Equality and Disability

The Act of 2016

Section 2(s), "person with disability", means a person with LONG TERM physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others. It is NOT tagged to any percentage.

Section 2(r), "person with benchmark disability", means a person with not less than FORTY PER CENT of a specified disability where the disability has not been defined in measurable terms, or a person with a disability so certified.

Why the distinction decides cases. The reservation provisions, sections 32 and 34, operate for persons with BENCHMARK disabilities. The non-discrimination and accommodation provisions, sections 3 and 2(y), operate for persons with DISABILITY. A candidate who treats the two expressions as synonyms will get the answer wrong.

Section 2(y), reasonable accommodation. Necessary and appropriate MODIFICATION AND ADJUSTMENTS, WITHOUT IMPOSING A DISPROPORTIONATE OR UNDUE BURDEN in a particular case, to ensure to persons with disabilities the enjoyment or exercise of rights EQUALLY WITH OTHERS. Three elements: it is appropriate to the individual; it is bounded by undue burden; and its object is equality of enjoyment, not charity.

Section 3, equality and non-discrimination. (1) The appropriate Government shall ensure that persons with disabilities enjoy the right to equality, life with dignity and respect for integrity EQUALLY WITH OTHERS. (2) It shall take steps to utilise their capacity by providing an appropriate environment. (3) NO PERSON WITH DISABILITY SHALL BE DISCRIMINATED ON THE GROUND OF DISABILITY, UNLESS IT IS SHOWN THAT THE IMPUGNED ACT OR OMISSION IS A PROPORTIONATE MEANS OF ACHIEVING A LEGITIMATE AIM. (4) No person shall be deprived of personal liberty ONLY on the ground of disability. (5) The appropriate Government shall take necessary steps to ensure reasonable accommodation.

Note the structure of section 3(3). It is a proportionality clause written into a statute: discrimination is prohibited, and the defence is that the act or omission is a proportionate means of achieving a legitimate aim, with the BURDEN on the person asserting it. That is the same structure as the Puttaswamy test, and its presence in the statute is what makes the Indian disability code unusually modern.

Section 32, higher education. All Government institutions of higher education and other higher education institutions RECEIVING AID from the Government shall reserve NOT LESS THAN FIVE PER CENT of seats for persons with benchmark disabilities, who shall also be given an UPPER AGE RELAXATION OF FIVE YEARS for admission.

Section 34, employment. Every appropriate Government shall appoint in every Government establishment NOT LESS THAN FOUR PER CENT of the total number of vacancies in the cadre strength in each group of posts for persons with benchmark disabilities, of which ONE PER CENT EACH is reserved for (a) blindness and low vision, (b) deaf and hard of hearing, and (c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy, and ONE PER CENT for (d) and (e), which cover autism, intellectual disability, specific learning disability, mental illness and multiple disabilities.

Section 33 requires the appropriate Government to identify posts for that reservation.

The leading case

In Vikash Kumar v. Union Public Service Commission, AIR 2021 SC 2447, decided on 11 February 2021, Dr D.Y. Chandrachud J. Facts. The appellant, who has WRITER'S CRAMP, a chronic neurological condition, was denied the facility of a scribe in the Civil Services Examination. The Commission's notification allowed a scribe only to blind candidates and to candidates with a locomotor disability or cerebral palsy of not less than forty per cent, that is to persons with a BENCHMARK disability.

Held. The appeal succeeded. A BENCHMARK DISABILITY IS NOT A PRECONDITION TO OBTAINING A SCRIBE. Section 2(s), unlike section 2(r), is NOT TAGGED to the notion of a benchmark disability and is phrased in broad terms; the appellant's condition falls within Entry IV of the Schedule; and to deny the facility of a scribe would negate the rights and entitlements the Act recognises. The Court held and declared that the appellant is entitled to a scribe for the Civil Services Examination and for any other competitive selection conducted under the authority of the government.

