that has come under the National Trust Act is not a new concept. We already have an Act called the Guardians and Wards Act. It is meant for people who are not supposed to have legal capacity. Anybody with an intellectual disability or anybody with mental illness would form part of that Act as would other minors who have not attained the age of 18 years. It has just been transposed into the National Trust Act. There is a provision that after the age of 18 years you can apply to the Local Level committee set up under the National Trust and petition a guardianship certificate. This guardianship comes to the parent and along with it comes an obligation that you have to give a statement as to the property belonging to the person with disability at the time you petition the certificate and you have to only give returns to show what you are doing with the property and how it is being utilized inn order to ensure that you don't misuse it.
In the absence of parents the NGOs and siblings are among the other people who are entitled to get the guardianship. The deaf, blind are a category of multiple disabilities and therefore come within the purview of the National Trust Act which was created to take into account the disability of severe or profound in nature. There is a category of disability. The National Trust Act is for the welfare of the persons relating to mental retardation, autism, cerebral palsy and multiple disabilities. So the deaf, blind are very much part of the category of multiple disabilities as would be a person with cerebral palsy who may not have the intellectual disability at all.
A Deaf person Anil is left without any share of his property after his father died. All the property has been shared by his able bodied siblings.
The whole question will depend on or not whether the father died leaving behind a Will. If there was no Will then this disabled person has an equal right to inheritance with all other siblings as well as mother. If however, the father left a Will then succession would go as per the Will. This is something that has happened on many occasions. We have found that people will leave Wills leaving a certain extra share of the property to one particular child and there is a corresponding statement that that child will look after another disabled child. Sometimes that does not happen. In such a case we can challenge the operation of that Will because the contingent clause upon which the extra share was given to one particular child has not been fulfilled.
This pertains to a hearing impaired person who one year before read in newspaper that his father had passed away and he was not left with any property in his fathers will. Can he go to the courts?
Yes the court can do that but you have to go to the court and you have to ask the court in your particular case to give you your share. This does not happen only to disabled people. It happens to people who are non-disabled also. Some adult will try and take more share as compared to another child. It happens more in the case of disabled than non disabled people. But it happens most of the time. When it happens that one brother or sister or 2 or 3 of them are trying to take the share of another brother and sister, then the person whose share is being taken away has to go to the court. It is very important to remember this and ask for legitimate share from the courts.
Dr. M.G. Ramachandran, ex CM of Tamil Nadu, by his will gave several of his properties to the deaf. The trustees have misappropriated the property bequeathed to the deaf. The executive did not do their work properly. The case which I filed 20 years back in Chennai. First it was adjourned and then dismissed purposely. I had to appeal. It is property worth Rs. 550 crores. Can HRLN do something to take on the property as a Trustee?
We can do that. If we look at the case papers, certainly something can be done. We have to see what cause of action will be best at this point of time. In case of a Public Trust, even a fresh cause of action arises every single day. A Public Trust is liable to do its job and any 2 members of the public can go to the court and say that the Trust is not doing its job, is not submitting its accounts, has taken money which it has not spent properly. Action will not only be taken but also the trustees will be dismissed.
There is a hearing couple who had a hearing impaired child. They owned some land in a village which they sold. It seems they gave the money to the uncle so that he could look after the child. But the uncle misappropriated the money and ran away. Can something be done about it?
When they gave the money to the uncle how did they give it. The uncle could not have signed papers. He must have had a set of papers before he signed those papers. We will have to see the papers concerned. There is something not right with the situation.
: There is a father who had one hearing impaired son and the remainder of the children were non hearing impaired. He died giving the entire property to his other children but excluded the hearing impaired person. Can something be done about it?
: The religious community is Christian and therefore nothing can be done. In case of Muslims only 1/3rd of the property can be left by a will. Something can be done if some child is disinherited completely. We need to change the law.
: My father’s friend has two sons one is deaf and the other is hearing. One got married and his wife and son both are deaf and the other he married to a hearing wife. He has written a will 50% to both the children. They have lot of money. Father expired. So the second child who was normal he took the property and ran away. How to solve this problem?
: You have to have a copy of the will, then you can go to court. But even if it is not there you can still go to court saying it is 50: 50. 50% belongs to each child. You have to go to court for this issue.
: Father is a lawyer in Chandigarh. First child is normal, the second is hearing impaired and both the siblings have got a fifty percent share whilst the wife has got a fifty percent share.
There is no law that the wife has to inherit 50% of what the husband leaves and all three are to get an equal share of the property.
PRESENTATION BY ADVOCATE ANUBHA RASTOGI ON RAPE, MOLESTATION AND SEXUAL HARASSMENT
What would you consider sexual harassment at your work place?
