[2017] 3 S.C.R. 723

HJSTICE SUNANDA BHANDARE FOUNDATION A

UNION OF INDIA AND ANOTHER (I.A. No.JO of2015)

In (Writ Petition (Civil) No. 116of1998)

APRIL 25, 2017

[DIPAK MISRA, A. M. KHANWILKAR AND

MOHAN M. SHANTANAGOUDAR, JJ.]

Right of Persons with Disabilities Act, 2016 - Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 - Issuance of directions by this Court in *Justice Sunanda Bhandare Foundation vs Union of India to State 'Governments and Union Territories to implement the provisions of the 1995 Act-Filing of IA to issue directions to Central Government, State Government and Union Territories to comply with the said ; udgment - Compliance report filed, however, compliance not complete - Parliament, realizing the national need of the rights of the persons under disability and commitment to the Convention of the United Nations General Assembly, repealed the 1995 Act and brought in 2016 Act- 2016 Act visualizes sea change and conceives of actualization of the benefits engrafted under the said Act - Conferment of more rights on the disabled persons, more categories added, and access to justice, free education, role of local authorities, National fund and State fund jot persons with disabilities created - In given circumstances, mandatory to scan the anatomy of significant provisions of the Act and see that they are implemented - State Governments and Union Territories to comply with the requirements of the 2016 Act and file the compliance report within the stipulated time.

Ad.iourning the matter, the Court

HELD: 1.1 The Parliament, realizing the national need of the rights of the persons under disability and commitment to the Convention of the United Nations General Assembly, repealed the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and brought in The Rights of Persons with Disabilities Act, 2016. The said 2016 Act has 723

II-.

been brought , into existence to give effect to the United Nation Convention on the Rights of Persons with Disabilities and for matters connected therewith or incidental thereto. The 2016 Act visualizes a sea change and conceives of actualization of the benefits engrafted under the said Act. The whole grammar of benefit has been changed for the better, and responsibilities of many have been encompassed. In such a situation, it becomes obligatory to scan the anatomy of significant provisions of the Act and see that the same are implemented. The laudable policy inherent within the framework of the legislation should be implemented and not become a distant dream. Immediacy of action is the warrant. [Paras 8, 9](739-E-F; 740-F-G]

1.2 The 2016 Act has been enacted and it has many salient features. More rights have been confened on the disabled persons and more categories have been added. That apart, access to justice, free education, role of local authorities, National fund and the State fund for persons with disabilities have been created.

The 2016 Act is noticeably a sea change in the perception and requires a march forward look with regard to the persons with disabilities and the role of the States, local authorities, educational institutions and the companies. Emphasis is there on the special court, speedy trial and special public prosecutor. The statute operates in a broad spectrum and the stress is laid to protect the rights and provide punishment for their violation. [Para 23] (746-

F-H]

1.3 Regard being had to the change in core aspects, the States and the Union Territories are directed to file compliance report keeping in view the provisions of the 2016 Act within the stipulated period. The States and the Union Territories must realize that under the 2016 Act their responsibilities have grown and they are required to actualize the purpose of the Act, for there is an accent on many a sphere with rgard to the rights of the disabilities. When the law is so concerned for the disabled persons and makes provision, it is the obligation of the law executing authorities to give effect to the same in quite promptitude. The steps taken in this regard would be concretely stated in the compliance report within the time stipulated. When the States are directed, a duty is cast also on the States and its

JUSTICE SUNANDA BHANDARE FOUNDATION v. UNION

QE INDIA AND ANOTHER

authorities to see that the statutory provisions that are enshrined and applicable to the cooperative societies, companies, firms, associations and establishments, institutions, are scrupulously followed. The State Governments shall take immediate steps to comply with the requirements of the 2016 Act and file the compliance report so that this Court can appreciate the progress made. [Para 24) [747-A-D]

*Justice Sunanda Bhandare Foundation v. Union of India and Another [2014) 4 SCR 113 : 2014 (14) SCC 383; Union of India and Another v. National Federation of the Blind and Others [2013] 9 SCR 1023 : 2013

(10) sec 772 - referred to.

[2014] 4 SCR 113

[2013) 9 SCR 1023

Case Law Reference referred to

referred to

Para 1 Para2

CIVIL ORIGINAL JURISDICTION : lnetrlocutary Application D No.10of2015 in Writ Petition (Civil) No.116of1998.

Under Article 32 of the Constitution of Iqdia.

