Delhi High Court
Prhari Sahyog Association vs Union Of India & Ors on 29 August, 2023
Author: Satish Chandra Sharma
Bench: Chief Justice, Sanjeev Narula
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 29.08.2023
% W.P.(C) 11728/2019
PRHARI SAHYOG ASSOCIATION ..... Petitioner
Through: Mr. Gaurav Kumar Bansal and Mr.
Vishnu Kumar Gupta, Advocates.
versus
UNION OF INDIA & ORS ..... Respondent
Through: Mr. Anurag Ahluwalia, CGSC for
Respondent No.1/ UOI.
Mr. Santosh Tripathi, Standing
Counsel with Mr. Arun Panwar and
Mr. Pradyumn Rao, Advocates for
Respondent/ GNCTD.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJEEV NARULA
SATISH CHANDRA SHARMA, CJ. (ORAL)
1. The present petition has been filed under Article 226 of the
Constitution of India as a Public Interest Litigation by the Petitioner which
is a Non-Governmental Organization ("NGO") registered under Section 8 of
the Companies Act, 2013. The aim and objective of the NGO as stated in the
writ petition is to fight for the upliftment of fundamental and civil rights of
Persons with Disabilities.
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By:BHUPINDER SINGH
ROHELLA
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12:28:05
2. The Petitioner in the writ petition has stated before this Court that on
26.10.2019, the Respondent No.3, the Department of Social Welfare,
Government of NCT of Delhi ("GNCTD") has published a full page
advertisement titled as "Women Separated From Their Families" in a
English National Daily, and in that particular advertisement not only the
photographs of the women have been published, the "Intelligence Quotient
(IQ) Score" of women with Disability institutionalized in Asha Kiran,
Center Delhi also finds place. The Petitioner contends that it is an
unfortunate and unwarranted action on part of the Respondent No. 3 and
disclosing the identity of the women has led to their dignity and respect
being compromised.
3. The Petitioner‟s contention is that the publishing of IQ as well as the
photographs of 59 Women with disability institutionalized in Asha Kiran
Centre should not have been published and the act of the Respondents is in
complete violation of the statutory provisions as contained under the Right
to Persons with Disability Act, 2016 (hereinafter to be referred to as
"RPWD Act").
4. The Petitioner has also stated that the publication of photographs with
the IQ scores is in complete violation of the United Nations Convention for
Right to Persons with Disability ("UNCRPD") and the Petitioner has prayed
for the following reliefs in the instant writ petition:
"A. Issue a Writ / Order / Direction in the nature of mandamus
to direct to direct Respondent No. 03 to compensate all those
women with disabilities institutionalized in Asha Kiran, whose
identity they have revealed unlawfully by way of releasing their
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ROHELLA
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"IQ SCORE" and "PHOTOGRAPHS" in a National English
Daily On 26/10/2019.
B. Issue a Writ / Order / Direction in the nature of mandamus
to direct Respondent No. 03 to take action against those Public
officers who have violated the provisions of RPWD ACT - 2016
by way of releasing the IDENTITY of Women with Disabilities
in Public.
C. Issue Writ / Order / Direction in the nature of mandamus
against Respondent No. 02 to conduct orientation workshops on
RIGHT OF PERSONS WITH DISABILITIES ACT-2016 for
Department of Social Welfare, Govt of Nct of Delhi.
D. Issue a Writ / Order / Direction in the nature of mandamus
to direct Respondent No. 01 and Respondent No. 03 to
formulate, design and implement SOCIAL SECURITY
SCHEME as per Section 24 of RPWD ACT- 2016 for Persons
with Disabilities institutionalized in places like ASHA KIRAN.
E. Issue a Writ / Order / Direction in the nature of mandamus
to direct Respondent No. 01 to issue Order to protect the
privacy of such person so that in future such incident should not
get repeated.
F. Issue a Writ / Order / Direction in the nature of mandamus
to direct Respondent No. 01 to issue GUIDELINES for tracing
families of such persons with disabilities who are living in
places like ASHA KlRAN.
G. Pass any other Order or Direction which this Hon'ble Court
may deems fit and proper under the facts and circumstances as
mentioned above."
5. A short affidavit has been filed by the Respondent No.1 i.e.,
Department of Empowerment of Persons with Disabilities, Ministry of
Social Justice and Empowerment, Government of India and it has been
stated in the reply that the issue in the present Petition pertains to allegation
of irregularities committed by Asha Kiran Centre, a rehabilitation home run
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by the Department of Social Welfare, GNCTD. They submit that the
Department of Social Welfare, GNCTD/Respondent No.3 has filed a
detailed reply justifying their stand in the matter.
