NEW DELHI: In a landmark judgment to enable the disabled live with dignity and compete with others on equal footing, the Supreme Court has ruled that a person’s blindness or physical disabilities is no disqualification for appointment as Judge.

In the process, a bench of Justices D Y Chandrachud, Indira Banerjee and Sanjiv Khanna overruled a two-Judge SC bench ruling of 2019 upholding a ceiling of 40-50% visual/hearing impairment as the benchmark for a person’s appointment as a civil judge (junior division) in Tamil Nadu and said persons with physical disability must be given all possible assistance, technological as also a scribe, for taking examination to compete with a real sense of equality.

Justice Chandrachud said “who misuse an enabling facility are liable to face the rigour of law, but it does not mean the government or authorities can stop it altogether to deprive those who have the ability to compete with others on being provided reasonable assistance, as mandated in the Rights of Peoples with Disabilities Act, 2016“

Justice Dhananjay Chandrachud

The court took exception to common societal reference to persons with disabilities as ‘mentally ill’ or ‘divyangjan’ and said, “Our discourse must be couched in terms that reflect the recognition of a human rights model to viewing disability. Insensitive language offends the human dignity of persons with disabilities.” Referring to a UN Committee report on rights of disabled persons, the bench said, “In its concluding observations on India, the Committee notes with concern references to ‘normal life’ as opposed to the lives of persons with disabilities and derogatory terminology such as ‘mentally ill’ and ‘divyangjan’, which as it notes, remains controversial. It is our earnest hope that the paradigm-shifting conversation about the rights and status of the disabled, that the Committee has generated, will find a resonance in the language we use to refer to them.”

Writing the 62-page judgment that touched upon the misuse of facilities by candidates with disability in college admission tests, Justice Chandrachud said those who misuse an enabling facility are liable to face the rigour of law, but it does not mean the government or authorities can stop it altogether to deprive those who have the ability to compete with others on being provided reasonable assistance, as mandated in the Rights of Peoples with Disabilities Act, 2016. Hailing the 2016 Act, which replaced the 1995 Act, as a landmark legislation meeting the hopes and aspirations of persons with disability, the bench said, “The 2019 judgment was delivered by this Court after India became a party to the United Nations Convention on Rights of People with Disabilities (UNCRPD) and the RPwD Act 2016, came into force. The aforesaid view espoused by this Court is innocent of the principle of reasonable accommodation.”

“This Court did not consider whether the failure of the Tamil Nadu Public Service Commision to provide reasonable accommodation to a judge with a disability above the impugned ceiling was statutorily or constitutionally tenable. There is no reference in this Court’s judgment to whether the appellant would have been able to discharge the duties of a Civil Judge (Junior Division), after being provided the reasonable accommodations necessitated by his disability,” Justice Chandrachud said.

SC said the 2019 judgment, based on the 1995 Act, stood on a “legally vulnerable footing” and ruled that “it would not be a binding precedent, after enforcement of the RPwD Act 2016.” The case in hand related to UPSC denying facility of scribe to a medical graduate suffering dysgraphia, commonly known as a Writer’s Cramp. Rejecting additional solicitor general Madhavi Divan’s argument that providing a scribe could vitiate the purity of civil services examination, Justice Chandrachud-led bench said, “There can be no doubt about the need to preserve the purity of the examination. But the apprehension that the facility of a scribe should not be misused can furnish no valid ground to deprive the whole class of citizens – persons with disability who need a scribe – from the statutory entitlements which emanate from the provisions of the enactment, on the supposition that someone may misuse the provisions of the law.”

The SC said RPwD Act 2016 seeks to operationalize and give concrete shape to the promise of full and equal citizenship held out by the Constitution to the disabled and to execute its ethos of inclusion and acceptance. “The RPwD Act 2016 was a landmark legislation which repealed the 1995 Act and brought Indian legislation on disability in line with the UNCRPD, ” it said. In what could make the NDA government happy, the SC said, “The RPwD Act 2016 has a more inclusive definition of ‘persons with disability’ evidencing a shift from a stigmatizing medical model of disability under the 1995 Act to a social model of disability which recognizes that it is the societal and physical constraint that are at the heart of exclusion of persons with disabilities from full and effective participation in society… It gives a powerful voice to the disabled people who, by dint of the way their impairment interacts with society, hitherto felt muted and silenced. The Act tells them that they belong, that they matter, that they are assets, not liabilities and that they make us stronger, not weaker.”

“There is a critical qualitative difference between the barriers faced by persons with disabilities and other marginalized groups. In order to enable persons with disabilities to lead a life of equal dignity and worth, it is not enough to mandate that discrimination against them is impermissible. That is necessary, but not sufficient. We must equally ensure, as a society, that we provide them the additional support and facilities that are necessary for them to offset the impact of their disability,” the bench said.

toi