Sae Gaidhane

Source: New York City Civil Rights History Page

Abstract: This piece critiques the jurisprudence concerning the right of non-discrimination in promotion under The Rights of Persons with Disabilities Act, 2016. It problematizes the continued reliance on the medical model of disability, the use of narrow and anachronistic understanding of efficiency, and artificial differentiation done by the court between the duty of non-discrimination on the entry-level and promotion level. Through this critique, the piece argues for a recalibrated standard of review for Section 20(2) claims under the RPwD Act, 2016, grounded in Fredman’s fourfold model of inclusive equality.

Introduction 

Article 20 of The Rights of Persons with Disabilities Act (hereafter “2016 Act”) imposes two main obligations on the government with regard to its duty of non-discrimination in employment. First, it mandates the duty of reasonable accommodation and the creation of a barrier-free and conducive environment. Second, it explicitly prohibits the denial of promotion merely on the ground of disability. This provision marks a significant departure from Section 47 of The Persons with Disabilities Act, 1995 (hereafter “1995 Act”), which lacked an explicit obligation requiring the state to provide reasonable accommodation as a general principle under its duty of non-discrimination in employment. Read together, these two sub-sections of Section 20 of the 2016 Act reflect a strong legislative intent to not merely secure access to employment but also the right to get opportunities for career progression. The Supreme Court has also recognised that the right to equality in employment encompasses opportunities for advancement.

However, the effective realisation of this right has been hindered by the court’s reading of these provisions, supported by the assumptions they have employed. While countering these assumptions, the article explores how Fredman’s fourfold model of equality can serve as a standard of review under Section 20 (2) of the 2016 Act. This framework was adopted by the court in Jane Kaushik v. Union of India as part of the Indian jurisprudence. This piece critically examines three assumptions and seeks to deconstruct them. Firstly, it problematizes the use of the minimum medical standard test as a basis to determine the eligibility for promotion, drawing on a decision of a two-member bench of the Administrative Tribunal. It does so by drawing on the dimension of “accommodating difference and structural change.” Secondly, it argues that the artificial differential, done by the Bombay High Court, between the duty of non-discrimination on the entry-level and promotion level is essentially opposed to the legislative intent of the act. It argues the same with the help of the dimension of “redressing disadvantage” and “addressing stigma, stereotyping and humiliation”. Lastly, it contends that consideration of efficacy, as taken by both the Supreme Court and High Courts, is not only based on some problematic assumptions but also overlooks the economic benefits of fairness, which can boost overall organizational efficiency. This argument draws on the participative dimension of the fourfold model of equality. The article will focus on the operationalisation of this framework under Articles 14, 15, 19, and 21 of the Constitution of India, referring to relevant case laws. 

Continuance of the Medical Model of Disability 

In the case of G.K. Soti v Union of India¹, the applicant, G.K. Soti, was a Group ‘C’ employee who qualified for the written examination for promotion to the Group ‘B’ post of Assistant Commercial Manager (ACM). However, during the required medical examination, he was declared medically “unfit” due to defective vision caused by color blindness. The Court held in this case that it is not the role of courts or tribunals to decide the health parameters required for specific jobs. It is entirely the responsibility of the administration to stipulate the medical and physical standards required for holding various posts within the organization. 

In this case, the two-member bench of the Tribunal established a causal link between the applicant’s color blindness and his inability to fulfill the mandatory medical and safety standards required for promotion to the ACM post. This conclusion bypasses the crucial middle step of assessing the feasibility of reasonable accommodation. It takes the fact of the disability as the only causative factor for the institutional impairment the person is facing.  The causal link so established by the court in this judgment has the explicit acceptance of the medical model of disability. The person is supposed to pass some test to qualify for a certain level of requisite “safety and security” and “efficiency” measures. Thus, it is assumed that, on failure to qualify for such a test, any deprivation that is subsequently experienced by people with disabilities lies within them and their limitations. Herein, the barriers for a disabled person are deemed to have originated in the individual themselves. However, this perspective overlooks that the root cause of an individual’s inability to pass the test stems from the structural organisation of the society, which remains inflexible to accommodate their disability. 

