Summary of Judgements on Disability Rights

Supreme Court Decisions

Deaf Employees Welfare Association v Union of India[1]
This petition was filed seeking a Writ of Mandamus directing the Central and state governments to grant equal transport allowance to its government employees suffering from hearing impairment as what was being given to blind and other disabled government employees.  The allowance given to the hearing impaired employees was significantly lower than the allowance granted to other employees with disabilities.

The Supreme Court allowed the petition and directed the Respondents to grant transport allowance to speech and hearing impaired persons also on par with blind and orthopaedically disabled government employees. The court held that “there cannot be further discrimination between a person with disability of ‘blindness’ and a person with disability of ‘hearing impairment’. Such discrimination has not been envisaged under the Disabilities Act.” It held that equality of law and equal protection of law afforded to all persons with disabilities while participating in government functions. The court held that the dignity of persons with hearing impairments must be protected by the state. Even the assumption that a hearing or speech impaired person is suffering less than a blind person is, in effect, marginalizing them; and as such, the same benefits must be given to them, as are awarded to blind citizens. Any move made by the state to further this objective is in consonance with the principles enshrined in Articles 14. This case held that deaf and mute people should also be given transportation allowances on par with blind and orthopedically handicapped employees of the government.

Union of India v National Federation of the Blind[2]
This was an appeal from the decision of the Delhi High Court wherein a public interest petition had been filed which sought the implementation of Section 33 of the Act alleging that the appellants herein have failed to provide reservation to the blind and low vision persons and they are virtually excluded from the process of recruitment to the Government posts as stipulated under the said Act.

The court looked into the calculation of the 3% reservation –whether it refers to cadre strength, or number of vacancies. It was held that 3% refers to a part of the total vacancies in cadre strength. The court also observed, “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”.

Government of India v Ravi Prakash Gupta[3]In this case, the respondent was a visually challenged person who appeared for the civil services examination conducted by the Union Public Service Commission and was declared successful. However, he was not given an appointment even though he was at Sl. No. 5 in the merit list of visually impaired candidates. The respondent approached the Central Administrative Tribunal which refused his application and thereafter the respondent approached the high court. The high court directed the government to accommodate the Respondent in the merit list, against which the state filed an appeal in the Supreme Court. The state contended that since the post for which the respondent was applying was not identified for persons with disabilities and therefore not reserved for them, the government could not make reservations in the same.

The Supreme Court refused the state government’s contention that identification of jobs was a pre-requisite for reservation and appointment under section 33 of the Act.[4] The court held,

“It is only logical that, as provided in section 32 of the aforesaid Act, posts have to be identified for reservation for the purposes of Section 33, but such identification was meant to be simultaneously undertaken with the coming into operation of the Act, to give effect to the provisions of Section 33. The legislature never intended the provisions of section 32 of the Act to be used as a tool to deny the benefits of Section 33 to these categories of disabled persons indicated therein. Such a submission strikes at the foundation of the provisions relating to the duty cast upon the appropriate government to make appointments in every establishment.”[5]

Syed Bashir-ud-Din Qadri v. Nazir Ahmed Shah[6]This was a decision by the Supreme Court. In this case, the Appellant was a B.Sc. graduate with cerebral palsy who had applied for a job as a ‘Rehbar-e-Taleem’ or ‘Teaching Guide’ in the State of Jammu and Kashmir. The state government had initially objected to his appointment on the ground of his disability. The appellant however, with directions from the high court, was appointed under the Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1998.

The Respondent then filed a petition challenging the order of appointment and the appellant was re-examined by the head of the Department of Neurology. It was indicated in the report that as he had cerebral palsy, he had significant speech and writing difficulties, which would make it difficult for him to perform his duties as a teacher. The high court quashed his appointment and ordered that since the appellant was unfit to the post of the teacher he should be given an alternative employment. His appeal to the division bench of the high court was dismissed and he thereafter approached the Supreme Court.

