Supreme Court- FTII should make reasonable accommodation in their curriculum for candidates with colour blindness in all courses.

Court: Supreme Court of India 

Bench: Hon'ble Mr. Justice Sanjay Kishan Kaul, Hon'ble Mr. Justice MM Sunresh.

Case No: Civil Appeal No. 7719 of 2021

Case Title: Ashutosh Kumar Vs. The Film and Television  Institute of India & Anr. 

Date of Judgement: 12 April 2022

Brief:

Films and Television Institute of India - Majority view of the Committee appointed by SC accepted - Individuals with color blindness should be permitted to enroll for ALL courses offered by FTII. There should be no bar to admissions to the FTII for colorblind individuals - FTII should make reasonable accommodation in their curriculum for candidates with color blindness, in all courses where there is a bar to the admission of colorblind individuals. (Para 26-35)

A Supreme Court bench directed the Film and Television Institute of India(FTII) to allow color blind candidates to take admission in all its courses. Court further mooted a proposal to make subjects that may not inclusive for such students to be made optional.

In December 2021, Ashutosh Kumar, a 35-year-old man approached the Supreme Court after being barred by the institute because he is color blind. The institute had put forth the logic that he may not be able to pass in certain subjects.

then directed the creation of a panel of experts comprising 

The top court had, instead of taking a call itself on whether colour blindness would be an aspect which would be an impediment in going through the course, it formed a committee of experts consisting of  an ophthalmologist, a film director, a film editor, a script supervisor, a head of the department from FTII, and a lawyer to analyze whether students with color blindness can be allowed to pursue a course in FTII,  to look into the issue and to facilitate a more comprehensive exercise by the Committee to opine on the aspect of colour blindness qua all the courses for which it is perceived as a disqualification. The court framed the two issues on which the opinion of the members was sought as under: 

“i. Whether the course curriculum provided for diploma in Editing can be successfully completed by the appellant who suffers from color blindness? 

Committee’s recommendations: The appellant Mr. Ashutosh Kumar who has Red and Green color vision deficiency and has color perception of CP4, as per the AIIMS Medical Board report, will have difficulty in completing the existing course curriculum of the diploma in Film and Editing course offered by the FTII. This is more particularly due to a twenty-minute ‘color grading module’ which is part of the Film Editing curriculum. However, the color grading module has no relevance to either the film editing course or to the film editor’s professional role (Mr. K. Rajasekaran, HoD Editing, FTII, does not agree that the color grading module is irrelevant to the film editing course). 

ii. To facilitate a more comprehensive exercise, the role of the committee would be to opine on the aspect of color blindness qua all the courses for which it is perceived as a disqualification.”

Committee’s recommendation: It is the opinion of the committee that :

i. It is recommended that individuals with color blindness should be permitted to enroll for ALL courses offered by FTII. There should be no bar to admissions to the FTII for colorblind individuals. Any limitation can be overcome by an assistant in educational and professional life.

ii. FTII should make reasonable accommodation in their curriculum for candidates with color blindness, in all courses where there is a bar to the admission of colorblind individuals. For example, by providing elective/optional modules in the curriculum for those core credits which may require intensive color appreciation or in any other way. 

iii. The color grading module in the existing Diploma in Film Editing Course curriculum, should either be excluded or made elective, thereby lifting the bar of admissions for individuals with color blindness.” 

Court analyzed the report filed by the panel of experts, all of whom except one had recommended that FTII should admit students with color blindness as stressing that “filmmaking is a collaborative art and shortfalls can be addressed by having assistance while making the film.”

In particular, the committee expressed that individuals with colour blindness should be permitted to enroll for all courses offered by the FTII with the following reasoning:-

(a) Film and television creations are collaborative art forms. Restricting entry of colour blind candidates to film courses may sacrifice creative talent and stultify the development of the art. Inclusivity enriches this creative art form by introducing variety, any limitation can be overcome by assistance in the educational and professional life. 

(b) It is not the role of FTII to decide for candidates their future prospects as a film/television professional. If learning limitation of the candidate can be overcome by making reasonable accommodation or with the help of an assistant, the candidate should be eligible for admission to courses offered by FTII. 

(c) Film editing is the art, technique and practice of assembling shots into a coherent sequence and the job of an Editor is not simply to mechanically put piece of a film together, cut off film slates or edit dialogue scenes. The Film Editor must creatively work with the layers of images, story, dialogue, music, pacing as well as the actors performances to effectively “reimagine” and even re-write the film to craft a cohesive whole.

Court while agreeing with their view noted that “We find ourselves with majority view of committee. Same to be adopted by FTII in its curriculum. It does not impede on their freedom but gives them a broader canvas in pioneering effort.”

Court further noted that FTII as a premier institute can put reasonable accommodation like other global institutes from whom the panel of experts sought an opinion.

it was subitted that applicant was not permitted to take up the course despite having completed six months of the course. He submitted that though he is willing to waive the first six months and start afresh again he should not have to go through the admission process again after a medical officer had cleared his eye examination.

Furthermore, counsel for the FTII submitted that it would be a difficult task to modify the entire course as the field is of technical nature and in some courses visually impaired are specifically limited from being able to pursue it.

Court on hearing the submission granted two weeks time for the institute to file its reply on this aspect and adjourned the matter to May 10. Sussequently the FTTI agreed to keep an additiona seat and grant admission to the petitioner in the session starting in March 2023 as prayed.

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Supreme Court | Ravinder Kumar Dhariwal Vs. Union of India | Civil Appeal No. 6924 of 2021 | 17 Dec 2021

Court: Supreme Court of India
Bench: Dr Dhananjaya Y Chandrachud, J. Surya Kant, J. and Vikram Nath, J.
Case title : Ravinder Kumar Dhariwal Vs. Union of India
Case No.: Civil Appeal No.6924 of 2021
Authored by: Dr Dhananjaya Y Chandrachud
Date of Judgement: 17 December 2021

Brief

In a significant judgment, the Supreme Court of India has reinforced the rights of employees with mental health conditions under the Rights of Persons with Disabilities Act, 2016 (RPwD Act), setting aside disciplinary proceedings against a CRPF officer who had developed Obsessive-Compulsive Disorder and Major Depression during service.

The appellant, recruited to the CRPF in 2001, began suffering from psychosocial disabilities in 2009. In 2010, while posted in Ajmer, he faced complaints of unauthorized absence, use of unparliamentary language, and threats—events that occurred when his mental health was deteriorating. Despite being diagnosed with a 40–70% permanent disability and declared unfit for duty in 2016, he faced multiple disciplinary inquiries.

The legal dispute involved the interplay between the earlier Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, and the Rights of Persons with Disabilities Act 2016 (RPwD Act, 2016), alongside government notifications exempting CRPF "combatant personnel" from certain protections.

The appellant was a Central Reserve Police Force personnel who started facing obsessive-compulsive disorder and clinical depression. A complaint was registered against the appellant by his superior Deputy Inspector General of Police stating that his mental state is not sound and he might be a threat to himself and others. Pursuant to the complaint, an enquiry was initiated against the appellant and he was suspended from service. The Supreme Court,  concluded that persons with mental health disorders have a right against workplace discrimination and are entitled to reasonable accommodation.

Examples of reasonable accommodation for persons with a mental disability might include quiet office space, changes in supervisory methods, and permission to work from home. The Supreme Court held that Section 20(4) of the RPwD Act advances the guarantee of reasonable accommodation to persons with mental disabilities.