On reasonable accommodation, following General Comment 6 of the Committee on the Rights of Persons with Disabilities, the Court held that it is a component of the principle of INCLUSIVE EQUALITY and a SUBSTANTIVE EQUALITY FACILITATOR, so that A FAILURE TO PROVIDE REASONABLE ACCOMMODATION CONSTITUTES DISCRIMINATION; that the obligation is of IMMEDIATE EFFECT; that the duty is INDIVIDUALISED and determinations must be made CASE BY CASE in consultation with the disabled person; and that the principle requires DIALOGUE with the individual rather than assumptions about how barriers can be tackled.

And it issued directions. The Ministry of Social Justice and Empowerment to frame guidelines within three months regulating access to a scribe for persons with disability within section 2(s) where the nature of the disability is a barrier to writing an examination, with norms for certification by a competent medical authority; and sensitisation programmes in educational institutions and professional spheres.

Why it matters beyond disability. It imports into Indian equality law the idea that equality can require DIFFERENT treatment tailored to an individual, not merely a different rule for a class. Reservation is a class remedy; reasonable accommodation is an individual one, and the two are not the same instrument.

The method, and its relation to the rest of the module

The disability method is the same move as Anuj Garg, one step further. Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1; AIR 2008 SC 663, held that legislation framed as PROTECTION invites STRICT SCRUTINY, that parens patriae will not sustain a total exclusion, that the proper course is to MAKE THE WORKPLACE SAFE rather than to keep the excluded class out of it, and that a law presuming incapacity is grounded in STEREOTYPE. Disability law says the same thing about barriers: the remedy for an inaccessible building is a ramp, not a rule that disabled persons need not apply.

And section 3(3) tells you where the burden lies. The person defending the exclusion must show that it is a PROPORTIONATE MEANS OF ACHIEVING A LEGITIMATE AIM, which is exactly the Puttaswamy structure. A defence of administrative inconvenience will not answer it.

The limit is in the definition. Section 2(y) excludes an accommodation that would impose a DISPROPORTIONATE OR UNDUE BURDEN IN A PARTICULAR CASE. That is the counterweight, and a good answer states it, because a duty with no limit would be a duty nobody could perform.

A worked example

A State public service commission refuses a candidate with a specific learning disability certified at twenty-five per cent the use of a scribe and extra time, saying the Act gives those facilities only to persons with benchmark disabilities. Advise.

First, which definition applies? Section 2(r), benchmark disability, governs the RESERVATION provisions in sections 32 and 34. It does not govern the accommodation provisions. Section 2(s), person with disability, is not tagged to a percentage.

Second, the direct authority. Vikash Kumar holds that a benchmark disability is NOT a precondition to obtaining a scribe, and that section 2(s) is phrased in broad terms.

Third, the framework. Section 2(y) defines reasonable accommodation and section 3(5) obliges the appropriate Government to take necessary steps to ensure it. On Vikash Kumar the failure to provide it IS discrimination, the obligation is of immediate effect, and the determination must be individualised and made in consultation with the candidate.

Fourth, the defence. Section 3(3) allows the commission to show that its act or omission is a PROPORTIONATE MEANS OF ACHIEVING A LEGITIMATE AIM. Preventing misuse is a legitimate aim; a blanket exclusion of everyone below forty per cent is not a proportionate means of achieving it, and Vikash Kumar pointed to certification by a competent medical authority as the proportionate answer.

Fifth, the constitutional claims. Article 14, both on classification, since the forty per cent line has no nexus with the object of enabling a candidate to write, and on arbitrariness; and article 21, for dignity and autonomy on Puttaswamy.

Sixth, what the candidate cannot claim. A reserved seat under section 32 or a reserved post under section 34, both of which are keyed to a benchmark disability.

Distinctions

What it does NOT mean

It does not mean disability is a ground under article 15. It is not; the five grounds are closed, and the claim runs under articles 14 and 21 and under the statute.

It does not mean every disabled person is entitled to a quota. Sections 32 and 34 are keyed to BENCHMARK disability under section 2(r).

It does not mean accommodation is unlimited. Section 2(y) excludes what would impose a disproportionate or undue burden in a particular case.

It does not mean the State can plead inconvenience. Section 3(3) requires it to show that the act or omission is a proportionate means of achieving a legitimate aim.

