India’s ratification of the United Nations Convention on Rights of Persons with Disabilities (“CRPD”) marks a significant step in the development of Indian disability law. The Convention provides a rights-based approach through a social model of defining disability as contrasted with the medical model as prescribed under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995. The present PWD Act is woefully inadequate in recognising rights as enunciated under the CRPD. The Act does not even mention basic principles such as “legal capacity” and “reasonable accommodation” which are central to the CRPD. Naturally, the ratification of the Convention increased the need to develop a new domestic law that aligned with the provisions of the CRPD. However, the Rights of Persons with Disabilities Bill, 2011 which is purported to be drafted in compliance with the CRPD is still under review. Meanwhile, courts have responded to the ratification of the CRPD by incorporating various principles under the CRPD into domestic enforcement of rights of persons with disabilities. The principle of “reasonable accommodation” has thus been interpreted by the Court in light of the CRPD.
According to Article 2 of the CRPD, “reasonable accommodation” means “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”.
In Ranjit Kumar Rajak v. State Bank of India, the Supreme Court considered the case of an applicant to the post of a probationary office in the State Bank of India. He was declared medically unfit due to him undergoing a renal transplant in 2004 and therefore, he was denied the post. He approached the Bombay High Court challenging his dismissal basing his challenge on medical reports indicating that he was fit to perform his duties.
The Bank contended, among other things, that by the governing rules, the Bank was required to reimburse the medical expenses incurred by Bank officers and if it employed Rajak, such expenses would be too high to borne by the Bank. The Court discussed provisions of the CRPD at length. The Court cited Article 27 of the Convention which recognises the right to work and employment and obligates State Parties to take appropriate steps detailed under the provision. Further, the court also referred to the definition of “reasonable accommodation” under Article 2 interpreted “undue burden” with reference to the paper of the Ad Hoc Committee on the Convention. Recognising that there was no law based on the CRPD, the Court incorporated “reasonable accommodation” under Articles 14, 16 and Article 21 of the Constitution and held,
“The law is now well settled that though the United Nations Convention may not have been enacted into the Municipal Law, as long as the convention is not in conflict with the Municipal Law and can be read into Article 2 thus making it enforceable. Therefore, in the absence of any conflict it is possible to read the test of reasonable accommodation in employment contracts…
…Reasonable accommodation, if read into Article 21, based on the U.N Protocol, would not be in conflict with Municipal law. It would give added life and dimension to the ever expanding concept of life and its true enjoyment.”
Following this, the Court found no evidence of undue financial burden on the Bank in providing reasonable accommodation to Rajak and directed the Bank to appoint him for the post.
In Municipal Corporation of Gr. of Mumbai v. Mr. Shrirang Anandrao Jadhav, the Jadhav’s services as a bus driver was terminated as he was unable to perform his duties due to injuries sustained during his work. He challenged the termination before the Labour Court which held that the termination was against Section 47 of the PWD Act which required the employer to provide alternative employment. The Industrial Court dismissed the appeal against Labour Court Order. The Corporation filed a writ petition before the Bombay High Court contending that since Jadhav’s disability was merely 12%, he was not a “person with disability” under Section 2(t) of the Act and therefore Section 47 was not applicable to his situation. The Court quoted Articles 1, 4, 5 and 27 of the CRPD and followed Suchitra Srivastava in declaring that the provisions of the instrument was binding on the legal system. Applying these provisions, the Court interpreted “disability” under Section 47 to be broader than the medical model definition under Section 2(t) of the Act. In this way, the Court incorporated the principle of “reasonable accommodation” to Section 47 and broadened the scope of protection under the provision.
Recently, in National Association of the Deaf v. Union of India, the Delhi High Court heard a public interest petition complaining of inadequate sign language interpreters in public services. The Court held “The United Nations Convention on the Rights of persons with disabilities adopted by the General Assembly and ratified by the Govt. of India on 1st October, 2007 also provides for taking appropriate measures to provide forms of live assistance and intermediaries including guides, readers and professional Sign Language Interpreters to facilitate accessibility to buildings and other facilities open to the public. Needless to state that all the said rights are composite part of life enshrined in Article 21 of the Constitution of India.” Following this, it issued detailed directions for making sign language interpreters available in public services.
In certain other decisions, even though the Courts have not expressly cited the provisions of the CRPD, they have delivered judgments that are progressive and fall in line with the principles under the Convention. In Syed Bashir-ud-Din v Nazir Ahmed Shah and Bhagwan Dass and Anr v. Punjab State Electricity Board , the Supreme Court interpreted provisions of reasonable accommodation under disabilities legislations in a broad manner and prevented unfair termination of employment of persons with disabilities. It remains to be seen how courts will develop on this principle after the introduction of the new law.
(Thanks to Sameer Boray, NALSAR University, for research contribution towards this post)