The Government establishment has a positive obligation to shift an employee who acquired a disability during service to a suitable post with the same pay scale and service benefits. The provision further states that if it is not possible to adjust the employee against any post, they may be kept on a supernumerary post until a suitable post becomes available or when they attain the age of superannuation, whichever is earlier.

Key Findings of the Supreme Court

1. RPwD Act Applies – The Court held that the 2016 Act, not the 1995 Act, governed the case.

2. Exemption Notifications Inapplicable – The 2002 exemption for CRPF under Section 47 of the 1995 Act did not carry forward, and the 2021 RPwD Act notification did not apply, as the appellant’s rights crystallized in 2020.

3. Broader Anti-Discrimination Mandate – Section 20 of the RPwD Act has a wider scope than Section 47 of the 1995 Act; rights against discrimination are inherent in the statute and informed by Article 5 of the UN CRPD.

4. Mental Health as Disability – The Court recognized mental health disorders as disabilities under the RPwD Act, moving away from outdated, stigmatizing approaches.

5. Misconduct & Disability – Where conduct is influenced by mental disability, disciplinary action may amount to indirect discrimination, even if disability is not the sole cause.

6. Reasonable Accommodation Required – Under Section 20(4), employers must explore reassignment to an equivalent post with preserved pay and benefits, factoring in safety considerations.

7. International Influence – The Court drew on the UN CRPD and ILO Code of Practice to reinforce a rights-based approach.

Judgment Outcome

• Disciplinary proceedings quashed from the first inquiry stage.
• Directed reassignment of the appellant to a suitable post with equivalent pay, benefits, and service conditions, ensuring no role involving firearms or hazardous duties if unsuitable.
• Affirmed that psychosocial disabilities require proactive workplace accommodation, not punitive action.

Commentary

This decision marks a historic shift in Indian disability jurisprudence, particularly for employees with mental health conditions. The Supreme Court not only clarified that protections under the RPwD Act apply to acquired disabilities in service but also addressed the unique ways in which mental disabilities can intersect with workplace discipline.

By recognising indirect discrimination—where facially neutral policies disproportionately disadvantage persons with disabilities—the Court aligned Indian law with international human rights standards.

The ruling sends a strong message to government and security forces: disability rights extend beyond physical impairments and include psychosocial disabilities, with an obligation to provide reasonable accommodation rather than resort to termination or punishment.

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Supreme Court - Rights of persons with disabilities are not be diluted but limiting them to only those with benchmark disabilities

Court: The Supreme Court of India

Bench: Dr Dhananjaya Y Chandrachud, Justice ,  A.S. Bopanna, Justice

Case No:  Civil Appeal No. 7000 of 2021 (Arising Out of SLP (C) No.18591 of 2021)

Case Title: Avni Prakash Vs. National Testing Agency (NTA) & Ors.

Date of  Order: 23 November 2021

Law//Act: The Rights of Persons with Disabilities Act, 2016, 

Judgement Authored by : Dr Dhananjaya Y Chandrachud, Justice

Background

The Supreme Court (SC) has cautioned that the Rights of persons with disabilities should not be curtailed by the application of a higher threshold prescribed only for ‘persons with benchmark disabilities’.

The bench pronounced its verdict on a plea by a female National Eligibility cum Entrance Test (NEET) 2021 candidate with dysgraphia (which is a learning disability that inhibits the ability to write), who was agrreived by the denial  of an additional one hour’s time for attempting the paper by the examination centre. She had sought that she either be allowed to sit for a re-examination or be reasonably or proportionately compensated by way of grace marks or elimination of negative marking or otherwise.

Case in brief:

The appellant is a person with dysgraphia- a specified disability listed in 2(a) of the Schedule to the RPwD Act. Her disability has been assessed as 40 percent permanent disability-thus falls within the definition of  a person with a benchmark disability under Section 2(r) of the RPwD Act. She was denied the compensatory time while appearing for the NEET Examination conducted by the NTA. 

The Bench at SC framed issue as to whether the appellant was entitled to an hour’s worth of compensatory time owing to her PwD status under the NEET Bulletin 2021 and the Guidelines for Written Examination issued by the Union Ministry of Social Empowerment and Justice issued on August 29, 2018.

While the matter was heard at the Mumbai High Court, the National Testing Agency (NTA), had, on October 11, 2021 demanded the procurement of a medical certificate as per the format contained in Appendix VIII-A and from a designated centre specified in Appendix VIII-B of the Regulations on Graduate Medical Education (Amendment), 2019, in order to claim the one-hour compensatory time. 

However, the Supreme Court observed that it is evident from the format prescribed under Appendix VIII-A that it cannot be issued at a stage before the declaration of results, and will only be considered for admission to the medical courses. The bench held that:

“Para 5.4(b) of the NEET Bulletin 2021 (extracted above) indicates that the appellant was entitled to compensatory time of one hour for an examination of three hours, irrespective of her reliance on a scribe. Para 5.3 indicates that the requirement of a certificate in Appendix VIII-A applies after the results are declared.”

The court clarified that the Right to Inclusive Education is a right enforceable at the examination stage (as per Section 17(i) under Chapter III), distinct from the rights that apply during the admission stage (as per Section 32 under Chapter VI).

The distinction between Person with Disability (PwD) and Person with Benchmark Disability (PwBD)

The court then went on to establish the distinction between PwD and PwBD under the RPwD Act. It Reffering to its decision in Vikash Kumar vs. Union Public Service Commission, in which SC hgad rejected the submission that only PwBD candidates can be provided with the facility of a scribe and held that the petitioner was entitled to reasonable accommodation even if he did not suffer from a benchmark disability.

“These rights and entitlements which are conferred upon PwD cannot be constricted by adopting the definition of benchmark disability as a condition precedent or as a condition of eligibility for availing of the rights. Benchmark disability, as defined in Section 2(r), is specifically used in the context of Chapter VI.  Undoubtedly, to seek admission to an institution of higher education under the 5 per cent quota, the candidate must, in terms of Section 32(1)10, fulfil the description of a PwBD. But equally, where the statute has conferred rights and entitlements on PwD, which is wider in its canvass than a benchmark disability, such rights cannot be abrogated or diluted by reading into them the notion of benchmark disability” clarifid the SC.

Hence, the standards of benchmark disabilities shall apply in situations where admission is sought into an institution of higher education under the five percent quota, in accordance with Section 32(1). However, the right to avail reasonable accommodation cannot be subjected to the same scrutiny.

Thus, the Right to Inclusive Education is a right enforceable at the examination stage (Section 17(i) under Chapter III), distinct from the rights that apply during the admission stage (Section 32 under Chapter VI).

The Court emphasised on the provisions envisaged under the RPwD Act with regard to inclusive education for PwD in Chapter III. Section 17 of Chapter III lays down specific measures to promote and facilitate inclusive education for students with disabilities. Among other inclusive measures, sub-section (i) provides for the duty of the State to make suitable modifications in the curriculum and the examination system to meet the needs of students with disabilities. This duty can be fulfilled by providing extra time for the completion of examination papers and/or the facility of a scribe. Section 18 provides that the government and local authorities are duty-bound to take measures to promote, protect and ensure participation of PwD in adult education and continuing education programmes on an equal footing with others.

The provision for reservation in Chapter VI specifically directed towards PwBD students is different from the provisions in Chapter III for PwD students. Essentially, it can be concluded that PwD encompasses a wider group, of which PwBD is a sub-set. The principle of reasonable accommodation is at the heart of the right to inclusive education, premised on equality and non-discrimination. The denial of reasonable accommodation to a PwD would certainly result in discrimination, especially when the same is denied by applying stricter thresholds meant only for PwBD.

