An article in the Hindu[1] rightly comments that the decision in V. Surendra Mohan v. Union of India[2] was one of the darkest moments in India’s judicial history. While it has been more than seven months to the decision, the Supreme Court is yet to take note of this glaring mistake and atone for the same, even after the judgment was bashed from the entire legal fraternity. In this case, the Supreme Court upheld the State’s policy of restricting the eligibility of blind and deaf candidates for the reserved posts of civil judge to those with 40-50% of their respective disabilities. It held that this is “reasonable, just and fair” and that it does now not contravene any of the provisions of the Disabilities Act 1995 or any other statutory provision.
The judgment states, “a judicial officer has to possess reasonable limits of the faculties of hearing, sight and speech in order to hear cases and write judgments”, however it provides no rationale behind the limit being capped to 50% of the disability. With this judgment, the Supreme Court has shattered the emerging hope through Rajive Raturi v. the Union of India[3] which issued sweeping reforms to make the country’s infrastructure more accessible to the blind.
While it is not argued that the decision with regards to eligibility lies solely with the appointing authority, but it needs to be asked as to how the judiciary at the local level or the Hon’ble Supreme Court ended up at such a percentage. At large, how did the Supreme Court derive upon the conclusions on the abilities and more importantly, inabilities of the visually impaired populace of the country? It needs to be asked as to what trust and faith shall the citizens of the country about the robustness and inclusivity of the judicial system that excludes individuals relying on its own ignorance. An Article in the Oxford Human Rights Hub also criticized the judgment by stating[4]:
Oblivious to the privilege of the luxurious assistance of stenographers and clerks that judges are entitled to, and also conveniently failing to notice how invariably, judgements are dictated to stenographers in open court, the Court lamented the inability of blind persons to maintain confidentiality while writing judgements, as they would require the assistance of scribes. All in all, this was a classic case of ex-post facto rationalisation, where judges, having pre-determined the exclusion of blind persons, merely rationalised this with ableist reasoning.
The present jurisprudence that a totally blind person cannot thrive as a judge stands contrary to innumerable examples of successful individuals who have been blind, be it judges or civil service officers. Countries like United States of America, South Africa to even Pakistan have seen judges who have been visually impaired and have contributed equally, if not more than their counterparts to the judiciary of their respective countries. In 2018, Yousaf Saleem became the first ever blind judge in Pakistan. He was a Gold Medallist of the University of the Punjab in 2014 and topped the written judicial exam in 2017. While he was initially rejected due to the selection criteria after the interview, the Supreme Court of Pakistan intervened to prevent the injustice by stating that denying him appointment on the basis of his disability would be against fundamental rights. Moreover, his sister Saima Saleem, a gold medallist from Kinnaird College, was the first blind civil services officer of Pakistan and ranked sixth in Civil Services exam held in 2007. Unfortunately, the stinging examples from our neighbour were not good enough to prove the credentials for our Supreme Court, nor were the examples of Judge T. Chakkavarthy of Tamil Nadu and Judge Brahmananda Sharma of Rajasthan who have conveniently and effectively carried out their duties.[5] Rahul Bajaj, a Rhodes scholar and a Post Graduate student of University of Oxford accurately summed up the challenge before the country today[6]:
“An institutional display of pure and simple discrimination dressed up as legal reasoning is unacceptable. I earnestly believe that how we choose to respond to this institutional display of pure and simple discrimination dressed up as legal reasoning will be reflective of what kind of a society we hope to be.”
The very least the Supreme Court can do to undo the gross injustice is to go out of its way and apologise for the ignominy and deprivation of dignity. Ironically, the Supreme Court needs to ask itself, who really is blind to the truth?
[1] Rahul Bajaj, ‘Capable even if disabled’ (The Hindu, January 29 2019) < https://www.thehindu.com/opinion/op-ed/capable-even-if-disabled/article26114481.ece> accessed on 2 September 2019.
[2] (2019) 4 SCC 237.
[3] (2018) 2 SCC 413.
[4] Sanjay S. Jain and Saranya Mishra, “Non-abyssal and ableist Indian Supreme Court: The Abyssal Exclusion of Persons with disabilities” (Oxford Human Rights Hub, 3 July 2019) < https://ohrh.law.ox.ac.uk/non-abyssal-and-ableist-indian-supreme-court-the-abyssal-exclusion-of-persons-with-disabilities/> accessed on 2 September 2019.
[5] Ashok Kini, “SC has backtracked on its ruling on ‘level playing field’ for Visually Impaired”, (The Wire, 24 January 2019) <https://thewire.in/law/sc-has-backtracked-on-its-ruling-on-level-playing-field-for-visually-impaired> accessed on 2 September 2019.
[6] Rahul Bajaj, ‘Capable even if disabled’ (The Hindu, January 29 2019) < https://www.thehindu.com/opinion/op-ed/capable-even-if-disabled/article26114481.ece> accessed on 2 September 2019.
This article is authored by Ritesh Patnaik, student of B.A. LL.B (Hons.) at National Law University Delhi.
Also Read – Article 124, Constitution of India – Interpretation and Evolution
