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SC Judgment Which Excluded Persons With Over 50% Visual/Hearing Impairment From Judicial Service No Longer Binding Precedent: Supreme Court

11 Feb 2021 3:03 PM GMT
SC Judgment Which Excluded Persons With Over 50% Visual/Hearing Impairment From Judicial Service No Longer Binding Precedent: Supreme Court

The Supreme Court, in a judgment delivered on Thursday, observed that its decision in V Surendra Mohan v. State of Tamil Nadu would not be a binding precedent, after the coming into force of the Rights of Persons with Disabilities Act 2016.

In Surendra Mohan, a two-judge bench of the Supreme Court had held that stipulating a limit of 50% disability in hearing impairment or visual impairment as a condition to be eligible for the post of a judicial officer is a legitimate restriction. The court had dismissed the appeal filed by a V. Surendra Mohan, who was held ineligible for the post of judicial officer (civil judge) as it was found that he was having 70% disability on account of blindness.

In the case Vikash Kumar v Union Public Service Commission, a three judge bench comprising Justices D Y Chandrachud, Indira Banerjee and Sanjiv Khanna, criticized Surendra Mohan decision as rendered without taking note of relevant concepts under the 2016 Act and also the "principle of reasonable accomodation".

"This judgment was delivered by this Court after India became a party to the UNCRPD and the RPwD Act 2016, came into force. The aforesaid view espoused by this Court is innocent of the principle of reasonable accommodation. This Court did not consider whether the failure of the Tamil Nadu Public Service Commssion to provide reasonable accommodation to a judge with a disability above the impugned ceiling was statutorily or constitutionally tenable. There is no reference in this Court's judgment to whether the appellant would have been able to discharge the duties of a Civil Judge (Junior Division), after being provided the reasonable accommodations necessitated by his disability", the three judge bench said.

While considering an appeal filed by a UPSC candidate against rejection of his request for a scribe, the bench noted that under Section 20, every government establishment is required to provide "reasonable accommodation" and a conducive environment to employees with disability.

"Reasonable accommodation" as defined in Section 2(y) means necessary and appropriate modifications and adjustments to ensure that persons with disabilities enjoy their rights equally with others. The bench made the following observations:

"The principle of reasonable accommodation captures the positive obligation of the State and private parties to provide additional support to persons with disabilities to facilitate their full and effective participation in society. The concept of reasonable accommodation is developed in section (H) below. For the present, suffice it to say that, for a person with disability, the constitutionally guaranteed fundamental rights to equality, the six freedoms and the right to life under Article 21 will ring hollow if they are not given this additional support that helps make these rights real and meaningful for them. Reasonable accommodation is the instrumentality – are an obligation as a society – to enable the disabled to enjoy the constitutional guarantee of equality and nondiscrimination. ", the bench observed in the judgment.

In the specific context of disability, the principle of reasonable accommodation postulates that the conditions which exclude the disabled from full and effective participation as equal members of society have to give way to an accommodative society which accepts difference, respects their needs and facilitates the creation of an environment in which the societal barriers to disability are progressively answered. Accommodation implies a positive obligation to create conditions conducive to the growth and fulfilment of the disabled in every aspect of their existence – whether as students, members of the workplace, participants in governance or, on a personal plane, in realizing the fulfilling privacies of family life. The accommodation which the law mandates is 'reasonable' because it has to be tailored to the requirements of each condition of disability. The expectations which every disabled person has are unique to the nature of the disability and the character of the impediments which are encountered as its consequence

For instance, for a visually impaired person, the reasonable accommodation she requires might consist of screen magnification software or a screen reader [which can speak out the content on a computer screen in a mechanical voice]. It might also consist of content being made available in Braille and a sighted assistant. In the same way, for someone with a hearing impairment, reasonable accommodation could consist of speech-to-text converters, access to sign language interpreters, sound amplification systems, rooms in which echo is eliminated and lip-reading is possible. Similarly, for a person with dyslexia, reasonable accommodation could consist of access to computer programmes suited to meet their needs and compensatory time

Taking note of this, the bench observed that the Mohan judgment does not discuss this principle even though it was rendered after the enactment of 2016 Act. It said:

The analysis by this Court in the portion excerpted above begs the question. Specifically, the relevant question, under the reasonable accommodation analysis, is not whether complications will be caused by the grant of a reasonable accommodation. By definition, reasonable accommodation demands departure from the status quo and hence 'avoidable complications' are inevitable. The relevant question is whether such accommodations would give rise to a disproportionate or undue burden. The two tests are entirely different.

As we have noted previously, the cornerstone of the reasonable accommodation principle is making adjustments that enable a disabled person to effectively counter the barriers posed by their disability. Conspicuous by its absence is any reasonable accommodation analysis whatsoever by this Court in Mohan. Such an analysis would have required a consideration of the specific accommodations needed, the cost of providing them, reference to the efficacy with which other judges with more than 40-50% visual/hearing impairment in India and abroad can discharge judicial duties after being provided the necessary accommodations, amongst other factors. In holding that the ceiling was reasonable on the application of the principle of reasonable accommodation, the ratio as expounded fails as "distinct exhortatory dimension that must always be kept in mind while determining whether an adjustment to assist a disabled person to overcome the disadvantage that she or he has in comparison to an able bodied person is reasonable."

It is persons with disabilities who have been the victim of this lapse

In light of the fact that the view of this court in Mohan was rendered in a case under the 1995 Act which has now been replaced by the RPwD Act 2016 and in light of the absence of a reasonable accommodation analysis by this Court, the Mohan judgment stands on a legally vulnerable footing. It would not be a binding precedent, after enforcement of the RPwD Act 2016.

Read the article published by LiveLaw criticizing the Surendra Mohan judgment here

Case: Vikash Kumar vs. Union Public Service Commission [Civil Appeal No. 273 of 2021]
Coram: Justices DY Chandrachud, Indira Banerjee and Sanjiv Khanna
Counsel: Adv Rajan Mani, Adv Naresh Kaushik, ASG Madhavi Divan, Adv Sanchita Ain
Citation: LL 2021 SC 76

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