According to the latest official records, there are 2.68 crore persons with disabilities in India constituting more than two percent of the population. However, since the last census was conducted more than a decade ago, the actual numbers are likely to far exceed the official figures. Persons with disabilities in the country form an extremely vulnerable minority despite constitutional guarantees and statutory protections contained in the Rights of Persons with Disabilities Act, 2016, or its predecessor, the Persons with Disabilities Act, 1995, among other enactments. Because our society, and as its extension, the legal and political system, and even the nomenclature in use, are designed based on the ‘able-bodied’ normal, persons with disabilities often encounter discrimination and exclusion on a daily basis. As the ‘sentinel on the qui vive’, the Supreme Court has often stepped in to protect the rights of persons with disabilities, sometimes against the government itself. In this article, we will look back at the notable judgements and orders on disability rights delivered by the top court in 2022.
The Supreme Court in January, while hearing a miscellaneous application arising out of a 2017 judgement on disability rights, ordered the University Grants Commission to finalise guidelines for the inspection of educational institutions to ensure the implementation of the Rights of Persons with Disabilities Act, 2016 and commence the inspection work proactively.
The order read, “A draft working framework for guidelines has been placed on the record. The status report indicates that visiting teams are being finalized to formulate modalities to carry out inspection of educational institutions to ensure implementation of the provisions of the RPWD Act and a Committee of experts would be set up for this purpose. The guidelines are expected to be finalised shortly, after which inspections are envisaged. We direct the UGC to ensure that the guidelines are finalised before the next date of hearing. Work on the inspections should also commence. A status report should be filed of the progress made. We request the UGC to be proactive.”
Subsequently, in March, the commission informed the top court that it had published draft guidelines to ensure access for persons with disabilities in higher educational institutions, on which suggestions had been solicited from stakeholders.
Case: Disabled Rights Group v. Union of India
Citation: 2022 LiveLaw (SC) 50
Date: January 10, 2022
Coram: Justices D.Y. Chandrachud (as he was then) and A.S. Bopanna
Noting that “the need for and importance for setting up special facilities which cater to the creation of a safe and barrier-free environment for recording the evidence of vulnerable witnesses has been engaging the attention of this court over the last two decades”, the Supreme Court in January gave an expanded meaning to the phrase ‘vulnerable witness’ contained in Clause 3 of the vulnerable witness deposition centres (VWDC) scheme formulated by the Delhi High Court so as to include categories of persons other than child witnesses, such as witnesses suffering from mental illness as defined under Section 2(s) of the Mental Healthcare Act of 2017 read with Section 118 of the Indian Evidence act and any speech or hearing impaired individual or a person suffering from any other disability who is considered to be a vulnerable witness by the competent court.
Further, all High Courts were directed to adopt and notify a vulnerable witness deposition (VWDC) scheme within a period of two months and set up permanent VWDC committees. A slew of other directions were also issued.
Case: Smruti Tukaram Badade v. The State of Maharashtra
Citation: 2022 LiveLaw (SC) 80
Date: January 11, 2022
Coram: Justices D.Y. Chandrachud (as he was then) and Surya Kant
“The advancement of medical field over a period of time has been enormous,” the Supreme Court noted in March, as it directed the Indian Railways to constitute a committee to revisit its decision disqualifying persons with a history of Lasik surgery for the post of constables in the Railway Protection Force (RPF). The apex court was hearing an appeal filed by candidates who were held unfit for service for having undergone the surgery in certain categories of work not requiring fine technical work or the operation of heavy machinery.
In a subsequent order, the Bench recorded that the Railway Board constituted a technical committee comprising three ophthalmologists, pursuant to the report of which, Lasik surgery would henceforth be allowed subject to the stipulated conditions with respect to employment in the certain category of work in the Railways.
