We began this interview series with the principal objective of curating insights from lawyers with disabilities who can serve as ‘waypavers’ and ‘pathmarkers’ for law students and young lawyers with disabilities, in India and beyond. It would be no exaggeration to state that few people fit that description better than our next interviewee, Senior Advocate Santosh Kumar Rungta.
Blind since birth, SK Rungta has surmounted challenges most would consider insurmountable and has successfully defied, and continues to defy, what most would consider incredibly difficult odds.
Senior Advocate Rungta’s accomplishments would be noteworthy even if he was merely a practicing lawyer – he was conferred with the prestigious senior advocate title by the Delhi High Court in 2011 – but what sets him apart is the fact that he has generously devoted his skills and energy to breaking down many barriers that have prevented the disabled from realizing their full potential.
From facilitating the entry of the blind into the civil services to successfully urging the Supreme Court to give full effect to the reservation for the disabled provided by the 1995 Persons with Disabilities Act; from defending the right of the blind to serve as witnesses to the making of a will to playing an instrumental role in the formulation of India’s new disability law – SK Rungta’s efforts have gone a long way in enabling persons with disabilities across India to lead a life of dignity and respect.
I can pay no greater tribute to Senior Advocate Rungta than to say that law students and lawyers with disabilities owe him a huge debt of gratitude for walking so that we could run; the onus is now on us to run so that those who come after us may soar!
This interview was conducted by Rahul Bajaj. The interview has been edited for clarity.
I did my schooling from a special school for the blind – Model School for Blind Children, Dehradun. Since it was a special school, there were few opportunities to access mainstream educational programmes. However, some opportunities were available, such as going to the Welham School for competitions such as debates, poem recitation, etc. After completing my matriculation, I went back to my native place, Kanpur, and studied at BNSD College for my graduation. I studied law at Dayanand College of Law, University of Kanpur. Since I had studied in a special school, it was difficult to adjust to classroom learning, but I was able to cope up through the help of readers and by making short braille notes. It was just not possible to braille entire books, given that braille production was an issue and braille material requires a lot of space. Technology was also not available then. And then when I started studying law, the challenge became doubly difficult because, as you can appreciate, there is no end to the amount of reading that one is required to do if you want to succeed. But I consistently adopted the selfsame strategy described above. Access to library material was also a major challenge, because the catalogue itself was often not available in an accessible format. At least 30% of the time, if not more, was wasted only in figuring out what I wanted to read by obtaining the catalogue. That said, I had a lot of sighted friends, in addition to readers, who helped me cope with these challenges. Then I came to Delhi and took the reins of the National Federation for the Blind at the age of 24. I took admission in the LL.M. course at Delhi University. The primary object behind doing so was to get a place to stay in Delhi (laughs). While I did eventually do justice to that course, as I did not want my academic career to be ruined, the main object was getting accommodation. Even in Delhi University, I faced these same challenges.
Very good question! In any profession, you always depend upon a circle of people. Even if you are very talented and competent, someone has to invest their trust and confidence in your talent, and that can only happen once you demonstrate your talent to them. This type of trust can only be reposed in you by someone who is dear to you and, having assessed your capabilities, is in a position to seek your legal advice and help. Since you have that circle in your home town, I had almost decided to go back. In fact, I even booked my ticket to Kanpur.
But at that time, one very senior IAS officer, Mr. Bajpai, who was also from Kanpur, told me not to go back. His advice to me was this: The ultimate aim of every lawyer is to argue in the Supreme Court. If not today, tomorrow. That can only be done if you are in Delhi. So he asked me to reconsider my decision. I reconsidered and decided not to go back.