As Lawson puts it, the true conception of equality eschews identical treatment, where it results in disadvantage, and instead requires acknowledgement of differences with consequently different treatment levels. Firstly, this focus on only minimum medical standards ignores the fact that all these tests have inherent faults like nonrepresentative norms, inexperienced test takers, improper and/or inadequate alterations to standardization processes, and inadequately qualified examiners. It might even be the case that there is no correlation between the eligibility criteria for promotion and the petitioner’s actual ability to perform their work, even if they fail to meet the prescribed standards².

Secondly, this approach overlooks the substantive equality requirement of reasonable accommodation, focusing instead on enforcing a uniform standard for everyone. This concern with having an inflexible uniform scale for judging competence has severely harmed the rights of people with disabilities as employees.  There is a fundamental connection between the fulfillment of positive rights of people with disabilities and reasonable accommodation. Reasonable accommodation is based on the fundamental notion that equality includes the duty to remedy systematic discrimination. In the case of Vikash Kumar vs. Union Public Service Commission & Ors., the Supreme Court stated in clear terms that “…  for a person with disability, the constitutionally guaranteed fundamental rights to equality, the six freedoms and the right to life under Article 21 will ring hollow if they are not given this additional support that helps make these rights real and meaningful for them.”

This duty correlates with the fourth dimension of the framework, which is “accommodating difference and structural change.” The move away from the medical model of disability puts a duty on the courts to ensure that the medical and physical standards required for holding various posts within the organization are recalibrated accordingly. The social model of disability distinguishes “impairment, the physical condition” from the “personal experience of being disabled.” It acknowledges that the experience of being disabled takes place in a “certain place or context (institutional fact).” For example, the fact that a person is blind does not, in itself, justify the conclusion that they should be unable to navigate their college campus. To evaluate the standard of equality between the disabled and non-disabled students on the campus, it is extremely important to take into account the “taken-for-granted” privileges of the non-disabled persons. In reality, it is the campus that does not have the requisite provision for blind students, as it is designed with a particular type of body in mind. If the state does not take the onus of these costs, they are ultimately to be borne by the very people disadvantaged by the system. 

Herein, as the court in Vikas Kumar held, the assessment of undue burden must be an objective test. Reasonable accommodation cannot be relegated to the status of secondary rights merely because they require additional resources. As Henry Shue states, both positive and negative rights give rise to both positive and negative duties. To achieve the ideal of equality, both of them have to be equally fulfilled by the state. Even in the enforcement of negative rights, like the right against discrimination, institutional changes and resources are required. Similarly, the fulfillment of positive rights requires resource expenditure from the state. The Bombay High Court has similarly held that the state is not absolved from the duty of reasonable accommodation merely due to the fact that costs are involved, provided the costs do not impose undue hardship. 

Artificial Differentiation Between the Duty of Non-discrimination 

The court in the judgment of Shri Shyamkumar S/o. Pandurang Wankhede vs The Union of India held that the legislative intent behind Section 20(2) of the 2016 Act was to have the “aspect of promotion” on a “different pedestal” than termination of service. This segment seeks to explore the legislative intent behind the act and its effects on Section 20 (2) of the 2016 Act. 

The short title of the act states that the act seeks to give effect to the principles of the United Nations Convention on the Rights of Persons with Disabilities, which includes the requirement of full and effective participation, dignity, inclusion in society, and equality of opportunity. The Supreme Court has held that any interpretation that “advances these objects of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyzes the purpose of the Act.” These principles are essentially linked to the constitutional right of dignity guaranteed under Article 14 of the Constitution.

Here, the artificial differential made by the court between the duty of non-discrimination at the entry level and the promotion level is fundamentally an embodiment of the paternalistic ideology of the court. The welfare model sees disability as a problem to which the state responds with pity. That is, the state responds with “charitable care as it deems fit.” Therefore, it is the state that has the agency to decide what should or should not be the trajectory and extent of so-called help that is to be given to these people. It, in turn, “disempowers” the agency of the individual to decide their fate. It decides that non-discrimination is only required at the level of entry into the job, but is not required at the level of further promotion. Thus, theorists like Jacobus ten Broek envisage true emancipation as “emancipation of domination of the welfare state.” However, as Mohit, Pillai, and Rungta argue, “the functional framework continues to dominate law-making in a latent manner when it determines what people should be eligible for to have access to rights and full participation.” 