The Court, therefore, held that there was a gross miscarriage of justice in this case by the High Court directing the appellant, who is aggrieved by the denial of a compensatory one hour, to seek a certificate in terms of Appendix VIII-A, on the basis of a statement made by the counsel for the NTA. The injustice meted out to the appellant occurred, noted the apex court, because of (i) a vague and imprecisely defined NEET Bulletin 2021, and (ii) the absence of adequate training to the second respondent which was allotted as the appellant’s centre.

Court’s directions

The bench, in accordance with the decision in National Testing Agency vs. Vaishnavi Vijay Bhopale, ruled out the possibility of conducting a re-examination for the appellant owing to impracticability and uncertainty due to delay in results. However, the Court emphasised that the NTA cannot shirk or abrogate its responsibility to rectify the injustice which had been caused to the appellant, and must therefore consider extrapolation of marks or grant compensatory marks or adopt a ‘no negative scheme’, after applying their mind, ruled the Court.

The principle of reasonable accommodation is at the heart of the right to inclusive education, premised on equality and non-discrimination.

The court further directed the NTA to strictly ensure that the provisions which are made at the NEET in terms of the rights and entitlements available under the RPwD Act are clarified in the NEET Bulletin by removing ambiguity. It observed that, “Facilities which are provided by the law to PwD shall not be constricted by reading in the higher threshold prescribed for PwBD.”

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Supreme Court directs Higher Education Institutes (HEIs) to comply with RPWD Act and provide Accessibility to students with disabilities in infrastructure and pedagogy

Court: Supreme Court of India

Bench: Justice A.K. Sikri and Justice Ashok Bhushan

Case No. :Writ Petition (Civil) No. 292 OF 2006

Case Title: Disabled Rights Group Vs. Union Of India 

Date of Judgement/ Order:  15 December, 2017    

Brief:

A writ petition was filed by the Disabled Rights Group (DRG), a non-profit organisation working for the rights of persons with disabilities. Three issues were raised by the Petitioners which pertained to education of persons with disabilities. 

The first contention of the Petitioners was reservation not being provided despite the requirement of reservation of 3% seats in educational institutions under Section 39 of the PwD Act, 1995 (now 5% reservation under Section 32, RPwD Act, 2016). 

The Petitioners further contended that despite there being a legal obligation under Section 16(ii), 25(1)(b) and Section 40 of RPwD Act, 2016 to secure access to persons with orthopaedic disability in educational institutions, the provisions were not being implemented. 

The third contention was for pedagogical changes-adequate provisions and facilities for teaching persons with disability depending on their special needs. 

The court ruled that institutions obligated to provide 3% reservation for persons with disabilities must comply and report the list to the relevant authorities. Non-compliant institutions may face legal consequences under RPwD Act, 2016. The court further held that denying proper educational facilities to differently-abled individuals amounts to discrimination. It endorsed a right-based and inclusive approach, promoting the participation of all groups for inclusive development. 

The UGC was instructed to review the set of suggestions in form of guidelines submitted by the Petitioners to make infrastructure and pedagogy adequate and submit an action-taken report. The court mandated higher educational institutions covered by Section 32 of the RPwD Act, 2016 to adhere to its provisions when admitting students annually.

Judgement

                                                                                  

                                                                                                                           REPORTABLE

                                       IN THE SUPREME COURT OF INDIA

                                          CIVIL ORIGINAL JURISDICTION

                                     WRIT PETITION (CIVIL) NO. 292 OF 2006

DISABLED RIGHTS GROUP & ANR.                          .....PETITIONER(S)

                                          VERSUS

UNION OF INDIA & ORS.                                          .....RESPONDENT(S)

                                                        WITH

          WRIT PETITION (CIVIL) NO. 997 OF 2013 (GEORGE PHILIPS vs. U.O.I .

Parties in Main Petition - WP (Civil) No. 292 of 2006

Petitioners

1     DISABLED RIGHT GROUP
       THROUGH ITS CONVENOR MR. JAVED ABIDI, HAVING ITS OFFICE AT D-31, 

        GROUND FLOOR, PANCHSHEEL ENCLAVE, NEW DELHI 

  

2      POOJA SHARMA S/D/W/Thru:- MR. R.K. SHARMA
        H.NO. 22, TYPE IV, HYDEL COLONY, FIELD HOSTEL COMPOUND, 

        VICTORIA PARK, MEERUT, UTTAR PRADESH

Respondent(s)

1     UNION OF INDIA 

       THE SECRETARY MINISTRY OF HUMAN RESOURCE DEVELOPMENT
       MINISTRY OF HUMAN RESOURCE DEVELOPMENT SHASTRI BHAWAN, 

       DR. RAJENDRA PRASAD ROAD, , DISTRICT: NEW DELHI 

2     THE SECRETARY, MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT
       SHASTRI BHAWAN, DR. RAJENDRA PRASAD ROAD, NEW DELHI 

3     CHIEF COMMISSIONER FOR PERSONS WITH DISABILITIES
       SAROJINI HOUSE, 6, BHAGWAN DASS ROAD, NEW DELHI 

4     THE DIRECTOR, SYMBIOSIS (A DEEMED UNIVERSITY)
       DR. S.B. MUJUMDAR, SENAPATI BAPAT ROAD,

       PUNE , MAHARASHTRA

5     THE CHIEF SECRETARY STATE OF MAHARASHTRA
       SECRETARIAT, MANTRALAYA, MUMBAI ,  MAHARASHTRA

6     THE CHIEF SECRETARY, GOVERMENT OF NCT OF DELHI
       NEW SECRETARIAT BUILDING, IP ESTATE,  NEW DELHI 
  

7     THE CHIEF SECRETARY, STATE OF RAJASTHAN
       GOVERNMENT SECRETARIAT, JAIPUR, RAJASTHAN , 

8     THE CHIEF SECRETARY, STATE OF KARNATAKA
       VIDHAN SOUDHA, BANGALORE, KARNATAKA
  

9     THE CHIEF SECRETARY, STATE OF ANDHRA PRADESH
       SECRETARIAT, HYDERABAD,  ANDHRA PRADESH
  

10   THE CHAIRMAN, UNIVERSITY GRANT COMMISSION
       BAHADUR SHAH ZAFAR MARG, NEW DELHI ,  
  

11   DR. A.JAY AGOVIND, THE VICE CHANCELLOR
       NATIONAL LAW SCHOOL OF INDIA, NAGARBHAVI, 

       BANGALORE , KARNATAKA
 

12   PROF. RANBIR SINGH THE VICE CHANCELLOR
       NALSAR UNIVERSITY OF LAW, JUSTICE CITY, 

       SHAMEERPET, RANGAREDDY, TELANGANA
  

13   JUSTICE N.N. MATHUR, THE VICE CHANCELLOR
       NATIONAL LAW UNIVERSITY, JODHPUR,NH-65, NAGOUR ROAD, 

       MANDORE, JODHPUR, RAJASTHAN
  

14   THE SECRETARY, BAR COUNCIL OF INDIA
       21, ROUSE AVENUE, INSTITUTIONAL AREA, 

       DEEN DAYAL UPADHYAY MARG , NEW DELHI 

Parties in Tagged Petition - WP (Civil) No. 997 of 2013

Petitioner

1     GEORGE PHILIPS S/D/W/Thru:- JOSEPH PHILIPS
       R/O D-2/199, KAKA NAGAR, NEW DELHI 

Respondent(s)
  

1     UNION OF INDIA, THROUGH THE SECRETARY, 

       DEPARTMENT OF SOCIAL JUSTICE AND EMPOWERMENT,

       MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT, 

       SHASTRI BHAWAN, NEW DELHI, NEW DELHI
  

2     MINISTRY OF SOCIAL WELFARE, THROUGH THE SECRETARY
       GOVT. OF NCT OF DELHI, DELHI SECRETARIAT, NEW DELHI 
  

3     CENTRAL COORDINATION COMMITTEE, THE CHAIRMAN
       DEPARTMENT OF SOCIAL JUSTICE AND EMPOWERMENT, 

       SHASTRI BHAWAN, NEW DELHI, NEW DELHI
  

4     THE CHIEF COMMISSIONER FOR PERSONS WITH DISABILITIES 

       SAROJINI HOUSE, 6 BHAGWAN DAS ROAD, NEW DELHI 

JUDGMENT

A.K. SIKRI, J.

