Special Series: Perspectives from Undergraduate Law Students
LL.B. Student Contribution
–Prannv Dhawan and Anchal Bhateja, B.A., LL.B. (Hons.) Students, National Law School of India University, Bengaluru (India)
In a significant judgment rendered in case of Vikash Kumar v. Union Public Service Commission, a three-judge bench of the Supreme Court of India constitutionally fortified the right to reasonable accommodation for Persons With Disabilities (PwDs). This piece seeks to discuss the significance of this decision, and trace the jurisprudential gaps that this particular judgement has filled.
The petitioner’s cause of action arose from the denial of a scribe to him for assistance while taking the public services examination. This request was denied as the exam rules only accommodated persons with a narrow range of specified and benchmark disability. The Supreme Court was hearing this matter in appeal as the petition had not succeeded at the Central Administrative Tribunal, and the High Court. The Court juxtaposed these rules with the policy guidelines for conduct of examination that were issued by the Ministry of Social Justice and Empowerment, framed under the mandate of the Rights of PWDs Act, 2016 (2016 Act). In para 23, the Court noted that these guidelines were flexible and included persons with medical conditions other than benchmark disabilities, within their scope.
In para 31, the Court criticised this administrative denial of ‘the rights and entitlements recognized for PWDs on the ground that they did not fulfil a benchmark disability’ as ‘plainly ultra vires the RPwD Act 2016’. After surveying the ‘maze of statutes, rules, and regulations’ the Court noted that the case tested the legal principles with their actual realization. While criticizing this ‘chasm between the law and reality’, the Court noted how this exclusionary chasm denied the constitutional right of full participation and equal citizenship while denying the national life of the services and contributions of persons with disability.
Reasonable Accommodation as a ‘Right’
In para 35, the Court remarked that “the constitutionally guaranteed fundamental rights to equality, the six freedoms and the right to life under Article 21 will ring hollow if they are not given this additional support that helps make these rights real and meaningful for them.” In line with Supreme Court’s approach in Swaraj Abhiyan andAshwani Kumar, the court exhibited judicial activism and acknowledged the existence of fundamental rights where policy frameworks existed. Thus, it held in para 49 that non-implementation of reasonable accommodation would tantamount to discrimination. It further highlighted that the sections 3 and 20 of the 2016 Act statutorily obligated the State, to ensure non-discrimination and dignified treatment of persons with disability. In para 33, it noted that “Section 3 is an affirmative declaration of the intent of the legislature that the fundamental postulate of equality and non-discrimination is made available to PWDs without constraining it with the notion of a benchmark disability.” It referred to reasonable accommodation (defined in section 2(y)) as the ‘substantive equality enabler’. It explained the presence of the right to reasonable accommodation, by stating that denial of the same would tantamount to discrimination within the meaning of section 2 (h) of the Act. This went beyond the interpretation in the case of Ranjit Kumar Rajak v. State Bank of India (2009) 5 Bom CR 227, where the court went on to say that reasonable accommodation formed a part of right to life within the meaning of Article 21 as the disabled also had an equal right to work but the state could not be forced to provide for employment opportunities to the disabled if it lead to undue economic cost or impacted the morale of the fellow employees.
Contents of the Right to Reasonable Accommodation
The judgement did not only declare the right in clear terms, it also explained the contours of the same. The court relied on Jeeja Ghosh v. Union of India (2016) and noted that the 2016 Act marked a realization of the constitutional promise of substantive equality to its citizens, which includes PWDs and the able bodied alike. Substantive equality did not only include non- discrimination, but it also included an active obligation of the state and the society to provide for all the additional support that is a required by PWDs to off-set the impact of their disability.
Noting that the 2016 Act was “fundamentally premised on the recognition that there are many ways to be, none more ‘normal’ or ‘better’ than the other”, the Court issued certain directions to the government on future policy making on disability rights. It identified key concepts that the State must apply while making its policies. It noted that in addition to a norm of inclusion where the institutional structures would adapt their own rules and practices, to prevent exclusion of PWDs, the decision making process should be flexible to answer the individual needs and requirements of every PWD. The Court asserts that this attention to customization sought by the individual highlights the intersectional nature of disability based discrimination and exclusion. Thus, it notes in para 48:
“Disability therefore cannot be truly understood by regarding it as unidimensional. Reasonable accommodation requires the policy makers to comprehend disability in all its dimensions and to design measures which are proportionate to needs, inclusive in their reach and respecting of differences and aspirations. Reasonable accommodation cannot be construed in a way that denies to each disabled person the customization she requires. While assessing the reasonableness of an accommodation, regard must also be had to the benefit that the accommodation can have, not just for the disabled person concerned, but also for other disabled people similarly placed in future.”
Finally, the Court underscored the importance of stakeholder dialogue in the policy making process. Thus, it underscored the need for case to case basis determination in consultation with the disabled individuals. It remarked that “Instead of making assumptions about how the relevant barriers can be tackled, the principle of reasonable accommodation requires dialogue with the individual concerned”.
In final analysis, the Court was attentive to the aspirations of the PWDs to access “the full panoply of constitutional entitlements, as their birthright”. This phenomenon of deepening social rights by accentuating full and faithful implementation of ‘social justice’ legislations or policy programs has been the mainstay of Indian judicial activism. It can be hoped that the policy makers would understand the spirit of this decision, and implement in a manner that affirms the right to full and equal citizenship of PWDs.
Suggested Citation: Prannv Dhawan and Anchal Bhateja, Special Undergraduate Series–Enforcing Disability Rights: the Indian Supreme Court’s Judgment in Vikash Kumar, Int’l J. Const. L. Blog, Mar. 27, 2021, at: http://www.iconnectblog.com/2021/03/special-undergraduate-seriesenforcing-disability-rights-the-indian-supreme-courts-judgment-in-vikash-kumar