S. S. Shamshery, AAG, Mrs. V. Mohana, A. K. Sanghi, Sr. Ad vs., Manali Singhal, Santosh Sachin, Ms. Vinita Sashidharan, Rohit Kaul, Tejasvi Kumar, S. Sarfaraz Karim, Deepak Singh Rawat, Ambar Qamaruddin, Dr. Monika Gusain, Abhijit Sengupta, Pawan Shri Aggarwal, Abhishek Chaudhary, Anil Kumar Tandale, Anil Shrivastav, Rituraj Biswas, Aniruddha P. Mayee, A. Selvin Raja, Anuvrat Sharma, Arjun Garg, Arun K. Sinha, Sapam Biswajit Meitei, Naresh Kumar Gaur, M. N. Singh, Ashok Kumar Singh, Ashok Mathur, B. Balaji, C. D. Singh, Ms. Sakshi Kakkru; Shaivali Choudhary, Soumitra G Chaudhuri, Chanchal Kumar Ganguli, C. K. Sasi, Dharmendra Kumar Sinha, D. S. Mahra, Gopal Singh, Manish Kumar, Ms. Varsha Poddar, G. Prakash, Jishnu M.

L., Mrs. Priyanka Prakash, Mrs. Beena Prakash, Manu Srinath, Gulshan Bajwa, Jagjit Singh Chhabra, Kamlendra Mishra, K. V. Mohan, M.A. Krishna Moorthy, Nimimesh Dube, P. N. Gupta, P. N. Ramalingam, Prashant Kumar, Praveen Swarup, Shikhar Garg, Ganesh Bapu, P. V. Yogeswaran, Rajeev sharma, Raj iv Mehta, Raj iv Nanda, Rameshwar Prasad Goyal, Ranbir Singh Yadav, Ranjan Mukherjee, R. Sathish, Mrs. Anil Katiyar, Satish Vig, Mrs. D. Bharathi Reddy, Sangram S. Saron, Shree Pal Singh, Shuvodeep Roy, Sun ii Fernandes,

Tapesh Kumar Singh, Kumar Anurag Singh, Mohd. Waquas, Aditya Pratap Singh, T. V. George, V. G. Pragasam, S. Prabu Ramasubramanian, V. N. Ragh\lpathy, Ms. A. Subhashini, Bhupesh Narula, K. V. Jagdishvaran, Ms. G. lndira, Ms. Hemantika Wahi, Ms. K. Enatoli Serna, Edward Belho, Amit Kumar Singh, K. Luikang Michael, Ms. El ix Ganmei, Z. H. Issac Raiding, PratapVenugopal, Ms. Surekha Raman, Ms. Niharika, Aman Shukla, Ms. Kanika Kalsyarasan, M/s. K. J. John & Co., Ms. Niranjana Singh, Aviral Saxena, Sukrit Kapur, Ms. Monika, Nitya Madhusoodanan, Ms. Rachana Srivastava, Ms. Sumita Hazarika, Ms. Sushma Suri, Ms. Susmita Lal, Pankaj Sinha, Ms. Rajkumari Banju, M. Yogesh Kamm, Ms. Nithya, Mrs. Maha Lakshmi, Pratap Sarathi, R. K. Rathore, Ms. Ritu Bhardwaj, Raj Bahadur, Guntur Prabhakar, Ms. Prerna Singh, Ms. Sunita Sharma, Ms. Rekha Pandey, B. K. Prasad,

G. M. Kawoosa, M. ShoebAlam, Manoj R. Sinha, Mahaling Pandarge, Nishant Rarnkantrao Katneshwarkar, S. UdayaKumar Sagar, Mrityunjai Singh, Amit Sharma, Ankit Raj, Ms. Aruna Mathur, Avneesh Arputham, Ms. Anuradha Arputham, Amit Arora, Advs. for the Respondents.

The Judgment of the Comt was delivered by DIPAK MISRA, J, 1. The instant interlocutory application was filed to issue directions to the Central Government, State Governments and Union Territories to comply with the judgment rendered in Justice Su11a11da Blw11dare Fo1111datio11 vs. U11io11 of India <111tl Anot/ier1•

In the said case, a three-Judge Bench took note of various orders passed in the writ petition, especially the prayer for implementation of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for brevity, 'the 1995 Act') and for declaration that denial of appointment to the visually disabled persons in the faculties and college of various universities in the identified posts is violative of their fundamental rights guaranteed under Articles 14 and 15 read with Articl.e 41 of the Constitution of India and opined that the 1995 Act is to be treated as an enactment for empowerment of the persons under disability and further expressed its concern with regard to the apathy shown by various State Governments and the instrnmentalities of the States.

2. Sitting in a time-machine, we may make a fruitful reference to the decision rendered in Union of Imlia mul Another versus National Federation of tile Blind a11d Otllers1• The Comt, in the said case,

1 (2014) 14 sec 383 '(2013) 10 sec 112

after refeITing to Section 33 of the 1995 Act, which dealt with reservation A of posts and adverting to various aspects, directed as follows:-

"In our opinion, in order to ensure proper implementation of the reservation policy for the disabled and to protect their rights, it is necessary to issue the following directions:

(i) We hereby direct the appellant herein to issue an appropriate order modifying the OM dated 29.12.2005 and the subsequent OMs consistent with this Court's Order within three months from the date of passing of this judgment.

(ii) We hereby direct the "appropriate Government" to compute the number of vacancies available in all the "establishments" and further identify the posts for disabled persons within a period of three months from today and implement the same without default.

