Shihabudheen A. v. Union of India and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR ``` ``` & ``` ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 27[TH] DAY OF FEBRUARY 2023 / 8TH PHALGUNA, 1944 WP(C) NO. 19272 OF 2020`** ## **`PETITIONER:`** ``` SHIHABUDHEEN A. AGED 40 YEARS, S/O. ABDUL RAZACK, PUTHUVAL PUTHANVEEDU, KKRA-75, KURISSADI, KARYAVATTOM POST, THIRUVANANTHAPURAM-695 581. ``` ``` BY ADVS. M.P.SHAMEEM AHAMED SRI.CYRIAC TOM ``` ## **`RESPONDENTS:`** ``` 1UNION OF INDIA, (REPRESENTED BY SECRETARY, DEPARTMENT OF EMPOWERMENT OF PERSON WITH DISABILITIES) MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT, ROOM NO.518, B-II, 5TH FLOOR, PT. DEENDAYAL ANTYODAYA BHAVAN, NEW DELHI-110 003. 2UNION OF INDIA, (REPRESENTED BY SECRETARY, DEPARTMENT OF HIGHER EDUCATION), MINISTRY OF HUMAN RESOURCE DEVELOPMENT, SASTRI BHAWAN, NEW DELHI-110 001. 3UNION OF INDIA, (REPRESENTED BY UNDER SECRETARY) MINISTRY OF HEALTH AND FAMILY WELFARE, ROOM NO.518, B-II, 5TH FLOOR, NIRMAN BHAVAN, NEW DELHI-110 001. 4STATE OF KERALA, (REPRESENTED BY SECRETARY TO GOVERNMENT SOCIAL JUSTICE DEPARTMENT) GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. ``` **2** ## **W.P.(C)No.19272 of 2020** ``` 5STATE OF KERALA, (REPRESENTED BY SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE), 6TH FLOOR, SECRETARIAT ANNEX-II, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. ``` ``` BY ADVS. V. TEKCHAND, SR.GOVERNMENT PLEADER SRI.JAISHANKAR V.NAIR, CGC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P.(C)No.19272 of 2020** **3** ## **JUDGMENT** Dated this the 27[th ] day of February, 2023 ## **S.Manikumar, C.J.** Instant writ petition is filed by the petitioner seeking ## for the following reliefs: - “i) Issue a writ in the nature of mandamus or any other writ or order directing the 1[st] Respondent to take appropriate steps, including issuance of notification for declaring ‘Type 1 diabetes Mellitus' as a specified disability under the Schedule to RPWD Act, 2016. - ii) Issue a writ in the nature of mandamus or any other writ or order directing respondents to: - (a) allocate required funds for providing basic treatment facilities including setting up of special clinics and provision of required amount of strips, insulin cartridges, insulin pens, needles etc to all Type 1 diabetes patients free of cost and for providing other welfare measures for Type 1 diabetes patients. - (b) to issue necessary circulars/instructions to all examination conducting bodies coming under their control and jurisdiction to permit all candidates suffering from Type 1 diabetes to carry snacks/ fruits/ juices/sugar candies/ insulin pens/insulin pumps or such similar articles during examination time without requiring them to deposit with the invigilators. - (c) to take appropriate steps for setting up a national registry of Type 1 diabetes patients including creating awareness programs and conducting of suitable camps for identifying children and adolescents suffering from Type 1 diabetes. **4** ## **W.P.(C)No.19272 of 2020** - (d) to provide special quota for admission to students with Type 1 diabetes Mellitus for Secondary and Higher Education including vocational training and other institutes coming under the Central and State Governments and other autonomous bodies. - (e) to take steps to include Type 1 diabetes mellitus in the list of rare diseases under National Policy for Treatment of Rare Diseases (NPRTD). - iii) Issue a Writ in the nature of mandamus or any other writ or directions as may deem fit to this court for the betterment of the Type 1 diabetes patients.” 2. Short facts leading to the filing of the writ petition are as under: 2.1. Type 1 Diabetes is a serious permanent medical condition, in which, due to the pancreatic failure, the body fails to produce insulin or produce very little insulin and as a result of which children with Type-1 Diabetes need to be on external insulin injection throughout their life. In children with Type-1 Diabetes, the sugar levels in the blood are not managed on its own and the sugar levels could be highly fluctuating depending upon various factors like diet, physical activity, human mood etc. - 2.2. Children suffering from Type-1 Diabetes need **W.P.