The Supreme Court observed that,

“This case involves a beneficial piece of social legislation to enable persons with certain forms of disability to live a life of purpose and human dignity. This is a case which has to be handled with sensitivity and not with bureaucratic apathy, as appears to have been done as far as the appellant is concerned… It is only to be expected that the movement of a person suffering from cerebral palsy would be jerky on account of locomotor disability and that his speech would be somewhat impaired but despite the same, the legislature thought it fit to provide for reservation of 1 per cent of the vacancies for such persons. So long as the same did not impede the person from discharging his duties efficiently and without causing prejudice to the children being taught, there could, therefore, be no reason for a rigid approach to be taken not to continue with the appellants services as Rehbar-e-Taleem, particularly, when his students had themselves stated that they had got used to his manner of talking and did not have any difficulty in understanding the subject being taught by him… Coupled with the above is the fact that the results achieved by him in the different classes were extremely good; his appearance and demeanour in school had been highly appreciated by the committee which had been constituted pursuant to the orders of the high court to assess the appellants ability in conducting his classes.”[7]

The court directed that in order to overcome the impediment of writing on the black board, an electronic external aid could be provided to the appellant, which could eliminate the need for drawing a diagram and the same could be substituted by a picture on a screen, which could be projected with minimum effort. With these directions for providing reasonable accommodation, the Supreme Court held that the disengagement of the appellant goes against the grain of the PWD Act and hence the order was set aside by the court.

Suchita Srivastava v. Chandigarh Administration[8]This case was with regard to the reproductive rights of a woman with mental retardation residing at a government run welfare institution in Chandigarh who became pregnant due to a rape by an in-house staff and who wanted to keep the baby and carry on the pregnancy to full term. The Chandigarh Administration filed a petition in the high court seeking permission to terminate her pregnancy under the Medical Termination of Pregnancy Act, 1971 (“MTP Act”) on the ground that she was not capable of carrying on with the pregnancy and would not be able to look after a child. Although the expert body found that the woman had expressed her wish to bear her child, the high court directed the termination of the pregnancy. The woman, through an amicus, appealed to the Supreme Court and one of the main issues before the Supreme Court was regarding the legal capacity of a woman with mental retardation to decide on her pregnancy.

The Supreme Court noted the provisions of the MTP Act, which provided that where pregnancy is a result of rape and termination of the same is contemplated, the consent of the pregnant woman is mandatory.[9] The court also noted the exception to this provision which provided that in case of a pregnant woman who is “mentally ill”, pregnancy can be terminated with the approval of the woman’s guardian.[10] Following this, the court proceeded to make a distinction between ‘mental illness’ and ‘mental retardation’. Upholding the legal capacity of the appellant, the court held:

“While a guardian can make decisions on behalf a ‘mentally ill person’ as per Section 3(4)(a) of the MTP Act, the same cannot be done on behalf of a person who is in a condition of ‘mental retardation’. The only reasonable conclusion that can be arrived at in this regard is that the State must respect the personal autonomy of a mentally retarded woman with regard to decisions about terminating a pregnancy. It can also be reasoned that while the explicit consent of the woman in question is not a necessary condition for continuing the pregnancy, the MTP Act clearly lays down that obtaining the consent of the pregnant woman is indeed an essential condition for proceeding with the termination of a pregnancy… We cannot permit a dilution of this requirement of consent since the same would amount to an arbitrary and unreasonable restriction on the reproductive rights of the victim.”[11]

Thus the Supreme Court clearly held that the MTP Act required the consent of a mentally retarded woman for termination of pregnancy. Following this, the Court concluded that the Appellant was mentally retarded, had not consented to the termination of her pregnancy and in fact, had expressed her willingness to bear the child. Therefore it could not permit the termination of her pregnancy. In arriving at this conclusion, the Court not only recognised the reproductive rights of a woman under the MTP Act, but also recognised international norms and principles on mentally retarded persons and persons with disabilities under the CRPD. In this context the Court specifically held:

“Our conclusions in this case are strengthened by some norms developed in the realm of international law… In respecting the personal autonomy of mentally retarded persons with regard to the reproductive choice of continuing or terminating a pregnancy, the MTP Act lays down such a procedure. We must also bear in mind that India has ratified the Convention on the Rights of Persons with Disabilities (CRPD) on October 1, 2007 and the contents of the same are binding on our legal system.”[12]

The court clearly recognised the right to legal capacity of women with mental retardation to take independent decisions on her pregnancy. The Supreme Court held that “Her reproductive choice should be respected in spite of other factors such as the lack of understanding of the sexual act as well as apprehensions about her capacity to carry the pregnancy to its full term and the assumption of maternal responsibilities thereafter.[13]” Therefore, the Supreme Court laid out the specific right to legal capacity which was not subject to an understanding of one’s situation and capacities.  This case clearly follows the spirit of protection of legal capacity under Article 12 of the CRPD.