(iii) The appellant herein shall issue instructions to all the departments/public sector undertakings/Government companies declaring that the non observance of the scheme of reservation for persons with disabilities should be considered as an act of nonobedience and Nodal Officer in depai1ment/public sector undertakings/ Government companies, responsible for the proper strict implementation of reservation for person with disabilities, be depai1mentally proceeded against for the default."

3. In the said case, the Court laying emphasis on the concept of employmen_t, expressed thus:-

"Employment is a key factor in the empowern1ent and inclusion of people with disabilities. It is an alanning reality that the disabled people are out of job not because their disability comes in the way of their functioning rather it is social and practical barriers that prevent them from joining the workforce. As a result, many disabled people live in poverty and in deplorable conditions. They are denied the right to make a useful contribution to their own lives and to the lives of their families and community.

The Union ofindia, the State Governments as well as the Union Te1Titories have a categorical obligation under the Constitution ofindia and under various International treaties relating to human rights in general and treaties for disabled persons in particular, to

protect the rights of disabled persons. Even though the Act was enacted way back in 1995, the disabled people have failed to get required benefit until today."

4. In the case of the present petitioner, that is, Justice Swumda Blumdare Foundation (szpra), the three-Judge Bench was concerned with the implementation of the 1995 Act. In that context, it observed as under:-

"Be that as it may, the beneficial provisions of the 1995 Act cannot be allowed to remain only on paper for years and thereby defeating the very purpose of such law and legislative policy.

The Union, States, Union Territories and all those upon whom obligation has been cast under the 1995 Act have to effectively implement it. As a matter of fact, the role of the governments in the matter such as this has to be proactive. In the matters of providing relief to those who arc differently ab led, the approach and attitude of the executive must be liberal and relief oriented and not obstructive or lethargic. A little concern for this class who are differently abled can do wonders in their life and help them stand on their own and not remain on mercy of others. A welfare State, that India is, must accord its best and special attention to a section of our society which comprises of differently ab led citizens. This is true equality and effective conferment of equal oppo1iunity."

5. Proceeding further, it expressed its agony in the following manner:-

"More than 18 years have passed since the 1995 Act came to be F passed and yet we are confronted with the problem of implementation of the 1995 Act in its letter and spirit by the Union, States, Union Territories and other establishments to which it is made applicable."

6. After expression of the said anguish, the Court issued the G following directions:-

"In our view, the 1995 Act has to be implemented in the letter and spirit by the Central Government, State Governments and

Union Territories without any delay, if not implemented so far.

JUSTrCE SUNANDA BHANDARE FOUNDATION v. UNION

OF INDIA AND ANOTHER [DlPAK MISRA, J.)

The Secretary, Ministry Of Welfare, Government of India, the Chief Secretaries of the States, the Administrators of the Union Territories, the Chief Commissioner of the Union of India and the Commissioners of the State Governments and the Union Territories shall ensure implementation of the 1995 Act in all respects including with regard to visually disabled persons within the above time."

7. It is submitted by Ms. Manali Singhal, learned counsel appearing forthe petitioner that after the judgment was delivered, applications were filed by the petitioner to file the compliance report. Learned counsel for the petitioner has filed a revised convenience chart depicting compliance of the 1995 Act. The final observations made by the learned counsel has been produced before us in a tabular chart. We think it appropriate to reproduce the same:-

"FINAL OBSERVATIONS

S.No.

Respondent Remarks/Obsrrvations w.r.t Compliance State Of The Act

UGC • Only an approximate 1/3ro of the seats for the teaching & non-teaching staff have been filed wherein the Act requires 3% of the seats to be filed. 2 State of • Yet to comply with provisions ofS.29 Jharkhand (Teacher's training Institution) as it is not been specified. • S.30 (Comprehensive Education Scheme), 40 (Poverty Allevation Schemes) & 41 (Incentives to Employers) of the Act have also not been complied with. • Complia nee of the provisions of S.44 (Non- Discrimination In Transport)- 46 (Non' Discrimination in the built environment) has not been complied with. • S. 49 (Financial Incentives to Universities for Research) not complied with and the same is still under consideration. • No compliance of S.68 (Social Security - Unemployment Allowance) by the State.

The affidavit is silent about the compliance ofS.68 (Unemployment Allowance).

A 3 State of. • Affidavit is silent on the compliances of Rajas than S.28 (Assistive Devices, Hearing Aids), 31 (Amanuensis to Children with Visual Impairment), 39 (Resetvation of Seats), 48 (Research), 49 (Financial 1 ncentives to Universities for Research) & 67 (Social Security Programmes) of the Act.

