Supreme Court of India wants an Expert Panel To Determine What Areas of Medical Practice Can Colour-blind MBBS Aspirants Study based on international best practices [Judgement Included]

Dear colleagues,

In a progressive order, the Hon'ble Supreme Court bench comprising Justice Dipak Misra and Justice AM Khanwilkar has directed the Medical Council of India to constitute a committee of experts to look into the areas of practice that MBBS aspirants with colour blindness could indulge in. 

The bench passed these orders while hearing a Civil Appeal No. 4394 of 2017 (arising out of S.L.P.(C) No.30772 of 2015), filed by two MBBS aspirants, who were declared ineligible for admissions at the stage of counseling in 2015, as they had partial colour blindness. 

The petitioners had challenged the decision of the committee that refused them admission because of their colour-blindness before the High Court of Tripura and  Agartala, contending that there existed no regulation framed by the Medical Council of India, under the Medical Council Act, 1956, debarring them from seeking admission. The high court had, however, refused to interfere, and had dismissed their petition. 

Before the Hon'ble SC, the petitioner's counsel contended that it was “obligatory” on the part of the Medical Council of India to take a “progressive measure so that an individual suffering from CVD may not feel like an alien to the concept of equality, which is the fon juris of our Constitution”. Amicus Curiae Mr. Viswanathan urged that a complete ban on the admission of individuals suffering from CVD to MBBS course would violate conferment of equal opportunities and fair treatment. To buttress this submission, he had made reference to provisions of the Convention on the Rights of Persons with Disabilities and Optional Protocol, to which India is a signatory. 

The Amicus Curiae Mr. Viswanathan had urged that as colour blindness is not considered as a disability under the Persons with Disabilities Act 1995 nor it is a disability under the recently notified Rights of Persons with Disabilities Act 2016, the nature and severity of colour blindness and the disciplines they can practise has to be given a re-look.

The defendants, on the other hand, had submitted that since the complete diagnosis and prognosis of a disease or disorder may depend upon colour detection, there is requirement for restriction in the field of practice of an individual with colour blindness in this country.

Considering rival submissions, the court made reference to a judgment of the Delhi High Court in the case of Dr Kunal Kumar v Union of India and others, and also to a judgment of the Rajasthan High Court in Parmesh Pachar Vs. Convener, Central Undergradutate Admission Board. While the Delhi HC had concurred with the view that people with colour blindness may not be able to pursue certain courses or disciplines, the Rajasthan HC had opined that students suffering from disabilities cannot be debarred from seeking admissions..

The apex court, however, wished neither to lean in favour of the view of Delhi High Court nor generally accept the perception of Rajasthan High Court. It, thus, directed an assessment by an independent expert committee, and observed, “Total exclusion for admission to medical courses without any stipulation in which they really can practice and render assistance would tantamount to regressive thinking. The march of science, apart from our constitutional warrant and  values, commands inclusion and not exclusion. That is the way a believer in human rights should think”.

The bench directed that the expert committee shall also  concentrate on diagnostic test for progress and review of the disorder and what are the available prosthetics aids to  assist CVD medical practitioners and what areas of practice could they undertake without difficulty with these aids. It further said the committee shall include representatives of the Medical Council of India, and experts from genetics, ophthalmology, psychiatry and medical  education, who shall be from outside the members of the Medical Council of India. It has been directed to submit a report to the court within three months. The matter has been listed for July 11.

Writing the order the court expressed, "Human being is a magnificent creation of the Creator and that magnificence should be exposed in a humane, magnanimous and all-inclusive manner so that all tend to feel that they have their deserved space. Total exclusion for admission to medical courses without any stipulation in which they really can practise and render assistance would tantamount to regressive thinking. When we conceive of global phenomenon and universal brotherhood, efforts are to be made to be within the said parameters. The march of science, apart from our constitutional warrant and values, commands inclusion and not exclusion. That is the way a believer in human rights should think.

