Monday, November 2, 2015

Bombay HC cites the capabilities of Blind as Solicitors & Advocates to deny claim of tax exemption for Eye Checkup

Dear Friends,

There are two areas worth noting in this judgement. Firstly, the Bombay High Court has indicated that Blindness is no handicap in discharging the duties of a solicitor or an advocate and by that analogy even a judge. Secondly, you may not be able to claim tax exemption for tour expenses even for reasons of an eye test in computing the income chargeable under the head profits and gains from business or profession.

Shot in arm for disability advocates who have been facing extreme resistance from some states & their judiciary who have consistently denied people with blindness the opportunities of being  a judge by obtaining exemption under section 33 of the Disabilities Act. Crazy no?

Here is the news item from TNN:

Lawyer denied tax waiver for eye test done while abroad
Shibu Thomas, TNN | Oct 30, 2015, 01.30AM IST

MUMBAI: A person's eyes are not just used exclusively for professional purposes, said Bombay high court while rejecting a lawyer's claim seeking tax exemption for a foreign tour, which he claimed was a "pre-operative eye check-up".

A division bench of Justice M S Sanklecha and Justice Girish Kulkarni pointed to blind advocates practising in courts.

"Eyes are an important organ of the human body and are essential for the efficient survival of a human being. Eyes are essential not only for the purpose of business or profession but for purposes other than these," said the judges, adding, "We are not persuaded to accept the submission that eyes are required to be exclusively used for the purpose of profession. No evidence has been brought on record to establish that in the absence of investigation and treatment, the applicant would be handicapped in discharging his obligation as a solicitor/advocate. While at this, we cannot resist but point out that in this court itself, we have a couple of visually challenged advocates who are competent in discharging their duties."

The court also cited former advocate general of West Bengal Sadhan Gupta who was visually challenged. "It is therefore clear that the said expenditure as claimed by the advocate is not in the nature of the expenditure wholly and exclusively incurred for the purposes of the profession of the applicant and thus this expenditure cannot be claimed by the applicant to be allowed as deduction in computing the income chargeable under the head profits and gains from business or profession."

The court was hearing a petition filed by advocate Dhimant Thakkar, who claimed tax exemption for the period 1986-87 of an amount of Rs 43,600 for a foreign tour, which he claimed was in connection with preoperative tests. The income-tax department rejected the claim saying the expenses were for a personal reason.

The advocate claimed that but for this treatment he would not have been able to continue with his profession and therefore the expenditure ought to have been allowed as a deduction for professional expenses. The HC disagreed and concurred with the tax department that if the advocates claims were accepted, then "every and all expenses incurred on daily living and food would be allowable as part of tax exemption".

Friday, September 4, 2015

Supreme Court of India fumes at Several states silent on implementation of Disabilities Act |

4th Sep, 2015

Bringing into focus the plight of disabled people, the Supreme Court today fumed at several states not filing responses as to steps taken to implement various provisions of the Disability Act.

In April , the apex court had issued notices to the Centre and all states on a plea seeking periodic monitoring of implementation of various provisions of the Disabilities Act. But ten states including Delhi Rajasthan, jharkhand have not yet filed responses.

An angry bench headed by justice Dipak Misra told lawyers representing several states: “let the matter now be posted for October 13. We are giving last chance to all states to file their responses. In the event of further failure strict action will be taken”. The plea states that a majority of citizens belonging to disabled  category have not got any relief even two decades after the rules were passed.

Justice Sunanda Bhandare Foundation, on whose petition the court has been issuing orders for the welfare of the differently-abled since 1998, had moved an application saying that unless there was an effective monitoring system on the lines of Vineet Narain judgment in which the SC is keeping a tab on investigation of various corruption cases and issuing periodic directions, the implementation of the Persons with Disabilities Act, 1995, will merely remain on paper.

Ambar Qamaruddin, the lawyer for the petitioner, pointed out that the court itself had last year observed that only the Centre, some states and the UGC had satisfied it on the implementation of the rules.

A majority of the states were yet to comply with it and thus, the need for a monitoring mechanism.

“Even in last year’s order, the court had said all measures had to be taken ‘positively by the end of 2014’ but nothing had happened,” Qamaruddin submitted.

“Central government, state governments and UTs may be directed to file a quarterly/half yearly status report before the court,” he argued.