Case: Dalbir v. Union of India
Citation: Civil Appeal Nos. 1270-71/2022
Date: February 2, 2022
Coram: Justices Sanjay Kishan Kaul and M.M. Sundresh
In March, the Supreme Court granted relief to a medical student who suffered a grave injury due to a vehicular accident causing his left hand to be amputated above the elbow, by allowing him to enrol in a postgraduate course in Preventive and Social Medicine/Community Medicine. Despite qualifying in the NEET-PG Entrance Examination 2021-2022 in the ‘General – Persons with Disability’ category and being offered admission at Maulana Azad Medical College, New Delhi in the all-India quota seat reserved for PwD category in MD (Preventive & Social Medicine/Community Medicine), the petitioner was denied admission. Rejecting the argument of the National Medical Commission that his disability might stand in the way of performing his duties as a doctor, the Bench, while allowing the petition, observed that the particular course the petitioner had opted for would not involve any interaction between him and patients, and that “he met with an accident when he was in his final year and yet he successfully completed the course”.
The order read, “In the peculiar facts of this case, we are of the view that the petitioner is entitled for admission to post graduate course in MD (Preventive & Social Medicine)/Community Medicine for the Academic Year 2021- 2022.” At the same time, the Bench cautioned, “This order shall not be treated as a precedent.”
Case: Chinmoy Parthasarathi Bhattacharya v. Union of India
Citation: Writ Petition (Civil) No. 69/2022
Date: March 8, 2022
Coram: Justices L. Nageswara Rao and B.R. Gavai
While upholding a Kerala High Court judgement refusing to strike down a Central Board of Indirect Taxes and Customs (CBIC) circular withdrawing inter-Commissionerate transfers, the Supreme Court in March urged the state to, while formulating a policy for its employees, give due consideration to, inter alia, the right of the disabled to live with dignity. One of the grounds of challenge was that the impugned circular did not take into account the needs of disabled persons in the state’s workforce. In this regard, the Court noted that the Rights of Persons with Disabilities Act 2016 is a statutory mandate for recognising the principle of reasonable accommodation for the disabled members of society.
Justice Chandrachud wrote, “The formulation of a policy therefore, must take into account the mandate which Parliament imposes as an intrinsic element of the right of the disabled to live with dignity…In considering whether any modification of the policy is necessary, they must bear in mind the need for a proportional relationship between the objects of the policy and the means which are adopted to implement it. Hence while we uphold the judgment of the Division Bench of the Kerala High Court, we leave it open to the respondents to revisit the policy to accommodate posting of spouses, the needs of the disabled and compassionate grounds.”
Case: SK Naushad Rahaman v. Union of India
Citation: 2022 LiveLaw (SC) 266
Date: March 10, 2022
Coram: Justices D.Y. Chandrachud (as he was then) and Vikram Nath
“Art is non-conformist in character,” the Supreme Court observed in April, as it directed the Film and Television Institute of India (FTII) to induct individuals with colour blindness in all courses offered by them by making accommodation for such disability in their curriculum. This could be achieved by excluding colour grading modules in its diploma and film editing course or by making it an elective course, the top court said, endorsing the majority view of a seven-member committee appointed by the court to examine the issue. “The conclusion shows a clear recommendation that all individuals will be allowed for all courses at FTII. Any limitation can be overcome,” Justice Sanjay Kishan Kaul insisted, while hearing the plea of a candidate whose admission in a film editing course was cancelled by FTII on the basis of an examination that revealed his colour blindness.
The Bench also instructed other schools guided by similar curriculum to ‘adhere to the discussion on this subject which forms the conclusion of the Committee’.
Case: Ashutosh Kumar v. The Film and Television Institute of India
Citation: 2022 LiveLaw (SC) 429
Date: April 12, 2022
Coram: Justices Sanjay Kishan Kaul and M.M. Sundresh
The Supreme Court in May initiated contempt proceedings against the Kerala government for not disbursing compensation to the victims of the Endosulfan tragedy who were left with physical and mental disabilities due to the prolonged use of the pesticide in Kerala. The chief secretary of the state was directed to conduct monthly meetings to undertake the process of identification of the victims, ensuring that compensation is paid, and take steps to ensure provision of medical facilities.