• Under the provisions ofS. 48 (Research) with regard to Research & manpower Development no report or Status Report has been brought out. 4 State of Punjab • No provisioning of incentives to employers to ensure 5 % of the workforce be of PWDs. Non-

C. ,

compliance ofS.41 (Incentives to Empl.oyers). • Non-compliance of S.28 (Assistive Devices, Hearing Aids), 48 (Research) & 49 (Financial Incentives to D Universities for Research). Qua Promotion. 5 State of Tamil • The compliance ofS. 49 (Financial Naidu Incentives to Universities for Research) has not been brought out by the State. • The compliance ofS. 56 (Institution for Persons with Severe Disabilities) not E brought out by the State. • The compliance of S. 66-68 (Socia I Security Programmes) has not been carried out by the State adequately as . 110 clarity has been given on the Rehabilitation Aspect. (only a limited amount has been allocated for the F rescue scheme and only persons affected Leprosy and found begging are accommodated in rehabilitation homes). • Compliance ofS. 43 (Preferential Allotment of Land) not specified. 6

STATE OF • State has not filed the affidavit in

KARNATAKA consonance to the Order dt. 26.4.2016 G as it remains silent on major issues w.r.t the compliances of Sections 28 (Assistive Devices, Hearing Aids), 41 (Incentives to Employers), 48 (Research), 49 (Financial Incentives to·- Universities for Research), 66 & 67 (Social Security Programmes) of-the H PWDAct.

STATE OF • "Slate Co-ordination Committee" have A

BIHAR not been reconstituted, thus non compliance of S.13. - • Compliance of the provision of S.41 . (Incentives to Employers) has not been depicted. • The affidavit is silent on the B compliance of S.67 & 68 (Social Securitv Pro<mlmmes) of the Act 8 UT of • Silent on S. 25(a)- 25(h) (Prevention Puducherry and Early Detection), S. 27-30 (Non- Formal Education), S. 38 (Schemes for Emplo)111ent) - 41 (Incentives to c Emplo)ers) & 43 (Preferential Allotment of Land) . • Further, the affidavit is silent on S. 44- 47 (Discrimiration w.r.t Transport and Built Ins & Government Jobs), 48-49 (Research and Incentives to Universities), 67-68 (Social Security) D - and even S. 73 (Government Rules). 9 UT of • Provisions of S. 32 (Identification of Andaman and Posts) are still at implementation stage Nicobar Islands as the State has requested Heads of various Departments for the compliance of provisions of the E Section. • No compliance of S. 34 (Special Emplo)111ent Exchange), fwtherno compliance/action mken of S. 34-44 (Employinent and Benefit Related Scliemes). • Rules as prescribed under the - p!'ovisions ofS. 73 (Government

Rules) are not framed. 10 NCTofDelhi • The affidavit is silent on the Special

., ..

Employment Exchange under S. 34 (Special Employment Exchange) of tre Act.

G • No Compliance ofS. 41 (Incentives to Emplo)ers). State is not offering incentives to private/public employers to enmre that at least 5% of the work force is composed of persons with disabilities.

A 11 State of • In compliance ofS. 25{a) (Prevention M anipur and Early Detection) of the PWD Act it is stated that survey has not been undertaken for detecting causes of occurrence of disabilities sue to constraints of experienced manpower and infrastructure. • Affidavit is silent on setting up special B

employment exchange for PWDs as required under S. 34 of the PWD Act. • Affidavit admits non compliance of S . 41 (Incentives to Employers) of the PWD Act. c • Affidavit admits non compliance ofS. 42 (Aids and Appliances) of the PWD Act due to non-availability offunds. • Affidavit admits non compliance ofS • 67 (Social Secmity) of the PWDAct due to lack of funds . . 12 UT of • Not complied with S. 41 (lncenti ves to Chandigarh Employers) and further no compliance D has been canicd in furtherance to S. 67-68 (Social Security) of the PWD Act. 13 State of • Provisions ofS. 30 (Comprehensive UP Education Scheme) qua restructure of curriculum are still under consideration.

• Compliances under S. 41 (Incentives to Employers) of the act are still under consideration 14 State of • Compliance of the pmvisions ofS. 28 Tripura (Assistive Devices, Hearing Aids), 48 F & 49 (Research and Incentives to Universities) w.r.t promotion of research & manpower development have not been brought out either in I any way asper the mandate of the Act. 15 State of • Compliance of the provisions of S. 28 Gujarat (Assistive Devices, Hearing Aids) has not been brought out in the affidavit.

• No steps have been taken w.r. t tl1e compliance of S. 40 (Poverty Allevation Schemes) of the Act • Compliance of the provisions ofS. 41 (lncentives to Employers) has not been

H brought out.

JUSTICE SUNANDA BHANDARE FOUNDATION v. UNION 733

OF INDIA AND ANOTHER [DIPAK MISRA, J.)

State of : • Provisions ofS. 28 (Assistive Assam Devices, Hearing Aids) have not been complied with.

State of Arunachal

Pradesh

• Compliance of the provisions ofS. 67 ' (Social Security) has not been brought out in the State affidavit as it is yet to be framed. • Affidavit is silent on the implementation of other provisions pf the Act. .,

• Affidavit only speaks of Compliance ofSections33 (Reservation of Posts), C 68 (Social Security) & 42 Aids and A liances) of the Act.