Three issues are raised in this petition which is filed in public interest, for the benefit of persons suffering from ‘disabililty’ as per the definition contained in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation Act) 1995 (hereinafter referred to as the ‘Disabilities Act, 1995’) which now stands repealed and is replaced by the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as the ‘Disabilities Act, 2016’). The first issue related to the non-implementation of 3% reservation of seats in educational institutions as provided in Section 39 of the Disabilities Act, 1995 and Section 32 of the Disabilities Act, 2016. Second equally important issue raised in this petition, which is intimately connected with the first issue, is to provide proper access to orthopaedic disabled persons so that they are able to freely move in the educational institution and access the facilities. Third issue pertains to pedagogy i.e. making adequate provisions and facilities of teaching for disabled persons, depending upon the nature of their disability, to enable them to undertake their studies effectively.

We may state at the outset that though the petition as originally filed had confined these issues only to law colleges. In view of the fact that these issues are of seminal importance, this Court decided to extend the coverage by encompassing all educational institutions.

2) As can be discerned from the number assigned to this writ petition, it was filed in the year 2006 and, thus, is pending for eleven years. The reason was that this Court has been calling for the status report(s) from the respondents/Government Authorities from time to time about the implementation of the Disabilities Act insofar as provisions relating to the aforesaid aspects are concerned. Since the matter was ripe for passing final orders and directions, we deemed it proper to hear the counsel for the parties at length so that the writ petition is disposed of by giving final directions in this behalf.

(I) Re: 3% Reservation of Seats in Educational Institutions

3) Section 39 of the Disabilities Act, 1995 reads as under:

“Section 39 : All Government educational institutions and other educational institutions receiving aid from the Government, shall reserve not less than three per cent seat for persons with disabilities.”

4) As per this provision, all Government educational institutions as well as other educational institutions which are receiving aid from the Government are supposed to reserve seats for the benefit of persons with disabilities, which reservation shall not be less than 3%. Thus, 3% of the seats is the minimum reservation and it can be even more than 3%. This provision had come up for discussion before this Court in All Kerala Parents Association of the Hearing Impaired v. State of Kerala1 and the Court issued following directions therein:

“We...hold that Section 39 deals with the reservation of seats for persons with disabilities in government educational institutions as well as educational institutions receiving aid from the government, and necessarily therefore the provison thereof must be complied with.”

5) Disabilities Act, 2016 makes more exhaustive provisions insofar as providing of educational facilities to the persons with disabilities is concerned. Section 31 confers right to free education upon children with benchmark disabilities who are between the age of 6 to 18 years. This provision is made notwithstanding anything contained in the Rights of 1 2002 (7) Scale 198 Children to Free and Compulsory Education Act, 2009. Section 32 makes provisions for reservation in higher educational institutions.

Section 34 provides for reservation in employment. Since, we are concerned with reservation of seats in educational institutions and as Section 32 directly deals with the same, we reproduce that provision hereunder:

“32. (1) All Government institutions of higher education and other higher education institutions receiving aid from the Government shall reserve not less than five per cent. seats for persons with benchmark disabilities.

(2) The persons with benchmark disabilities shall be given an upper age relaxation of five years for admission in institutions of higher education.”

6) The educational institutions covered by this provision are not only the Government institutions of higher education but all those higher education institutions which are receiving aid from the Government.

Other pertinent aspect is that the extent of reservation is increased from 3% under Disabilities Act, 1995 to 5% under this Disabilities Act, 2016. One more important improvement made in Disabilities Act, 2016 over the earlier Act is that such provisions are made for ‘persons with bench mark disabilities’. This expression is defined in Section 2(r) which reads as under:

“Section 2(r) “person with benchmark disability” means a person with not less than forty per cent. of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority.”

7) It, thus, hardly needs to be emphasised that such educational institutions are bound to reserve seats from persons suffering from disability. Notwithstanding the same, grievance of the petitioner is that the educational institutions have not been adhering thereto.

8) No doubt, some progress is made in this behalf after the filing of this present petition and monitoring of the case by this Court, there is a need for complying with this provision to full extent. Accordingly, we direct that all those institutions which are covered by the obligations provided under Section 32 of the Disabilities Act, 2016 shall comply with the provisions of Section 32 while making admission of students in educational courses of higher education each year. To this end, they shall submit list of the number of disabled persons admitted in each course every year to the Chief Commissioner and/or the State Commissioner (as the case may be). It will also be the duty of the Chief Commissioner as well as the State Commissioner to enquire as to whether these educational institutions have fulfilled the aforesaid obligation. Needless to mention, appropriate consequential action against those educational institutions, as provided under Section 89 of the Disabilities Act, 2016 as well as other provisions, shall be initiated against defaulting institutions.

(II) & (III) Re: Provision for accessibility as well as facilities

9) In another judgment pronounced today itself in the case of Rajive Raturi v. Union of India & Ors. (Civil Appeal No. 243 of 2005 with Anr.), this very Bench has given detailed directions for making appropriate provisions for accessibility of handicapped persons, though the scope of that petition was confined to persons suffering from visual impairment. However, various aspects discussed and directions given for making suitable provisions in this behalf would benefit persons suffering from other disabilities as well. Therefore, the position of law discussed in detail in the said judgment and the directions issued therein need not be repeated for the sake of brevity. We would, however, recapitulate following provisions contained in Disabilities Act, 2016: 

Section 2(i) - ‘establishment includes a Government establishment and private establishment” Section 2(k) - ‘Government establishment’ means a corporation established by or under a Central Act or State Act or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 2 of the Companies Act, 2013 (18 of 2013) and includes a Department of the Government.

Section 2(v) - “private establishment” means a company, firm, cooperative or other society, associations, trust, agency, institution, organisation, union, factory or such other establishment as the appropriate Government may, by notification, specify; (w) “public building” means a Government or private building, used or accessed by the public at large, including a building used for educational or vocational purposes, workplace, commercial activities, public utilities, religious, cultural, leisure or recreational activities, medical or health services, law enforcement agencies, reformatories or judicial foras, railway stations or platforms, roadways bus stands or terminus, airports or waterways; Section 2(w) - “public building” means a Government or private building, used or accessed by the public at large, including a building used for educational or vocational purposes, workplace, commercial activities, public utilities, religious, cultural, leisure or recreational activities, medical or health services, law enforcement agencies, reformatories or judicial foras, railway stations or platforms, roadways bus stands or terminus, airports or waterways;

Section 2(zd) - “transportation systems” includes road transport, rail transport, air transport, water transport, para transit systems for the last mile connectivity, road and street infrastructure, etc; Section 2(ze) - “universal design” means the design of products, environments, programmes and services to be usable by all people to the greatest extent possible, without the need for adaptation or specialised design and shall apply to assistive devices including advanced technologies for particular group of persons with disabilities. Section 2(b) - “appropriate Government” means,—

(i) in relation to the Central Government or any establishment wholly or substantially financed by that Government, or a Cantonment Board constituted under the Cantonments Act, 2006 (41 of 2006), the Central Government;

(ii) in relation to a State Government or any establishment, wholly or substantially financed by that Government, or any local authority, other than a Cantonment Board, the State Government.