And it does not mean reasonable accommodation is a form of reservation. Reservation distributes a fixed share to a class; accommodation adjusts a rule for an individual, after dialogue with that individual, and a failure to do it is discrimination.

Quick revision

Constitution: disability is NOT a ground in article 15(1); the claim rests on articles 14, 16, 21 with Puttaswamy, 21A, and the directives in articles 41 (public assistance in cases of disablement) and 46.

Act of 2016: section 2(s), person with disability, long term impairment which in interaction with barriers hinders full and effective participation, no percentage; section 2(r), person with benchmark disability, not less than forty per cent or so certified; section 2(y), reasonable accommodation, necessary and appropriate modification and adjustments WITHOUT IMPOSING A DISPROPORTIONATE OR UNDUE BURDEN in a particular case, to ensure enjoyment or exercise of rights EQUALLY WITH OTHERS; section 3(3), no discrimination on the ground of disability UNLESS the act or omission is shown to be a PROPORTIONATE MEANS OF ACHIEVING A LEGITIMATE AIM; section 3(4), no deprivation of liberty only on that ground; section 3(5), duty to ensure accommodation; section 32, five per cent of seats in Government and Government-aided higher education, with five years' age relaxation; section 33, identification of posts; section 34, four per cent of vacancies in every Government establishment, one per cent each to blindness and low vision, deaf and hard of hearing, and locomotor disability, and one per cent to the remaining categories.

Vikash Kumar, 11 February 2021: a benchmark disability is NOT a precondition to a scribe; section 2(s) is not tagged to a percentage; reasonable accommodation is a component of INCLUSIVE EQUALITY and a substantive equality facilitator, so a FAILURE TO PROVIDE IT CONSTITUTES DISCRIMINATION; the obligation is of immediate effect, the duty individualised, and determinations require dialogue with the person; guidelines directed within three months, with certification by a competent medical authority; sensitisation directed.

Test yourself

1. Is disability a prohibited ground under article 15? No. The five grounds are religion, race, caste, sex and place of birth, and the list is closed. A disability claim runs under articles 14 and 21, under article 16 in public employment, and under the Act of 2016.

2. Distinguish sections 2(s) and 2(r). Section 2(s) defines a person with disability as one with a long term impairment which, in interaction with barriers, hinders full and effective participation, without any percentage. Section 2(r) defines a person with benchmark disability as one with not less than forty per cent of a specified disability or so certified. Reservation is keyed to 2(r); non-discrimination and accommodation to 2(s).

3. Define reasonable accommodation as the Act defines it. Necessary and appropriate modification and adjustments, without imposing a disproportionate or undue burden in a particular case, to ensure to persons with disabilities the enjoyment or exercise of rights equally with others.

4. What is the structure of section 3(3)? A prohibition of discrimination on the ground of disability, subject to a defence that the impugned act or omission is a PROPORTIONATE MEANS OF ACHIEVING A LEGITIMATE AIM, which the person relying on it must show.

5. State the two propositions in Vikash Kumar. That a benchmark disability is not a precondition to obtaining a scribe, section 2(s) being untagged to any percentage; and that reasonable accommodation is a component of inclusive equality and a substantive equality facilitator, so that a failure to provide it constitutes discrimination, the duty being of immediate effect, individualised, and requiring dialogue with the person concerned.

6. What do sections 32 and 34 reserve? Section 32, not less than five per cent of seats in all Government and Government-aided institutions of higher education for persons with benchmark disabilities, with a five-year upper age relaxation. Section 34, not less than four per cent of the vacancies in the cadre strength of each group of posts in every Government establishment, one per cent each for blindness and low vision, for the deaf and hard of hearing, and for locomotor disability, and one per cent for the remaining specified categories.

7. How does reasonable accommodation differ from reservation? Reservation is a class remedy distributing a fixed share to a defined class. Accommodation is an individual remedy, adjusting a rule to the needs of a particular person after dialogue with them, bounded only by disproportionate or undue burden, and its refusal is itself discrimination.