The directions pertained to reservation of 1% of identified teaching posts in various schools and colleges for the disabled, jobs in private sectors and PSUs, seats for students in various universities and creating special facilities for differently-abled persons at public places such as railway stations, bus terminus, airports and in trains, buses and aircraft.

Directing that all measures be taken by the end of 2014, the court had in its order in March, 2014, said: “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.

“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 are differently-abled, 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.


Wednesday, September 2, 2015

Supreme Court on filling up of backlog Disability quota (in promotion?)

A unique example of how selected media reporting can create grapevines.  I have learnt that the proceedings in the court were completely different from what has been reported here by the TNN.

The Hon'ble Supreme Court was actually hearing a contempt petition filed by the National Federation of the Blind against the Central Govt for complying with the court's October 8, 2013, regarding filling up of 15000 vacant posts. SC dismissed the plea saying that implementation is under way and accepted Center's response that it will be completed by 31st March 2016.

In this context, While disposing of the plea, SC clarified that since the Govt. of India has committed itself to fill up the entire backlog of vacancies numbering about over 15,000 by way of a special recruitment drive in terms of office memorandum dt. 22.5.15, the contempt proceedings will not be initiated. 

The court said the question of reservation in promotion was not there for adjudication since its October 2013 judgment was only in respect of filling up the vacancies reserved for physically disabled people at the entry point, and could not be read into promotion. The story made out thus is unnecessary reading between the lines.

The bench of Justices Ranjan Gogoi and N V Ramana said this while giving clarification on its October 2013 judgment by which the court had held that the 3 percent reservation for physically challenged people would depend on the total number of vacancies in the cadre strength.

The court said its order has to read in the context of two questions it had framed and addressed in its October 8 judgment. And these two questions were:

(a) First was about the manner of computing 3 percent reservation for people with disabilities as per Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 Act.

(b) The second question that the court had answered in the October 8 judgment was whether the reservation should be post-based or vacancy-based.

I feel the Hon'ble Bench  thus did not sit to review or clarify its earlier order on the issue of reservation in promotion for persons with disabilities. In fact after the said judgement of October 08, 2013,  the Hon'ble SC upheld the orders of Bombay High court, High court of Delhi and High court of Allahabad laying down that Section 33 includes reservation in promotion as well by way of various judgments particularly judgments dt. 10.12.13 in Civil Appeal No. 9473/2011 titled as Municipal Corporation of Delhi Vs. Manoj Gupta, judgment dt. 12.9.14 in C.C. No.13344/2014 and judgment dt. 27.2.15 in civil Appeal No.5914/2015 titled as Union of India Vs. National Confederation for Development of Disabled and Ors and judgment dt. 20.3.15 in Civil Appeal No.4641/2015 titled as State of U.P. Ors. Vs. Sanjeev Kumar Jain and Ors. dismissing the civil Appeals/ SLPs both of Govt. of India as well as respective State Govts.

Therefore, it is to be clearly understood that if  SC /ST are given the quota in direct recruitment as well as in promotion, the disabled category should not be left out from this benefit under the benevolent legislation whose mandate is equal opportunities, protection of rights and full participation of those living with disabilities.  The govt should bring out appropriate revised DoPT memo to implement this long pending issue of reservation in promotion for government employees with disabilities.

Here is the TNN reported version that sought to create confusion among the stakeholders :

SC: Differently abled can’t claim quota in promotion

Amit Anand Choudhary,TNN | Sep 2, 2015, 05.36 AM IST


NEW DELHI: Differently abled persons can claim benefit of reservation in government jobs only at the time of appointment and cannot get the benefit of the affirmative policy in promotion, the Supreme Court said on Tuesday while clarifying its earlier verdict.

A bench of Justices Ranjan Gogoi and N V Ramana said the apex court's 2013 verdict did not hold that the reservation policy could also be extended to promotion in jobs and stressed that the disabled could claim benefits only at the time of recruitment.

The SC had in 2013 directed the Centre and all state governments to provide three per cent job reservation to disabled persons in all their departments, companies and institutions under Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act which came into force in 1995.

The Centre submitted that the court had not, while passing order for three percent reservation, dealt with the issue of reservation in promotion and the disabled could not be allowed to claim the benefits.

Although the Court had directed that all vacancies under 3% reservation be filled up within three months, the governments failed to comply with the order in the last two years and there are still 10,000 vacant posts in central government. Solicitor General Ranjit Kumar assured the court that all vacancies would be filled up by the end of this financial year.