The bench has directed the Committee of Experts to submit a report to the court within three months, while fixing the next listing on 11 July 2017.

Click here to access the judgement dated 23 Mar 2017 in Civil Appeal No. 4394 of 2017 (arising out of S.L.P.(C) No.30772 of 2015) titled Pranay Kumar Podder Vs. State of Tripura and Others. [PDF size 151 KB Opens in google drive]

Colour Blind is a disability for admission to FTII, if not for Disability Act : Bombay HC

The Bombay high court on Tuesday upheld the decision of Film and Television Institute of India (FTII) not to grant a colour blind candidate admission to the film editing course.

A bench of Justice Shantanu Kemkar and Justice Prakash Naik gave their verdict on a petition by Patna based Ashutosh Kumar who was short listed for the post graduate diploma course in film editing. During medical examination he was found to be colour blind and his admission was declined in view of FTII Rules which state that colour blind candidates are not entitled to get admission in various courses including film editing.

Kumar's advocate Kartikeya Bahadur argued that colour blindness is neither a blindness with the meaning of Persons with Disabilities Act and as such the denial on the  basis of colour blindness is illegal. The judges took note that FTII has set up an admission committee of experts from various fields to review the admission criteria.

The bench said when an expert body has fixed eligibility criteria and carved out six courses in which colour blind candidates are not found suitable, the action of  FTII denying admission cannot be said to be illegal or arbitrary. "Keeping in mind the aforesaid, we are of the view that the petitioner being a candidate suffering

from disability of colour blindness, he cannot claim admission in the course in question, in which according to FTII Rules framed by expert body, he cannot be allowed,'' it added. The judges also noted that in the absence of any mala fide or arbitrariness alleged by Kumar against FTII there is no need for the court to  interfere.

Source: Times of India

Bombay HC - Termination of Driver with Colour Blindness quashed, given protection of section 47; Disabilities Act 1995

Dear Colleagues,

In the instant matter, the division bench of Justice S A Bobde and Justice M N Gilani of Bombay High Court has agreed that the case of a civil mechanical transport driver employed by the Indian Air Force who was sacked from his job after he was found to be colour-blind is covered under Section 47 of the Persons with Disabilities Act 1995 and as a result quashed the termination order of Pramod Sadashiv Thakre.

Under the Persons with Disabilities (Equal opportunities, protection of rights and full participation) Act 1995 - a benevolent legislation- an employee who acquires a disability during his service cannot be thrown out of his job. In case, he is unable to do the present work for which he was employed, it is the employer's duty to transfer him to another post or give him a supernumerary post.

Thakre was appointed as a civil mechanical transport driver in 2003. According to Thakre, he was found fit for the appointment on the basis of a civil surgeon's medical certificate, which declared him normal. Two years later in August 2005, his services were terminated on the grounds that he had been found to "suffer from colour-blindness". The CAT set aside the termination order, but the Union Ministry of Defence and the Indian Air Force approached the Nagpur Bench of Bombay High Court against the order of the Central Administrative Tribunal, Bombay Bench, Camp at Nagpur.

The Union of India claimed that Thakre could not have acquired the colour-blindness during his employment as it was congenital. The High Court, however, did not buy the argument, "Firstly, no medical evidence was placed on record to establish that colour-blindness can only be congenital and cannot be acquired.  Moreover, there is no evidence on record that Thakre was colour-blind when he was employed. The petitioners accepted the respondent's fitness by relying on the certificate granted to him which sets him as normal," the judges said while upholding the CAT order. The court said that the IAF did not administer any test to check if he was colour blind.

Judgement Included

Click here for the Judgement dated 24 Feb 2011 by the Central Administrative Tribunal in OA No.   2117/2006 titled Pramod Sadashiv Thakre Vs. Union of India & Ors.

Click here for the Judgement dated 19 October 2011 of the Hon'ble Bombay High Court Writ Petition No. 3620/2011, titled Union Of India vs Pramod Sadashiv Thakre