Differently Abled Candidates: More Unequal Than Others? (Part-II)

first_imgColumnsDifferently Abled Candidates: More Unequal Than Others? (Part-II) Shashank Pandey15 July 2020 5:06 AMShare This – xIn the first part, we identified a person’s autonomy and substantive equality within the contours of human dignity principle. In this piece, we will see how this substantive equality is actually achieved vis-à-vis disabled people. Reasonable accommodation According to T Degener, disability should be considered for changing the environmental or social life in order to grant…Your free access to Live Law has expiredTo read the article, get a premium account.Your Subscription Supports Independent JournalismSubscription starts from ₹ 599+GST (For 6 Months)View PlansPremium account gives you:Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.Subscribe NowAlready a subscriber?LoginIn the first part, we identified a person’s autonomy and substantive equality within the contours of human dignity principle. In this piece, we will see how this substantive equality is actually achieved vis-à-vis disabled people. Reasonable accommodation According to T Degener, disability should be considered for changing the environmental or social life in order to grant genuine access and inclusions. He used the term “reasonable accommodation” to denote such actions. Disabled people do not constitutes a homogeneous group. Presence of different disabilities requires different measures. Thus, the promotion of equality or reasonable accommodation can be achieved when an individual is put at the centre i.e. the different needs are recognized. The principle of reasonable accommodation, derived from substantive equality, is an individualised concept as opposed to affirmative actions which are general in nature. Reasonable accommodation is a legal mechanism to dismantle the social barriers, stereotypes and prejudices to achieve this substantive equality and equality of opportunity. This reasonable accommodation lies at the heart of the civil rights advancement in the context of disability. The reasonable accommodation casts a positive duty upon the state to remove such barriers and hence, provide a corresponding right of disabled people. The non-homogenous character of disabled group demands different treatment and each individual deserves a varied degree of accommodation. Reasonable accommodation has been recognised, though not directly, in Indian common law jurisprudence. The 1995 Act provided provisions asking the states to take necessary steps to facilitate education, employment and accessibility of services. Article 21A of the Constitution is framed in a universal language implying that disabled people have the right to study in “traditional” schools with able bodied people i.e. inclusive education. Thus, the Act casts an obligation upon the state. This right to inclusive education was recognised by the US Supreme Court in Brown v Board of Education. Failure on the part of the state to provide inclusive education was held to be ‘inherently unequal” thus violative of equality principle. In Social Jurists, A Civil Rights Group v Govt of NCT of Delhi, the Delhi High court ruled that it was obligatory on the state to ensure accessible education. Similarly in Ranjit Kumar Rajak v SBI, the petitioner was declared to be medically unfit for employment as an officer in SBI despite being able to perform the required duties after his renal transplant. SBI contended that it would have to bear his monthly medical expenses which would be substantially high. The Bombay HC rejected SBI’s argument and ordered it to appoint the petitioner as well as provide him “reasonable accommodation” in the form of his medical expenses. The court went ahead to hold that “reasonable accommodation” could be read into Article 21. The above discussion shows how the court traced “reasonable accommodation” to Article 21 which encompasses human dignity. A broad reading of the National Federation of Blind v Union Public Service Commission would also reveal that the primary duty of the state was to provide structural changes that help the physically handicapped to become self-supporting active members of the society. Social model of disability The Supreme Court used a medical model of disability in Surendra Mohan. Feldblum explains the medical model as, “impairment being the cause of experience and disadvantage of the PwD and impairment as the focus of the intervention. Person’s impairment/limitation is the root cause for any disadvantage which can only be treated.” People beyond 50% disability were considered to be disadvantaged and incapable because of the degree of their impairment. The social model of disability shifts focus from impairment to the “disability” itself. The term “disability” is used to connote the disabling social, environmental and attitudinal barriers rather than the lack of ability. According to the social model, the disabled people don’t face disadvantage because of their impairment but are