Section 16 mandates the appropriate Government and the local authorities to endeavour that all educational institutions funded or recognised by them provide inclusive education to the children with disabilities and towards that end shall make buildings, campus and various facilities accessible.

Section 25(1)(b) mandates the appropriate Government and local authority to take necessary measures for the persons with disabilities to provide barrier-free access in all parts of Government and private hospitals and other health care institutions and centres. Section 40 mandates the Central Government to frame Rules and laying down the standards of accessibility for physical environment, transportation system, information & communication system and other facilities & services to be provided to the public in urban and rural areas. Rule 15 deals with accessibility standards for public buildings, passenger bus transport and information and communication technology. As regards public buildings, the accessibility standards prescribed under the Harmonised Guidelines and Space Standards for barrier-free built environment for persons with disabilities and elderly persons issued by Ministry of Urban Development have been adopted. This implies that all the public buildings are now required to conform to these standards.

10) It hardly needs to be emphasised that Disabilities Act is premised on the fundamental idea that society creates the barriers and oppressive structures which impede the capacities of person with disabilities. Capability theorists like Martha Nussbaum are of the opinion that there cannot be a different set of capacities or a different threshold of capabilities for persons with disabilities. This raises the critical issue of creating a level playing field whereby all citizens to have equality of fair opportunities to enable them to realise their full potential and experience well-being. To ensure the level playing field, it is not only essential to give necessary education to the persons suffering from the disability, it is also imperative to see that such education is imparted to them in a fruitful manner. That can be achieved only if there is proper accessibility to the buildings where the educational institution is housed as well as to other facilities in the said building, namely, class rooms, library, bathrooms etc. Without that physically handicapped persons would not be able to avail and utilise the educational opportunity in full measure.

11) Various theories on different models of disability have emerged, namely, the Social Model of Disability, the Medical Model of Disability, the Rights Base Model of Disability, the Model of Ethical and Philosophical Status, the Economic Model of Disability etc 2. It is not necessary to delve into these different models of disabilities. However, for the purpose of the present case, some comments are required on the Social Model of Disability. The Social Model of Disability locates disability as being socially constructed through the creation of artificial attitudinal, organisational and environmental barriers. Impairment is regarded as being a normal part of the human condition, with everyone experiencing impairment differently and having different access needs. Life is accepted as including negative experiences, and impairment may 2 For detailed discussion, see Theoretizing the Models of Disability Philosophical Social and Medical Concepts-An Empirical Research based on existing Literature by Shanimon. S. and Rateesh. K. Nair be - but is not necessarily - one of them. Disabled people are defined as being people who experience the unnecessary barriers created by society within their daily life. Social Model of disability has gained ground in the international debate. This views disability as a social construct and emphasizes society's shortcomings, stigmatization and discrimination in its reaction to persons with disability. It distinguishes between functional impairments (disability) both of a physical and psychological nature, and the loss of equal participation in social processes that only arises through interaction with the social setting (handicap). These developments have contributed to a new (WHO) model, which bears in mind social as well as functional and individual factors in its classification of health and health-related areas. Keeping in view the above, proper facilities are need to be provided to differently-abled persons while having higher education.

12) Insofar as the rights base approach is concerned, that has been narrated in detail in Rajive Raturi’s judgment. We may add that a basic underline assumption, which is well recognised, is that everyone can learn; there is no such person as one who is ineducable; and that, accordingly, all disabled persons (from whatever disability they are suffering) have right to get not only minimum education but higher education as well. Not making adequate provisions to facilitate proper education to such persons, therefore, would amount to discrimination. Such requirement is to ensure that even a student with disability, after proper education, will be able to lead an independent, economically self sufficient, productive and fully participatory life. This rights-based approach is an inclusive approach which class for the participation of all groups of the population, including disadvantaged persons, in the development process. Inclusive development builds on the idea of ‘Society for All’ in which all people are equally free to develop their potential, contribute their skills and abilities for the common good and to take up their entitlements to social services. It emphasises strengthening the rights of the people with disabilities, and foster their participation in all aspects of life. A disability is only actually a disability when it prevents someone from doing what they want or need to do. A lawyer can be just as effective in a wheelchair, as long as she has access to the courtroom and the legal library, as well as to whatever other places and material or equipment that are necessary for her to do her job well. A person who can’t hear can be a master carpenter or the head of a chemistry lab, if he can communicate with clients and assistants. A person with mental illness can nonetheless be a brilliant scholar or theorist3. The aforesaid discussion amply justifies right of access to students with disabilities to educational institutions in which they are admitted.

3 We have a celebrated examples of John Nash, a noted mathematician who earned laurels by getting noble prize and Stephen Hawkins.

13) It would be pertinent to mention at this stage that in the guidelines for development grant to colleges framed by the University Grants Commission (UGC), the UGC has specifically made provisions concerning ‘schemes for persons with disabilities’. There is a specific scheme in respect of Higher Education for Persons with Special Needs (HEPSN). This HEPSN scheme has three components, namely,

(i) Establishment of Enabling Units for differently-abled persons. The function of this unit as enumerated therein includes creating awareness about the needs of differently-abled persons, and other general issues concerning their learning. This special unit is to be guaranteed by a faculty member to be nominated by the Head of the Institution.

(ii) Component 2 of the scheme deals with providing access to differently-abled persons. For this purpose, UGC agreed to make a one-time grant of up to Rs.5 lakhs per college during the Plan period. To enable these institutions to make special arrangements in the environment for their mobility and independent functioning and to ensure that all existing structures as well as future construction projects in their campuses are made disabled friendly.

(iii) Third component deals with providing special equipment to augment educational services for differently-abled persons. It recognises that differently-abled persons require special aids and appliances for their daily functioning and that the higher educational institutes may need special learning and assessment devices in this behalf. In addition, visually challenged students need Readers. Thus, colleges are encourage to procure such devices such as computers with screen reading software, low-vision aids, scanners, mobility devices etc.

14) The petitioner had filed a compilation on February 22, 2016 containing suggestions, in the form of Guidelines, insofar as making adequate infrastructure for providing proper access and also teaching facilities (Pedagogy) for differently-abled persons are concerned: 

(I) INFRASTRUCTURE

(a) University/College Campus 

Barrier-free campus environment according to the provisions of Section 45 and Section 46 of the Persons with Disability Act, 1995 and further according to 2001 guidelines issued by the Chief Commissioner for Persons with Disabilities entitled “Planning a Barrier Free Environment”. Some specific examples – where a building is of more than 2 storeys, mandatory provision for lifts. Straight and barrier-free paths, removal of obstacles such as plants, furniture or bicycles adjacent to doors, entrances, on the steps or in corridors. Unnecessary interior decoration of areas should be avoided where the same leads to impairment of the mobility of disabled persons.

(b) On Campus Accommodation 

Priority assignment of on-campus/college hostel accommodation. Rooms assigned preferably on the ground floor. Suitable room and bathroom modifications in hostel such as provision of ramps and special fittings/adjustable furniture to facilitate mobility and comfort. Availability of attendant/helper/ assistant, as required, to help the disabled student with mobility and orientation in hostel. Special on-campus transportation on as-needed basis. Where no on-campus accommodation is provided, scheme for financial assistance to the disabled student for expenses for off-campus accommodation and related requirements such as helper/attendant, transport to/from campus, etc.

