Reena Banerjee and Another vs Government of NCT of Delhi and Others

Held: i) A comprehensive mapping of residents should be undertaken, covering each individual residing in institutions for persons with cognitive disabilities – The purpose of individualised profiling is to facilitate better care planning, identify residents who no longer require institutional care, and develop feasible exit or reintegration strategies wherever appropriate – In this context, the preparation of an Individual Care Plan, on the lines contemplated under the Juvenile Justice (Care and Protection of Children) Act, 2015, may be considered for the ‘Project Ability Empowerment’ to ensure that care and rehabilitation are tailored to the unique needs of each resident; ii) Due consideration must be paid to the availability, adequacy, and regularity of healthcare and therapeutic services provided/available within these institutions – The monitoring group should document whether residents have access to general health check-ups, emergency medical services, psychiatric consultations, and therapeutic interventions, including physiotherapy, occupational therapy, and speech therapy – Special consideration should be given to the use and review of psychiatric medications, and whether treatment plans are personalised and subject to periodic professional review; iii) The monitoring shall study exit pathways and mechanisms for community integration – This includes efforts made by the institution to trace families of residents, assess the possibility of family reunification, prepare aftercare plans, and facilitate transfer to community-based alternatives such as group homes, supported living arrangements, or foster care. [Para 37(i)(ii)(iii)] Rights of Persons with Disabilities Act, 2016 – The Advisory Group Expert Panel and National Law Universities, conducting the proposed monitoring and data collation exercise of the Project Ability Empowerment, shall pay particular attention to certain key areas such as Accessibility, Infrastructure and Education:

Held: 1) The exercise must include a detailed accessibility and infrastructure audit – This shall involve evaluating the physical environment of the institutions, including living quarters, bathrooms, recreational areas, kitchens, and corridors, in light of the Harmonised Guidelines and Standards for Universal Accessibility – This audit should also examine accessibility of transport to and from the institution, and whether appropriate assistive technologies and mobility aids are available and in working condition; 2) The monitoring should assess the educational and vocational opportunities available to residents, including children and adults – The exercise must record whether school-aged children are enrolled in nearby schools, be it mainstream, special, or National Institute of Open Schooling with institutional support, and whether adults have access to skill training or life skills education – The availability of teaching staff, curriculum delivery methods, accessibility of learning materials, and integration of recreational or creative learning opportunities must be evaluated. [Para 37(iv)(v)] Rights of Persons with Disabilities Act, 2016 – The Advisory Group Expert Panel and National Law Universities, conducting the proposed monitoring and data collation exercise of the Project Ability Empowerment, shall pay particular attention to certain key areas such as Rights, Protection and Compliance: Held: 1) The concerned team members of the ‘Project Ability Empowerment’ shall examine institutional policies and grievance redressal mechanisms, including whether residents are aware of and able to exercise their rights, and whether there are systems in place for receiving, addressing, and following up on complaints of abuse, neglect, or rights violations – This should include a review of the policy on use of restraints, behaviour management strategies, and access to legal aid; 2) The monitoring exercise must include a review of compliance with legal and policy mandates, including past directions of this Court and provisions of the RPwD Act and the Mental Healthcare Act, 2017 – This should cover aspects such as appointment of protection officers, registration of institutions under the RPwD Act, and adherence to inspection protocols. [Para 37(vi)(vii)]

Rights of Persons with Disabilities Act, 2016 – The Advisory Group Expert Panel and National Law Universities, conducting the proposed monitoring and data collation exercise of the Project Ability Empowerment, shall pay particular attention to certain key areas such as Staffing, Resources and Institutional Accountability:

Held: 1) Due Attention must be given to resource availability, particularly the strength, training, and qualifications of caregiving and professional staff – The concerned team of the ‘Project Ability Empowerment’ shall examine the staffing ratios, working hours, payment structures, and professional support provided to doctors, nurses, therapists, and other personnel – Recommendations on staff enhancement, training modules, and financial allocations may also be drawn from this data; 2) The report must review the institution’s data systems, transparency mechanisms, and public accountability – This includes examining the systems for resident record-keeping, maintaining of medical files, publication of inspection reports, and compliance with obligations to report to statutory authorities – The availability of public information and responsiveness to RTI applications, or other information requests, should also be noted. [Para 37(viii)(ix)]

Rights of Persons with Disabilities Act, 2016 – The Advisory Group Expert Panel and National Law Universities, conducting the proposed monitoring and data collation exercise of the Project Ability Empowerment, shall pay particular attention to certain key areas such as Documentation and Welfare Access: Held: 1) The ‘Project Ability Empowerment’ team, after assessing the feasibility and rationale, may consider recommending that all State-run institutions housing persons with disabilities maintain an official online presence, including a dedicated website with an institutional dashboard – Such a dashboard shall provide essential information regarding the institution’s functioning, facilities, staffing, and compliance with applicable legal standards, while strictly upholding the privacy and confidentiality rights of all residents; 2) While undertaking the monitoring and assessment exercise, the concerned team members of the ‘Project Ability Empowerment’ shall also examine the feasibility and steps required to ensure that all persons with disabilities residing in State-run care institutions, such as Asha Kiran Home and similar facilities, are duly enrolled under the Aadhaar scheme – Many residents continue to lack Aadhaar Card and other essential identity documentation, resulting in exclusion from welfare schemes and social security benefits – The monitoring team may assess the institutional mechanisms necessary for on-site enrolment, coordination with the Unique Identification Authority of India (UIDAI), and the appointment of nodal officers to facilitate documentation. [Para 37(x)(xi)] Rights of Persons with Disabilities Act, 2016 – s.34 – The aspect of the reservation to persons with disabilities under the RPwD Act – Positive interpretation of ‘reservation’: Held: The constitutional mandate of substantive equality, as embodied in Articles 14, 19 and 21, requires a nuanced and contextsensitive approach which not only removes systemic barriers but also ensures that affirmative action measures are applied in a manner that truly benefits those for whom they are actually intended – In furtherance of this objective, and in order to ensure that the mandate of Section 34 is implemented in its true spirit – It is essential to address a very important facet of reservation to the persons with disabilities and the grave discrimination being faced by them – The latter category of persons is entitled to social reservation u/Art. 16(4) of the Constitution of India, which provides an upward movement in case the person belonging to such reserved category performs well in the evaluation process and stands higher in merit above the cut-off for the unreserved category – Such a meritorious candidate would automatically move up to the unreserved category, thereby leaving the reserved seat vacant to be occupied by a candidate from the reserved category who scored less in the evaluation process – It is a matter of grave concern that the same treatment is not provided to persons with disabilities protected under the RPwD Act, who, in spite of standing higher in merit, are denied such upward movement – This defeats the very purpose of reservation under Section 34 of the RPwD Act – Having regard to the above, this Court considers it appropriate to require the Union of India to explain whether appropriate measures have been taken to provide the upward movement of meritorious candidates applying against the post/s reserved for persons with disabilities, in case such candidate secures more than the cut-off for the unreserved category – The same principle must also be applied to promotions. [Paras 49, 50, 51, 53]