disabled by society and its economic, social or legal structure. Society creates disability by accepting an idealised norm and by measuring deviation from this ideal norm. Social model of disability advocates for accommodation of societal barriers and eradication of ideal norms which are inherently discriminatory to the disabled. The stereotypes and prejudices carried by the society along with the failure to provide an accessible environment constitute the component of this disability. Thus, the notion of discrimination is key in this model. The “disability” can be removed only when we opt for the social model as it is a tool to achieve substantive equality. Concluding remarks It can therefore be argued that according to the social model, loss of opportunity resulting from failure to implement reasonable accommodation which affects the person’s autonomy or freedom to make certain choices is what constitutes disability. Additionally, the failure to reasonably accommodate disabled persons results in failure of substantive equality and thus, violates human dignity. Therefore when J. Chandrachud says that “…human dignity has no exception”, he is right and thus a natural corollary is that “social model of disability has no exception”. The eligibility threshold of 50% took away the autonomy of individuals to be a judge. The limit was discriminatory on two folds; firstly, it was against the principle of substantive equality and, secondly, the eligibility discriminated between disabled people without any intelligible differentia, thus, ignoring the reasonable accommodation principle. The tales of successful disabled judges are already well documented. Richard H. Bernstein ,the first visually impaired judge of Michigan, provides a vision into the life of a visually impaired judge and argues that people with disability make for good judges. His argument should not be looked at as binary but through a lens of diversity which ensures a greater empathetic bench as diversity is a guarantee for the principle of equality. As rightly pointed out, Surendra Mohan was the lowest point in India’s disability movement which affected millions across the country. It relied on the medical model of disability because it failed to take note of the human dignity principle, never considered the1995 Act as an anti-discrimination legislation, and opted for medical model of disability. However, if any legislation is to be understood as anti-discrimination, it has to be based on the assumption that discrimination is wrongful and a major problem to disabled people. The court not only failed to overlook its anti-discriminatory nature but also overlooked the social model of disability. The social model clearly didn’t form part of the 1995 Act (if the ‘person with disability’ is to be interpreted literally). However, other facets discussed in the article were part of the 1995 Act or Constitutional obligation that the court chose to ignore. The court also chose to ignore the Convention of Rights of Person with Disability (CRPD) which casted an obligation on Indian state to realise it in word and spirit. In Suchita Srivastava & Anr. v Chandigarh Administration SC observed that India has ratified the Convention on the Rights of Persons with Disabilities (CRPD) on October 1, 2007 and thus, the contents of the same are binding on our legal system. It is quite ironic that the SC relied on rules made under the RPD Act to interpret the intention of rule making authority for prescribing the 50% criteria but ignored the RPD Act for all other purposes [see Surendra Mohan para 32]. While upholding the 50% cap, SC was being too shortsighted in its approach. This is visible from the ramification of the ruling i.e. Persons above 50% will be ineligible and people below 40% won’t qualify as “Person with Disability” (under 1995 Act). Thus, only a miniscule population falling within this 10% bracket can only hold a position of a civil judge. In this fashion, the j udiciary was itself a victim of the stereotypes and prejudices against disabled people SC not just set a bad law that was to be followed by lower courts thus, making them reluctant to develop the disability jurisprudence [most recently: See Delhi HC decision in Bhavya Nain v High Court of Delhi], but also stripped many lawyers/law students (including me) of their human dignity. Lastly, I would like to cite an instance for the courts to ponder. When Universal franchise was being discussed in the Constituent Assembly, it was proposed that suffrage should be made contingent on literacy. However, our Assembly never countenanced the idea of limiting suffrage. Rather it believed that instead of limiting the suffrage, the challenge was to resolve the problems posed by universal suffrage. They acknowledged the seriousness of the problems. (emphasis intended)(The author is a visually disabled 5th year law student at Dr Ram Manohar Lohiya National Law University, Lucknow. The author may be reached at [email protected]) Next Storylast_img read more