6. The Respondent No. 3 has also filed a reply wherein has admitted that
an article was published by Respondent No. 3 on 26.10.2019 in various
Hindi and English Daily Newspapers, including in the Hindustan Times,
under the title „Women Separated from Their Families‟. The Respondent
No.3 has stated that the advertisement was published in respect of 59 female
residents of Asha Kiran Complex along with their IQ scores and other
identifying information only with an aim and objective of tracing the
families of the said female residents and there was no mala fide intention of
Respondent No.3. The advertisement was published keeping in mind the
best interests of the said female residents of Asha Kiran, which is to
rehabilitate/restore them to their families.
7. The Respondent No.3 has further stated that there has been no
violation of the statutory provisions as contained under the RPWD Act. It
has been further stated that the Respondents have not violated Section 3 or
Section 4 of the RPWD Act. On the contrary, it is stated that its actions
were an effort to ensure that the resident women of Asha Kiran are united
with their families.
8. The Respondents have further stated that there has been no violation
of the Articles 22 and 31 of UNCRPD. The Respondents have further stated
that rights under the international convention have to be balanced against the
larger interest of rehabilitation enjoyed by Persons with Disability under the
RPWD Act.
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9. The Respondents have stated that they have not violated any
fundamental right of the persons whose photographs have been published in
the National Newspaper on 26.10.2019, and the main objective was to trace
the families of the women who are with them since long.
10. The Respondents have stated that they have taken all steps in respect
of implementation of Schemes for Social Security keeping in view Section
24 of the RPWD Act by hosting various vocational training programs. They
state that vocational trainings are being provided to the residents of Asha
Kiran Complex in 10 different vocations.
11. It has also been stated that Respondent No.3 has established Halfway/
Longstay Homes for rehabilitation of Persons with Treated Mental Illness
discharged from Government Hospitals, whose families have not been
traced or who have been abandoned by their families. The said homes are
namely Nav Kiran-I and Nav Kiran-II for women at Sector 03, Rohini and
Nav Chetna for men At Sector - 22, Rohini. The Respondents have further
stated a scheme is also being implemented to provide financial assistance of
Rs. 2,500/- per month to persons with special needs to eligible persons with
benchmark disabilities.
12. The Respondents have also stated that in an attempt to provide
livelihood opportunities, a new initiative has also been taken by the
respondents in collaboration with National Skill Development Corporation
("NSDC"). It is stated that under the scheme and a large number of such
persons have been provided training in hospitality with Lemon Tree Hotels,
including seven persons from Asha Kiran Complex, in an attempt to
rehabilitate such persons.
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13. The Respondents have also stated that they are in strict compliance of
the statutory provisions as contained under the Juvenile Justice (Care and
Protection of Children) Act, 2015 read with Juvenile Justice (Care and
Protection of Children) Model Rules, 2016, and the judgment delivered by
the Hon‟ble Supreme Court in Bachpan Bachao Andolan v. Union of
India, (2014) 16 SCC 616. It has been stated that the aforesaid judgment of
the Hon‟ble Supreme Court permits the state authorities to publish
photographs enabling the parents/ families/ relatives of the subject to locate
them.
14. The Respondents have further stated that in furtherance of Bachpan
Bachao (supra), the Ministry and Women & Child Development,
Government of India have formulated Standard Operating Procedure (SOP)
in case of missing children and the said SOP is also on record. The
Respondent No. 3 has further stated that in case of missing children, their
information is published in leading newspaper/television/electronic media as
well as on social media, and that attempts are being made by them to unite
such persons with their families, and at no point of time there was any
intention on their part to harass or humiliate the residents of Asha Kiran
Complex as alleged by the Petitioner nor there was any intention to breach
any provision of law. Therefore, a prayer has been made on behalf of the
Respondents for dismissal of the writ petition.
15. This Court has heard Learned Counsel for the Parties at length and
perused the record.
16. The facts of the case reveal that the Petitioner NGO has stated in the
Writ Petition that they are involved in upliftment of fundamental rights and
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civil rights of Persons with Disability and came up before this Court on
account of paper publication in National Newspaper on 26.10.2019. The
News Paper advertisement which is published in English and Hindi Dailies
on 26.10.2019 relates to photographs of 59 persons residing in the
government shelter home which is under the control of State Government.
17. It is certainly true that the Advertisement includes photographs &
details of persons with disability and the Petitioner is alleging violation of
Section 3 and 4 of the RPWD Act as well as violation of Article 22 and 31
of UNCRPD by the Respondents. The aforesaid relevant statutory
provisions i.e., Section 3 and 4 of the RPWD Act read as under:
"3. Equality and non-discrimination. --
(1) The appropriate Government shall ensure that the persons
with disabilities enjoy the right to equality, life with dignity and
respect for his or her integrity equally with others.
