Here's a case of discrimination, pure and simple


The recent Supreme Court ruling in the case of V Surendra Mohan Vs the Union of India, is perhaps one of the darkest moments of India’s disability rights movement. The ruling in question, which was given by a two-member bench while hearing an appeal from a petitioner, upheld the 50% disability limit in hearing and vision disability for the post of a judicial officer. The petitioner was initially held ineligible for the post of a civil judge because of a 70% disability.

The judgment stated that "A judicial officer in a State has to possess reasonable limit of the faculties of hearing, sight and speech in order to hear cases and write judgments and, therefore, stipulating a limit of 50% disability in hearing impairment or visual impairment as a condition to be eligible for the post is a legitimate restriction i.e. fair, logical and reasonable."

Members of the disability community have spoken up against judgment, deemed as grossly unfair and discriminatory by them. Several disability rights activists are ready to challenge it, demanding a larger bench to reverse the judgment.

Rahul Bajaj, a Rhodes Scholar and postgraduate law student at the University of Oxford, who is one among the disability rights activists planning to protest the judgment, calls it “An institutional display of pure and simple discrimination dressed up as legal reasoning."

He further wrote in a blog article that the order is "emblematic of the lack of awareness about the capabilities of the disabilities that is prevalent in our society, is based on unfounded assumptions and stereotypes and has the potential of undoing the significant gains that our disability rights jurisprudence has yielded in recent years."

In this article, I would like to make a case for why people who are visually impaired and hearing impaired have the right to be judges, and deserve not to be discriminated against by the courts themselves.

Firstly, in the above-mentioned case, the judges seem to have ignored all the examples of successful judges around the world who are visually impaired or hearing impaired. From former South African Constitutional Court judge Zak Yacoob, who has repudiated the notion that one needs to be sighted to assess a witness’s demeanour as being nonsensical, to U.S. Court of Appeals DC Circuit judge David S. Tatel, who thinks that it is neither fair nor accurate to impose low expectations on what blind lawyers can do. There is also former San Diego County Court judge David Szumowski, who has described the view that a blind person lacks the wherewithal to become a judge as an unfair characterisation, and Yousaf Saleem who, last year, became Pakistan’s first blind civil judge.

Secondly, in delivering this judgment, the court has merely proved its ignorance about the capabilities of persons who are disabled. However, ignorance simply cannot be an excuse in 2019. It is simply unacceptable to condemn disabled legal professionals, possessing the intellectual wherewithal to be a judge, to the status of outcasts only because the judges delivering the judgment in this case appear simply not to have bothered to notice the competence of the millions of disabled people who inhabit this world.

As Judge Szumowski asks Indian judges, "if you went blind while on the bench, and were able to efficiently discharge your responsibility before this, how would you feel if told that you can no longer continue as a judge, even if you are able to perform your functions with some amount of retraining and adaptive tech?"

Thirdly, the Supreme Court, in delivering this judgment, seem to have completely ignored reasonable accommodations, which law mandates to be provided to persons with disabilities. The court itself has, on several occasions, ruled in favour of persons with disability in the case of reasonable accommodations being denied them. Does that same court have the right to deny reasonable accommodations when it is its own accessibility that is in question? How can we say that we are truly committed to ensuring that the constitutional promise of equality is fully realised, if we lack the ability to even pay the price of making reasonable accommodations?

Fourthly, how, some contend, can a visually impaired or hearing impaired person be reasonably expected to thrive as a judge without being excessively dependent and inefficient? However, as the Supreme Court itself noted in 2017, "A lawyer can be just as effective in a wheelchair, as long as she has access to the courtroom and the legal library, as well as to whatever other places and material or equipment that are necessary for her to do her job well." Thus, the court ruling is against the tenets of its own former judgments. In fact, the judicial system has previously taken a progressive stand on several issues.

This judgment is not merely of academic interest to me. On my path to where I stand today, a postgraduate student, I have faced several instances where naysayers have cynically told me about how certain activities would be too difficult for me as a visually impaired person. If I had listened to all those cynical voices, I am certain I would not have become who I am now. I have come too far and achieved many things, to be held back by other people’s assessment of my abilities or lack thereof. That is exactly what the supreme court is attempting to do, dictate who persons who are visually impaired can become, without recognizing our abilities or those of the judges who stand before them as examples.

No, I neither have the wish, nor the training, to become a part of our judiciary. However, when my Supreme Court tells me that my blindness makes me intrinsically incapable of becoming a judicial officer, when it takes upon itself the power to stamp a badge of incompetence on thousands like me about whom it knows nothing, its declaration cuts to the core of my confidence about the fairness and robustness of our judicial system. No, I may not want to be a judge, but I do 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 SC bench consisted of Justice Ashok Bhushan and Justice K M Joseph.

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