High Court Decisions

Ranjit Kumar Rajak v. State Bank of India(2009) 5 Bom CR 227The Petitioner in this case underwent a renal transplant in 2004. Subsequently, he applied to the post of a probationary officer in the State Bank of India. After a medical test, the bank rejected him on the ground that he was found medically unfit for the post. The petitioner approached the Bombay High Court by a writ petition claiming that despite medical reports that indicate his fitness to perform his duties, he was denied being considered for employment. The bank rejected him as the rules required the bank to reimburse medical expenses incurred by the officers of the bank and since the medical condition of the Petitioner required regular medical check-ups, the costs would be very high and could not be borne by the bank. The main question, according to the Court, was “whether a person who is fully qualified for a post because of his past or present medical condition which otherwise did not interfere with his fitness to dispense the duties of his post, be denied employment because of the financial burden that would be cast on the employer.”[14]

In an extremely significant ruling, a Division Bench of the Bombay High Court[15] articulated and recognised for the first time the concept of “reasonable accommodation at the workplace” in India. The court relied on the CRPD to decide the duty of the employer in providing reasonable accommodation and the limits on such a duty. The court recognised that India had signed and ratified the CRPD and that Article 27 of the Convention recognises the right of persons with disability to be “accepted in the labour market and work environment that is open, inclusive and accessible to persons with disabilities.”[16]

The court also discussed the definition of “reasonable accommodation” under Article 2 as “a necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.”[17]

In interpreting “reasonable accommodation” and “undue burden” the court relied on the CRPD and recognised the importance of India’s international obligations with respect to rights of disabled persons by stating that:

“The law is now well settled that though the United Nations Convention may not have been enacted into the Municipal Law, as long as the convention is not in conflict with the Municipal Law and can be read into Article 2 thus making it enforceable. Therefore, in the absence of any conflict it is possible to read the test of reasonable accommodation in employment contracts.”[18]

The Court further held:

“A duty is, therefore, cast on the State to provide reasonable accommodation in the matter of employment subject to the burden of hardship test being satisfied. In the absence of a statutory definition of reasonable accommodation, the reasonable accommodation as set out in the protocol in the first instance can be considered. It will have to have a nexus with the financial burden on the institution and/or undertaking which will have to bear the burden and further the extent to which reasonable accommodation can be provided for.”[19]

The court incorporated the right to reasonable accommodation by declaring that “Reasonable accommodation, if read into Article 21, based on the U.N Protocol, would not be in conflict with municipal law. It would give added life and dimension to the ever expanding concept of life and its true enjoyment.”[20] Following this, the court concluded that the bank has a duty to provide reasonable accommodation to the petitioner subject to any undue burden. The court observed that no evidence was presented on how the financial burden would actually be a caused to the bank in providing reasonable accommodation to the petitioner even if it meant meeting his medical expenses. Consequently, the court allowed the petition and directed that the Petitioner be offered appointment and allowed to join the post.

Lalit and Others v Govt. of NCT and Another[21]This petition was filed by 12 inmates of the hostel attached to Andh Mahavidyalya, New Delhi, an institution for visually impaired students, seeking a direction that they may not be expelled or dispossessed from the hostel. Out of these 12 inmates, expulsion orders were issued by the Respondents against 5 inmates on the ground that the hostel was meant for only students up to Class VIII and the petitioners had overstayed beyond this class. Many of them were between 25-35 years old and it was alleged that there was a shortage of space for deserving younger visually impaired students and that they were also intimidating the younger students. One of the main issues before the Court was whether the hostel was obligated to accommodate the petitioners because of their disabled status even if it resulted in a disadvantage to the other disabled students.

Justice Muralidhar of the Delhi High Court noted that the facts illustrated the lack of decent accommodation for children with disabilities and recognised the associated problems of lack of resources, hygiene and accountability in the running of institutions with disabled children. The court held as follows:

“In the context of the inviolable human rights of the disabled, it is necessary to take note of the binding and mandatory provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (specifically Sections 26 and 30) (`PDR Act’) and the Convention on the Rights of Persons with Disabilities (`CRPD’) which has been ratified by India. In particular, Article 7 which set out the obligations of the States towards children with disabilities, Article 9 which obliges the States to take appropriate measures to ensure access to “schools, housing, medical facilities’, and Article 24 which deals with the right to education are relevant.”

The court relied upon Article 24 of the CRPD which guaranteed the right to education and held that in the context of a disabled child housed in a state-run institution there are a cluster of laws all of which can be traced to the fundamental rights to liberty and a life with dignity. It held that in the context of a young person receiving education in a state-run institution as a resident scholar, the right to shelter and decent living is an inalienable facet of the right to education itself and when the State takes over the running of an educational institution that caters to the needs of the disabled, it has to account for the ‘cascading effect’ of multiple disadvantages that such children face.