The next question, then, was how would I get my first case? Because people would not have confidence in me to give me their cases. Mr. Bajpai asked me not to worry and assured me that he would give me seven cases in the beginning. He was the Development Commissioner of Delhi at that time and headed the administration of all the gaon sabhas. There was a lot of litigation in the gaon sabhas stemming from the 20-point programme introduced in 1977. The zamindars continued in illegal possession of land and refused to vacate the same. He empaneled me the very same day when I registered. I then took the cases relating to seven regions in a village called Siraspur in Delhi. In those cases, the gaon sabhas had lost up to the level of the Financial Commissioner and the matter was listed for the High Court in two days on stay. I read the petition and found that it had many defects – the petition itself was drafted in a defective fashion. The matter was listed before Justice Wad. Justice Wad was a very tough judge – judicious, but tough. I knew I was going to get grilled on those defects, so I went fully prepared. Justice Wad asked me, “Mr. Counsel, is this the way to draft a petition? One cannot even make out what relief is being claimed.” I kept quiet for a minute. He shouted, “Why don’t you answer?” I told him that I knew the petitions were defective. He asked me to point out the defects, and I did so in a systematic fashion. At this he cooled down. He asked me why I had committed these mistakes when I knew what they were. I told him that I had not drafted the petition and that the counsel had been changed. He said, “Young boy, don’t worry. You argue out the matter and I will permit you to amend the petition in the course of the day.” And so I argued it out and subsequently amended the petition.
I got the intended relief – Mr. RK Anand was on the other side. We got the relief on a technical point in the Delhi Land Reform Act. The Act had a provision, that was introduced by way of an amendment, as per which the Union of India was made a necessary party in all disputes involving gaon sabha lands. In this case, it was not made a party by the jagirdars in the courts below. They only relied on the statement of the Pradhan and we lost on that basis. This was perhaps the first time that this provision was pressed into service after its insertion. This then became a major precedent on the basis of which many gaon sabha lands were ordered to be vacated.
The purpose of sharing this anecdote is because the first opportunity that any disabled professional gets is very crucial. That can make you or unmake you. You must take that opportunity with utmost sincerity. Many people think that illiterate people are hesitant to repose their faith in a disabled professional. In my case, it was the exact opposite. Scores of villagers came to me with their cases under the DLR Act. In hockey, when you get a penalty corner, you must convert it. Similarly, a disabled lawyer should treat the first opportunity that they get as a penalty corner which they must capitalize on.
Further, in the beginning of your career, you must choose the best case and not just any brief that comes your way. Your first year in the legal profession can either establish you or throw you out. Unlike your non-disabled counterparts, you will not get opportunities after opportunities. You have an added burden to make the most of the opportunity that you get. This is because you have to battle not just your disability, but also the infrastructural accessibility barriers and mental pressure of not squandering the opportunity.
Let me make it very clear that I do not think any technology can act as a substitute for braille. Just as a sighted lawyer wants his/her reading material to be under his/her fingers, a blind lawyer also needs the material to be under his fingertips. When I am arguing a case, I read all the material beforehand. Even though I rely mostly on my memory, if I do not have access to my braille notes in the file, my performance is 10% lower than what it would be if I had access to braille notes. Insofar as the relationship between adaptive technology and braille is concerned, I don’t see this as being a case of either/or. Adaptive technology is essentially designed to help you perform your functions effectively. For me, the refreshable braille display is the technology that helps me access content in an accessible format (for me, that format is braille). I use that on a regular basis now. For a blind lawyer, adaptive technology is essentially either in the form of braille output or audio output. There is no other output. If you use audio, even in e-courts that are coming up now, can you concentrate on the argument? You cannot. Whereas with the braille display, I can do both. With braille, you can listen to the judge’s query and immediately answer it. You can press a simple find command and obtain what you are looking for.
Definitely. In the Supreme Court, in a given case, you may have the material in 8 volumes or sometimes as many as 15 volumes. If it is 15 volumes in paper, it would be not less than 30 volumes of braille. You have to carry all of that with you to court. More than carrying it, the issue is of locating what you want. You cannot predict what a judge is going to ask you. You cannot do this through hard copy braille but you can, within seconds, through braille display. After the Rights of Persons with Disabilities Act, 2016 comes into force, the courts and other fora will have to amend their rules to allow for this. Because as of today, you cannot take the braille display to court without special permission.