The order read, “A team of officials from the Health and Revenue departments has been constituted to visit the homes of 3704 victims to whom compensation is yet to be provided. Of these victims, 102 are found to be bedridden, 326 to be mentally disabled, 201 to be physically disabled, 119 to be afflicted with cancer while 2966 fall in the residual category. The Government of Kerala has done virtually nothing for five years. Besides the fact that the delay is appalling, the inaction is in breach of the orders of this court…The inordinate delay by the State Government in compensating the persons affected by the use of Endosulfan not only reflects its failure to comply with the order of this Court but also further compounds the violation of the fundamental rights of such persons. The failure to redress the infringement of their fundamental rights becomes more egregious with each passing day.”
Case: Baiju K.G. v. Dr. V.P. Joy
Citation: 2022 LiveLaw (SC) 517
Date: May 13, 2022
Coram: Justices D.Y. Chandrachud (as he was then) and Surya Kant
“A proficient advocate must be physically fit,” the Supreme Court observed in July, as it enhanced the quantum of compensation granted to an advocate who suffered hundred percent permanent disability due to an accident.
The judgement read, “A judicial notice can be taken of the fact that for a proficient advocate the person must be physically fit as he is required to move frequently to attend the professional work reaching from one Court to other, and for movements to complete other professional commitments…The capacity of the claimant being an advocate cannot be equated with other practicing advocate having no deformity in the same profession. The claimant is required to make extraordinary efforts to attend the proceedings in the Court and to come up to the expectations of the client. The disablement suffered to the claimant is for whole life and in the said fact, in our considered view, the future loss of earning calculated by the High Court only for 10 years is not justified.”
Case: Abhimanyu Partap Singh v. Namita Sekhon
Citation: 2022 LiveLaw (SC) 569
Date: July 6, 2022
Coram: Justices Indira Banerjee and J.K. Maheshwari
In a setback for disability rights, in August, the Supreme Court set aside a 2019 order by the Allahabad High Court striking down the decision of the Uttar Pradesh government to disqualify persons with locomotor disability from applying for the posts of sweepers. The State Government had circulated a government order identifying the posts which can be manned by such suitable disabled candidates, on the strength of which, the applications of the appellants, being persons with locomotor disability, for the post of safai karmis were rejected. The High Court held that all categories of disabled persons were entitled to avail reservation up to three percent and found the government order to be ultra vires to the Constitution.
The apex court took objection to this observation that three percent of posts in each cadre without the identification of the posts was to be reserved for persons with disabilities, blindness or low vision, hearing impairment, and locomotor disability. It clarified that the three percent reservation was to be in an establishment and not in all cadres of an establishment irrespective of the nature of the job. The identification of the posts and the category of the disabled candidates who could be appointed against the posts reserved, the court held, was a power bestowed on the appropriate government, and could not be interfered with unless such reservation was found to be arbitrary or irrational. “Since the posts of safai karmis are not identified to be filled up from amongst the candidates having locomotor disability, the appellant could not be appointed against such category of post, even though they have appeared for cycling test or for interview”, Justice Hemant Gupta wrote, while disposing off the appeal.
Case: Ajay Kumar Pandey v. State of Uttar Pradesh
Citation: Civil Appeal No. 4811/2022
Date: August 1, 2022
Coram: Justices Hemant Gupta and Vikram Nath
In August, the Supreme Court held that persons with disabilities should not be forced to forfeit seniority for opting to be posted at or near a place of their convenience pursuant to a beneficial circular issued by the Rajasthan government. While hearing the plea of a teacher with physical disability whose seniority was downgraded following a transfer to his home district as per his request, the apex court observed that persons with physical disabilities routinely faced difficulties and hindrances in terms of mobility, which is why the government circular allowed them to choose the place of their posting where assistance may be readily available. “The benefit which has been given to the disabled through the circular/government order cannot be taken away by subjecting the exercise of the right to avail of the benefit on such terms and conditions, as would render the benefit otiose,” the Bench held.
Justice Indira Banerjee wrote, “Human rights are rights inherent in civilized society, from the very inception of civilization, even though such rights may have been identified and enumerated in international instruments such as the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on 10th December 1948, or other international conventions and instruments including United Nations Convention on the Rights of Persons with Disability. Furthermore, the disabled are entitled to the fundamental right of equality enshrined in Articles 14 to 16 of the Constitution of India, the fundamental freedoms guaranteed under Article 19 including the right to carry out any occupation, profession, the right to life under Article 21, which has now been interpreted to mean the right to live with dignity, which has to be interpreted liberally in relation to the disabled.”
