Protection from Procedural Lapses as Reasonable Accommodation

by | Mar 28, 2023

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About Husain Aanis Khan and Vaishnavi Chaudhry

Husain Aanis Khan is a lawyer and Research Fellow at Vidhi Centre for Legal Policy. He is also the founding Coordinator of Vidhi Access to Legal Education Fellowship. Husain writes on antidiscrimination law, access to legal education and rights of persons with disabilities. Vaishnavi Chaudhry is a BA, LLB (Hons) student (Class of 2023) at Rajiv Gandhi National University of Law.

One of the principles underpinning the Rights of Persons with Disability Act, 2016 (“the Disability Act”) in India is empowerment of persons with disabilities (PwDs) through their independence.

Not only do PwDs struggle for their independence but they also face the legal consequences of oversights by those meant to be supporting them.

In India the law remains silent on three key questions:

  1. Whether reasonable accommodation could be provided to the person by ignoring a procedural lapse that the person committed while applying for a public sector?
  2. Can reasonable accommodation be provided when a procedural lapse is not committed due to the impairment of a person with disability?
  3. What is the limitation period for a person with disability to claim reasonable accommodation?

In Bhoj Kumari Patel v. State of Chhattisgarh, The Chhattisgarh High Court (CHC), delivered a praiseworthy judgement but did not answer the three questions. Resolving them through the judgement would have established a guide for administrators and other adjudicatory forums to avoid administrative failure. Administrators would have known what to do when similar administrative issues arise in future.

In Bhoj Kumari, the petitioner suffered from 90% visual impairment. She applied for the post of Assistant Professor of Political Science. The application form for the post asked whether her disability exceeded 40% or not. There, she mistakenly wrote ‘no’. Because of this procedural lapse, she was not recommended for the post by the Public Service Commission (PSC). A year later, she wrote to the PSC to enquire if she could rectify the lapse and get recommended for the post, but her request was not considered. She filed a writ petition before the CHC, challenging the inaction of PSC. The CHC held that the petitioner was entitled to be appointed as an Assistant Professor of Political Science under the Blind category since he was 90% visually impaired. This is praiseworthy because the court did ignore the procedural lapse and considered the person eligible to be recommended for the employment.

To arrive at this conclusion, the court relied on the landmark Vikash Kumar vs UPSC (“Vikash Kumar”) delivered by the Supreme Court of India. It discusses the Disability Act in detail. While citing the relevant paragraphs of Vikash Kumar, the Court observed that denying a disabled person the right to be appointed to a post for which they were qualified would defeat the parliamentary intent underpinning the Disability Act, i.e., to empower persons with disabilities.

However, the Court missed an opportunity to answer the three key questions and clarify the scope of the reasonable accommodation law established by Vikash Kumar.

Crucially, the Respondent had a justification for rejecting the candidature of the disabled petitioner: they had expressly advertised that any incorrect statement in the job application form would lead to rejection.

Could the disabled petitioner be granted protection from the rejection under reasonable accommodation law?

Firstly, after reaffirming that non-applicability of principle of reasonable accommodation amounts to discrimination as was held in Vikash Kumar, the CHC could have established that protecting persons with disabilities from the consequences of committing procedural lapses while applying for a job constitutes reasonable accommodation. In fact, even in Jeeja Ghosh v Union of India, the Supreme Court of India recognised the right to reasonable accommodation as a positive right and its enforcement a necessary component for ensuring equality and non-discrimination.

Secondly, CHC could have established conditions on when such reasonable accommodation could be claimed. Third, it could consider applying reasonable accommodation as the norm and its non-applicability an exception.

This demonstrates that legal tools are available for courts to provide reasonable accommodation to PwDs in different administrative issues concerning the rights of PwDs. But the law on reasonable accommodation needs to be further developed to address different administrative issues– one such administrative issue is the commission of a procedural lapse as in Bhoj Khumari.

This case warrants discussion on reasonable accommodation in relation to procedural lapse. The court, while providing a favourable outcome, failed to develop the reasonable accommodation law by leaving the three important questions unanswered.

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