Source: Times of India 

Tuesday, August 11, 2015

Frame rules for appointing Disability Commissioner- Ktk HC

Frame rules to appoint commissioner for disabled, HC tells govt
Bengaluru, Aug 04, 2015, DHNS:

The High Court on Monday directed the State government to frame rules and guidelines for appointing the Commissioner for Persons with Disabilities in four months and to appoint a new commissioner by following the new rules.

Hearing a petition by the All India Physically Handicapped Welfare Association, challenging the appointment of K S Rajanna as the Commissioner for Persons with Disabilities, a division bench comprising acting Chief Justice S K Mukherjee and Justice B V Nagarathna disposed of the petition. The bench passed an order stating that Rajanna can remain the commissioner till the new rules are framed and a new commissioner is appointed. The petitioners had contended that Rajanna - who himself is a disabled person - is not eligible enough to hold the position of Commissioner for Persons with Disabilities. The petitioner had challenged his appointment as the commissioner.

Source: Deccan Herald 

Thursday, August 6, 2015

Trial Court takes offence to lack of dignified mobility & human rights of an accused with disabilities

Disabled accused made to crawl to fifth-floor court
Sana Shakil,TNN | Aug 6, 2015, 02.17 AM IST

NEW DELHI: A trial court here was left shocked when a disabled person, an accused in a criminal case, had to crawl on his hands to the fifth-floor courtroom because police did not think of arranging a wheelchair for him.

The accused, Yameen Malik, whose legs appeared to be deformed, was being produced in court on Monday for custody proceedings in a rape case.

When additional sessions judge Sanjay Sharma found Malik crawling in the courtroom, he questioned the investigating officer whether there were wheelchair facilities in the jail lock-up for production of disabled persons in court. The IO failed to give any answer.

"The court was shocked to see that the accused, who somehow managed to crawl on his hands, was produced before the court without a wheelchair. It means he has crawled all the way from the jail to this courtroom on the fifth floor of the complex. This is quite painful," the judge observed.

The judge has sought a detailed report from the Delhi Police commissioner and director general of prisons on what the existing provisions were for accused persons with disabilities.

The court said it appears that Malik was being produced in court in the same manner since he was arrested on July 27, 2015.

"This court is of the opinion that there was no arrangement (of a wheelchair) when he was arrested and lodged in police lock-up, produced before the court the first time and made to board the jail van as well as when he was received in jail lock-up at Karkardooma complex. The case demonstrates total lack of sensitivity and concern for the rights of a disabled person," the judge observed.

The court stated that a person with disabilities was entitled to an equal opportunity to access the justice system and could not be denuded of his basic human rights to be treated with dignity and respect. "...it is the duty of the state to make %the legal system accessible to such a person by making an effort to remove physical barriers," it stated in an order passed on Monday.

The court has asked the police commissioner to state whether wheelchairs are available at all police stations and jail lock-ups. It sought to know if there were any disabled-friendly toilets at police stations. The police chief was also asked if any direction had been issued to police stations for providing wheelchairs.

The judge told the police chief to inform the court about action taken against the IO of the case and lock-up incharge of Karkardooma court complex for violating directions, if any, on movement of disabled persons. Similar questions were put to the DG of Tihar regarding disabled-friendly facilities in the prison complex. Compliance reports from both offices are likely to be filed in court on Thursday.

Malik was arrested on charges of raping a minor girl. The case is at an initial stage.

A police officer told TOI that there were specific directions on how accused persons with disabilities are to be dealt with. Police are duty-bound to provide wheelchairs in such cases, he said. "Generally, we avoid arresting any accused with disability unless it's imperative and may affect investigations. But it's the duty of the investigating officer to arrange for a wheelchair before arresting the accused or producing him before the court," said the officer, who did not wish to be named.

Times View

It is shocking that a disabled person who is an accused should have had to crawl up five floors to be present in the courtroom. His human rights do not cease to exist merely because he is an accused, even if it is for a heinous crime. Indeed, they would not cease to exist even if he were convicted of that crime. Police should have ensured that he was provided a dignified means of getting up there. If for some reason that was not possible—say because the lift was not working—the proceedings should have been shifted to a venue, like the ground floor, more accessible to a disabled person.
http://timesofindia.indiatimes.com/city/delhi/Disabled-accused-made-to-crawl-to-fifth-floor-court/articleshow/48367771.cms