(c) Classroom 

For visually impaired – Braille symbols at appropriate places in classroom buildings to assist with orientation. Auditory signals in elevators and lifts leading to classrooms. For students with low vision, adequate lighting in the classroom via natural light or adequate provision of bulbs, tube lights, etc. Provision for recording of lectures. Power plug points for visually impaired students to fit in their aids and appliances such as audio recorder, laptop, computer etc. Classroom acoustics to be designed so that all audio communication is clearly audible.

For orthopaedic impaired – Classrooms in locations accessible to wheelchair users. Ramps in classroom buildings and adaptations in toilets for wheelchair users and orthopaedic disabled persons. Seating priority in classrooms with adequate space for wheelchair users to move around. Avoidance of teaching platforms as being difficult to access for orthopaedic impaired persons.

For hearing impaired – Clear and prominent signs indicating locations of courses and classrooms to assist with orientation. Seating for the hearing impaired student as well as a note-taker, located such that lip movement of instructor and sign language interpreter can easily be seen.

(d) Science Laboratories 

Structure and layout modifications of the laboratories for safety and comfort of the visually impaired and orthopaedic impaired/wheelchair users. Use of Braille instruction sheets and tactile visual material. Availability of assistants for help with laboratory activities, particularly where some risk is involved, such as handling of chemicals. Sigh language interpreters for hearing impaired.

(e) Libraries 

For visually impaired students, Braille section and fully accessible computer systems with scanning facilities, JAWS software and Braille embossers for printing. For low vision students, large print books and computers equipped with text enlarging software. Digital libraries. Library cataloguing on computer with JAWS. Sign language interpreters as required for hearing impaired.

(f) Pedagogy (Teaching) 

For visually impaired – Course material in accessible formats such as Braille, audio books and electronic formats such as e-files in ‘daisy’ format. Availability of readers, note takers, scribes. Suitable curriculum modification and assistance esp. for scientific/pictorial/graphical material and science laboratories. Computers with screen reading software, accessible library and reference materials. Availability of tape recorders/ digital voice recorders.

For orthopaedic impaired – Note takers and scribes, as required, especially for persons with upper limb impairment. Suitable curriculum modification and assistance, especially in science laboratories.

For hearing impaired – Note takers for classroom and provision of laptop/computer for note taking. Sign language interpreters for communication support in seminars, meetings, discussions and at all university/college functions. Suitable curriculum modification and assistance for science laboratories. Sub-titling of classroom video material. Technological support for any other necessary and appropriate technology, including computer technology, to assist the hearing impaired student with learning.

(g) Examination and Testing 

Modifications Extension of time, use of reader/scribe, use of computer/laptop. Availability of question papers in accessible formats, including large print, Braille, audio, daisy format. Option of writing exams on computer with screen reading software. Modification of pictorial and graphical material for visually impaired.

(h) University/College Administration 

Scribes, helpers and sign language interpreters for disabled students in interactions with university/college administration, especially for the admission process, meetings with staff/principal, on-campus company recruitment interviews and communication with college officials such as career counsellors, student counsellors, psychologists and any other person attached to the university/college who provides services of any type to the students. Special admissions window for disabled students. Sensitivity training on disability to administrative and pedagogic staff.

(i) Sports, Culture, Recreation and Leisure Facilities 

Universities/colleges to ensure that cultural/recreational programs take into account need of students with disabilities to provide for their full participation in such programs. Some specific examples in sports: running courses/tracks to be straight where visually impaired and orthopaedic impaired students are participating. Special sporting events to be conducted such as cricket for visually impaired and special events according to para-olympic norms for orthopaedic impaired. International norms to be modified where necessary to suit the needs of the disabled students. Trainers to be sensitized towards disability and inclusion and respective societies/associations to ensure that the information about events/contests reaches the disabled students also. Similarly, cultural activities with adequate modifications to be made available. For example, disabled students to be enabled to take part in theatre, literary, dance and music activities with the help of assistants. Hearing impaired students to be provided with an interpreter for sports and cultural activities of various types.

15) Based on the aforesaid suggestions, the petitioner made written submissions on February 22, 2016, seeking following directions:

“(a) For an order directing the UGC to carry out an inspection of the 3% reservation record of respondent Nos. 11, 12 and 13 to ensure that 3% reservation for persons with disabilities are complied with, including the backlog.

(b) For an order directing the UGC to inspect all institutions of higher education to ensure that these institutions are made disabled friendly and make a report to the Central Executive Committee and the State Executive Committees who will, in turn, ensure that the institutions are made disabled friendly.

(c) For an order directing the UGC to consider the “Guidelines for Accessibility for Students with Disabilities in Universities/Colleges” submitted by the petitioner pursuant to the order of this Court dated December 09, 2010 and after making such changes as deemed fit, to issue directions to all institutions of higher education, including law colleges, for compliance within a specified period.”

16) After coming into force the Disabilities Act, 2016, further directions are sought in tune with the provisions contained in the said Act, in the following manner:

“(d) For an order directing the Central Government under Section 40 of the Disabilities Act, 2016 to frame the rules for persons with disabilities laying down the standards of accessibility for colleges, universities and other higher educational institutions, including pedagogical measures such as reasonable accommodation, modifications and aids and appliances for lectures, curricula, teaching materials, laboratories, libraries, examinations, classrooms and hostels etc. within six months from today; and for a direction to the appropriate Governments to implement the said rules within two years from the notification of the said Rules in accordance with Section 46.

(e) For an order directing the Central Government to take into consideration the Guidelines for Accessibility for Students with Disabilities in Universities/Colleges, as submitted by the petitioner, in accordance with this Court’s order dated January 20, 2011, while framing the Rules under Section 40 of the Act.

(f) For an order directing the Central Government to create an audit template in conformity with the Rules for accessibility in higher educational institutions referred to in (m) above, and for a direction to the appropriate Governments (Central and State Governments, UGC, BCI) to conduct an audit of all higher educational institutions within six months from today and to put all the audit reports on a website.

(g) For an order directing the UGC, the Central and the State Governments to invite applications from higher educational institutions for funding under the various schemes for accessibility and to release funds in accordance thereof to facilitate accessibility measures in the educational institutions.

(h) For an order directing all higher educational institutions to make their institutions accessible in accordance with the Act and the Rules within two years of the notification of the rules; and for mandatory formation in each institution of the Enabling Unit for disabled students as per UGC scheme ‘HEPSN’ to ensure monitoring and implementation of the standards and guidelines contained in the Rules.

(i) For an order directing the Central and State Advisory Boards to monitor the implementation of the Act and Rules and the orders of this Court to ensure compliance.”

17) There cannot be any dispute that the suggestions given by the petitioner, which are reproduced above, appear to be reasonable and are worthy of implementation. However, at the same time, it would be appropriate to consider the feasibility thereof particularly with regard to the manner in which these can be implemented. This task can be undertaken by the UGC. Likewise, the directions which are sought by the petitioners are in consonance with the provisions contained in the Disabilities Act, 2016. In these circumstances, we dispose of these writ petitions with the following directions:

(i) While dealing with the issue of reservation of seats in the educational institutions, we have already given directions in para 8 above that the provisions of Section 32 of the Disabilities Act, 2016 shall be complied with by all concerned educational institutions. In addition to the directions mentioned therein, we also direct that insofar as law colleges are concerned, intimation in this behalf shall be sent by those institutions to the Bar Council of India (BCI) as well. Other educational institutions will notify the compliance, each year, to the UGC. It will be within the discretion of the BCI and/or UGC to carry out inspections of such educational institutions to verify as to whether the provisions are complied with or not.