State of Goa i • In Compliance under the provisions of

S. 28 (Assistive Devices, Hearing Aids) of the Act. State Gov. is still in the process of formulating schemes for education of children with special needs through Directorate of Education.

State of Mcghalaya

State of

Sikkim

: • ftt1ther there have been no compliance

~ being carried out for the provisions under the Sections 41 (Incentives to Employers), S. 43 (Preferential Allotment of Land) - 45 (Non- Discrimination in Road) of the Act. ' • The Affidavit is silent w.r.t the implementaiion under Sections 48, 49 , ((Research and Incentives to Universities)), 56 ((Institution for Persons with Severe Disabilities)) & 57 (Chief Commissioner of PWDs).

i • The affidavit is silent on the

Compliances to be canied with the various provisions of the PWD Act exce t S. 39 (Rcse1vation of Seats). • No projects in the State have been taken under the provisions of S. 48 (Research).

A 21 State of • Affidavit is silent on the provision Chattisgarh regarding restructuring of curriculum for the benefit of children with disabilities, and provisioning of amaneusis as mandated under S. 30-31 of the PWD Act. • Affidavit is silent on compliance of Section 44 qua non-discrimination in B

transport.

Regarding provisioning of insumnce schemes for PWDs the affidavit states that there is no separate insurance scheme for PW Ds. Employees with disabilities are covered under the Group Insurance Schemes of the State. c

22 State of Affidavit is not in compliance of the Nagaland Order dt 26.04.2016, however the earlier affidavit shows the following:- , • Affidavit silent on formation of State Co-ordination Committee and State D Executive Committee as mandated respectively under S. 13 and 19 of the PWD Act, 1995 • Affidavit is silent on the implementation of Preventive and early detection measures as provided in S. 25(a) - 25 (h).

E • Affidavit is silent on the implementation of non-formal education schemes or programmes, research for designing and developing new assistiye devices, teaching aids etc., setting up of teacher training institutions, transport facilities, provisioning of amanuensis etc as F mandated under S. 27-31. • Affidavit is. silent on implementation of provisions of S. 34-37 on furnishing information to employment exchange and S. 40-41 on maintenance of records by the employers and vacancies to be reserved in poverty G

 alleviation schemes. • Affidavit is silent in implementation of most of the provisions mandated under ' S. 44, 47 for ensuring nondiscrimination in transport, and govt H employment to PWDs.

... ,

• Affidavit is silent on implementation A ofS. 48-49 qua research and manpower development initiatives. • Affidavit is silent on implementation of S. 50-51 qua appointment of competent authority. • Affidavit is silent on implementation ofS. 56 qua establishment and B

maintenance of institutions for persons with severe disabilities. • Affidavit is silent on implementation of social security schemes as mandated under S. 67-68. • Affidavit is silent on formation of rules under S. 73 by the appropriate c

government for carrying out the orovisions of PW D Act. 23 UT of Affidavit is not in compliance of the Lakshadweep Order d t. 26.04.2016, however the earlier affidavit shows the fo !lo wing :- • Affidavit is silent on setting up of D special schools as mandated under S. 26(b)-(d) of the PWD Act, 1995. • Affidavit is silent on implementation ofS. 28 qua research for designing and developing new assistive devices, teaching aids etc. • Affida\'.it is silent on implementation E ofS. 31 on provision of amanuensis to the students with visual impairment. • Affidavit is silent on implementation of provisions of S. 41 qua incentives to the employers to ensure 5 % of the work force composed of person with disabilities.

F • Affidavit is silent on implementation ofS. 56 qua establishment and maintenance of institutions for pers.ons with severe disabilities. • Affidavit is silent on implementation of social security i nsuranc.e schemes for employees as mandated under S.

G 67. • Affidavit is silent on formation of rules under S. 73 by the appropriate government for carrying out the provisions of PWD Act

A 24 State of Affidavit is not in complia't1ce of the Uttrakhand Order dt. 26.04.2016, however the earlier affidavit shows the following :- • Though the Affidavit speaks of compliance of provisions of S. 26- 31 but lot more requires to be done B like, schemes for non forinal education, vocational training centres, research for designing and developing new assistive devices, curriculum restructuring, forum for redressal of grievances of parents of children with disabilities,

., ' provision of amanuensis etc. ..

Though the A ffida.vit speaks of c

compliance of provisions of S. 32- 41 but lot more requires to be done like provisioning of 3 % reservation of seats in all .. educational institutions, incentives D to employers, schemes for preferential allotment of land etc. • Affidavit itself states that the provisions of S. 48-49 & 56 are yet to be complied with.

25 State of • In compliance of provision of S. 56 Andhra establishment of a spinal injury Pradesh centre at Visakhapatnam is under E

consideration and establishment of four hoines for destitute ages and crippled is also under consideration.

26 State of • Establishment of special schools Madhya for visually, hearing and mentally F Pradesh impaired children is being proposed in 41 districts of the State. S. 26 (Free education to Cw Os) has not been complied in its entirety) • No measures in compliance to S . 29 (Teachers Training Institution) G have not been complied. • With regard to S. 30 (Comprehensive Education Scheme) the affidavit is silent on the aspect of restructuring of the

H curriculum.