I was arguing one case before Justice Madan Lokur. He heads the Supreme Court’s e-committee and is responsible for the e-conversion of the files and the like. I had taken a lot of braille notes to court. But I was very fast because I had made a chart setting out the details of what is contained in which volume. I had also prepared another chart of what I thought was important and could form the subject matter of questions. He asked me if there is any solution whereby you would not have to carry such voluminous braille material. I told him I have a braille display and he asked me to show it to him. I told him I would be able to show it to him with the permission of the court. He asked me, in a tone of surprise, if bringing the braille display to court was an issue for which permission of the court was required. I told him it was. He granted me permission to bring it to court. He asked to see the braille display and he promised me that he would vary the rules to permit this. He asked me what was the reason why this was not being allowed in court. I told him that this could be due to security reasons. He asked me if carrying the display would pose any security risk. I told him that the only issue that may have weighed with the authorities requiring permission is that the device also has a recording function. He assured me that this issue of permission would be tackled.
To answer the first part of your question, digitization of judicial processes and procedures holds great potential for disabled lawyers and will nearly bring us on par with our non-disabled counterparts. The main apprehension that the society has against disabled lawyers stems from their inability to read. Once court processes are completely digitized, that limitation is gone and we will be on par with our able-bodied counterparts. The only difference will be that able-bodied lawyers will use laptops and their disabled counterparts will use braille displays or screen reading technology, so there will be real equality.
To answer the second part, we have a long way to go in achieving complete accessibility in the digitization initiatives. The new Act has several progressive provisions on this. The Government initially understood accessibility as only extending to physical spaces, such as ramps etc. Information and communication technology was not the subject matter of debate. We succeeded in getting it included within the concept of accessibility under the Act.
As I said, initially I tried to do the best I could in the cases I got. Fortunately, the results were also positive. That helped me establish myself. For preparation, I largely depended on assistance of readers and braille notes. I use those braille notes even now. What has changed now, however, is that with the advent of technology, instead of making extensive notes in hard copy braille, I can save them on a pen drive and prepare with the help of a braille display. That has significantly reduced my dependence on readers.
Initially, whether for mobility or otherwise, I feel a good clerk is the prerequisite for any blind advocate, more than a sighted advocate. He can help you with filing etc.; getting objections checked; and even pre-filing activities such as preparation of brief, pagination, etc. At the initial stage when I did not have the advantage of technology, the reliance was fully on my clerks. Now with technology coming in to the picture, that dependence has been considerably reduced. I am able to check the final output before it is filed. Otherwise, I was fully reliant on my clerks. Even the job of checking submissions before filing initially used to be with the clerk.
Insofar as checking the case status is concerned, now it has become digitized, so that dependence is gone. The real issue, still, is: when you are arguing in court, to what extent can you reduce dependence on the colleague advocate who is your junior? If the use of technology in courts becomes permissible, that part can also be taken care of. With braille notes, with voluminous files, it becomes difficult to respond seamlessly to questions of a judge, as I mentioned earlier. Hard copy braille has this significant limitation. You cannot anticipate all queries that the court will ask. You can have a tentative understanding of what would be asked, but at times that understanding may be wrong.
My greatest challenge has been this: there was an initial hitch in the minds of judges (about my competence). Some judges were very biased initially. I had the experience of arguing before a judge who, even before I would stand up to argue, would say ‘dismissed’. I would attribute that only to his biased mind. This happened thrice in a row with the same judge. So I think my presumption that it had something to do with his perception of my blindness is correct. That said, such judges were only 2 or 3; by and large the judiciary has been very positive.
I would start by saying that it’s not advisable for a lawyer with a disability to start his career under a senior. I, in fact, did not start my career under any senior but started on my own. That gave me the opportunity to know all procedures, develop all the requisite skills, meet all challenges, draft the written submissions myself, etc. I used to accompany the clerk for everything right from filing to listing. If you start your practice with a senior, because of his perception of your limitations, he would not give you the opportunity to go, file and see the listings yourself etc.
My firm perception is that the right course for any disabled lawyer is not to join a senior at the beginning of his/her career. I acknowledge why people choose that path, if you start practicing on your own, the challenges of getting your first case and other related issues are doubtless there.
Even if you do get a place with a senior, at some point or the other, you will have to start your own practice. When you go back, you will not get ample opportunity to develop your own skills. You will have to start from scratch – I have seen people doing that. You will have to develop confidence and translate that to your client base.