The Supreme Court has held that beneficial legislation must be read expansively in favour of the beneficiary class. I argue that differentiation made by the courts is against the interests of people with disabilities on two counts:

Firstly, it takes away the autonomy of choice of the disabled persons. The conception of autonomy of choice is directly linked to ideas of equality of opportunity and dignity as envisaged by the 2016 Act and the Constitution of India, respectively. I argue that there cannot be a differential legislative intent between preventing discrimination at the entry level and ensuring non-discrimination in promotions, as both are essential to preserving the autonomy of choice for individuals. Anderson links the idea of the autonomy of choice for disabled persons to Sen’s idea of the capability approach. This idea of capability is directly connected with “substantive freedom,” which is having the actual capability to do things that an individual values. It moves away from the welfarist understanding, founded on the idea of just the provision of basic goods, to one that focuses on the extent to which individuals can use these primary goods to generate valuable states of being and doing. It recognizes that paternalistic agencies can often misunderstand what individuals truly value when they claim to do welfare for them. Thus, it recognizes that there has to be “democratizing of the very process of achieving equality”. That is, the true adjudication of what level of resources is needed for an individual to live a good life has to lie with the individual. 

Thus, the capability approach is linked to the idea of achieving the end goal of dignity and equality of opportunity for all. The right of disabled persons to receive promotions based on seniority further allocates general resources, giving them the freedom to convert these resources into capabilities as they see fit. Herein, the state has the duty not to discriminate on either level. It is neither the place of the state nor the court to give its definition of what kind of life an individual should live. The operationalisation of the capability dimension can be done through the dimension of “redressing disadvantage.” That is, I argue that the substantive equality reading of Article 14 supports Fredman’s articulation of disadvantage, “as a deprivation of genuine opportunities to pursue one’s own valued choice,” through an expansive understanding of indirect discrimination. Thus, the court in this judgment could not have concluded that the legislative intent of the act only gives protection to non-discrimination on the entry-level positions. 

Secondly, the problem with the paternalistic policy is that it is not clear to what extent these policies are transparent and subject to public scrutiny. To exemplify this point, in this judgment, the court has not used any metrics or data to conclude that the safety and security of other personnel are affected by the petitioner’s inability to fulfill the medical category required for promotion. The absence of such reasoning, in turn, reinforces a presumption of incompetence. In the case of Vasantha vs Union of India, the court held that an action would be subject to judicial review when discrimination actually “reinforces a negative and untrue stereotype of them.” The “redressing stigma, stereotyping, and humiliation” dimension speaks about this recognition aspect of equality. It advocates for rejection of policies and judgments that generate feelings of inferiority as to their status in the community. 

Fairness as a Constitutive Element of Efficiency 

The judgment of the Supreme Court in Union of India v. Devendra Kumar Pant, though given on Section 47 of the 1995 Act, has been cited in subsequent cases after the 2016 Act came into effect (including Shri Shyamkumar cited above). The court held in this case that, on considerations of efficiency, a certain candidate can be denied promotion if they are unable to meet a certain medical standard. This takes us back to the classical economic debate of fairness vs. efficiency. Such a debate artificially separates the consideration of fairness (the distribution of the hypothetical pie) from the consideration of efficiency (the size of the hypothetical pie), to pit one against the other. It is to be noted that this is primarily based on the assumption that disability of a person hampers the supposed efficiency when compared to a non-disabled person. Before making this assumption, the court, as noted before, has not taken into account the conception of reasonable accommodation. The state has a duty to ascertain why the petitioner cannot fulfill the responsibility of a certain job and what provisions can be made to ensure the accommodation of the person. Thereafter, it is the functional competence of the employee that has to be taken into account. But, even accepting the court’s efficiency criterion on its own terms, the empirical record does not support the conclusion that disability is an efficiency-reducing characteristic.  