• The affidavit his silent on S. 46 (Non- A

Discrimination in the built environment). • The affidavit is silent on the compliance on the Implementation of provisions ofS. 47 (Discrimination in Government Jobs). • The affidavit is silent on the B

implementation aspect of the S. 49 (Financial lncentives to Universities for Research). 27 State of J&K • No affidavit has been filed in compliance to Order dt. 26.04.2016.

However, the State earlier had filed an affidavit wherein it was stated that the c

PWD Act, 199 5 is not applicable to the State of J&K. 28 State of West • Though the affidavit speaks on the Bengal compliance of S. 26-31 of PWD Act, 1995 however lot more requires to be done like vocational training facilities, conducting special part time classes, D

initiation of research for designing and developing new assistive devices and teaching aids, setting up of teacher's training institution, etc. • Affidavit is silent on compliance of provisions of Sections 34 of PWD Act, 1995 For provisioning of special E

employment exchange. • Affidavit is silent on promotion of research and manpower development,

. and appointment of competent authority as mandated S. 48-50 of the PWD Act, 1995. • Affidavit is silent on implementation F

ofS. 56 of the PWD Act, 1995 regarding establishment of institutions with persons of severe disabilities: 29 UT ofDadra • The affidavit is silent on the & Nagar Compliances w.r.t the Sections 31-32 Have Ii (Amanuensis to Children with Visual Impairment) (Identification of Posts), G

34-41 (Employment and Benefit Related Schemes), 48-49 (Research) & (Financial Incentives to Universities for Research) , 56 ((Institution for Persons with Severe Disabilities )f)an<f . 66-68 (Social Security Programmes). - H

30 State of • Affidavit is silent on provisioning of Haryana teacher's training institution for person to teach children with disabilities as mandated under S. 29 (Teacher's training Institution) of the PWD Act.

Affidavit is silent on initiation of research for designing and developing B

., new assistive devices and teaching aids, setting up of teacher's training institution etc. as mandated under S. 30-31 (Comprehensive Education ' Scheme) & (Amanuensis to Children with Visual Impairment) of the PWD c

Act. • In compliance ofS. 73 (Government Rules) of the PWD Act Rules have yet not been finalized . 31 . State of • Compliances have been carried out by Maharashtra the State Government.

32 Union • No compliances or reports have been Territory of presented with regard to the provisions Daman And of Sections 26-32 (Education and Diu assistive devices for Children PWDs), E 34-55 and 57-68. The affidavit is silent w.r.t the aforementioned sections. 33 State of • The state has assured various measures Kerala and various schemes but no status has been presented on the progress/implementation of the projects made so far. 34 State of • Non-compliance of S.45 as the funds F

Odhisha received have not been utilised. • Noncompliance ofS. 49 as no action has been carried out.

35 State of • In reference to compliance of Section G Himachal 68 (Social Security Schemes) of the Pradesh PWD Act state govt submits that of such scheme is being implemented.

Only Disability Relief Allowance is being provided to 41,961 persons with disabilities.

I-I

A 36 State of 1 • S.41 (Incentives to Employers) not Mizoram I complied, due to financial constraints

37 State of • State submits that it is in the process Telangana of forming various committees and depa1tments as they have been divided due to its bifurcation with the Andhra B

Pradesh. 38 Department • Compliances with regard to S. 49 of Women (Financial Incentives to Universities and Child for Research) & 66 (Social Security Empower me Programmes) are still at the nt implementation stage." c

Learned counsel for the petitioner submits that there has been no complete compliance of the judgments passed by this Court. She has submitted that the reasons for non-compliance are the perceptible though D all the States and Union Territories should have complied with the various provisions of the 1995 Act.

8. It is necessary to mention here that we have reproduced the tabular chart so that each State can know what the other States have done and who has failed to comply and take steps on the path of complete E compliance. Before they could do what the 1995 Act envisages, the Parliament, realizing the national need of the rights of the persons under disability and commitment to the Convention of the United Nations General Assembly, repealed the 1995 Act and brought in The Rights of Persons with Disabilities Act, 2016 (for short, 'the 20 l 6 Act'). The said 2016 Act has been brought into existence to give effect to the United F Nation Convention on the Rights of Persons with Disabilities and for matters connected therewith or incidental thereto. We think it appropriate to reproduce the preamble of the Act:-

"An Act to give effect to the United Nations Convention on the Rights of Persons with Disabilities and for matters G connected therewith or incidental thereto.

WHEREAS the United Nations General Assembly adopted its Convention on the Rights of Persons with Disabilities on the 13th day of December, 2006; H

A AND WHEREAS the aforesaid Convention lays down the following principles for empowerment of persons with disabilities,

(a) respectfor inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons;

(b) non-discrimination;

( c) full and effective participation and inclusion in society;

( d) respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; c ( e) equality ofopportunity;

f) accessibility;

(g) equality between men and women;

(h) respect for the.evolving capacities of children with disabilities and resect for the right of children with disabilities to preserve D their identities;

AND WHEREAS India is a signatory to the said Convention;

AND WHEREAS India ratified the said Convention on the 1" day of October, 2007;

E AND WHEREAS it is considered necessary to implement the Convention aforesaid.