You will face discrimination even in remuneration (in a senior’s chamber) – you won’t get what others get. In a majority of cases it would be on charity mode, not on an equal basis.
Let me tell you that no senior will give you space to build your own career, whether you are sighted or blind. There are many lawyers who started their careers with seniors or law firms and ended their careers that way. It is very difficult to put yourself, when you are older, through a world of challenges.
If you work for a senior, the advantage I see is that you at least have some assured income. If you are aspiring for a bright future, you may not be able to build your career from there. This is my opinion but maybe others will differ. I made that conscious decision from the beginning of my career.
To the seniors who are good enough to accept lawyers with disabilities, I would only say this: For most of us, as a lawyer, the fact that you are the protector of rights is the foundational reason for you entering this profession. If a lawyer with a disability comes to a senior, his case must be considered objectively, irrespective of his disability. That positive approach must be shown by seniors.
I would say the easiest is academia. If a lawyer is not very confident about his skills; not able to take challenges; one’s lifestyle is built around leading a life of comfort; and one does not want to deal with a lot of anxiety and tension, academia is ideal for him. If one aspires for a very bright career, one must go into litigation. Of course while deciding to go into litigation, one must objectively assess his skills in areas like drafting, argumentation and communication ability. Communication skills are very important for developing your client base. You may be very good and talented insofar as legal field is concerned, but if your communication skills are not good, you will not be able to build your client base. Even though now I am a senior and am only hired for particular dates as a senior, clients directly talk to me and share problems that may not be directly related to the case at hand. They want to be assured of their success in their case. People, even my juniors, are irritated when such questions are asked. The fact is that the client has given you their case with a lot of hope. There is no one apart from you on whom they rely for their queries or concerns. Your PR skills play a very important role. You must know how to deal with cases when you are arguing in court. You may have a very good point but the court may not be with you.
If the court is not with you, you must go to the next point. There is no point in sticking on to the same point. It is very important that you strategize while arguing. More than your knowledge, strategy works in court. As a disabled lawyer, you must have an additional skill of strategizing.
Third option is very good if you are good at drafting. I will still say that second option should be adopted with law firms. With seniors as such, you do not have any future. You must choose this career path only if the law firm in question is a reputed one. You must choose a law firm that has cases relating to diverse areas of law and that does not merely do monotonous work relating to one field.
For instance, there are law firms that deal only with trademarks – trademark cases have now become very repetitive. Even though patent law is evolving; trademark law per se is not evolving.
In order to work in law firms, you must be tech savvy and know how to draft, conduct research using legal databases, etc. Someone like me is a mismatch for such a work environment; I know my limitations attributable to my disability.
11. In order to succeed at the bar, good client relationships are of paramount importance. In the span of your career, did you face situations where people were apprehensive about hiring a blind lawyer? How did you convince them to trust you with their cases?
In fact, I feel that a disabled lawyer will not face that situation. If one client has come to you, it is with a decision to give the case to you. Otherwise, they will not come to you. There are very few chances of soliciting cases as a disabled lawyer. But clients are not reluctant; they come with a decision to give the case to you, on the basis of such things as your performance in initial cases. For example, I don’t advertise. People see judgments on any given areas of law, such as service law. People would look at recent service law judgments on the web, they will see who has argued recent service law cases. Many of my clients went to the relevant website and saw the judgments and came to me. Initially I had many DDA cases which I fought and won relating to allotments and costing. At least ten clients came to me after finding out that I was one of the leading advocates who had been getting positive judgments against DDA.
Similarly, there were officers of the National Crime Record Bureau who lost their case in CAT. Some other advocate represented them there. They searched the site and found me. To summarize, in my experience of 33 years, the chances of a client coming to me without a decision to give me the case are slim.
In some criminal cases, some clients had come to me with a decision to give me the case, but they wanted an assurance that they would get bail. I did not give any such assurance. I fairly told them that I could not give such an assurance. So that is why they went. Not because of my disability.
12. If you have argued property matters in which you have to look at charts and maps to see who has possession over what piece of property, how were you able to make that accessible to you?