Case: Net Ram Yadav v. State of Rajasthan
Citation: 2022 LiveLaw (SC) 684
Date: August 11, 2022
Coram: Justices Indira Banerjee and J.K. Maheshwari
While hearing an appeal against a Himachal Pradesh High Court judgement, the Supreme Court was compelled to issue broad guidelines on judgement writing after it found the impugned judgement incomprehensible. The guidelines included instructions on how to make judgements more accessible to persons from all sections of society including persons with disability.
Justice D.Y. Chandrachud wrote, “On the note of accessibility, the importance of making judgments accessible to persons from all sections of society, especially persons with disability needs emphasis. All judicial institutions must ensure that the judgments and orders being published by them do not carry improperly placed watermarks as they end up making the documents inaccessible for persons with visual disability who use screen readers to access them. On the same note, courts and tribunals must also ensure that the version of the judgments and orders uploaded is accessible and signed using digital signatures. They should not be scanned versions of printed copies. The practice of printing and scanning documents is a futile and time-consuming process which does not serve any purpose. The practice should be eradicated from the litigation process as it tends to make documents as well as the process inaccessible for an entire gamut of citizens.”
Case: State Bank of India v. Ajay Kumar Sood
Citation: 2022 LiveLaw (SC) 710
Date: August 16, 2022
Coram: Justices D.Y. Chandrachud (as he was then) and A.S. Bopanna
In September, the Supreme Court quashed a judgement of the Delhi High Court ordering a medical examination to reassess the disability of a workman injured in the course of his work nine years ago and setting aside a compensation award based on such medical examination. Holding that the workman could not be deprived of compensation after the passage of nine years, the apex court held, “At the relevant time, the employer did not make any application before the Commissioner, Employees’ Compensation to constitute a Medical Board and the injured be examined by the Medical Board. The employer ought to have made such a request before the Commissioner, Employees’ Compensation at the earliest opportunity.”
Case: Suresh Paswan v. KLA Construction Technologies Private Limited
Citation: Civil Appeal No. 6523/2022
Date: September 16, 2022
Coram: Justices M.R. Shah and Krishna Murari
While hearing a petition filed by a person with disability appearing for a State Bank of India examination, the Supreme Court in December directed the bank to dispense with the policy of allowing only candidates with benchmark disabilities to engage a scribe.
The order read, “We clarify that the second respondent shall not insist on the requirement of a bench mark disability within the meaning of the Rights of Persons with Disabilities Act 2016 for the facility of a scribe having due regard to the judgment of this Court in Vikas Kumar v. Union Public Service Commission and Others, (2021) 5 SCC 370.”
Case: Gulshan Kumar v. Institute of Banking Personnel Selection
Citation: Writ Petition (Civil) No. 1018/2022
Date: December 15, 2022
Coram: Chief Justice D.Y. Chandrachud and Justice P.S. Narasimha
While hearing a plea challenging the stringent conditions imposed by CLAT consortium on candidates with disabilities intending to avail scribes, the Supreme Court, three days before the December 18 CLAT examination, cautioned that no such disabled candidate should be denied access to the ensuing examination and that “all necessary facilities by way of reasonable accommodation should be provided having due regard to the provisions of the Rights of Persons with Disabilities Act 2016 and the judgment of this Court in Vikas Kumar v. Union Public Service Commission and Others, (2021) 5 SCC 370.”
The order read, “The first respondent shall, by the next date of listing, place an updated status report on affidavit in regard to the subject matter of the controversy in these proceedings including the number of disabled candidates who applied at the ensuing CLAT, and the facilities extended to them.”
Case: Arnab Roy v. Consortium of National Law Universities
Citation: Writ Petition (Civil) No. 1109/2022
Date: December 15, 2022
Coram: Chief Justice D.Y. Chandrachud and Justice P.S. Narasimha