Be it enacted by Parliament in the Sixty-seventh Year of the Republic oflndia as follows:"

9. The.2016 Act visualizes a sea change and conceives of actualization of the benefits engrafted under the said Act. The whole grammar of benefit has been changed for the better, and responsibilities of many have been encompassed. In such a situation, it becomes obligatory to scan the anatomy of significant provisions of the Act and see that the same are implemented. The laudable policy inherent within the framework of the legislation should be implemented and not become a distant dream. Immediacy of action is the WatTant.

I 0. We may note with profit that sub-section (2) of Section l of the 2016 Act stipulates that the said Act shall come into force on such date as the Government may, by notification in the Official Gazette, appoint.

11. Ms. V. Mohana, learned senior counsel appearing for the Union A oflndia has filed the Gazette Notification issued by the Ministry of Social Justice and Empowerment dated 19'h April, 2017, which provides as follows:- ·

"In exercise of the powers conferred by sub-section (2) of Section

1 of the Rights of Persons with Disabilities Act, 2016 ( 49 of B 2016), the Central Government hereby appoints l 9'h day of April, 2017, as the date on which the said Act shall come into force."

Thus, the Act has come into force with effect from I 9'h April, 2017.

12. Sections 2('C ), 2(h), 2(k), 2(m), 2(v) and 2(zb) define "barrier", "discrimination''., Government establishment", "inclusive education", "private establishment" and "Special Employment Exchange" respectively. Ms. Manali Singhal, learned counsel appearing for the petitioner would submit that the preamble-of the 2016 Act and the dictionary clause have expanded the horizon of the rights of the persons with disabilities.

13. In this context, Sections 2(p ), 2( r) and 2( s) are worthy of reference. They read as under:-

"2(p) "local authority" means a Municipality or a Panchayat, as defined in clause (e) and clause (f) of article. 243P of the E Constitution; a Cantonment Board constituted under the Cantonments Act, 2006; and any other authority established under an Act of Parliament or a State Legislature to administer the civic affairs; r

2(r) "person with benclimark disability" means a person with F not less than forty percent ofa specified disability where specified . disability has not been definec\.in.measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority;

2( s) "persons with disability" means a person with long-term G physical, mental, intellectual or sensory impainnent which, in interaction with barriers, hinders his full and effective participation in society equally with others."

14. Section 12 deals with access to justice. It reads as follows:-

! Access to _justice

(!)The appropriate Government shall ensure that persons with disabilities are able to exercise the right to access any court, tribunal, authority, commission or any other body havingjudicial or quasi-judicial or investigative powers without discrimination on the basis of disability.

(2) The appropriate Government shall take steps to put in place suitable support measures for persons with disabilities specially those Jiving outside family and those disabled requiring high support for exercising legal rights.

(3) The National Legal Services Authority and the State Legal Services Authorities constituted under the Legal Services Authorities Act, 1987 (39of1987) shall make provisions including reasonable accommodation to ensure that persons with disabilities have access to any scheme, programme, facility or service offered by them equally with others."

( 4) The appropriate Government shall take steps to -

(a) ensure that all their public documents are in accessible formats;

(b) ensure that the filing departments, registry or any other office of records are supplied with necessary equipment to enable filing, storing and referring to the documents and evidence in accessible formats;. and

(c) make available all necessary facilities and equipment to facilitate recording of testimonies, arguments or opinion given by persons with disabilities in their preferred language and means of communications."

15. Section I 6(d) deals with the duty of educational institutions.

Section 17 Jays postulates for specific measures to promote and facilitate inclusive education. Section 18 deals with the adult education and provides that the appropriate government and the local authorities shall take measures to promote, protect and ensure participation of persons with disabilities in adult education and continuing education programmes equally with others. Section 19 deals with vocational training and selfemployment.

16. Section 24 occurs in Chapter V, where the heading is 'social A security, health, rehabilitation and recreation'. Section 25 deals with health care. Section 31 deals with free education for children with benchmark disabilities. Section 32 which deals with reservation in higher educational institutions, reads as follows:-

"32. Reservation in higher educational institutions B

(!)All Government institutions of higher education and other higher education institutions receiving aid from the Government shall reserve not less than five per cent. Seats for persons with benchmark disabilities.

(2) The persons with benchmark disabilities shall be given an upper age relaxation of five years for admission in institutions of higher education."

17. Section 33 deals with identification of posts for reservation and Section 34 provides for reservation. Section 35 dealt with incentives to employers in private sector. These provisions, being of significance, are reproduced below:-

"33. Identification of posts for reservation

The appropriate Government shallc

(i) identify posts in the establishments which can be held by E respective category of persons with benchmark disabilities in respect of the vacancies reserved in accordance with the provisions of section 34;

(ii) constitute an expert committee with representation of persons with benchmark disabilities for idyntification of such posts; and F

(iii) undertake periodic review of the identified posts at an interval not exceeding three years.