Very interesting question! First, I try to understand the location or point that one has to show on the map. I try to understand it in a descriptive manner. I make a mental map. I take my office table as the landscape of the property. I ask my juniors to put marks at relevant places on the landscape. I now descriptively find out what point refers to what on the map. I know point a. I know what it is. I will tell the judge, see at point a, this is what emerges. Supposing at point a there is a wall, I write a narration: ‘Wall on north side. This joins plot no. x with plot no. y. This wall blocks the way to plot no y.’ If the issue is of right of way and I am saying that there is no right of way to x plot, I have to show it in the site plan. So, now I have a clear picture and a clear narration of the points marked on the site plan. I understand what I’m trying to show and what the opposite party is trying to show. Basically, I prepare a descriptive note of the site plan in braille and that has always helped.
So far there has been no occasion when my disability has been a stumbling block in disputing the other side’s claim. As I describe it, my junior simultaneously shows the description on the map to the judge. Co-ordination is very important and I practice that beforehand. If there is a property that is square in dimension, I will understand what is on left side; what is on right; what is frontage; what is back side.
In summary, it is a 3-step process: First, I ascertain where the property is. Second, I ascertain where everything of relevance in the landscape is. Third, I understand where the disputed points are.
You see, I would say that we need additional support from office staff and human assistance as compared to non-disabled lawyers. It is not the case that non-disabled lawyers do not rely on office staff. For many successful lawyers, their juniors draft for them which they build on; this has nothing to do with one’s disability.
Before my designation as a senior advocate, I used to ask my juniors to draft if I was hard pressed for time.
Young disabled lawyers should not take the luxury of asking their colleagues to draft the written submissions. They should draft themselves and get it checked. So the approach should be the other way.
I say this because when you draft yourself, your skills improve. Every time you draft, there is some improvement. Even now when I draft I learn and recognize my earlier mistakes. It’s an ongoing process. Reliance on sighted assistance is required only for such things as maintenance of record and filing.
If you are orthopedically disabled, things can be more challenging due to inaccessible infrastructure, so you need more assistance. Otherwise, I feel that non-disabled and disabled lawyers are equally placed insofar as human assistance is concerned.
I would divide my answer into several parts. First, you are right that majority of us have internalized the low expectations of the society and accepted it as our fate. This is attributable to the policy and legislative framework that existed before the enactment of the 1995 act. The perception of persons with disabilities often gets strongly built into their personalities.
They choose the path that is easier and offers greater protection. There is a sense of insecurity because the family doesn’t support them owing to financial constraints and other factors.
To begin with, there has to be a very vigorous campaign to build confidence within our students with disabilities and show them the opportunities that have now come their way in terms of technological development and change in policy and legal environment. There are ample opportunities, but you have to build the skills to snatch those opportunities. That cannot merely be done by the government; NGOs as well as the government will have to play a very proactive role. There is a need for a strong network of successful people with disabilities to regularly counsel and analyze the skills of our students and try to assist them by suitable empowerment programmes to prepare themselves for the future as well as to instill confidence in their capability. This is needed to do away with the insecurity that they have in their mind. People would often come to me while pursuing PG or vocational courses and ask me to try and get them a job – any type of job. That really hurts. A person who is a trained teacher comes to me and says that even if I get a group D job it is fine, please help me get it. This is reflective of the internalization of limitations. This is very worrying for someone like me who is spearheading the movement for equality insofar as the disabled are concerned. Especially when the young generation accepts this to be their fate. When I fought for equality in the civil services, the first judgment was in 1993 even before the 1995 Act. The Supreme Court ruled that in civil service exams, the blind will be allowed to compete in the exam either through braille or scribe. The rule that you have to write in your own hand was struck down. Despite this verdict, the first entry of a blind person in the civil services was in 2006 – after 13 years. This even after a provision for reservation in 1995.
Still that issue is not settled. When after Supreme Court judgment in 1993, I went to the DoPT secretary Mr. Dandapani in pursuance of the SC’s direction to explore the possibility of extending reservation in groups A and B as well. He told me, “Today you are saying that you want to become a civil service officer, tomorrow you will say you want to become a pilot.”