(2) The appropriate Government shall take steps to utilise the
capacity of persons with disabilities by providing appropriate
environment.
(3) No person with disability shall be discriminated on the
ground of disability, unless it is shown that the impugned act or
omission is a proportionate means of achieving a legitimate
aim.
(4) No person shall be deprived of his or her personal liberty
only on the ground of disability.
(5) The appropriate Government shall take necessary steps to
ensure reasonable accommodation for persons with disabilities.
4. Women and children with disabilities. --
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(1) The appropriate Government and the local authorities shall
take measures to ensure that the women and children with
disabilities enjoy their rights equally with others.
(2) The appropriate Government and local authorities shall
ensure that all children with disabilities shall have right on an
equal basis to freely express their views on all matters affecting
them and provide them appropriate support keeping in view
their age and disability."
18. Articles 22 and 31 of the UNCRPD reads as follows:
Article 22
Respect for privacy
1. No person with disabilities, regardless of place of
residence or living arrangements, shall be subjected to
arbitrary or unlawful interference with his or her
privacy, family, home or correspondence or other types
of communication or to unlawful attacks on his or her
honour and reputation. Persons with disabilities have the
right to the protection of the law against such
interference or attacks.
2. States Parties shall protect the privacy of personal,
health and rehabilitation information of persons with
disabilities on an equal basis with others.
xxxx
Article 31
Statistics and data collection
1. States Parties undertake to collect appropriate
information, including statistical and research data, to
enable them to formulate and implement policies to give
effect to the present Convention. The process of
collecting and maintaining this information shall:
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a. Comply with legally established safeguards, including
legislation on data protection, to ensure confidentiality
and respect for the privacy of persons with disabilities;
b. Comply with internationally accepted norms to protect
human rights and fundamental freedoms and ethical
principles in the collection and use of statistics.
2. The information collected in accordance with this article
shall be disaggregated, as appropriate, and used to help assess
the implementation of States Parties' obligations under the
present Convention and to identify and address the barriers
faced by persons with disabilities in exercising their rights.
3. States Parties shall assume responsibility for the
dissemination of these statistics and ensure their accessibility to
persons with disabilities and others."
19. The reply filed by the GNCTD reveals that publication of photographs
of women residents of Asha Kiran Complex became necessary as the
Government was trying to make all possible attempts to unite the Persons
with Disabilities with their families and the advertisement was not published
with an intention to violate their privacy but rather to search their family
with the motive of rehabilitation. The action of the Government was
certainly in good faith with honest intention and there was no intention at
any point of time to violate any statutory provisions or to violate the articles
of UNCRPD.
20. The short-affidavit filed by the Respondents further reveals, keeping
in view Section 24 of the RPWD Act, various vocational programmes are
being conducted by the Government. The Respondents of Asha Kiran
complex have made the country proud by winning medals at the Special
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ROHELLA
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Olympics and the GNCTD has at all times, taken interest in and acted in
furtherance of the welfare of the resident women.
21. The documents on record establishes that the Office of the State
Commissioner for Persons with Disabilities and the Union Territory Civil
Services, Government of NCT of Delhi are conducting orientation training
for implementation of the RPWD Act, 2016 to the various Government
functionaries including those of the Department of Social Welfare, GNCTD
and the object of such training is to make the Government employees more
aware about the statutory provisions under the RPWD Act.
22. It is again an established fact that the Department of Social Welfare,
GNCTD, keeping in view Section 24 of the RPWD Act is implementing
various welfare schemes. The Department is providing for the upkeep,
protection & shelter of persons with intellectual disabilities including
Children with Intellectual Disability who have no family or have been
abandoned or are without shelter. They are being kept and taken care of in
Asha Kiran, Asha Jyoti and Asha Deep Complexes. The residents are being
provided adequate food, medical services, special education as well as
recreational facilities at these complexes.
23. The Respondents have further stated that they are imparting
vocational training to the residents of Asha Kiran Complex in 10 different
vocations, which are as follows:
"1. Cutting & Tailoring; 2. Block Printing; 3. Organic
Colours through Temple Flowers; 4. Bag Making; 5. Art &
Craft; 6. Drawing & Painting; 7. Clay Modelling; 8. Candle
Making; 9. Artificial Jewellery Making; 10. Pottery"
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24. The Respondents have further stated that on account of the sincere
efforts of the Government, residents of the Asha Kiran Complex and Asha
Jyoti Complex have won medals at the World Summer Games at Los
Angeles, USA, World Winter Games and many other international events
and at no point of time there was any intention to violate any statutory
provisions of law.