(ii) Insofar as suggestions given by the petitioner in the form of “Guidelines for Accessibility for Students with Disabilities in Universities/Colleges” are concerned, the UGC shall consider the feasibility thereof by constituting a Committee in this behalf. In this Committee, the UGC would be free to include persons from amongst Central Advisory Board, State Advisory Boards, Chief Commissioner of State Commissioners appointed under the Disabilities Act. This Committee shall undertake a detailed study for making provisions in respect of accessibility as well as pedagogy and would also suggest the modalities for implementing those suggestions, their funding and monitoring, etc. The Committee shall also lay down the time limits within which such suggestions could be implemented. The Expert Committee may also consider feasibility of constituting an in-house body in each educational institution (of teachers, staff, students and parents) for taking care of day to day needs of differently abled persons as well as for implementation of the Schemes that would be devised by the Expert Committee. This exercise shall be completed by June 30, 2018.

(iii) Report in this behalf, as well as the Action Taken Report, shall be submitted to this Court in July, 2018. On receipt of the report, the matter shall be placed before the Court.

.............................................J. (A.K. SIKRI) 

.............................................J. (ASHOK BHUSHAN) 

NEW DELHI;

DECEMBER 15, 2017

ITEM NO.1502                   COURT NO.6                       SECTION X

(FOR JUDGMENT)

                  S U P R E M E   C O U R T   O F  I N D I A

                          RECORD OF PROCEEDINGS

Writ Petition(s)(Civil)      No(s).    292/2006

DISABLED RIGHT GROUP & ANR.                                 Petitioner(s)

                                      VERSUS

UNION OF INDIA & ORS.                                       Respondent(s)

([HEARD BY : HON. A.K. SIKRI AND HON. ASHOK BHUSHAN, JJ.]) WITH W.P.(C) No. 997/2013 (X) Date : 15-12-2017 These petitions were called on for pronouncement of judgment today.

For Petitioner(s)     Mr.   Baijnath Patatel, Adv.

                      Ms.   Sweta, Adv.

                      Ms.   Romila, Adv.

                      Ms.   Jyoti Mendiratta, AOR

                     Mr. Anjani Kumar Mishra, AOR

For Respondent(s)

                      Ms. Asha Gopalan Nair, AOR

                      Ms. Charu Mathur, AOR

                      Mr. G. N. Reddy, AOR

                      Mr. Ardhendumauli Kumar Prasad, AOR

                      Ms. Sushma Suri, AOR

                      Dr. Sushil Balwada, AOR

Hon'ble Mr. Justice A.K. Sikri pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice Ashok Bhushan.

The writ petitions are disposed of with the following directions:

(i) While dealing with the issue of reservation of seats in the educational institutions, we have already given directions in para 8 above that the provisions of Section 32 of the Disabilities Act, 2016 shall be complied with by all concerned educational institutions. In addition to the directions mentioned therein, we also direct that insofar as law colleges are concerned, intimation in this behalf shall be sent by those institutions to the Bar Council of India (BCI) as well. Other educational institutions will notify the compliance, each year, to the UGC. It will be within the discretion of the BCI and/or UGC to carry out inspections of such educational institutions to verify as to whether the provisions are complied with or not.

(ii) Insofar as suggestions given by the petitioner in the form of “Guidelines for Accessibility for Students with Disabilities in Universities/Colleges” are concerned, the UGC shall consider the feasibility thereof by constituting a Committee in this behalf. In this Committee, the UGC would be free to include persons from amongst Central Advisory Board, State Advisory Boards, Chief Commissioner of State Commissioners appointed under the Disabilities Act. This Committee shall undertake a detailed study for making provisions in respect of accessibility as well as pedagogy and would also suggest the modalities for implementing those suggestions, their funding and monitoring, etc. The Committee shall also lay down the time limits within which such suggestions could be implemented. The Expert Committee may also consider feasibility of constituting an in-house body in each educational institution (of teachers, staff, students and parents) for taking care of day to day needs of differently abled persons as well as for implementation of the Schemes that would be devised by the Expert Committee. This exercise shall be completed by June 30, 2018.

(iii) Report in this behalf, as well as the Action Taken Report, shall be submitted to this Court in July, 2018. On receipt of the report, the matter shall be placed before the Court.

Pending application(s), if any, stands disposed of accordingly.

         (Ashwani Thakur)                 (Mala Kumari Sharma)

         COURT MASTER                 COURT MASTER

Denying the disabled

Indian courts have shown that they are ready for progressive interpretations of the law on the rights of persons with disabilities. Therefore, any new law that aims to replace the Persons with Disabilities Act, 1995, needs to be a significant improvement on it. By JAYNA KOTHARI

SINCE 1996, when the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act), came into force, by far the majority of cases taken to court have been about equal opportunity in public employment, that is, reservation of jobs for persons with disabilities and related matters such as promotions, identification of posts and eligibility. This struggle is in many ways not that different from the caste and gender battles for affirmative action in government employment. For any marginalised group, including persons with disabilities, equality in employment is a benchmark for full participation in society.

In Union of India vs National Federation for the Blind and Others, the Supreme Court passed on October 8 a landmark judgment in this battle on reservation of jobs for persons with disabilities. The PWD Act, though a restricted statute mainly concerned with providing reservation in jobs and seats in public employment and education, has slowly been nudged by courts, lawyers and disability rights activists to become far more progressive than was ever imagined. Section 33 of the Act states that “every appropriate government shall appoint in every establishment such percentage of vacancies not less than 3 per cent for persons or class of persons with disability...”. Section 32 requires the appropriate government to identify jobs for persons with disability and review the list of identified jobs every three years.

In spite of Section 32, the reality on the ground since 1996 has been that hardly any jobs were identified by the governments as suitable for persons with disabilities. A 2009 World Bank report, titled “People with Disabilities in India: From Commitment to Outcomes”, found that only 10.2 per cent of the posts in all Ministries/departments and public establishments had been identified as suitable for persons with disabilities. The situation in 2013 is not very different. In a 2010 judgment, in Govt. of India through Secretary and Anr vs Ravi Prakash Gupta & Anr, the Supreme Court held that non-identification of posts could not be a reason for the government to evade its obligation to reserve 3 per cent of posts for persons with disabilities.

In the National Federation for the Blind case, the core question was whether the 3 per cent reservation should be calculated on the basis of the cadre strength or the number of vacancies in the identified posts. Cadre strength refers to the total number of posts in the cadre. At present, if at all reservation for and appointment of persons with disabilities are made, it is only on the basis of the vacancies that arise in “identified” jobs, which are far fewer than the total number of posts in the cadre. The Supreme Court held that from a bare reading of Section 33 it was clear that the intention of the legislature was that the 3 per cent reservation was computed on the basis of total vacancies in the cadre strength. This interpretation is significant as it will lead to an unprecedented increase in the number of appointments in State and Central government jobs for persons with disabilities.

One of the most interesting observations of the court in this judgment pertains to reservation in the private sector. Section 41 of the Act states that incentives should be given to public and private establishments so that they provide 5 per cent reservation for persons with disabilities. The Supreme Court held that “on a conjoint reading of Sections 33 and 41, it is clear that while Section 33 provides for a minimum level of representation of 3 per cent in the establishments of appropriate government, the legislature intended to ensure 5 per cent of representation in the entire workforce both in public as well as private sector”.