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When people walk around you while waiting for a bus and when I was waiting for a bus a man came and offered me a lift.
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People make fun of us when we go for a walk
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In our office when we sit together and the men try to become familiar.
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In a jewelry shop one man came and started asking questions.
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A deaf girl is ordered by her male colleague to wear a jeans and not sari.
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In Andhra Bank in Kerala there are many laidies staff. There was a male employee who had a digital camera installed and he clicked some photographs of the girls. The bank charge sheeted him for taking the photographs and his four increments have been stopped. Then he was transferred to a remote area. I filed the case but the bank is refusing to listen. They should have filed a case under sexual harassment.
What is sexual harassment?
The key word is "unwelcome sexually determined behaviour, which could be physical contact, demand or request for sexual favours, sexually coloured remarks, showing pornography and any other physical verbal or non verbal conduct of a sexual nature". Whenever you feel that you don’t want it that is sexual harassment.
If you are in a relationship with somebody at your work place and you are all right if you are physical with someone. It is not sexual harassment. The word is unwelcome which you don’t want. Sexual harassment is, as you said, grabbing, brushing, pinching, patting that is specifically physical contact and you don’t want it.
What is an unwelcome demand or request for sexual favour?
It is making directly a demand or by implication. For e.g. somebody says let me be physical with you and then you will get promotion. Or in other ways, specially when the demand is made as a condition for employment. It is agreed that you will be taken on the job only if you fulfill sexual demands or for payment of wages or increment of a promotion. Unwelcome remarks with sexual connotations as sexually coloured, sexually explicit, compliments, people in the work place would say "you are looking very pretty today" or "this dress looks very nice on you" "your figure looks good in this dress" a remark like this is not required at work place. Comments about physical appearance, obscene telephone calls, showing pornography would mean sexual harassment. These days, on computers they save a screen saver which is pornographic in nature and when the person is your higher up and when you go into his room for work and he / she is looking at pornographic photographs and does not stop when you enter that is sexual harassment. So it is any other unwelcome conduct of a sexual nature which could be verbal or non verbaland also as you suggested in terms of obscene gestures.
If a supervisor requests sexual favours from a junior in return for promotions, or other benefits, or threatens to sack for non cooperation. Where a boss makes intrusive inquiries into the private life of an employee or persistently asks them out. There is no reason for anyone to ask about your personal life if you don't want to share it. You don't have to go out with somebody just because they are constantly asking for it. What is unwelcome is unwelcome.
Even if a group of people are sitting together and making remarks and passing comments then it is sexual harassment. There is no law dealing with sexual harassment at work place.
In 1997 the Supreme Court in a judgment called Vishakha versus State of Rajasthan laid down guidelines as to how the sexual harassment at work place has to be dealt with.
The Supreme Court has specifically said that it is the duty of the employer or the responsible person at the work place to take steps to prevent or deter commission of acts of sexual harassment. It means that it is the duty of the employer to make sure that the work place is free from sexual harassment. Employer is to ensure that preventive steps are taken in the appropriate working conditions and no hostile environments prevail in the workplace.
There are two types of sexual harassments — one is give and take — where the employer/ colleague would say that in return for being sexually intimate I would give you promotion/ raise/ good confidential report. The other form is hostile work environment, where it is difficult for you to work in that place. There is no specific instance you can allege about a person. Example would be where obscene remarks are being made in general, comments are made, and you are stared at or looked at in a particular way, brushed and other attempts made on you. This also comes in sexual harassment.
Criminal proceedings can be initiated in a case of sexual harassment under specific laws under the IPC. A disciplinary action can be taken against the person who is the harasser here and he/ she can be under the relevant service rule. The Supreme Court laid down that every organization should have a sexual harassment complaints committee. It is the duty of that committee to make sure that the organization is free from sexual harassment and it is the duty of that committee to look into any complaints of sexual harassment. The complaint committee has to be headed by a woman and at least 50% members have to be women. There has to be one NGO member in the committee to see that the committee is free from any bias or pressure. The complaint mechanism should provide a special counselor or other support services and there must be maintenance of strict confidentiality.
Also third party harassment also comes under sexual harassment. If you are in an organization where there is a lot of public dealing and a member of the public who has come to your organization for work sexually harasses you that can be taken up with the committee because it is the duty of the employer to make sure that the people in that organization are safe from sexual harassment from wherever that comes. Specifically to protect the victim, it is the duty of the employer and the committee that the victims or witnesses are not victimized or discriminated against. It has been specifically laid down that it is the option of the victim to ask for either her own transfer or for the transfer of the accused person. It is her option. She can’t be forced to get transferred because she has made the complaint. It is the right that every individual has.
What should you do when you feel that you are being sexually harassed?