25. The short-affidavit also establishes that Halfway/Longstay homes for
rehabilitation of Persons with Treated Mental Illness discharged from
Government hospitals are also being maintained by the Government, known
as Nav Kiran-I and Nav Kiran-II for women at Sector 03, Rohini and Nav
Chetna for men at Sector-22, Rohini. The short-affidavit also reveals that
financial assistance is also being paid to the persons under the schemes of
the Government.
26. The Respondents have also followed the statutory provisions as
contained under Rule 69G of the Juvenile Justice (Care and Protection of
Children) Model Rules 2016 which reads as under:
"69G. Procedure to be adopted after the child is received-
(1) The following procedure shall be adopted on the same day
or the next day if the child is received in the night:
(i) Photograph of the child shall be taken. One photograph
shall be kept in the case file of the child and another shall be
fixed on the index card with the particulars of the child. A copy
shall be kept in an album serially numbered and a copy of the
photograph shall be sent to the Board or the Committee as well
as to the District Child Protection Unit and be uploaded on the
designated portal set up for the purpose.
(ii) the child may have a bath and be provided fresh clothes.
The caregiver shall issue the child toiletry items, new sets of
clothes, bedding and other outfit and equipment as per Rule 30
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of these rules, a list of which shall be kept in his case file. The
provisions will be replenished from time to time as per Rule 30
of these rules;
(iii) the Child Welfare Officer or Case Worker shall familiarize
every newly admitted child with the Child Care Institution and
its functioning, particularly, in the following areas; -
(a) personal health, hygiene and sanitation;
(b) discipline of the Child Care Institution and code of
behavior;
(c) daily routine activities and peer interaction; and
(d) rights, responsibilities and obligations within the
Child Care Institution.
(iv) the child shall be examined by the medical officer, who
shall record the state of health of the child, and of any wound
or mark on his person and any other observations which the
medical officer thinks fit and a copy of which shall be placed in
the medical record of the child;
(v) a Child Welfare Officer or Case Worker shall be assigned to
the child by the Person-in-charge."
27. The Respondents have stated that they are following the statutory
provisions as contained under the Juvenile Justice (Care and Protection of
Children) Act, 2015 read with the rules framed thereunder as well as the
guidelines framed by the Hon‟ble Supreme Court in the case of Bachpan
Bachao Andolan (Supra). The Respondent No. 3 has also filed a SOP
issued by the Ministry of Woman and Child Development, Government of
India in case of missing children and the same is being adhered to by the
Respondents.
28. In view of the aforesaid statutory provisions, guidelines, and SOPs,
wide publicity is given in case of missing children in leading newspaper,
print/ electronic media and all sincere efforts are being made by the
Respondents to ensure that the child or other persons who are residents of
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Asha Kiran Complex and other shelter homes are united with their families
and in case they are not united with their families they remain in the centers
and are being provided all amenities by the Government.
29. The Respondents have stated that at no point of time, there was any
intention to violate any statutory provisions of law and the photographs
along with details including IQ scores were published. In the short affidavit,
the Respondents have categorically stated that they have taken a policy
decision not to publish IQ score which was done earlier, and the subsequent
advertisement published in Times of India on 08.11.2019 has been placed on
record. The same does not include IQ Score and it has been categorically
stated on affidavit that the practice of reflecting IQ Score has been
discontinued.
30. Keeping in view the aforesaid, this Court is of the considered opinion
that the Respondents having discontinued the practice of publishing IQ
scores of Persons with Disabilities, no further orders are required to be
passed in the present Writ Petition.
31. However, the Respondents are directed to ensure that the statutory
provisions as contained under the RPWD Act and UNCRPD to which India
is also a signatory are not violated in future.
32. The Respondents shall also ensure that the residents of Asha Kiran
Complex and other similar centers which are under the control of GNCTD
are provided all kind of amenities to ensure that they live a meaningful life
and are not deprived of their constitutional right guaranteed under the
Constitution of India.
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33. The Respondents shall also ensure that the Persons with Disability
who are residing in the Center are given vocational training as has been done
in the past and shall also through their good offices ensure that they are
rehabilitated and not only this, the persons who have shown their skills in
sports should also be imparted special coaching as they have proved their
worth in international competitions held across the globe.
34. With the aforesaid, the present PIL stands disposed of.
SATISH CHANDRA SHARMA, CJ
SANJEEV NARULA, J.
AUGUST 29, 2023 aks W.P.(C.) No. 11728/2019 Page 14 of 14 Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:14.09.2023 12:28:05