A platform to share the periodic updates on developments in disability law, policy formulation and related fields across the world with special focus on India. It analysis successes and failures in the struggle of restoring disability rights through Court Intervention and general discourse on Human Rights of People with Disabilities.
Court: Chief Commissioner for Persons with Disabilities, India
Case No. 13186/1021/2021
Case Title: Sukulal Vs. Chairman, Kerala Gramin Bank
Date of Order: 04 August 2022
Subject: Discrimination in promotion on the basis of disability to a blind candidate, Relaxation of Standards, Reasonable Accommmodation
Read the order embedded below:
"20. Non-discrimination in employment. - (1) No Government establishment shall discriminate against any person with disability in any matter relating to employment:
Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, exempt any establishment from the provisions of this section.
(2) Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability.
(3) No promotion shall be denied to a person merely on the ground of disability.
(4) No Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service:
Provided that, if an employee after acquiring disability is not suitable for the post he was holding, shall be shifted to some other post with the same pay scale and service benefits:
Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.
(5) The appropriate Government may frame policies for posting and transfer of employees with disabilities."
"(i) the respondents are to pay all the cumulative dues such as salary, allowances, etc. which were payable to the petitioner under his service conditions within a period of three month from today;(ii) the salary and allowances payable to the petitioner shall be released from this month and regularize his service conditions by way of recalling all the earlier orders passed by TSECL treating his absence from duty as unauthorized absence. Those unauthorized absence period, according to the TSECL, shall be regularized and that would not have any bearing to the service of the petitioner;
(iii) if it is found that the petitioner is eligible to perform his duty, then, he may be permitted to undertake such duties. Further, if the petitioner is found to be unfit to perform the nature of duties, which he was performing before being disabled, then, he should be assigned/adjusted with such suitable duties which he would be able to discharge;
(iv) if the petitioner is found incapable of performing any kind of duties, then, the respondents are under obligation and shall pay all service benefits including the promotion to the petitioner by creating a supernumerary post until a suitable post is available or he attains the age of superannuation;
(v) the respondents shall utilize capacity of the petitioner by providing and environment around him and ensure reasonable accommodation by way of making appropriate modifications and adjustments in the spirit of the discussions and observations made here-inabove;
(vi) the petitioner shall appear before the constituted Medical Board of the State Government within 7 (seven) days from today. The Medical Board shall examine and issue necessary certificate mentioning the extent of his disability in consonance with the RPwD Act; and
(vii) it is not advisable to send the petitioner to the Medical Board time and again."
Dear Colleagues,
A division bench comprising of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad, while hearing a petition filed by Mr. George Abraham, a petitioner with vision impairment on the difficulties being faced by visually challenged persons in accessing financial services and general non-compliance of the provisons of Rights of Persons with Disabilities Act 2016, has constituted a seven membeer High Powered Committee of experts to recommend solutions.
The bench was hearing several public interest petitions which were clubed with the lead case by Mr. George Abraham. Other petitioners included All India Confederation of the Blind, Blind Graduate Forum of India and Rohit Dandriyal & others.
The High Powered Committee shall be chaired by Prof. M Balakrishnan, Department of Computer Science and Engineering, IIT Delhi. The order said, "High Powered Committee is constituted by this Court to look into all the grievances raised in the present application and the connected writ petitions to offer practical solutions in the matter. It is needless to state that the scope of the work of the Committee will not be confined only to the issues raised in the present writ petitions but other ancillary issues as well."
As per the Court order dated 29 July 2022, the High Powered Committee shall consist of the following persons:-
i. Prof. M. Balakrishnan, Professor, Department of Computer Science and Engineering, IIT Delhi. (Chairman of the committee)
ii. Prof. Kolin Paul, Professor, Department of Computer Science and Engineering, IIT Delhi.
iii. Ms. Manisha Mishra, (GM), Department of Regulation. RBI
iv. Mr. Tushar Bhattacharya, (DGM) Department of Supervision. RBI
v. Mr. George Abraham, the Petitioner in W.P.(C) 694/2020.
vi. Mr. Amar Jain, Member of Blind Graduates Forum of India i.e. the Petitioner in W.P.(C) 64/2019.
vii. Officer to be nominated by the Union of India.
The court also requested the Director, IIT Delhi to provide all logistic support to the Committee constituted under the Chairmanship of Prof. M Balakrishnan.