As Sonia argues, “there are many ways to be,” and each has a “unique contribution” that they can make. In this section, I seek to explore how the inculcation of diversity through promotion facilitates the accomplishment of functions of both efficiency and fairness. I suggest that fairness can influence all the activities that can make the pie grow. I take two case scenarios to explain this, using the post of CRPF as an example:

In the first case, we assume that the maximization of the contribution of an employee is society’s desired aim. I argue, building on the argument of Lee Fennell, that fair distribution and fair methods of distribution may be a required step toward achieving the maximum contribution of the employees. 

Firstly, while considering the supposed efficacy of a person for a post of CRPF, it is important to assess how they will help develop and implement accessibility methods to ensure that people with disabilities have equal access to the police force as others. Individuals with disabilities express lower satisfaction with law enforcement services than the general population, and most law enforcement jurisdictions frequently lack appropriate interaction with people with disabilities. This has been observed to not improve even with training, leaving individuals unable to fully appreciate their rights. Increased representation matters as it helps to develop confidence and overcome trust problems that individuals with disabilities face.

Secondly, the post in question is for the CRPF, which is in charge of crowd control, riot control, and large-scale security, notably in difficult areas during the election. All of these have a common unifying aim, according to CRPF’s motto, of protecting the democratic right of the security of citizens. I assume that when citizens are mentioned, this includes disabled citizens as well. Research continuously shows that police lack awareness of disability and how it affects a person’s behavior or capacity to comply with police commands. To strengthen the functioning of these institutions, persons in higher positions must be able to understand disability and frame rules accordingly. Thus, promoting individuals with disabilities to higher posts helps in increasing the efficiency of the system.

Thirdly, the conception of efficiency is neither uniform nor a linearly measurable factor. For example, different people with the same capability produce different results according to their motivational levels. Therein, the court does not take into account the body of research that suggests that there is higher job satisfaction in people with disabilities. Research has shown that disabled persons are more efficient as they work harder, are more productive, show lower rates of absenteeism, and are more loyal.

Lastly, while assessing the reasonableness of any accommodation, reference must be made to the benefit that the accommodation can have, not only for the handicapped person concerned but also for other disabled people similarly positioned in the future. Therefore, the court has to consider how the refusal of reasonable accommodation can result in the organisation losing a highly skilled workforce for years to come.

For the second case, if our ultimate aim is well-being rather than just the concern of the contribution of employees, then also maximizing and slicing are not two independent procedures that we should be concerned with³ . Enhanced employment opportunities correlate positively with increased participation of individuals with disabilities in civic life. The participative dimension of the model is held, in the Jane Kaushik judgment “to flow from the broader themes of freedom of speech, expression, and participation enshrined in Article 19, along with the right to a dignified social life contained in Article 21.”  The Supreme Court in Nipun Malhotra v. Sony Pictures Films India has thus held that “adequate representation and opportunities to participate for persons with disability” is a positive obligation on the state. Therefore, the right to advancement in career is an important aspect of ensuring full participation. 

Consequently, even if the functional competence is seen by the courts, as a measure of the petitioner’s ability for the position, the same has to be understood in a non-linear and inclusive manner. 

Conclusion 

This piece argues for a recalibrated standard of review for claims under Section 20 (2) of the 2016 Act. Such a standard will include three components. Firstly, it calls for a move beyond the minimum medical standard to incorporate reasonable accommodation, assessed through an objective test, as a mandatory step within the framework of review. Secondly, based on Fredman’s articulation of disadvantage, it advocates for a non-differential approach to discrimination at the level of promotion. This encompasses the absence of such justification or reasoning that perpetuates a negative or untrue stereotype. Lastly, it calls for rejection of a linear and non-inclusive understanding of competence. 

[1] G.K. Soti v The Union of India and Ors. [2024] MANU/CA/0900/2024. ↩︎
[2] Dnyandev B. More v State of Maharashtra [2019] SCC OnLine Mah SAT 662. ↩︎
[3] A. Mitchell Polinsky, An Introduction To Law and Economics (4th edn, Wolters Kluwer Law & Business
2011). ↩︎

Sae Gaidhane is a fourth-year student at National Law University, Delhi, with a keen interest in disability rights and human rights law.