First you should not ignore the harassment which has been meted out to you. You should do something about it. If you tolerate it, it will keep happening. You should not blame yourself. You are the victim. You are not wrong. You should not feel ashamed. You should talk to someone in the office with whom you can. If this has been happening over a period of time, you should maintain a diary and should have proof, otherwise it becomes difficult for a person to remember later on what happened when. Wherever possible name and describe the harassment — what actually happened, what did the person say/ do. If possible create a witness. When there are people around ask them if they are willing to come as a witness. Most importantly avoid delay in reporting. Wherever you feel that there is a sexual harassment case you should immediately report. If it is against your senior report to the person above him. If it is against the highest authority report to someone outside, management, if it is government organization report to ministry and if nobody is listening approach a lawyer but don’t tolerate it. You must make sure that there is a sexual harassment complaints committee in your organization and there is a sexual harassment policy in your organization. The names and phone numbers of the members of the SHCC should be known to all employees. If you don't know find it out, it is your duty to find who you can approach in your organization.
Is it a problem when the male teacher slaps you on the back?
It is definitely a case of sexual harassment and at the moment there is a case pending in Supreme Court and there is also a bill pending. A new law will come which will cover not only the work place but also educational institutions. If there is a feeling that it is unwelcome and amounts to sexual harassment you should approach the management of the school and make noise.
Under Vishakha it was mandatory for a government organization to constitute a sexual harassment committee. In Medha Kotwal case it is mandatory even for the Private organizations to constitute such committees. The law is about to come and it will be applicable to one and all.
The second aspect concerns the person who may not be able to understand what is unwelcome behaviour, then the standard for a reasonable person who would think it is unwelcome/ unnecessary that itself would definitely go in favour of the person who is not knowledgeable. We know that law is not sensitive to even gender so forget all other categories.
We have dealt a case for a woman with a disability who was sexually harassed and she approached us. We represented her in the SHCC. We were constantly emphasizing that you have to look at it as a different case because she is also disabled woman and so she is more vulnerable that way. Therefore, when you are looking at evidence, witnesses, penalty you have to keep this in mind. It is a case-to-case basis that we have to emphasise upon.
At the moment it is happening and the lawyer or the organization that is representing either the victim or the accused person before the SHCC. Wherever they feel that the support is to be provided they are doing it.
: Should there not be sign language interpreters in courts and police stations etc.
: That is a very valuable suggestion which can be incorporated. Why should not there be interpreters in court and police stations. These services should be actually accessible, so to say.
: The girls overdress themselves and this draws unwelcome behaviour from the male community. One girl was looking better than the other and it is like a cake being thrown before a hungry dog.
: It would be better if the hungry dog controls itself. A cake can be anywhere either in the street or in the shop.
: A woman had a problem. She was a victim of sexual harassment and she didn't know where to contact these people. HRLN should have a network everywhere so that the victims can contact the lawyers of HRLN. Because the other lawyers are in the habit of asking for fees.
: We have a network in almost all the states of the country.
: But most of the deaf people are ignorant of this fact.
: We will circulate a list of our people and phone numbers and units.
: Sexual harassment is common among the deaf community but it is always kept under wraps. Because they can't express themselves. A deaf girl was raped. The case surfaced after two months when they realized that she was pregnant. Such cases are all over the world. I know about a girl who was raped every night by her father in law. She could not do anything about it. After a year she talked to her mother and then steps were taken. There is no end to sexual harassment.
: But we have to begin from somewhere.
We have to start awareness campaigns in the deaf community right from the grassroot level. Law has everything for us. It is we who are not doing anything about it. It boils down to awareness.
This National Symposium is an attempt to spread awareness about the rights, demands of the deaf community and not as a favour or obligation. When a woman becomes aware as to the wrong happening with her then only she will stand up for it and fight.
: A post of interpreter should be created in Social Justice department in all the states who will communicate on behalf of the hearing impaired.
: It will be difficult to say that every police station, hospital, court should have an interpreter but if there is a bank of interpreters accessible in every state then it can be utilized and it would be helpful in some way.
: The Teacher of a school called the 10th class girl students home one by one and had sex with them. The girls got pregnant and when they complained he said that he would take stern action against them if they complained.
: Was the police approached?
: The police was approached but they refused to file a FIR. They made some enquiries but nothing happened.
Anubha: Did any body go in appeal?
: No, because all girls are deaf and the police don't listen.
Anubha: How long ago was this case?
: Ten years back.
: We could have gone to the high court if it was a recent case. When you feel that lower authorities are not listening/ not doing what they are supposed to do, then you go to the next higher authorities. In the legal system you go from lower court to High Court and from High Court to the Supreme Court. Somewhere you will be heard. At least you made an attempt.