Even now, insofar as reservation in promotion is concerned, we had a meeting with the DoPT as per PM’s direction. Their argument for denying reservation in group A and B was this: if reservation is extended to these groups of posts, the disabled will become cabinet secretaries.
I said “so what!” Inspite of our efforts and positive case law, attitudinal barriers and hostility of the government are withholding the accomplishment of what we have achieved through statutory enactments and judicial pronouncements.
To deal with this challenge, NGOs will have to start short courses. Even in colleges and universities where disabled students are there, some kind of extra coaching can be given.
The government will take refuge of lack of budgetary resources if asked to do so. NGOs will have to do it. Accessibility will have to be increased. The new law will help with this.
15. It is a widely held belief that ordinary persons with disabilities in India cannot participate in the deliberative processes that result in the formulation of laws and policies relating to them. In other words, such policies can only be influenced by those in the disabled community who are well connected and professionally powerful. How would you address this concern and what would your advice be to a young disabled lawyer who wants to get more actively involved in these deliberative processes?
I don’t think that the proposition that, in the deliberative processes for the formulation of laws and policies, only professionals who are well connected are able to participate is correct. You have to understand one thing about this process – not everyone can be part of the drafting process. There has to be a very small committee. You don’t make laws on roads – you can’t. If you limit the deliberative process to the initial stages when a draft is prepared, that I think is a mistake. Deliberative process also includes consultation with public based on the concrete draft of the policy or legislation concerned. If you look at the history of the formulation of the new act, it started in 2010-11. It was a large committee consisting mostly of NGOs; I was not a part of it.
Two drafts for this were given: one in 2011 and one in 2013. All over the country, various national consultations and regional consultations took place in which everyone affiliated with disabled persons’ organizations was invited and took part. You can’t identify every individual for such exercises. There has to be some mechanism through which you can allow participation of those in the sector. Even those who were not part of any organization were included, such as Sanjay Jain; he was not from any organization, but he was involved in the consultation. There were some others also having Different disabilities.
The unit of representation, therefore, is generally an NGO. If an NGO’s position has to be put forth, it would have to be by someone holding a prime position in the NGO. In the drafting process, I was not involved. I influenced the law in the consultation process. It resulted in tearing apart the first draft. They attempted second draft. Today, the draft rules are in public domain; who is stopping anyone from submitting their representations? However, so far very few responses have come. Though I have given my comments, I have not received any responses. You cannot force anyone to participate. If they are interested, they should participate. Without even contributing to the rule-making process, you cannot say the rules are weak or deficient. I am fighting for every word. People are not aware of opportunities because they don’t want to participate.
In today’s tech world, you cannot say that you were not informed and did not know. If you are alert and vigilant, you can make/find opportunities to participate in the deliberative process. As I said, I was deliberately kept aside from the original drafting process.
In the rule committee, I have recorded my dissents wherever I had to and have articulated my alternative suggestions in the form of public notices. Even if I am a member of the committee, I will definitely do that on behalf of my organization.
I would say that empowerment of our young disabled professionals and development of their skills is key. If you look at the private sector, they don’t consider us as contributors but as recipients of charity – as individuals who don’t have any value in the society. That again brings us to the need for a campaign against this kind of mindset. Even in government sector we are getting reservation, but mindset has not changed. They are not given work.
I have always been advising them to bring those cases to me. We will have to deal with them through judicial activism. For instance, there is an ordinance factory in Ambarnagar in Maharashtra. One blind person was selected for a clerical post in that factory. He was initially not given appointment even after selection. We were able to get that through judicial intervention. Thereafter they refused to give work. We approached CAT and HC. Their argument was that we will not give you JAWS. If you want JAWS, you will have to bring it with your own funds. We got it arranged and got a favourable direction, but this was not given. This again led to a third round of litigation. He was given some work of clerical nature and he had to take it.
I have heard government establishments asking their disabled employees to come and take their salary on the first day of every month. They asked their employees to do so, given that they assume that they are only concerned with getting salary. I fought against that and now it has luckily been changed. Now they are not given work proportionate to their skills or job profile. That is an issue which needs urgent intervention, In order to sustain the momentum of opening doors for public employment. That will have a demonstrative effect on the private sector as well. We can show them that this is what an employee is doing in the public sector and ask them: why can’t he do that in your sector? There are many ways of attacking the attitudinal barriers that we are facing. In that respect also, NGOs will have to play an important role.