(C)No.19272 of 2020** **5** continuous monitoring of their sugar level 24/7 in a day and they literally live on the insulin injections and it is an incurable medical condition. The pain and suffering of children with Type-1 Diabetes and their parents are extremely sympathetic and they have to be on vigil 24 hours taking note of the kind and quantity of the diet which needs to be given based on the reading of the glucose level, the activities of the child, their mood fluctuation etc. There are multiple daily and frequent insulin injections, daily blood glucose monitoring, prevention and handling of acute complications, screening for and managing chronic complications and psychological support required. 2.3. There is a permanent physical impairment in Type-1 Diabetes children and adolescents. Type-1 Diabetes and its complications can substantially limit a wide variety of major life activities of the children. Efforts needed to constantly keep blood glucose levels within a safe range can themselves constitute a substantial limitation on the major life activities of caring for oneself and eating. **W.P.(C)No.19272 of 2020** **6** 2.4. India is a signatory to United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and had enacted Rights of Persons with Disabilities Act, 2016 (RPwD Act). The list of Specified disabilities under the RPwD Act includes about 21 medical/physical conditions, but does not include Type-1 Diabetes. Many of the conditions specified in the Schedule are not conventionally considered as 'disabilities'. Type-1 Diabetes is more or equally serious medical condition compared to the other list of medical conditions in the schedule. Standing Committee on Social Justice and Empowerment had already made strong recommendation to include Type-1 Diabetes in the list of scheduled disabilities. Because of the non inclusion of Type-1 Diabetes in the list of specified disabilities, such children do not get various benefits and gets discriminated and do not have the opportunity of full and effective participation in the society and stands discriminated. Hence the writ petition is filed for the reliefs stated supra. 3. Refuting the averments made and the reliefs sought **W.P.(C)No.19272 of 2020** **7** for, a statement dated 07.12.2020 has been filed on behalf of respondent Nos.1 to 3. Relevant paragraphs of the same read as under: - “2. It is submitted that the present petition seeks directions for taking appropriate steps including issuance of notification for declaring ‘Type 1 Diabetes Mellitus' as a specified disability under the Schedule of the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as the "RPwD Act for the sake of brevity) . 3. It is submitted that as per the standard dictionary definition, disability (noun) is a physical or mental condition that limits a person's movements, senses, or activities. Diabetes is not one of the 21 disabilities listed under Rights of Persons with Disabilities Act, 2017. The word disability runs counter to modern diabetes care philosophy, which encourages self-confidence and selfesteem. Type 1 diabetes (T1DM) is not a disability. 4. That the Respondent No. 1 had, in the past, received several representations for inclusion of various types of Disabilities including Type Diabetes Melitus'. These representations received, were considered by the High Powered Inter-Departmental Committee (HPIDC) set up by Respondent No. 1 with the approval of the Union Cabinet. This HPIDC meeting was held under the chairpersonship of the Secretary of the Respondent No.1 along with experts from the Union Ministry of **W.P.