The Judiciary and Persons with Disabilities

In one line

Because disability appears nowhere in Part III, the Indian courts have reached it through article 14's arbitrariness limb and article 21's dignity, and the doctrine they have built is one of reasonable accommodation rather than of prohibited grounds.

The constitutional starting point

Disability is not a listed ground. Article 15(1) names religion, race, caste, sex and place of birth; article 16(2) adds descent and residence. Neither names disability, so a person with a disability cannot say that they were discriminated against on a prohibited ground.

Part IV names it once. Article 41 requires the State, within the limits of its economic capacity and development, to make effective provision for securing public assistance in cases of unemployment, old age, sickness and disablement.

So the route had to be article 14 and article 21, and the shape of the jurisprudence follows from that. A claim under article 14 without a listed ground is a claim of arbitrariness, which asks whether the State was entitled to act as it did, and a claim under article 21 is a claim about dignity. Neither asks the comparative question, which is why the Indian disability cases are about what was not provided rather than about how somebody else was treated.

The four contributions

Access as a component of dignity. The courts have held that the inaccessibility of public buildings, transport and services engages article 21, because a person who cannot enter a building cannot participate, and participation is part of living with dignity. This is the social model reasoning arrived at through article 21 rather than through a statute.

Reasonable accommodation as a legal duty. The obligation to make an adjustment, in an examination, in employment or in a public service, has been treated as required by article 14, on the reasoning that applying an identical rule to a person whose circumstances differ materially is itself arbitrary. The denial of accommodation is the discrimination, which is article 2 of the disability convention arrived at domestically.

Reservation and its enforcement. The statutory reservation in posts and in higher education has been enforced, including as to the identification of posts, the computation of vacancies and the carrying forward of unfilled ones, on the footing that a reservation that exists on paper and is not operated is no reservation at all.

And dignity in treatment. Directions on the manner in which a person with a disability is dealt with by a carrier, an institution or a public authority have been grounded on article 21, treating humiliating treatment as a violation rather than as a discourtesy.

The decision on treatment and dignity

The case. Jeeja Ghosh v. Union of India, (2016) 7 SCC 761.