Editor’s Note: The following is Part II of a two-part post on the judiciary and inclusion of differently-abled persons as judges. In Part I, authors Eeshan Sonak and Yash Dodhani criticised the Supreme Court decision in V. Surendra Mohan v. State of Tamil Nadu, which held that a visual impairment or hearing disability above 50% rendered an otherwise competent candidate unworthy of being a judge. In this part, they discuss the recent Supreme Court judgment in Vikash Kumar v. UPSC which overruled its decision in V. Surendra Mohan v. State of Tamil Nadu for its exclusionary approach towards differently-abled people.

Part I of this two-part series critiques the Supreme Court decision in V. Surendra Mohan v. State of Tamil Nadu (‘Surendra Mohan’) for its exclusionary and regressive nature. In Part II, we shall discuss the recent judgment of Vikash Kumar v. Union Public Service Commission (‘Vikash Kumar’), where a three-judge bench of the Supreme Court overruled the Surendra Mohan judgment as failing to recognize reasonable accommodation as a part of equality.

Vikash Kumar: Installing ‘Reasonable Accommodation’ as a facet of Equality in India

The facts of the matter are that Vikash Kumar, a Civil Service aspirant, suffered from Writer’s Cramp; a neurological condition that affects the hand/forearm and limits the persons’ ability to perform skilled functions like writing. The Civil Service Rules provided visually or orthopedically impaired persons with scribes, but not to persons with Writer’s Cramp. This exclusion was challenged by Vikash Kumar as being discriminatory.

The Bench of Justices DY Chandrachud, Indira Banerjee, and Sanjiv Khanna held in favour of Vikash Kumar and directed the Ministry of Social Justice and Empowerment to frame guidelines for providing scribes to disabled candidates. It discussed at length the significance of the Rights of Persons with Disabilities Act, 2016 (‘RPWD Act’), and how disability is no more to be viewed as a medical condition. It observed that the RPWD Act “travels beyond being merely a charter of non-discrimination” and imposes “a positive obligation on the State to secure the realization of rights”. It added that “the State must create conditions in which the barriers posed by disability can be overcome” and that “the creation of an appropriate environment in which the disabled can pursue the full range of entitlements which are encompassed within human liberty is enforceable at law”. Accordingly, the Court held that benchmark disability (disability above 40%) is not a precondition to obtaining a scribe.

The Court further discussed the concept of reasonable accommodation as being a positive obligation upon the state to do away with conditions that exclude the disabled from “full and effective participation as equal members of society” and give way to the “creation of an environment in which the societal barriers to disability are progressively answered”.

This judgment has set an extremely progressive tone for the interpretation of the RPWD Act from the perspective of a social and human rights model of disability. It has paved the way for substantive equality in India, in line with what Prof Sandra Fredman characterises as a multi-dimensional conception of equality.

Overruling Surendra Mohan and debasing the ableist mindset

In Vikash Kumar, the Court observed that Surendra Mohan did not consider whether failure to provide reasonable accommodation to a judge with disability above the impugned ceiling was statutorily or constitutionally tenable. It noted that “by definition, reasonable accommodation demands departure from the status quo and hence ‘avoidable complications’ are inevitable”. It added that the relevant question here was whether such accommodations would give rise to disproportionate or undue burden, the determination of which would have to consider the specific accommodations needed, the cost of providing them, and the efficacy with which other judges with more than 40-50% visual/hearing impairment in India and abroad discharge judicial duties after being provided with the necessary accommodations.

History is replete with examples of some of the finest judges who have been differently-abled. Justice Zakeria Yacoob for example was a completely blind judge of the Constitutional Court of South Africa (the highest Court of South Africa). He was a man of Indian origin, but ironically, would not have been considered fit enough to judge in India! In an interview with IDIA, Justice Yacoob explained how he would manage hearings and decide cases. He said that he was provided with “a very efficient, legally-trained PA, a talking computer, braille printer and a note-taker that converted text into braille and vice-versa (braille note)”.

Closer to home is the example of Judge T. Chakkaravarthy, the first visually-impaired judicial officer in Tamil Nadu. He was appointed in 2009, five years before the TNPSC limited the disability to 50%. Another remarkable example is that of Judge Brahmananda Sharma from Rajasthan. He uses an e-speak device connected to a computer, which converts and records the notes made by the reader into speech. He requests lawyers to read their plaints and attached documents, records the same and goes through them several times over. Hence, we already have visually challenged persons who have been able to thrive in the judiciary when given accommodation and opportunity.

Since the two-judge bench in Surendra Mohan did not take into account any such reasonable accommodations, the Supreme Court in Vikash Kumar held that the judgment stands on “legally vulnerable footing” and “would not be a binding precedent” post enforcement of the 2016 RPWD Act.

A possible criticism to the overruling of Surendra Mohan in Vikash Kumar is that the latter had no relation whatsoever either with visually challenged persons or with appointments to the judiciary. However, in our opinion, this criticism is misconceived and unfounded. Vikash Kumar dealt with the meaning and scope of equality itself. It broadened the concept of equality beyond its formal meaning, towards the notion of substantive equality. The Surendra Mohan decision cannot possibly be understood to factor such a notion of equality, and therefore the Supreme Court had a duty to clarify the position of law. In fact, if the Court were not to address the Surendra Mohan ruling, its detailed analysis and broadening of disability rights would have seemed like mere rhetoric. Besides, can there be any such thing as a ‘right occasion’ to remedy an unjust rule?

Conclusion

Since the outbreak of the Covid-19 pandemic, persons with disabilities have had to face innumerable challenges, one of which is accessibility. Fortunately, for those in the legal fraternity, the Virtual Court System was adopted, which took into account the special needs of the differently-abled, and took measures to ensure access to this system. However, if V. Surendra Mohan continued to be good law, then all this dialogue about accessibility and equality for the differently-abled would have been nothing but empty rhetoric.

It is said that one’s performance is merely a reflection of one’s surroundings. By this logic, persons with disabilities will only be ‘disabled’ if the surroundings do not accommodate their needs. Amidst the horrors of the Covid-19 pandemic, due to the efforts of the Supreme Court e-Committee and other such bodies, we witnessed a silver lining in the form of a much-needed transition towards making the Courtrooms more accessible for differently-abled persons. With the Vikash Kumar judgment, the Supreme Court has now opened the doors of its own institution for candidates aspiring to be judges. The judgment is a landmark change on disability jurisprudence and reflects an inclusive, compassionate, and progressive attitude in the highest Court of our country.

About the Authors: Yash Dodani and Eeshan Sonak are second year students at NALSAR University of Law. Yash is himself a visually challenged student.