Partly yes, partly no. In the previous Act, there is antidiscrimination provision in matter of employment in public sector. Still, you have seen case laws where people have to approach courts to assert their rights. So what I am saying is that ultimately, whether it be public or private sector, that provision alone will not suffice. That coupled with a strong positive campaign against attitudinal barriers will result in a shift from exclusion to inclusion in employment.
19. In the landmark judgment of Indira Sawhney v. Union of India, reservation for persons with disabilities was categorized as horizontal reservation and reservation for backward castes was categorized as vertical reservation. Horizontal reservation, unlike vertical reservation, cuts across all categories and as such, is not a separate category by itself. As a result, if the 3% reservation requirement is met even by persons with disabilities getting selected for non-reserved seats on merit, public bodies are not required to maintain any separate and distinct quota for the disabled in such situations. In your opinion, is it fair to deprive persons with disabilities of the benefit flowing from the 3% reservation on the ground that their seats have been taken by other persons with disabilities who have been selected on merit through the ordinary route?
I think this is a misinterpretation of horizontal reservation. The rule is not that if the disabled are selected on general merit, no reservation has to be provided. This interpretation is misplaced. Even in Indira Sawhney while dealing with 50% ceiling, the situation was explained by giving example of reservation for persons with disabilities. It was held that reservation for the disabled is in addition to and separate from reservation on caste basis. The example given in Indira Sawhney clearly demolishes your proposition. Suppose there are 100 vacancies in an organization. Under Article 16(4), you can make reservation only up to 50% including backlogs from the previous year. When it comes to the disabled, the ceiling will not apply. Out of 100 posts, if 3 are reserved for the disabled, they will be filled by applying the reservation quota. Out of these 3, if 2 belong to SC category and 1 belongs to general category, you will place these 2 against SC category on roster; and one against general category on roster. If by placing them in SC category roster, the quota for SCs exceeds by 2, then in the next year, you will reduce the reservation quota for SCs by 2 seats. All this will only have to be done based on selection. In the DoPT OM of 29.12.2005, it was made clear that persons selected on own merit cannot be adjusted against vacancies reserved for the disabled.
They have to be accommodated in the general merit category. The only difference between horizontal and vertical reservation is that, when you say that for the disabled it is horizontal, suppose that 3 seats are reserved. You cannot further sub-categorize them into SC disabled, OBC disabled, general disabled, etc. You will only say three vacancies for the disabled. Against these 3, anyone belonging to any category OBC, SC or general can secure a seat. They will be adjusted against the roster for future recruitment in the given category. It is different from vertical reservation because, in vertical reservation, you say that if 10 vacancies are reserved for SCs, they can only be filled by SCs. For the disabled, reservation cuts across caste lines.
I will give you the background to this. When the Mandal commission notification was issued, they did away with reservation for the disabled. They said it would only be available within OBC reservation. That meant that general category PWDs would have no reservation. We filed an appeal. After 2 days, the Attorney General conceded that they would not cancel this reservation. It will remain as it is. At that time it was applicable to only group C and D posts. But the government wanted a clarification on what would be the nature of the reservation, would it be under Article 16(4), etc. In that background it has been clarified.
20. According to you, where does this misinterpretation then stem from?
It is based on that school of thought which construed the distinction between horizontal and vertical reservations incorrectly. The example in Indira Sawhney, the 2005 OM and the NFB judgment have now clarified the matter.
21. You have been at the forefront of the fight for equality and non-discrimination, insofar as the disabled are concerned, in courts across India. Given that a lot of judicial verdicts are not enforced by the executive, the 2013 NFB judgment being a case in point, to what extent does judicializing these issues yield meaningful results, and do you think that there is a need to think seriously about other efficacious solutions, such as policy interventions or the adoption of a non-confrontational approach?