The petitioner Mr. George Abraham had prayed before the Court seeking directions/ appropriate writs:
"This Court is pained to observe at this juncture that it is unfortunate that judicial intervention is required in such matters when measures to ensure ease of accessibility for the specially-abled should be implemented in a proactive manner. However, this Court hopes that the Committee will take these observations into consideration while arriving at a feasible solution," the Bench said.
The Court has granted three months to the committee for filing status report in the matter. The matter will now be heard on November 25, 2022.
Here is the Court order in the case W.P.(C) 694/2020 titled George Abraham Vs. Union of India & Ors. dated 29 July 2022
High Court: Uttarakhand High Court
Bench: Chief Justice Vipin Sanghi and Justice Ramesh Chandra Khulbe
Case No. : WP(S/B) No.49 of 2022,
Case Title: Manish Chauhan and another Vs. State of Uttarakhand and another
Date of Judgement: 27 July 2022
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Case Brief:
The Uttarakhand High Court has quashed an advertisement issued by the Uttarakhand Public Service Commission notifying vacancies for the post of Assistant Professors in Government Colleges, finding it to be in violation of Rule 11(4) of the Rights of Persons with Disability Rules, 2017 and the Supreme Court's decision in Indra Sawhney vs. Union of India and Anr.
The notification prescribed Horizontal reservation in a manner that in the Un-reserved category, no reservation was available to the physically handicapped candidates in the subject of Political Science. Similarly, in the History, no reserved seat was shown for a candidate of disability category who may also be a Scheduled Tribes candidate.
"The manner in which the State has sought to apply Horizontal reservations is completely contrary to the decision of the Supreme Court in Indra Sawhney (Supra)...Persons with disabilities are entitled to horizontal reservation cutting across all categories." the bench of Chief Justice Vipin Sanghi and Justice Ramesh Chandra Khulbe observed.
The Court explained that an otherwise eligible and qualified candidate/person with disability would first be allocated a seat and depending on whichever category that person belongs to, i.e. whether the person is a Scheduled Caste, Scheduled Tribe, Other Backward Classes, or is a General Category candidate, the seat in that category would stand exhausted.
In Indra Sawhney the Supreme Court had elucidated that Horizontal reservations cut across the vertical reservations and persons selected against this quota will be placed in the appropriate category. "If he belongs to S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments."
Similarly, Rule 11(4) of the 2017 Rules prescribes that reservation for persons with disabilities in accordance with the provisions of section 34 of the Act shall be horizontal and the vacancies for persons with benchmark disabilities shall be maintained as a separate class.
In its counter affidavit, the UKPSC submitted that their manner of working out horizontal reservation had been prescribed by the State of Uttarakhand. The Counter affidavit of State of Uttarakhand stated that the impugned advertisement was issued in lieu of a government order dated 22.05.2020. The GO had stated that "if under horizontal reservation no eligible candidate is found fit for selection, the selection for the said post will be done as per norms of general selection except for the posts reserved for Divyang (Disabled Person)"
The Court opined that the manner in which the State had sought to apply horizontal reservations was legally unsustainable and the notification was accordingly quashed with liberty to come out with a fresh advertisement strictly in compliance with the law.
Read the Court judgement embedded below:
Court: Supreme Court of India
Bench: Justice Dr Dhananjaya Y Chandrachud; Justice Indira Banerjee and Justice Sanjiv Khanna
Case Number: Civil Appeal No. 273 of 2021 Special Leave Petition (C) No. 1882 of 2021
Case Title: Vikash Kumar v. Union Public Service Commission & Others.
Date of Judgement: 11 February 2021
Cited as: 2021 SCC OnLine SC 84
Cases refered/quoted:
Case Brief:
On February 11, 2021, a three-judge bench of the Supreme Court of India in Vikash Kumar v. Union Public Service Commission (Vikash Kumar) held that that an individual with Writer’s Cramp or dysgraphia which is neither an identified disability in the Act nor has been certified as benchmark disability, is entitled to a scribe in India’s Civil Services’ Examination (CSE).
The judgement is a significant step towards ensuring inclusivity for persons with disabilities as it emphatically affirms their position as rights bearers. It represents a move from a medical model of disability wherein disability is viewed as an affliction to a human rights model in consonance with the mandate of the UN Convention on the Rights of Persons with Disabilities (UNCPRD).
This judgement proposes reasonable accommodation and non-discrimination as the fulcrum of contemporary disability jurisprudence. The judgement goes on to valorise the social model of disability and rejects the medical model of disability.
