In a significant judgment delivered in February 2021, a three-judge bench of the Indian Supreme Court made a seminal contribution in advancing disability rights jurisprudence in India and globally. At issue in Vikash Kumar v. Union Public Service Commission was the refusal of the Union Public Service Commission, the organization tasked with conducting India’s much-coveted civil service examinations, to offer the petitioner a scribe [writer] for his exam. The petitioner is affected by writer’s cramp, a writing disorder, and asked for a scribe for this reason.
The Supreme Court held that the petitioner was entitled to the grant of a scribe as a matter of right, as this constituted a reasonable accommodation [RA]. Equally importantly, the Court used the judgment as an opportunity to offer significant and far-reaching observations on several key themes that lie at the heart of the disability rights movement. Some such observations particularly repay close study, as they are transferable to human rights claims that may be brought by other minority groups in different jurisdictions. The following blogs, part of the series ‘The Development of Disability Rights in the Indian Supreme Court’ explore the different aspects of the judgment.
We start with a framing blog by the OxHRH team, setting out the importance of the Vikash Kumar decision and the scope of the blog series.
In the second blog, Gautam Bhatia analyses the argument of misuse and why the Indian Supreme Court (rightfully) rejects this argument. Argument of misuse is a common pushback against claims by minority groups that the existing way of doing things be changed to meet their needs. To illustrate, the Transgender Persons (Protection of Rights) Bill, 2019, requires a certificate from a district magistrate declaring the holder to be transgender. This negation of the principle of self-determination is justified on the ground that this screening mechanism is necessary to prevent the possibility of misusing one’s self-determination as a transgender person. The argument as to misuse is a species of a broader class of arguments that the departure from the status quo will cause havoc. The Indian Government has deployed this argument to push back against the recognition of a fundamental right to same sex marriage. The Vikash Court’s thoughtful assessment of the argument, its call for am empirical basis to substantiate this argument and its willingness to lay bare the unstated premises underpinning the argument are crucial against this backdrop.
In the third blog, Matthew S Smith and Michael Ashley Stein evaluate the importance of dignity. Here again, the Court’s call for the use of language that is empowering and dignity-affirming is an important development. It enables more persons with disabilities to fully enjoy their right to live in the world. The language in which we couch the discourse on the rights of the disabled is a necessary first step.
The fourth blog by Sanjay Jain explores the government’s policy making role in light of the Supreme Court judgment. The Court’s emphasis on wide-ranging consultation, on foregrounding disabled voices in the policymaking process and its articulation of the goals that such exercises must be bounded by are crucial observations. Although the decision relied heavily on the importance of inclusive policy making, an integral aspect of the ‘nothing about us without us’ mantra, there has been no policy formation in this regard.
In the fifth blog, Amita Dhanda examines the individual-centric nature of RA, analytical steps involved in applying the RA framework and the limiting principle for the grant of RA. The first two components of this theme are crucial as they make the individual the basic unit of human rights protection. The Court’s adoption of this conception is interesting, inasmuch as it raises a whole range of questions as to how its vision can be realized when it comes in conflict with majoritarian goals. The third component is significant in that the Court unabashedly recognizes the price we must pay as a society to truly practice meaningful inclusion and respect for diversity.
In the last blog of the series, Anna Lawson brings focus back on the need to move towards an empowering disability discourse in the justice system. The Court’s enunciation of the roadmap that must be followed to make the professed ideals of the law a lived reality for India’s persons with disabilities is critical.