On January 22, 2019, the Supreme Court decided on disability rights in V. Surendra Mohan v. State of Tamil Nadu and Ors. In a shocking decision, the Court ruled that a visual impairment or hearing disability above 50% rendered an otherwise competent candidate unworthy of being a judge.
In brief, the facts of this challenge are as follows. The Tamil Nadu Public Service Commission (TNPSC) advertised certain posts for “civil judges”. This advertisement (notification) stated that candidates with visual/ hearing impairment were eligible, so long as their impairment was between 40-50%. Surendra Mohan, a visually impaired lawyer, was told that he was ineligible for the advertised post. Upon challenging this at the Madras High Court, he was permitted to sit the interview. But the court later ruled that he was ineligible to be a judge, as he suffered a 70% impairment. The Supreme Court endorsed this view on appeal.
In deciding the case, the Court formulated three issues:
(1) Whether the appellant who was suffering with disability of 70% (visual impairing) was eligible to participate in the selection as per notification dated 26.08.2014 of the Tamil Nadu Public Service Commission?
(2) Whether the condition of 40%-50% disability for partially blind and partially deaf categories of disabled persons is a valid condition?
(3) Whether the decision of the State Government vide letter dated 08.08.2014 providing that physically disabled persons that is partially deaf and partially blind to the extent of 40%-50% disability are alone eligible, is in breach of the provisions of 1995 Act ( Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995) and deserves to be set aside?
Its analysis on issue (1) was grounded in fact. The Court explains that since the advertisement clearly mentioned that individuals with more that 40-50% disability would not be eligible for the post, Surendra Mohan was not eligible to participate in the selection process. This assessment satisfies the factual test the Court has to undertake.
Issues (2) and (3), however, raise legal concerns as to the validity of the notification and decision of the Government was correct. It is with the analysis hereunder that my problem lies. The Court appears to reason that since the Act defines a person with disability as being a person with not less than forty percent disability, the threshold is sufficient. This to me is fallacious, for that is merely the threshold for a person to be considered as a “person with disability”, and not sufficient to exclude individuals above this threshold from claiming “partial disability”. The Court notes, rather discouragingly, that:
Partially blind and partially deaf disability of 40%-50% has been pegged to achieve the object of appointing such partially blind and partially deaf physically disabled persons who are able to perform the duties of Civil Judge(Junior Division).
This attempts to break arbitrariness by creating a nexus between the physical requirements of judicial duty, and partial blindness or deafness. While arguments on intelligible differentia and arbitrariness can be advanced to argue unconstitutionality, I propose that this decision runs contrary to international legal rights conferred upon disabled persons, and consequently, is a breach of international obligations.
India has ratified the Convention on the Rights of Persons with Disabilities (“the Convention”), a human rights treaty which governs and protects the rights of persons with disabilities around the world. Article 4 of the Convention lists out general obligations of States Parties. As with any enumeration of obligations within human rights treaties, the Convention moves from the general to the specific, identifying key actors on whom special check must be kept. All public authorities and institutions fall within this category.
Article 5 of the Convention contains the core preserve of the same, creating equality and non-discrimination rights. Article 27 is the more specific Article, focusing on work and employment. We have guidance to help us understand the nature of these obligations in the form of the jurisprudence of the Committee on the Rights of Persons with Disabilities (“the CRPD”), as established by the Optional Protocol to the Treaty, and General Comments published by the same body.
General Comment No. 6 gives clarity on the right of non-discrimination. It explains that the human rights construction of disability is distinct from the medical construction of disability. In the medical approach, an individual is reduced to their disability. The human rights model argues and sustains the fact that disability is merely one layer of a person’s identity. It is this premise on which the right to equality must be granted. Specifically, in paragraph 20, the CRPD explains what discrimination on the basis of disability is – in the fact that it could be on the basis of different disabilities as well. The General Comment then explains the nexus between Article 5 and Article 27, highlighting that disability ought not to be a basis of exclusion from employment opportunities.
In Communication No. 9/2012, the CRPD was faced with an individual who suffered 50 percent physical impairment. This individual appeared for competitive examinations and ranked highly, but was not recruited, owing to limitations of slots/qualifications imposed on open vacancies. In that communication, the CRPD noted that no violation of Article 27 existed, specifically observing that the Council of State had assessed the individual’s application on merit, and his non-fulfillment of additional criterion was not an arbitrary imposition. The State, in that case, Italy, had done enough to “reasonably accommodate” the candidate.
On the contrary, a more guiding Communication is Communication No. 5/2011, which found a violation of Article 5 and Article 27, where the Social Insurance Agency, a public organization discarded the application of an individual with severe visual impairment. The CRPD notes a few important things. First, that States Parties have an obligation to create “reasonable accommodation” in the labour market for persons with disabilities. Second, that although State Parties enjoy a margin of appreciation with this obligation, there is a positive obligation to take steps toward such accommodation. Third, that no arbitrary distinction or artificial classification can be made between persons with disabilities and persons without disabilities in assessing applications.
These three observations are crucial and can be applied to the Supreme Court’s reasoning (or lack thereof) to reveal a clear breach of obligations. The advertisement for posts of “civil judge” arguably indicates that an attempt to make “reasonable accommodation” has been made. However, discarding Surendra Mohan’s application clearly shows that this accommodation was not actually considered. Relying on Communication No.5/2011, there is a requirement to see how the role can be changed to suit the author’s disability – and this is something that has not been done, in light of Surendra Mohan’s heightened visual impairment. A further breach can clearly be seen since the Supreme Court does not reason or examine the merits of creating a distinction between an individual who has a 40%-50% disability and a 70% disability. This falls foul of India’s obligations under the Convention.
State Practice, in fact, indicates the arbitrariness of the distinction for the post of a civil judge. Judge Zak Yacoob sat at the Constitutional Court in South Africa despite being affected by meningitis. Judge David S. Tatel sits on the United States Court of Appeals for the District of Columbia Circuit and Judge David M. Szumowski was a judge for the Superior Court of San Diego County in California, despite being 100% blind. This clearly shows that a distinction on partial and permanent blindness or any spectrum across the visual impairment scale is rather artificial – as it does not prevent an individual from performing their role as a judge.
Unfortunately, since India has not signed the Optional Protocol, the applicant has no further recourse with the CRPD. One can only hope that circumstances change in the future, as at present, the Supreme Court has denied a qualified applicant an opportunity to serve the country, and forgotten about its obligations toward the international community.