In the context of the present case however, the court held that due to the limitation of resources, all the visually impaired persons at the Andh Mahavidhyalala, irrespective of their age cannot possibly expect to be allowed to live there as the primary purpose should be to cater to the needs of young children studying up to class VIII. If this primary object was not kept in view, then it may result in an unfair denial of the right to education of other deserving young students who are visually challenged.

The court thus directed the Respondent authorities to take every possible effort to see if all the 5 inmates who were given expulsion orders could be accommodated in any of the other institutions in Delhi. Sufficient time of 6 months should be given to them to make alternative arrangements and assistance should be given to help them find alternative accommodation. The court also observed that this case should act as a wakeup call for the government to monitor the functioning generally of all institutions under its control, particularly for the disabled. This case illustrates the incorporation of the CRPD principles with regard to reasonable accommodation and right to education of children. The court was called upon to balance the two rights, which it ultimately did by taking into account the level of disabilities faced by each group demanding accommodation.

The National Association for the Deaf v. Union of India [22]This was a public interest petition filed by the National Association for the Deaf before the Delhi High Court on the non-availability of sign language interpreters in public services. The petition complained of the lack of availability of adequate number of sign language interpreters in various public places and sought for directions against the Ministry of Social Justice and Empowerment and other authorities to ensure access and better training of sign language interpreters.

While the court noted the lack of availability of sign language interpreters, it agreed with the Petitioner Association that due to non-availability of interpreters, the hearing impaired were unable to avail medical, transport and banking facilities and to also seek police help. With regard to the importance of ensuring the availability of support in the form of interpreters, the Court relied on the CRPD and held,

“The United Nations Convention on the Rights of persons with disabilities adopted by the General Assembly and ratified by the Govt. of India on 1st October, 2007 also provides for taking appropriate measures to provide forms of live assistance and intermediaries including guides, readers and professional Sign Language Interpreters to facilitate accessibility to buildings and other facilities open to the public. Needless to state that all the said rights are composite part of life enshrined in Article 21 of the Constitution of India.”[23]

Based on this, the court issued specific directions to the respondent authorities which included undertaking a survey to assess the availability and requirements for sign language interpreters, appointing nodal officers to seek information from concerned authorities and prepare a report to be used for creation of new posts, creating courses and curricula for training of interpreters.

BhagwanDass and Anr v. Punjab State Electricity BoardIn this case, the Appellant was an Assistant Lineman in the Respondent Board. During his service, he became totally blind and the Respondent failed to accommodate him in an alternative post as per Section 47 of the PWD Act and terminated his service. Therefore the appellant approached the High Court of Punjab and Haryana against the termination of his service. The high court dismissed the petition and the Appellant appealed to the Supreme Court.

The Supreme Court allowed the appeal relying on Section 47 of the PWD Act and observed that the Board had an obligation to follow this provision as the appellant had acquired disability during his service. On Section 47, the Court relied on a previous decision in Kunal Singh v. Union of India and Anr[24] which held that, “In construing a provision of a social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act”[25]

The court gave a broad interpretation to Section 47 and took a protective approach towards persons with disabilities by holding:

“From the narrow point of view the officers were duty bound to follow the law and it was not open to them to allow their bias to defeat the lawful rights of the disabled employee. From the larger point of view the officers failed to realise that the disabled too are equal citizens of the country and have as much share in its resources as any other citizen. The denial of their rights would not only be unjust and unfair to them and their families but would create larger and graver problems for the society at large. What the law permits to them is no charity or largess but their right as equal citizens of the country.”

Ritesh Sinha v. State of Haryana[26]In this case, an important interim order was passed by the High Court of Punjab and Haryana and the matter is still pending. The petitioner was a person with locomotor disability and was appointed as a clerk by the District and Sessions Judge, Karnal in the post reserved for physically disabled persons. Thereafter his services were terminated due to his inability to perform the duties as a clerk who was expected to write the office notes and maintain records in his own hands.

The court held that as the petitioner was well conversant with computer operations and that there could be plenty of work done by him like preparation of daily cause lists of all courts, certified copies of judgments, etc., which could be assigned to a computer savvy person like him. The court directed that in the interim, his dismissal order would remain stayed, and the respondents were directed to reinstate the petitioner in service with all benefits. The court even directed the respondents to immediately construct a ramp / slope so that the petitioner could enter his office and a compliance report to be submitted to court about the same. Further, it directed the respondents to see that a congenial atmosphere is created at the workplace so that the Petitioner is made an integral part of the mainstream workforce.

