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The Supreme Court Says A Visually Impaired Person Can’t Be A Judge In India

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The Supreme Court, on January 22, 2019, in its division bench judgment lay down that a person with more than 50% visual or hearing impairment are not eligible to be a Judicial Officer. The decision comes as a shock since the Supreme Court which brags about being the most progressive organ of the State, and the “protector of the rights of people”, still thinks that disability impairs a person from discharging the functions attached to such posts.

I, personally suffering from visual impairment, can assure the Supreme Court that, no, we are not disabled. We may not be able to see or hear the way other people do, but we know how to use our brains. We love to read as much as you do. We love to argue as much as you do. And, most importantly, we love the law as much as you do, and then some!

The Supreme Court heard an appeal from the Madras High Court (Surendra Mohan v State of Tamil Nadu and Ors, Civil Appeal No.83 of 2019) where the appellant was a visually impaired civil judge (junior level) candidate with 70% disability. His candidature was dismissed by the Tamil Nadu Public Service Commission. On appea, rhwl Madras High upheld the commission’s decision. The apex court, while hearing the appeal, held that the 40%-50% bracket as envisaged by the TNPC, HC, and State was legal and didn’t violate any statutory provisions nor contravene any of the provision of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Section 33 of the said Act mandates reservation of posts for disabled persons. In the proviso part, the government is authorised to exempt disabled person from such category of jobs if the nature of job demands so. Complete blindness and deafness is already excluded for the post of civil judge under this proviso is already executed, meaning, thereby, that there cannot be a blind or deaf judge. The contention in this case was with respect to the procedural aspect of denying the appellant his candidature. The Supreme Court was right in saying that the State has full power of making rules and specifying the eligible disability percentage bracket. State, TNPC and HC followed the proper procedure as mandated by the Constitution and there was no error in that front.

However the moot question here is if the 50% disability limit is actually congruent with the progressive stance of our government, and more so of our judiciary, vis-à-vis disabled persons. The question is why is the judiciary so reluctant to admit any blind or deaf person at the post of the judge? This question becomes more daunting when we look at the other jurisdictions and find examples of such appointments. On June 26, 2018, Yousuf Saleem, a Pakistani civil judge, took oath as the first visually impaired judge; there was also Dr. Hans Eugene Schulze from Germany, who retired from judiciary a while back; and more recently, Justice Zakeria Mohammed Zak Yacoob from South Africa became judge of the Constitutional Court of South Africa, despite his blindness. Our own jurisdiction, fortunately, also has these  “one in million” examples. Shree Sadhan Gupta, the Additional Advocate General in Kolkata, who retained his post for seven years, was undeterred while perfoming his duties, and he performed them with vigour. The government didn’t think he was incompetent!

It is quite surprising that one of the stories that inspired me to pursue law comes from the state of Tamil Nadu. On June 1, 2009, T. Chakkaravarthy became the first visually impaired judicial officer to hold court. The SC seems to have overlooked such precedents. This could be attributed to its disinclination to bring persons with disabilities into the main arena of the judiciary for whatever reasons. On October 1, 2007, India ratified the United Nations Convention on Rights of Persons with Disabilities (UNCRPD), much before any other ‘significant’ country in the world. Adding to this the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 clearly show the stance of the legislature to bring the disabled persons into the mainstream. If the legislative was so quick to recognise the rights of people with disabilities, then what has stopped the judiciary from doing the same?

It may be contended that it is the government which brings this threshold to disability percentages as it is authorised to do so by laws. However we tend to overlook the role of the court in driving the wheel of our advanced society forward. A duty is cast upon the courts to polish what was manufactured by the legislature—to interpret the disability laws and rules for overall inclusion, and not just limited inclusion (as courts generally tend to do in the garb of the “Constitutionality of procedure”).

I took law because of my utter fascination with reading. I always knew that the road ahead was not going to be easy. What law, as a profession, demands most out of you is the ability to read, write, research, and be flooded with a white tsunami of information. Having weak eyesight, and then opting for law as a profession is like opting for discus throw with only one hand. Sounds impossible, but actually it isn’t. What is often not acknowledged, and hence underestimated, are the adaptability reflexes of the human individual. A deaf person learns to lip read, a dumb person learns to explain themselves through gestures, a right-handed person learns to use their left hand after losing the former, a blind person develops the astonishing capability of sensing their environment through sounds, touch and more. The golden thread that runs through all of them is their utter desire to do what they love. With the advancement of the science and technology, and especially the giant steps taken to help people with disabilities, is nothing short of revolutionary. The visual assistance tools, the hearing enhancement kits, prosthesis and more—to some extent all of this opposes earlier beliefs about, and has changed the meaning of ,“disability”. It is in light of this new definition that we need to reconsider whether this 40%-50% disability parameter actually justifies the “right of equality and inclusion” that are so sacrosanct to us. In this particular case, it appears that the Supreme Court believes so. So, as per law, people below 40% are not disabled enough, and people above 50% are too disabled. Can the Supreme Court base its “progressive stance” on a meagre 10% column?

I would like to quote Mr. Bernstein, who was appointed the judge in the Michigan Supreme Court to present a sense of sentiment that the disabled persons hold. “It would be much easier if I could read and write like everyone else, but that’s not how I was created,” Bernstein said. “No question, it requires a lot more work, but the flip side is it requires you to operate at the highest level of preparedness. … This is what I’ve done my entire life. This goes all the way back to grade school for me.”

As Chief Justice of Michigan Supreme Court Robert Young Jr. says that “You don’t enter Ironman competitions without having a steel backbone.” We enter law because it is the fountain of change in our society. Once Krishna Iyer said that sometimes the law drives society, and sometimes society drives the law. It is an acceptable fact that society considers persons with disabilities as ‘incapable’, ‘inefficient’ and ‘handicapped’; people who deserve pity. The question is does the highest court of our country, and the temple of Justice, believe the same? Will social belief shape the law now? Are partially blind and partially deaf people not worthy of holding office from where the “stream of change” flows? Don’t we deserve to do what we love to do? It appears that Supreme Court thinks that we aren’t capable because of our ‘defeats’. Or maybe, the Supreme court is still not mature enough to see our capabilities.

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Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

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The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

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Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

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MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

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A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

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A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

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