This expansive observation of the court has gone unnoticed amid the excitement over its statement on reservation based on the cadre strength. This opens up new avenues for implementing reservation for persons with disabilities in the private sector as well. This opportunity was passed up by Justice Ravindran in the judgment in Dalco Engineering Pvt. Ltd vs Satish Prabhakar Padhye & Ors, which stated that the definition of “establishments” under the PWD Act did not include private companies. Now, however, the full Bench of Justice P. Sathasivam, J. Desai and J. Gogoi has clearly moved ahead by observing that the intention of the legislature was to ensure reservation of posts for persons with disabilities not only in the public sector but in the private sector as well.

Draft Bill, 2012 

This judgment comes at the right time as the Draft Rights of Persons with Disabilities Bill, 2012, is pending consideration. The Supreme Court even relied on the Bill for its reasoning. However, with regard to equality in employment rights for persons with disabilities, the Bill does little to improve upon the provisions of the PWD Act and does not include the exciting new possibilities that the Supreme Court judgment promises. It does not mandate reservation of jobs in the private sector at all for persons with disabilities although this was clearly included in the draft of 2011. Unless the private sector is mandated to reserve jobs for persons with disabilities, it is unlikely that their conditions of employment in the country will change significantly. If one were to review any significant disability rights legislation in other jurisdictions, one would notice that all of them contain employment obligations for the private sector as well.

This has become even more urgent now as India has ratified the United Nations Convention on the Rights of Persons with Disabilities. Perhaps, the Supreme Court decision will prompt a revision of the relevant provisions in the Draft Bill. The Draft Bill also needs to address the problematic requirement of “identification of jobs”, which has been reproduced from the PWD Act. Identification of jobs is a concept that is considered outdated by disability rights activists the world over because it has a history of segregating persons with disabilities into the most menial jobs available, making it difficult for them to apply for other jobs. In the last century, the strategy of identifying particular professions for persons with disabilities was practised in the United Kingdom. But, as Anna Lawson, professor at Leeds University and author of Disability and Equality Law in Britain: The Role of Reasonable Adjustment (Hart Publishing, 2008), points out, the occupations that were selected were of low status such as car park attendants and lift operators. In associating disabled people with such jobs, there is the danger of creating or reinforcing negative stereotypes about them and their abilities.

For example, in India, the stereotypical jobs reserved for the blind and persons with low vision are those of music teacher and telephone operator. These difficulties were recognised in the U.K. as early as 1956 by the Piercy Committee in its report of the Committee on the Rehabilitation, Training and Resettlement of Disabled Persons, and although initially the disabled community supported the strategy of identifying certain jobs for its members, such schemes were finally abolished.

In India, the battle for reservation of jobs has often been stalled by the government’s not identifying posts as suitable for persons with disabilities. Such identification is often restrictive and arbitrary; for example, in Group A, the job of an agricultural scientist specialised in econometric analysis is identified as being suitable for an individual who is blind or has an orthopaedic disability but not for someone with a hearing disability. There is also a great variance between the Central government and different State governments on what posts are suitable for persons with disabilities, and this has led to intense litigation.

As the World Bank report says, the list of identified jobs is based on the assumption that the characteristics of impairment are the exclusive determinants of an individual’s ability to hold a position at a particular skill level and such identification ignores the potential influences of individual characteristics (motivation, age at disability onset), the person’s access to employment services, and the characteristics of the workplace and labour market. Even though there is a statutory obligation to identify posts, what posts are identified is left to the discretion of the government, which decides on the basis of the nature of the posts and its requirement. The government often conveniently denies people with disabilities jobs by not identifying enough posts in each department for them. Thus, the whole concept of identification of posts is problematic. The Supreme Court recognised this in its recent judgment, saying: “[E]xperience has shown that identification has never been uniform between the Centre and States and even between the departments of any government. For example, while a post of middle schoolteacher has been notified as identified as suitable for the blind and low vision by the Central government, it has not been identified as suitable for the blind and low vision in some States such as Gujarat and J&K, etc.”

Reasonable accommodation 

Unfortunately, the requirement of identification of jobs is retained in the Draft Bill, and Sections 32 and 33 of the PWD Act are reproduced, with the only difference being an increase in the reservation from 3 per cent to 5 per cent. If this requirement is removed from the Bill, this, coupled with the obligation the Bill places on the employer to provide “reasonable accommodation”, every job could potentially be suitable for persons with disabilities. The concept of reasonable accommodation, or adjustment, lies at the heart of civil rights advancement in the context of disability. Its significance is that it is a way of accommodating difference. A 2004 baseline study by the European Union Network of Independent Experts of Disability Discrimination, titled “Disability Discrimination Law in the E.U. Member States”, noted: “The notion of ‘reasonable accommodation’ is individualised and involves the person with a disability in an interactive dialogue with the employer to discover the right kind of accommodation needed in the overall circumstances of the case.”

Essentially, the concept stems from a realisation that the achievement of equal treatment can only become a reality when some reasonable allowance is made for disability in order to enable the abilities of the individual concerned to be put to work. In employment, it is the duty of the employer to make reasonable accommodations to any physical features of the premises or to the duties of the job which would place disabled persons at a substantial disadvantage in comparison with those who are not disabled. As stated in the E.U. report, reasonable accommodation as provided in other legislations could include adjustments to premises; reallocation of duties; redeployment to an existing vacancy; alteration of working hours; reassignment to a different place of work; allowing absence for rehabilitation; assessment or treatment; training; acquisition of equipment; modification of equipment, instructions, reference manuals and testing or assessment procedures; and provision of a reader, interpreter or supervision. Thus, the need to identify jobs would not arise at all as every job could be done by a person with a disability. With India ratifying the U.N. Disabilities Convention, the concept of reasonable accommodation has not only been brought under the Draft Bill, but also recognised by the Bombay High Court in Ranjit Kumar Rajak vs State Bank of India.

Finally, only token improvements to the PWD Act have been made in the Bill. Instead of the seven disabilities stated in the PWD Act, the Bill provides for 5 per cent reservation of jobs for persons with “benchmark disabilities”, which means those found with 40 per cent or more of the specified 18 disabilities. However, the provisions for reservation of jobs only mentions that out of the 5 per cent of jobs, with 1 per cent each being reserved for persons with blindness and low vision, hearing impairment, locomotor disability, autism and intellectual disability, and mental illness. These provisions do not adhere to the progressive social model of disability, which does not view disability as a medical impairment (with 40 per cent or more of a certain characteristics) but as a form of discrimination due to social and environmental barriers. If these medical models of understanding disability are reproduced in the new law, one can hardly say that the Bill is in conformity with the U.N. convention, which was supposed to be the basis for the whole drafting exercise.

The Supreme Court decision signals that Indian courts are ready for progressive interpretations of the law on the rights of persons with disabilities. These interpretations have breathed life into the PWD Act and transformed it from a limiting statute into a legislation that has been successful in changing the lives of persons with disabilities, at least in the field of public employment. This judgment bears in it the seeds for further reform. This requires a serious reconsideration of the Draft Bill, which needs to take all these concerns into account. The disability rights movement has worked hard for the last 17 years to make the PWD Act what it is today, and any new legislation that replaces it needs to make a significant improvement to it.

Jayna Kothari is an advocate practising in the Karnataka High Court and a director of the Centre for Law and Policy Research. She is the author of The Future of Disability Law in India and can be contacted at jayna.kothari@clpr.org.in

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