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Synopsis

The Supreme Court recently held that visually impaired candidates are eligible to participate in the selection for posts under the judicial service, emphasizing that the right against disability-based discrimination should be recognized as a fundamental right.

The apex court struck down Rule 6A of the Madhya Pradesh Judicial Service (Recruitment and Condition of Service) Rules, 1994, insofar as it excluded them from consideration for appointment.

A bench of Justices J.B. Pardiwala and R. Mahadevan said that a rights-based approach necessitates that PwDs (persons with disabilities) must not face any discrimination in their pursuit of judicial service opportunities. Instead, there must be affirmative action by the State to provide an inclusive framework.

"Now, it is high time that we view the right against disability-based discrimination, as recognised in the RPwD (Rights of Persons with Disabilities) Act 2016, of the same stature as a fundamental right, thereby ensuring that no candidate is denied consideration solely on account of their disability," the bench said.

The court highlighted that the principle of reasonable accommodation, as enshrined in international conventions, established jurisprudence, and the RPwD Act, 2016, mandated that accommodations be provided to PwDs as a prerequisite to assessing their eligibility.

The court also struck down Rule 7 of the Madhya Pradesh Judicial Service Rules, 1994, to the extent it prescribes the additional requirement of either a three-year practice period or securing an aggregate score of 70% in the first attempt, insofar as it applies to PwD candidates.

Accordingly, the impugned rule will be applicable to PwD candidates insofar as it prescribes the educational and other qualifications as eligibility criteria, including the minimum aggregate score of 70% (with relaxation as may be determined, like in the case of SC/ST candidates), but without the requirement that it must be in the first attempt or that they should have three years of practice, the bench said.

The court also directed the authorities concerned in Rajasthan to declare separate cut-off marks and publish a separate merit list for the PwD category at every stage of the examination and proceed with the selection process accordingly.

"Any indirect discrimination that results in the exclusion of PwDs, whether through rigid cut-offs or procedural barriers, must be interfered with in order to uphold substantive equality. The commitment to ensuring equal opportunity necessitates a structured and inclusive approach, where merit is evaluated with due regard to the reasonable accommodations required, thereby fostering judicial appointments that truly reflects the principles of fairness and justice," the bench said.

The apex court's judgment was delivered on a batch of petitions, including a suo motu one, challenging the legality of the Madhya Pradesh Judicial Service Examination (Recruitment and Conditions of Service) Rules, 1994, as amended on June 23, 2023, whereby Rule 6A excluded visually impaired and low-vision candidates from appointment in the judicial service.

One petition sought a mandamus directing the High Court of Rajasthan to publish separately and declare the results and cut-off marks for the persons with benchmark disabilities category for the Rajasthan Judicial Service Examinations at every stage, viz., preliminary, mains, interviews, and final result.

After hearing the counsel for the parties, the bench examined the issues of whether visually impaired candidates can be said to be ‘not suitable’ for judicial service, whether the amendment made in Rule 6A fall foul of the Constitution, whether the proviso to Rule 7 violates the equality doctrine and the principle of reasonable accommodation, whether relaxation can be granted in assessing the suitability of candidates when adequate PwD candidates are not available after selection in their respective category, and whether a separate cut-off is to be maintained and selection conducted accordingly for visually impaired candidates.

The court pointed out that the RPwD Act, 2016, today has acquired the status of a ‘super statute’.

"It can now be said that it is high time that an anti discrimination clause be included in the Constitution with a specific provision that the State shall not discriminate on the grounds of mental or physical disability in line with the principles as stated in the RPwD Act, 2016," the bench said.

The move from a patronizing and paternalistic approach to PwDs, represented by the medical model, to viewing them as members of the community with equal rights has also been reflected in the evolution of international standards relating specifically to disabilities, as well as in efforts to place the rights of PwDs within the category of universal human rights, the court pointed out.

Going by its provisions, the bench said the RPwD Act, 2016, markes a significant legislative shift by expanding the rights of PwDs and broadening the recognized categories of disabilities.

"It ensures equality and non-discrimination, mandates reasonable accommodation, and prohibits barriers to community life, education, employment, and access to justice. It also provides for social security measures, inclusive education, reservations in higher education and employment, and protection from cruelty and exploitation. More importantly, it imposes clear responsibilities on the State and other stakeholders in this regard," the bench said.

Referring to judicial approach and rulings, the court said those underscored the principle that reasonable accommodation is not a discretionary measure but a fundamental right integral to achieving substantive equality for PwDs, forming part of the right to dignity as guaranteed under Article 21.

It pointed out that the 73rd and 74th Amendments of the Constitution made it a constitutional obligation for the State to make provisions for safeguarding the interests of the weaker sections of society, including ‘handicapped and mentally retarded’ individuals.

Further, it is a well-established principle that the State has an obligation to apply the Directive Principles of securing a social order in promotion of the welfare of the people. Article 41 of the Constitution, which is in the nature of a Directive Principle, imposes a duty on the State to make effective provisions, inter alia, for public assistance to disabled persons, the bench said.

Emphasizing that the rights-based model of disability has now become part of the national and normative structure of the anti-discrimination regime in this country, the bench said the impugned rule, based on a medical report, cannot have any place in the evolving disability jurisprudence of the country.

"Such conclusions based merely on a clinical assessment of disability, innocent of the principle of reasonable accommodation, cannot be said to be a fair and proper assessment of the capability of judicial officers with disabilities while participating in the selection to the post of judicial officers," the bench said.

The court also said that once a person has been permitted to pursue a law degree, all other opportunities, whether in the form of practice or appointments and assignments, whether public or private, should automatically make them eligible to participate in the selection process. The principle of legitimate expectation also applies in this case as part of the aspect of non-arbitrariness while furthering the equality doctrine.

The bench also said that the principle of indirect discrimination, previously applied to counter gender-based discrimination, can be applied to this case, where disabled/visually impaired legal practitioners are sought to be equated with their counterparts in the matter of application of certain conditions for participation in the selection of judicial officers.

The bench also said its findings and conclusions were strongly reinforced by the exemplary achievements of distinguished individuals in the legal profession who have demonstrated that visual impairment is no barrier to attaining professional excellence, competing on equal footing, and making significant contributions to the justice delivery system alongside their able-bodied counterparts.

The court finally directed the respective authorities to proceed with the selection process for the appointment of judicial officers in light of this decision and complete it as expeditiously as possible, preferably within three months.