Development of Disability Rights in the Indian Supreme Court

by | Nov 29, 2021

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Development of Disability Rights in the Indian Supreme Court is a series of blog posts by the Oxford Human Rights Hub, in collaboration with the National Law School of India Review, that conducts a comprehensive evaluation of this issue through the lens of the Indian Supreme Court’s judgment in Vikash Kumar v. Union Public Service Commission and Ors.

In Vikash Kumar, the Indian Supreme Court made a seminal contribution in advancing the disability rights jurisprudence in India and globally. At issue was the refusal of the Union Public Service Commission, the organisation that conducts civil service examinations, to offer the petitioner, who is affected by a writing disorder, a scribe [writer] for his exam. The Court held that this refusal was violative of the Rights of Persons with Disabilities Act, 2016 (‘RPwD Act’).

This series will consist of five thematic posts by disability rights experts, each of which will analyse one critical facet of the judgment. These themes are reasonable accommodation, the argument as to misuse, the use of empowering language, bridging the implementation gap and participative decision-making. What ties these themes together, we believe, is the Court’s emphasis on viewing each disabled body as being endowed with rights and worthy of dignity. Viewed through this lens, what emerges from the judgment is a blueprint for creating the RPwD generation, like the ADA Generation in the United States, named after the Americans with Disabilities Act of 1990. The Court describes the RPwD generation as ‘A generation of disabled people in India which regards as its birth right access to the full panoply of constitutional entitlements, robust statutory rights geared to meet their unique needs and conducive societal conditions needed for them to flourish and to truly become co-equal participants in all facets of life’ [paragraph 81]. We will briefly describe these themes below.

Reasonable accommodation: nature and scope

Arguably the judgment’s most significant contribution lies in how it understands the principle of reasonable accommodation and applies it to the case at hand. The Court holds that the physical, social, economic and psychological conditions in society operate as ‘restraining factors’ which, when coupled with the pre-existing restraints posed by disability, create a situation in which the disabled ‘bear an unequal share of societal burdens’. The RPwD Act, states the Court, recognises that this state of affairs can be counteracted by reimagining the ‘social environment in which [the disabled] live, work and cohabit with others’ [para 44].

Argument of misuse:

When minority groups demand that the existing way of doing things be changed to meet their needs, a common pushback that they encounter is that accepting their demand will give rise to the possibility of the system being gamed by bad apples and make the new regime difficult to administer. In this case, the Union of India argued that granting a scribe to a candidate whose disability is only 6% will result in other similarly placed candidates with insignificant disabilities being granted a scribe, thus eroding the purity of a highly competitive examination process [paragraph 12(iv)]. The Court offers three responses to the argument.

First, the apprehension of misuse, while valid, cannot be a legally justified ground to deprive persons with disabilities who need a scribe of their statutory entitlement [paragraph 62]. Second, no empirical data/objective basis has been furnished to substantiate the claim that the right to access a scribe had in fact been misused [paragraph 62]. Finally, this argument is coloured by the stereotype that ‘persons with disabilities [are] incompetent and incapable of success absent access to untoward assistance’. [paragraph 63].

Other crucial thematic contributions:

First, the Court notes that insensitive language offends the human dignity of the disabled [paragraph 68]. Second, the Court calls on the competent Ministry in the Government of India to take concerted measures to ensure that the fruits of the RPwD Act actually reach the intended beneficiaries, instead of merely remaining confined to paper [paragraph 72]. Finally, it holds that policies impacting the disabled must be based on participative decision-making and give the disabled a meaningful voice [paragraph 77]. A focus on all these three themes evidences the Court’s desire to help create the societal conditions needed for the disabled to flourish.

In this series, we hope that the posts to follow will evaluate how the Court’s observations fit within existing academic and judicial thinking on the above five thematic areas and analyse what the judgment means for rights-based claims that might be brought by other minority groups.

 

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