How Supreme Court Protected Rights Of Disabled In 2021

As per the Census of 2011 there are 2.68 crore persons with disabilities in India who constitute 2.21 percent of population out of which 1.50 crore are male and 1.18 crore are female.

In our country, persons with disabilities constitute a minority group who live in an extremely vulnerable and disadvantaged political, social and economic environment. They are often disfavoured because of certain stereotypes, misconceptions and unfounded fears. 

The Rights of Persons with Disabilities Act 2016 and its predecessor Persons With Disabilities Act 1995 guarantee equal rights and access to opporutinites to disabled persons.

The Supreme Court delivered certain notable judgments on disability rights in 2021.  Let's have a loot at them. 

SC Judgment Which Excluded Persons With Over 50% Visual/Hearing Impairment From Judicial Service No Longer Binding Precedent

On February 11, 2021 the Supreme Court in Vikash Kumar vs. Union Public Service Commission had observed that its decision in V Surendra Mohan v. State of Tamil Nadu would not be a binding precedent, after the coming into force of the Rights of Persons with Disabilities Act 2016.

In Surendra Mohan, a two-judge bench of the Supreme Court had held that stipulating a limit of 50% disability in hearing impairment or visual impairment as a condition to be eligible for the post of a judicial officer is a legitimate restriction. The court had dismissed the appeal filed by a V. Surendra Mohan, who was held ineligible for the post of judicial officer (civil judge) as it was found that he was having 70% disability on account of blindness.

Criticising Surendra Mohan decision, the bench of Justices D Y Chandrachud, Indira Banerjee and Sanjiv Khanna had said that the same was rendered without taking note of relevant concepts under the 2016 Act and also the "principle of reasonable accommodation".

Benchmark Disability Not A Precondition To Avail Benefit Of Scribe : SC Gives Relief Candidate With 'Writers Cramp' In UPSC Exam

In Vikash Kumar(supra), the Court held that facility of scribe can be provided for persons with disabilities other than those having benchmark disabilities.

Testimony Of Disabled Witness Cannot Be Considered Weak Or Inferior: Supreme Court Issues Guidelines To Make Criminal Justice System More Disabled-friendly

While considering an appeal filed by the sole accused tried for the offences punishable u/s 376(1) of the IPC and u/s 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act for committing rape on the victim girl who is aged about 20 years and blind by birth, on 31.03.2011 at about 9:30 AM in her house, the Supreme Court in Patan Jamal Vali vs. State of Andhra Pradesh issued guidelines to make the criminal justice system more disabled-friendly.

The testimony of a prosecutrix with a disability, or of a disabled witness for that matter, cannot be considered weak or inferior, only because such an individual interacts with the world in a different manner, vis-à-vis their able-bodied counterparts, the bench comprising Justices DY Chandrachud and MR Shah observed.

Persons With Disabilities Have Right To Reservation In Promotions

The Supreme Court bench of Justices Sanjay Kishan Kaul and R Subhash Reddy in State of Kerala v. Leesamma Joseph had observed that persons with physical disabilities have the right to reservation in promotions also.

While considering the appeal filed by the State of Kerala against a judgment of the Kerala High Court, the Supreme Court had said that the High Court judgment was "salutary" and did not require any interference.

Supreme Court had held that :

• The 1995 Act recognizes the right to reservation in promotion.
• Identification of posts for reservation as per Section 32 of the 1995 Act is a prerequisite for appointment; but appointment cannot be frustrated by refusing to identify posts.
• The absence of provision for reservation in the recruitment rules will not defeat the right of a PwD as such right flows from the legislation.
• Reservation to promotion can be given to a PwD even if the person was not originally appointed in the PwD quota

Directions were also issued to Kerala Government to implement reservation in promotion for disabled within 3 months.

Mode Of Entry In Service Is Not Relevant Criteria For Promotion Under PwD Quota

The Supreme Court in State of Kerala and others vs Leesamma Joseph observed that mode of entry in service is not a relevant criteria for promotion under PwD quota.

"Source of recruitment ought not to make any difference but what is material is that the employee is a PwD at the time for consideration for promotion. The 1995 Act does not make a distinction between a person who may have entered service on account of disability and a person who may have acquired disability after having entered the service,"  the bench comprising Justice Sanjay Kishan Kaul and R. Subhash Reddy said in its judgment holding that persons with physical disabilities have right to reservation in promotions also.

Supreme Court E-Committee Takes Steps To Improve Access To Justice For Disabled

Pursuing a December 2020 letter by the e-committee headed by Justice DY Chandrachud by which all the High Court's were encouraged to make their digital infrastructure accessible to persons with disabilities in conformity with their constitutional and statutory entitlements, the e-committee of the Supreme Court formulated an action plan to ensure accessibility of the digital interface of all High Court websites in its first phase.

The e-committee had devised six parameters to determine if a High Court website was accessible-These were: Access to judgments; Access to cause-lists; Access to case status; Contrast/ colour theme; text size [A+AA]; and screen reader access. As per the press release note, the e-Committee, in collaboration with National Informatics Centre [NIC], was also creating a judgment search portal (https://judgments.ecourts.gov.in) accessible to persons with disabilities.