(C)No.19272 of 2020** **8** Women and Child Development, Directorate General of Health Services, AlIMS, Medical Council of India, and Indian Council of Medical Research...etc. 5. That the HPIDC in its meeting held on 10.01.2018 considering representation for inclusion of various categories, opined that "there is a clear distinction between 'disability' and 'medical condition'. The RPWD Act, 2016 mainly focuses on disability. All the abovementioned conditions relate to specific diseases only. Any person suffering from these disease conditions, if in the long term, develops any of the specified disabilities mentioned in the Schedule of the RPwD Act, 2016, is already covered within the ambit of the said Act" Therefore, Type 1 Diabetes cannot be considered as a Disability. 6. That it was further recommended by the HPIDC not to include any of the medical conditions as 'Specified Disability, per se in the Schedule of the RPwD Act, 2016. True Copy of the minutes of the HPIDC meeting dated 10.01.2018 is produced as Annexure R1(a).” 4. Mr.M.P. Shameem Ahamed, learned counsel for the petitioner, made submissions on the averments made in the writ petition, supported by documents. 5. However, it could be seen from the statement filed on behalf of respondents 1 to 3 that, on receipt of several **9** ## **W.P.(C)No.19272 of 2020** representations for inclusion of various types of Diabetes including Type-1 Diabetes Mellitus, a high-powered interdepartmental committee has been constituted, with the approval of the Union of India, represented by the Secretary, Department of Empowerment of Persons with Disabilities, Ministry of Social Justice and Empowerment, New Delhi (respondent No.1) and a meeting has been convened on 10.01.2018, by which, after deliberations with various participants, including the Secretary, Department of Empowerment of Persons with Disabilities (DEPwD); Joint Secretary, DEPwD; Joint Secretary, Medical Council of India, New Delhi; Deputy Director General, Directorate General of Health Services; Director, DEPwD; Director, All India Institute of Medical Sciences, New Delhi, etc., it has been decided not to include any of the medical conditions as specified disability, _per se_ , in the schedule of Rights of Persons with Disabilities Act, 2016. 6. Minutes of the meeting [Annexure R1(a)] dated 10.01.2018, supporting the statement filed on behalf of **W.P.(C)No.19272 of 2020** **10** ## respondents 1 to 3, is reproduced hereunder: “ - MINUTES OF THE MEETING OF THE HIGH POWERED INTER DEPARTMENTAL COMMITTEE HELD UNDER THE CHAIRPERSONSHIP OF SECRETARY, DEPWD ON 10.1.2018 AT 12.00 NOON TO CONSIDER PROPOSALS REGARDING INCLUSION OF NEW CATEGORY OF DISABILITIES UNDER THE AMBIT OF RPWD ACT, 2016 List of participants is at Annexure. 2. The Department of Empowerment of Persons with Disabilities (Divyangjan) had received a number of representations for inclusion of the following new categories in the list of specified disabilities:- i. Epidermolysis Bullosa ii. Thrombasthenia iii. Type 1 Diabetes iv. Hemifacial Microsomia v. Cancer Cured Handicapped vi. Cancer Patients vii. Polycystic Kidney Disease viii. Kidney/Liver Post-Transplant patients ix. Intractable Epileptic Seizures x. Obsessive Compulsive Disorder (OCD) xi. Stammering xii. Polycythemia Vera 3. The representations received in the Department for inclusion of the above medical conditions in the list of specified disabilities under the ambit of the RPwD Act, 2016 were considered by the High-Powered InterDepartmental Committee. The Committee noted that as per Section 2(s) of the RPwD Act 2016, ‘Person with Disability’ means a person with long term physical, mental, intellectual or sensory impairment, which, in interaction **W.P.(C)No.19272 of 2020** **11** with barriers, hinders his full and effective participation in society equally with others. The Schedule of Act enlists 5 broad categories of disabilities, which include 21 categories of specified disabilities. 