No Seriousness By Govts. To Implement Directions To Insulate Police Machinery From Political/executive Interference: Supreme Court in Param Bir Singh Order

first_imgTop StoriesNo Seriousness By Govts. To Implement Directions To Insulate Police Machinery From Political/executive Interference: Supreme Court in Param Bir Singh Order Srishti Ojha24 March 2021 6:10 AMShare This – xSupreme Court has on Wednesday observed that its 2006 judgement with regards to police reforms in the Prakash Singh’s case is only a ‘mantra recited periodically’, wherever the occasion so suits. The Court has stated that there has been no seriousness by all concerned to ever implement the directions enshrined in the judgment.A division Bench led by Justice SK Kaul observed that directions…Your free access to Live Law has expiredTo read the article, get a premium account.Your Subscription Supports Independent JournalismSubscription starts from ₹ 599+GST (For 6 Months)View PlansPremium account gives you:Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.Subscribe NowAlready a subscriber?LoginSupreme Court has on Wednesday observed that its 2006 judgement with regards to police reforms in the Prakash Singh’s case is only a ‘mantra recited periodically’, wherever the occasion so suits. The Court has stated that there has been no seriousness by all concerned to ever implement the directions enshrined in the judgment.A division Bench led by Justice SK Kaul observed that directions issued in the case of Prakash Singh vs Union of India, were based on the principle of insulating police machinery from political or executive interference to make it more efficient and to strengthen the rule of law. The Court added that it appears that none want to give up, inter alia, the control of police transfers or implement measures that would insulate the police machinery from performing its role without any uncalled for interference.In Prakash Singh’s case, besides directing all the states to set up Police Establishment Boards, the Supreme Court had fixed tenure for DGPs, and recommended constitution of State Security Commission and Police Complaints Authorities at state and district levels, to inquire into allegations of serious misconduct and abuse of power by police personnel.The Apex Court today made these observations in its order passed in the plea filed by Former Mumbai Police chief Param Bir Singh seeking CBI investigation in the alleged corrupt malpractices of Anil Deshmukh, Home Minister of Government of Maharashtra. The observations were made in response to Senior Advocate Mukul Rohatgi’s reliance on Prakash Singh’s case, to submit that the Court had said that for effecting senior police transfers without completing 2 years is serious issue and can be done only if he is facing probe.”No State has affected police reforms. No body wants to do it, because no body wants to let go of the power” Justice Kaul remarked during the hearing. The Bench also stated that issue isn’t about the state, it is that the police reforms haven’t taken place despite judgement in Prakash Singhs’s case. Whenever some particular episode erupts people suddenly remember Prakash Singh’s judgement.The Court has today refused to entertain plea by Mumbai Police chief Param Bir Singh seeking CBI investigation in the alleged corrupt malpractices of Maharashtra Home Minister Anil Deshmukh, asking the petitioner to approach the High Court. The Bench stated that the matter is serious and will record it too. But Article 226 has wide powers, and it has the power to hear petitioner’s request of investigation by investigating agency.The Bench has observed that If investigation by an independent agency is being sought for by the petitioner, that is a relief which can also be granted by the High Court. “There have also been subsequent developments in the matter as has been noticed in terms of the report of Ms. Rashmi Shukla, Commissioner, State Intelligence Department. The High Court has the requisite authority to address the same.” the Bench has noted.Next Storylast_img read more

SuperSport Launches New World Cup Shows for DStv, GOtv Subscribers

first_imgDStv and GOtv subscribers will have access to new top-notch shows and more gateways to the glamour of the ongoing FIFA World Cup on SuperSport.The new shows will ensure that DStv and GOtv subscribers do not miss a single action on or off the pitch.Lifestyle magazine show, From Russia with Love will showcase sights and sounds of the World Cup in Russia and transport it back home to Africa. The show, which runs on weekends, will be anchored by Minnie Dlamini, Thato Moeng alongside Nigeria’s Charles Anazodo.There will also be daily one-hour news special on weekdays at 6 am on SuperSport Blitz. The latest fixtures, updates from the Nigerian camp and new stories will be provided by Julia Stuart, Crystal Arnold, Lucas Radebe alongside former Russian league stars, Matthew Booth and Stanton Fredericks. Also on Saturdays at 9am on SuperSport 3, Mozez Praiz will host FanFest, the show that gives fans the voice. Subscribers can also look forward for a 360-degree breakdown of the on-field action on Master Plan, a show that focuses on strategic and tactical analysis. It has former Northern Ireland World Cup player, Andy Townsend, in the driving seat. The broadcast experience is completed by Insights, which is set against the backdrop of different destinations. It is hosted by former Manchester United star, Phil Neville. The show will feature in-depth chats with ex-footballers and focus on tactics, injuries and goals.SuperSport will also deliver the first-ever live-streamed soccer show on Facebook. Called On The Ball, the fan-focused show will tap into the drama of the FIFA World Cup and look at the lighter side of the game.Share this:FacebookRedditTwitterPrintPinterestEmailWhatsAppSkypeLinkedInTumblrPocketTelegramlast_img read more