U.P. Vishesh Shikshak Association v. State of U.P.[27]Here the Petitioner Association had filed a public interest petition before the Allahabad High Court contending that the pupil-teacher ratio so far as specialised teachers and children with disabilities was concerned was not adequate and claimed that the government circular on Integrated Education for Disabled Children Scheme mandated a pupil teacher ratio of 8:1. It also claimed that the Rehabilitation Council of India Act, 1992 imposed a statutory duty on the State to make arrangements for adequate number of teachers for persons with disabilities.

The Allahabad High Court recognised the statutory duty of the State to  “provide all necessary help and assistance to physically disabled students.”[28] However, in response to an argument that orthopaedically handicapped children do not require specialised teachers, it held, “We are of the view that now, the right to education and right to livelihood being the fundamental rights enshrined under Articles 21 and 21-A of the Constitution, the State Government has to make all efforts to provide necessary assistance to all disabled persons. Taking into consideration the meagre strength of 1291 teachers, we cannot presume that State Government may be able to impart education to disabled students.”

Manjunatha v. Government of Karnataka and Ors[29]In this case, the petitioner, who was completely blind sought to apply for the B. Ed. Course under the government quota of seats in Karnataka. However, he was denied admission by reason of the condition that persons with disability greater than 75 per cent would not be eligible for admission. The announcement issued by the respondent permitted applications from persons with disability but restricted it to such applicants who had a disability exceeding 40 per cent but below 75 per cent.

The Karnataka High Court allowed the petition by holding that such a provision in the announcement ran counter to the PWD Act. The respondent government argued that the upper limit in the announcement was based on a similar provision in Karnataka Selection of Candidates for Admission to Teachers Certificate Higher Course (TCH) and Bachelor of Education Course (B.Ed.) Rules 1999 and therefore such a notification could not be challenged. The bench however, rejected this contention and held that even the Rules run contrary to the PWD Act and the state government could not rely on the Rules to deny admission to candidates having more than 75 per cent disability. The court ruled in favour of the petitioner and held that he was entitled to take up CET for admission to B.Ed. course and further declared that he shall not be denied admission on the basis of his disability exceeding 75 per cent.

The observations of the court strengthened the protection for persons with disabilities as it effectively held that the disability legislations would take precedence over administrative rules of the government.

KritikaPurohit and Anr. v. State of Maharashtra and Ors.[30]The petitioner was a visually impaired student who sought admission to the course in Bachelor of Physiotherapy but was not permitted to apply for the same. The petitioner contended that although the post of a physiotherapist was considered to be suitable for blind persons, the denial of courses in physiotherapy for blind persons ran counter to Section 39 of the PWD Act and that the respondents were obliged to make all accommodations for the Petitioner in conformity with Article 24(2) of the CRPD.

The respondents contended that it was not practical for the petitioner to be involved in the course. However, the court also noted the petitioner’s reliance on the circular of the Mumbai University in mandating that resources should be made available to visually impaired student to allow them to complete their courses. In view of these materials, the court observed that the respondents had shown a negative attitude towards persons with disabilities and “have not cared to consider the object underlying the provisions of Disabilities Act, 1995”. Therefore, by an interim order dated 2 August 2010, it directed the Commissioner of Disabilities to consider all the materials and make suitable instructions to the respondents for making necessary arrangements for admission of visually challenged students. It also directed that the petitioner should be provisionally admitted for the course and should be provided with resources for translation of the material to braille.

Subsequently the court found that the petitioner had completed the first exam and had secured 62 per cent in the same. Therefore, it held that she should be allowed to be admitted and complete the course. However, the court noted that the state government had accepted the guidelines of the Maharashtra State Council for Occupational Therapy and Physiotherapy that visually impaired candidates are not fit for the physiotherapy course. On this, it noted the contentions of the Petitioner and also Xavier’s Resource Centre for the Visually Challenged who claimed that a physiotherapist is not required to perform all the functions of physiotherapy and visually impaired physiotherapists can perform all functions with assistance if necessary. They also pointed out various physiotherapists who were working in Maharasthra successfully for many years. The court held that “We are, therefore, of the view that the stand of the respondent authorities is clearly discriminatory and adversely affects the Right to Life and equal opportunities of the petitioner as also other such students similarly situated. The fact that petitioner though being visually impaired not only passed her first year examination with 62% marks and is successfully studying in 2nd year, and several visually impaired persons have been working as professional physiotherapists in India as well as abroad appeals to us not to allow the petitioner as also others in the same position to be discriminated against or disqualified on that ground.[31]”

Thus, the court stayed the decision of the state government and directed the respondents to consider candidates with visual disability for admission to the course in physiotherapy.