4. The High-Powered Inter-Departmental Committee was of the view that there is a clear distinction between disability and medical condition. The RPwD Act, 2016 mainly focuses on disability. All the above mentioned conditions relate to specific diseases only. Any person suffering from these disease conditions, if in the long term, develops any of the specified disabilities mentioned in the Schedule of the RPwD Act, 2016, is already covered within the ambit of the said Act. 5. Therefore, after detailed deliberations, the HighPowered Inter-Departmental Committee recommends not to include any of the above medical conditions as Specified Disability, per se, in the Schedule to the Act. Meeting ended with a vote of thanks to the Chair. Sd/Sd/Sd/(Shri S. Santhanam) (Dr. Anil Manantala) (Dr. Randeep Guleria) SO(Coord.), M/o WCD DDG, DGHS Director, AIIMS Sd/Sd/(Dr. Rajendra Wabak) (Dr. Reeta Rasaily) JS, MCI Scientist F, ICMR Sd/Sd/(Dolly Chakrabarty) (Dr. Ravinder Singh) JS, DEPwD Scientist C, ICMR Sd/- (Shakuntala D. Gamlin) Secretary, DEPwD” **W.P.(C)No.19272 of 2020** **12** 7. When Experts comprising of Doctors from Directorate General of Health Services, Ministry of Health and Family Welfare, New Delhi, Director of Indian Institute of Medical Sciences, New Delhi, Indian Council of Medical Research, New Delhi and various other eminent persons dealing with issues relating to persons with disabilities, arrived at a conclusion not to include any of the medical conditions as specified disability in the schedule to the Act, courts should not interfere in such Experts’ opinion. Needless to burden the judgment, on the settled legal position. 8. Giving due consideration to the material on record, we are of the view that the reliefs sought for by the petitioner cannot be granted. Accordingly, writ petition is dismissed. Pending interlocutory applications, if any, shall stand closed. Sd/- **S.Manikumar Chief Justice** Sd/- **Murali Purushothaman Judge** **vpv** **W.P.(C)No.19272 of 2020** **13** ## **`APPENDIX OF WP(C) 19272/2020`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1COPY OF THE INTERIM ORDER DATED 21/03/2019 OF THE MADURAI BENCH OF MADRAS HIGH COURT IN WP (MD) 6582/2019. ``` - `EXHIBIT P2 COPY OF THE GOVERNMENT ORDER GO(RT) NO.799/2019/GEDN. DATED 28/02/2019 ISSUED BY UNDER SECRETARY, GENERAL EDUCATION DEPARTMENT.` - `EXHIBIT P3 COPY OF THE ORDER DATED 05/03/2020 PASSED BY THE KERALA STATE COMMISSION FOR PROTECTION OF CHILD RIGHTS IN CRMP NO. 502/01-C/C1/2020/LESCPCR.` - `EXHIBIT P3(A) ENGLISH TRANSLATION OF ORDER DATED 05/03/2020 IN CRMP NO. 502/01-C/C1/2020/LESCPCR.` - `EXHIBIT P4 COPY OF THE ORDER DATED 07/03/2020 OF THE DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT OF KERALA.` - `EXHIBIT P4(A) ENGLISH TRANSLATION OF ORDER DATED 07/03/2020 OF DEPARTMENT OF GENERAL EDUCATION.` - `EXHIBIT P5 COPY OF THE RELEVANT PAGES OF THE STANDING COMMITTEE REPORT DATED 05/05/2015.` - `EXHIBIT P6 COPY OF THE REPRESENTATION FILED BY THE PETITIONER'S WIFE TO THE PRIME MINISTER.` - `EXHIBIT P7 COPY OF THE REPLY DATED 14/08/2019 ISSUED BY MINISTRY OF HEALTH AND FAMILY WELFARE.` - `EXHIBIT P8 COPY OF THE REPLY DATED 13/09/2019 GIVEN BY THE MINISTRY OF HEALTH AND FAMILY WELFARE.` **14** ## **W.P.(C)No.19272 of 2020** ``` EXHIBIT P9 ``` ``` COPY OF THE REPRESENTATION MADE BY THE PETITIONER BEFORE THE STATE COMMISSIONER FOR DISABILITIES. ``` - `EXHIBIT P9(A) COPY OF THE LETTER DATED 1/02/2020 RECEIVED BY THE PETITIONER FROM THE COURT OF STATE COMMISSIONER FOR PERSONS WITH DISABILITIES, THIRUVANANTHAPURAM.` - `EXHIBIT P10 COPY OF THE CERTIFICATE DATED 25/09/2017 ISSUED BY KIMS HOSPITAL RECOMMENDING THE USE OF INSULIN PUMP.` - `EXHIBIT P11 COPY OF THE CBSE CIRCULAR DATED 21/02/2017.` - `EXHIBIT P12 COPY OF LETTER DATED 27/02/2020 SENT BY PETITIONER'S WIFE TO THE UNDER SECRETARY (GRANTS), MINISTRY OF HEALTH AND FAMILY WELFARE.` - `RESPONDENTS’ EXHIBITS` - `ANNEXURE R1(A) TRUE COPY OF THE MINUTES OF HTE HPIDC MEETING DATED 10.01.2018.` ``` //TRUE COPY// ``` ``` P.A. TO JUDGE ```