34. Reservation

(I) Every appropriate Government shall appoint in every G Government establishment, not less than four per cent. of the total number of vacancies in the cadre strength in each group of posts meantto be filled with persons with benchmark disabilities of which, one per cent. each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and ( c) and one per H

A cent. for persons with benchmark disabilities under clauses ( d) and ( e ), namely:-

( a) blindness and low vision;

(b) deaf and hard of hearing;

B ( c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;

( d) autism, intellectual disability, specific learning disability and mental illness;

( e) multiple disabilities from amongst persons under clauses (a) C to ( d) including deaf-blindness in the posts identified for each disabilities:

Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time:

Provided further that the appropriate Government, in consultation with the Chief Commissi01wr or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section.

(2) Where in any recruitment year any vacancy cannot be filled up due to nonavailability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability:

Provided that ifthe nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate Government.

(3) The appropriate Government may, by notification, provide A for such relaxation of upper age limit for employment of persons with benchmark disability, as it thinks fit.

35. Incentives to employers in private sector

The appropriate Govcrmnent and the local authorities shall, within B the limit of their economic capacity and development, provide incentives to emp toyer in private sector to ensure that at least five per cent of their work force is composed of persons with benchmark disability."

18. As. is noticeable, under the 1995 Act, the Parliament had shown its concern and provided for reservation for many categories and this Court by various judgments had directed for implementation of the Act and some States have implemented the provisions to a certain extent.

19. We will be failing in our duty if we do not take note of Section 84 that makes provision for creation of special court for speedy trial to try the offences under the 20 l 6Act. Section 85 stipulates for appointment special public prosecutor. Thus, emphasis is on the special court, speedy trial and special public prosecutor.

20. Under Chapter XVI, offences and penalties have been dealt with. Section 89 provides for punishment for contravention of provisions of Act or rules or regulations made thereunder. The said Section reads as follows:-

"89. Punishment for contravention of provisions of Act or rules or regulations made thereunder

Any person who contravenes any of the provisions of this Act, or of any rule made thereunder shall for first contravention be punishable with fine which may extend to ten thousand rupees and for any subsequent contravention with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees."

21. Section 90 deals with offences by companies. It is extracted hereunder:-

"90. Offences by companies

Where an offence under this Act has been committed by a company, every person who at the time the offence was H

committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was co_mmitted without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (I), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. State Fund for persons with disabilities. Punishment for contravention of provisions of Act or rules or regulations made thereunder.

Explanation: For the purposes of this section,-

a) "company" means any body corporate and includes a firm or ' other association ofindividuals; and

(b) "director", in relation to a firm, means a partner in the firm."

22. Section 92 deals with punishment for offences of atrocities and Section 93 provides for punishment for failure to furnish information.

23. We have referred to ce1iain provisions only to highlight that the 2016 Act has been enacted and it has many salient features. As we find, more rights have been conferred on the disabled persons and more categories have been ad_ded. That apart,.access to justice, free education, role of local authorities, National fund and the State fund for persons with disabilities have been created. The 2016 Act is noticeably a sea change in the perception and requires a march forward look with regard to the persons with disabilities and the role of the States, local authorities, educational institutions and the companies. The statute operates in a broad spectrum and the stress is laid to protect the rights and provide punishment for their violation.

JUSTICE SUNANDA BHANDARE FOUNDATION v. UNION

OF INDIA AND ANOTHER [DIPAK MISRA, J.]

24. Regard being had to the change in core aspects, we think it apposite to direct all the States and the Union Territories to file compliance report keeping in view the provisions of the 2016 Act within twelve weeks hence. The States and the Union Territories must realize that under the 2016 Act their responsibilities have grown and they are required to actualize the purpose of the Act, for there is an accent on many a sphere with regard to the rights of the disabilities. When the law is so concerned for the disabled persons and makes provision, it is the obligation of the law executing authorities to give effect to the same in quite promptitude. The steps taken in this regard shall be concretely stated in the compliance report within the time stipulated. When we are directing the States, a duty is cast also on the States and its authorities to see that the statutory provisions that are enshrined and applicable to the cooperative societies, companies, firms, associations and establishments, institutions, are scrupulously followed. The State Governments shall take immediate steps to comply with the requirements of the 2016 Act and file the compliance report so that this Court can appreciate the progress made.

25. The compliance report to be filed by the States shall be supplied to the learned counsel for the petitioner, learned counsel for the Union of India as well as to the learned counsel for the applicant/intervenor so that they can assist the Court.

26. The Registry is directed to send a copy of the order passed E today to the Chief Secretaries of the States and the Administrators of the Union Territories.

27. Let the matter be listed on 16'h August, 2017 .

.. _.....__ __ -~

Nidhi Jain Matter adjourned.