Supreme Court Directs Centre To Issue Instructions To Implement Reservation In Promotions For Persons With Disabilities Within 4 Months

In a Miscellaneous Application filed by the Central Government seeking clarification with respect to its judgement in Siddaraju vs State of Karnataka which declared that persons with disabilities have right to reservation in promotions, the Supreme Court on September 28, 2021 directed the Union of India to issue instructions "at the earliest and not later than four months", in accordance with the proviso to Section 34 of the Right of Persons with Disabilities Act, 2016 for giving reservation in promotions to persons with disabilities.

Rights Conferred Upon Persons With Disabilities Cannot Be Constricted By Adopting The Definition Of Benchmark Disability As A Condition Precedent

In a plea by a female NEET-2021 candidate suffering from dysgraphia whose grievance was that she was refused an additional one hour's time for attempting the paper by the examination centre, the Supreme Court in Avni Prakash v. National Testing Agency and Ors on November 23, 2021, directed the NTA to consider what steps could be taken to rectify the injustice within a period of one week.

The bench of Justices DY Chandrachud and AS Bopanna had clarified that the rights and entitlements under the Rights of Persons With Disabilities Act, 2016, including the right of 'persons with disabilities' to inclusive education by way of reasonable accommodation, shall not be constricted by reading in the higher threshold prescribed for 'persons with benchmark disabilities."

Also Read: NEET- National Testing Agency Bound To Scrupulously Enforce Specific Relaxations For Persons With Disability: Supreme Court

COVID Vaccination To Persons With Disabilities And Pregnant Women: Supreme Court Asks Petitioners To Submit Concrete Suggestions

Considering a plea seeking ease of access to vaccination to persons with disabilities the Supreme Court on December 3, 2021 had granted liberty to the petitioners to formulate concrete suggestions to strengthen the existing framework for protecting the disabled citizens in ensuring that they have proper access to vaccination against COVID-19.

The bench of Justices DY Chandrachud and AS Bopanna in Evara Foundation v. Union Of India And Ors in their order had said,

"A preliminary affidavit has been filed on behalf of the Union of India. The writ petition under Article 32 raises important concerns with regard to facilities for vaccination for the disabled. Bearing in mind the provisions of the RPWD Act, 2016, including those of reasonable accommodation which are embodied in section 5 of the Act, and in view of the contents of the affidavit which has been filed on behalf of the Union of India, we are of the considered view that it would be appropriate to grant liberty to the petitioners to formulate any concrete suggestions to strengthen the existing framework for protecting the disabled citizens, in ensuring that they have proper access to vaccination against COVID-19. It has been agreed among the counsel on the side of the petitioners to, after due consultation, prepare a set of suggestions which can be emailed to (email ID of the court-master). A copy of the suggestions shall also be emailed to ASG Aishwarya Bhati. Once the suggestions are emailed, they can be the subject matter of deliberation and the existing framework for vaccination of the disabled may be suitably strengthened by incorporating additional safeguards or facilities."

Persons With Disabilities Should Not Be Asked to Remove Prosthetic Limbs At Airport Security Checks 

In a petition filed by Jeeja Ghosh in 2012 a disability rights activist, who was forcibly de-boarded from a Spicejet flight due to her disability, the Supreme Court on December 1, 2021 the Supreme Court observed that differently abled persons with prosthetic limbs/calipers should not be asked to remove the prosthetics at airport security checks so as to maintain human dignity.

The bench of Justices Hemant Gupta and V Ramasubramanian also observed that lifting a person with disability during air travel or security checkup is inhumane, and held that the same should not be done without the person's consent.

Initiation Of Disciplinary Proceedings Against Persons With Mental Disabilities Is A Facet Of Indirect Discrimination

Adjudicating upon a case wherein disciplinary proceedings had been initiated against an officer of the Central Reserve Police Force who had been diagnosed with 40 to 70 percent mental disability, the Supreme Court in Ravinder Kumar Dhariwal & Anr v. Union of India on December 17, 2021 observed that the initiation of disciplinary proceedings against persons with mental disabilities is a facet of indirect discrimination.

"A person with a disability is entitled to protection under the RPwD Act as long as the disability was one of the factors for the discriminatory act. The mental disability of a person need not be the sole cause of the misconduct that led to the initiation of the disciplinary proceeding. Any residual control that persons with mental disabilities have over their conduct merely diminishes the extent to which the disability contributed to the conduct. The mental disability impairs the ability of persons to comply with workplace standards in comparison to their able-bodied counterparts. Such persons suffer a disproportionate disadvantage due to the impairment and are more likely to be subjected to disciplinary proceedings. Thus, the initiation of disciplinary proceedings against persons with mental disabilities is a facet of indirect discrimination," bench of Justices DY Chandrachud, Surya Kant and Vikram Nath observed.

Reduction In Extent Of Disability On The Ground That WHO Norms Are Not For Advanced Countries & Not India Is Not Sustainable

Considering a Special Leave Petition assailing Karnataka High Court's decision to reduce the extent of disability suffered by the employee solely because it was assessed based on WHO norms, the Supreme Court in Shri Salim vs New India Assurance Company Ltd & Anr observed that reducing the extent of disability on the ground that the WHO norms are for the advanced countries and not in respect of India, was patently not sustainable.

Noting that the disability of 45% (original calculation) was assessed after going through ALMCOI and WHO manuals according to the doctor, the bench of Justices Hemant Gupta and V Ramasubramanian said that medical studies are not restricted to the advanced countries but in respect of the entire world.