: We all deaf people have the same problem. We don't know what to do when something like this happens. This is our responsibility. We have fight it out ourselves. We have to make networking and become aware. If NHRC and other government agencies have interest in development of deaf people then they must learn sign language.
: I met some people in Jabalpur. In the police stations they have set up a separate booth for the deaf people and a few people are manning the booth round the clock, who actually have a connection with the sign language interpreters and who are actually helping the deaf women not only in sexual harassment cases, but also domestic violence related cases. Such examples can be followed at other police stations as well. Though the young sign language interpreter admitted that she had received threatening calls she was scared for her life, but she continued helping the deaf children.
It is our responsibility to make sure that our rights are not violated. If they are violated it is our responsibility to speak up. Unless you understand your own responsibility nobody is going to do anything for you. You have to stand up for yourself first and then people will join you.
Section 275 of the IPC defines rape. Firstly rape is against the will of a woman, without her consent. Or with her consent by putting in her fear of death or hurt i.e. the woman is made to say "yes" on the basis of putting either fear on her of death or the threat that somebody related to her will get killed. It may be her mother, child, brother, anybody. Though she says yes, but still it amounts to rape.
When she believes the man to be her husband. In a lot of cases, even now, a woman, till the first night of her wedding has not seen her husband and does not know who her husband is. So it is very easy for a man to come into her bedroom on her first wedding night and pretend to be her husband. She in her bonafide belief that the person is her husband gets physical with him. This also amounts to rape, even though the sex was with consent and was done willingly because she was tricked.
Where it is her consent with unsoundness of mind, intoxication it is also rape
When she is below 16 years and gets into physical relationship with or without her consent, it is a rape.
Section 376 gives punishment for rape. There are various categories. Punishment will not be less than 7 years and it also could be for life imprisonment. It is different where it is a member of the police, public servant, and jail staff, hospital staff who has raped a woman. In the case of rape of a pregnant woman, rape of a girl under 12 years of age, in case of gang rape, it is rigorous imprisonment of not less than 10 years and it could be life imprisonment.
The Supreme Court has laid down lots of guidelines which have to be followed in a case of rape. In a case of Delhi Domestic Working Womens Forum the SC clearly said that the victim has a right to independent legal representation i.e. a victim has a right to get a lawyer. In a criminal case it is the state who files a case against the accused person. So the victim has really no representation. But in case of rape the Supreme Court has ruled that the victim has a right to get her own lawyer. This right is from the stage of filing the FIR. So the right starts from the police station. If you can't hire a lawyer on your own it is the duty of the police station to have a panel of lawyers who can assist you. It is the duty of the police to inform the victim that she has a right to representation. It is not only lawyers but doctors and counselors that have to be available, whenever a case comes. It is of paramount importance that the annonimity of the victims have to be maintained. The names, whereabouts of the victims cannot be disclosed under any circumstances. There has to be a compensation board established. In any case of rape the victim has to be compensated. Whether the accused has been admitted or the accused has been convicted. The moment there is a case of rape the victim has to be compensated and it is the responsibility of the state to compensate the victim.
In another case, the Supreme Court has said that the past of the victim cannot be seen while dealing with the rape case. The accused's lawyer will always say that the victim is always available and may invariably indulge in character assassination. If the victim is saying that it was without her consent then it is the duty of the accused to prove that it was her consent. The moment she says she had not consented for it, that will be taken as amounting to rape.
In cases of child sexual abuse, delay in filing the FIR will not harm the case.
In State versus Gurmeet Singh specifically it has been laid down that the bail to the accused cannot be granted in case of rape and other serious social crimes like dowry.
In Sakshi vs. UOI it has been held that the court case of a victim of child sexual abuse has to be in camera i.e. the proceedings have to either be recorded, if possible, and if not possible when the case comes for hearing in court, nobody else except for the judge, two lawyers, victim and the accused person will be allowed to be in court. In the case of a child sexual abuse there has to be a screen between the victim and the accused so that the victim does not feel victimized and terrorized again and can easily speak and depose about what happened. The questions have to be given in writing to the judge and only when he approves will the questions be asked. The victim should be given sufficient breaks i.e. the victim should be allowed to take a break and then continue her evidence.
: In a case of rape how will the girl prove that a particular person had committed rape on her?
: It will depend on the circumstantial evidence, medical evidence, clothes, bloodstains, etc. It is not very difficult. Medical evidence is most important.
PRESENTATION BY MS. KHADIJA ON LAWS ON DOMESTIC VIOLENCE
I am very pleased to be with you. Today I will talk of a new law which has been enacted to tackle another kind of Domestic violence against women which normally happens within the four walls of the house. I will give you a brief overview of the law and concept of the law, what the law deals with and the issues covered under this law.
It is a law, which protects women from domestic violence. The fir | 