Case details:
In a landmark 62-page judgment, the Supreme Court of India has said that the principle of reasonable accommodation, spelt out in the 2016 Rights of Persons with Disabilities (RPwD) Act, 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 Court further said that “…Cases such as the present offer us an opportunity to make a meaningful contribution in the project of creating the RPwD generation in India… A generation of disabled people in India which regards as its birthright access to the full panoply of constitutional entitlements, robust statutory rights geared to meet their unique needs and conducive societal conditions needed for them to flourish and to truly become co-equal participants in all facets of life.”
The case concerned a person with a chronic neurological condition resulting in Writer’s Cramp, or extreme difficulty in writing. He was denied a scribe for the Civil Services Exam by the UPSC, on the ground that he did not come within the definition of person with benchmark disability (40% or more of a specified disability). The Court, in rejecting this stand, held that the petitioner was a person with disability and that provision of scribe to him came within the scope of reasonable accommodation. The Court said ” … 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…”
In a detailed analysis of Indian and International disability law, the Court said that disability is a long-term condition which due to barriers in the environment hinders full and effective participation in society. Reasonable accommodation implies looking at the specific disabling condition and providing amenities in accordance. Examples: Blind persons need screen reading software to work on the computer, hearing impaired need sign language interpreters. Reasonable accommodation extends to all persons with disabilities, not just those with benchmark disabilities.
The Union Public Service Commission (UPSC) argued that as per the CSE Rules 2018 a scribe could only be provided to blind candidates and candidates with locomotor disability and cerebral palsy which resulted in an impairment of function by at least 40%. The Supreme Court observed that the UPSC’s response was contrary to the reply filed by the nodal ministry in India for implementing the provisions of the Right of Persons with Disabilities Act, 2016 (RPwD Act). The law had been enacted after India became a party to the UNCRPD in 2007.
The reply of the ministry recognised that there may be certain medical conditions not identified as disability per se but which have a detrimental impact on the writing capability of a person. Therefore, the onus was on the examining body, in consultation with India’s health ministry, to consider such cases for grant of scribe, extra time or other facilities, on production of a medical certificate.
In this context, the Supreme Court noted that a ‘person with disability’ under the RPwD Act includes individuals with a ‘long term physical, mental, intellectual or sensory impairment which, in interaction with various barriers, hinders full and effective participation in society equally with others’. The RPwD separately defines persons with ‘benchmark disability’ as those who are certified to have not less than 40% of the disabilities specified in the Schedule of the RPwD Act.
The Supreme Court opined that the higher threshold of benchmark disability could not be imposed to deny equal access to persons with disabilities contrary to the ethos of non-discrimination enshrined in the fundamental rights chapter of the Indian Constitution.
The judgement clarified that the scheme of the RPwD Act imposed a benchmark disability as a precondition only for access to specific entitlements such as affirmative action as under Sections 32 and 34 of Chapter VI. In other words, the absence of benchmark disability could not be used to deny other forms of reasonable accommodation to persons with disabilities.
The bench relied upon the landmark precedent of Jeeja Ghosh v. Union of India wherein it was held that equality is not only limited to preventing discrimination but also embraces a wide ambit of positive rights including reasonable accommodation. The principle of reasonable accommodation, the Court observed in Vikash Kumar, is a facet of substantive equality set out in General Comment 6 of the Committee on the Rights of Persons with Disabilities.
The Court also held that the denial of reasonable accommodation constitutes disability-based discrimination under Section 3 of the RPwD Act. The object of the provision is to ensure that persons with disabilities can overcome insidious barriers of exclusion without the imposition of a disproportionate burden. In this context, the state has an obligation to develop an appropriate environment guaranteeing equality of opportunity to persons with disabilities. Reasonable accommodation, such as the facility of a scribe, is therefore an enabling instrument for securing substantive equality.
Further, the state had raised a concern that the provision of a scribe could offer an undue advantage to persons with disabilities. In response, the Court pointed to the absence of empirical data to hold that this argument of misuse was unsubstantiated. The unfounded suspicion, the Court also remarked, in fact perpetuated the stereotype that persons with disabilities have to resort to state largesse due to their inability to compete on a level-playing field.
Finally, the Court emphasised that it expected the government to consult persons with disabilities in a bid to democratise policy making. It remains to be seen whether such an endeavour results in lasting impact.
Read the judgement embedded below in Civil Appeal No. 273 of 2021 Special Leave Petition (C) No. 1882 of 2021 titled as Vikash Kumar v. Union Public Service Commission & Others.
Download the judgement [418 KB]