When the NFB judgment was not being implemented, we filed contempt petitions. In contempt proceedings, the government conceded. Special recruitment drive was undertaken. 12000 odd seats have been filled up; 6000 odd still remain to be filled up. In our country, there is always an election underway. You have the code of conduct because of which appointments cannot be made and that should be factored in while trying to analyse the progress made. However, one cannot be satisfied with the kind of progress that has been made. Policy intervention is something that we have always been trying to attempt, but there is resistance in administration. In the government, there is always resistance from the DoPT. Our department has been very positive, but they cannot operate in a hostile fashion with the DoPT. The DoPT is the stumbling block. Even on the business allocation issue, DoPT takes advantage of the fact that this has nowhere been clearly mentioned.
No one listens to department for empowerment of the disabled. Getting the government to agree to policy shift is very difficult. Judicial precedents are very positive. The question, however, is this: how many organizations in the disability sector have joined in these advocacy efforts? Very few. Same is the case with regard to policy intervention. Most of them are interested only to act as service providers such as in areas of education and rehabilitation. Advocacy is secondary for them. That is stultifying our progress in implementation. I am not boasting, but if you look at positive legal developments in this sector, most of it is from my organization, Be it scheme of reservation in previous act, civil service posts and examinations, higher education reservation, etc. But all alone, 1, 2 or 5 organizations cannot be so forceful so as to create a positive policy environment.
On the adoption of a non-confrontational approach: I am not very comfortable with this terminology. You see, if you have a hostile policy and attitudinal environment, what do you do? You can stay satisfied with whatever is there. You don’t ask for changes. But if you ask for changes, it is seen as a confrontational approach. I don’t see it that way. It is advocacy. If it is perceived as confrontation, so be it.
I will give you two examples where I had no choice but to adopt confrontational approach with DoPT and other ministries. First, as regards my demand that the computation of vacancies has to be against total number of vacancies in the cadre strength and every organization has to make a vacancy based roster.
DoPT took a very tough stance. They said if you ask for this, you are making the proviso redundant. On reservation in promotion. I said how is this a matter of interpretation? I would argue that this proviso is impermissible and ultra vires the substantive provision. This is not the forum for such arguments. You only tell me if this is consistent with scheme. She said yes, but still. That ‘but still’ is the problem. You don’t want to implement the reservation. That is the issue. What should I do? Can I say that because you are saying so, I will not question you? People may call it confrontation. This is not. I am a representative of the disabled community and I have to protect my interest and raise my concerns. I may or may not succeed, but I have to represent and do justice to my constituency.
Similarly, on access to justice, when you are making any person a competent witness and allowing them to give testimony, I suggested 3 things in the rules: First, it should be made clear that no matter what the Evidence Act says, those with speech and hearing impairment should be allowed to give their testimony in sign language. Second, a poor litigant cannot afford the cost of an interpreter, so the cost must be borne by the state. Third, the methodology used by the disabled for giving evidence or identifying documents must be taken outside the purview of hearsay evidence. Therefore, I argued for a provision that the authenticity or correctness of a document or a testimony executed by a disabled person shall not be called in question on the basis of the manner in which it has been proved or procured. They reacted to it in a very hostile fashion. I argued that the evidence act is a procedural law. These rules are also procedural. What are you doing in these rules is giving effect to substantive provisions contained in the RPWD Act. How can you not do it? Imagine that a blind victim is participating in a test identification parade. You obviously cannot look at their faces and identify them. You can do it by listening to their voices or by touching. Is that permissible under the Evidence Act? It is not. On the one hand you are giving me a right to adduce evidence in an accessible way and, on the other hand, you are denying it. If you call it confrontational approach, so be it. I can’t be a silent spectator to things that result in deprivation and discrimination.
The IDIA Disability Access Programme (IDAP) has launched a first of its kind initiative of interviewing disabled lawyers in all spheres of the legal profession (teaching, advocacy, litigation, corporate, etc.). The IDAP interview series aims to solicit actionable insights from lawyers with disabilities on the strategies adopted by them to excel in their field. The series also seeks to educate and increase awareness within the legal fraternity, with the ultimate aim of fostering meaningful dialogue on reasonable accommodation for persons with disabilities.
The Interview first Published here.