A recent judgement of the Tripura High Court in favour of a petitioner disabled during work is praiseworthy. However, it has two flaws: it tells little about how the employment rules at the workplace discriminated against the petitioner with disability, and its understanding of disability as a barrier faced by disabled persons is incorrect.
JUDGEMENTS of courts can grant appropriate enforceable remedies, but as a body of law, judgements may have flaws due to poor legal reasoning the court adopted, or simply due to a judicial oversight it committed.
The petitioner was an employee of Tripura State Electricity Corporation Limited. During the course of performing his duties, he met with an accident which rendered him disabled. He was not paid salary by the Corporation because he could not perform the duties he owed to the Corporation as their employee, though he was willing to join and perform duties which would be commensurate with his disability.
Reasonable accommodation can be imagined as a compromise between the possibility of repealing a law because it discriminates against a disadvantaged group and, on the other hand, not paying any consideration to the unsuitability of the law towards the disadvantaged group.
The high court held that the Corporation must make reasonable accommodation for the petitioner by giving him suitable duties to discharge and pay him all salary dues.
I do endorse the remedy that the court granted. However, the judgement, as a body of law, has two flaws.
First, the judgement tells little about what “norms of reasonable accommodation” means and how the employment rules discriminated against the petitioner with disability. It is pertinent to state at the outset that one of the reasons for not explaining the meaning of “reasonable accommodation” in the judgement could be that the court wanted to save the already scarce judicial time. Or it simply could be a judicial oversight. However, explaining the term, or at least giving adequate reference for its meaning, nevertheless was important to understand the specific concept the judicial reasoning of the court was based upon.
The second flaw is that it considers that barriers faced by disabled persons arise from their medical condition of disability, rather than through discriminatory employment policies. Such an understanding of disability as the barrier is logical on the surface. However, going deeper unravels the problem.
Reasonable accommodation refers to exemptions which are introduced to a law for the purpose of making the law suitable for a disadvantaged group to follow. Such a law would be generally suitable for non-disadvantaged groups to follow. However, a general, blanket application of the law on both disadvantaged and non-disadvantaged groups causes discrimination against the disadvantaged group because the State fails to provide it with reasonable accommodation by inserting exemptions/modifications to the discriminatory law (without striking it down).
One may ask: But why should not the discriminatory law be struck down altogether?
The discriminatory element of a law is fluid, that is, any law can be discriminatory or non-discriminatory, depending on whether and to what extent it is impacting the disadvantaged group in question. A law becomes discriminatory against different groups and sub-groups in different ways; each group may require a different accommodation to be introduced to the law.
For example, it may be appropriate to ensure reasonable accommodation by providing a scribe to a blind person for writing an exam, which the law otherwise does not provide to non-disabled persons. Whereas in case of a person with an intellectual disability like dyscalculia, reasonable accommodation may be best granted through a lower score cut-off to clear the exam.
The barriers are not solely imposed by the medical condition of disability but by prejudice, discrimination and indifference against the disabled, which gets translated into State action. A manifestation of such a State action is the employment policy that expects the disabled to do the same work as the non-disabled.
In the court’s judgement, reasonable accommodation can most distinctively be sensed in the court’s direction to assign/adjust the petitioner with suitable duties which he would be able to perform, in case he was found “unfit” to perform the duties that were initially expected. Reasonable accommodation can be imagined as a compromise between the possibility of repealing a law because it discriminates against a disadvantaged group and, on the other hand, not paying any consideration to the unsuitability of the law towards the disadvantaged group.
So, the application of reasonable accommodation can be viewed through the primary and secondary right categorisation theoretical framework done by researcher and academic Tarunabh Khaitan. The primary right of the petitioner was violated when he only had the option to either perform unsuitable duties that could only be performed by the non-disabled, or be rendered unemployed for not being able to perform the duties due to his disability. He could not perform the expected duties, and hence remained unemployed. Consequently, his secondary right to get reasonable accommodation got activated when the primary right of getting suitable work was violated, and remained so until the court directed the Corporation to reinstate him and assign him suitable duties.
The barriers are not solely imposed by the medical condition of disability but by prejudice, discrimination and indifference against the disabled, which gets translated into State action. A manifestation of such a State action is the employment policy that expects the disabled to do the same work as the non-disabled. Even the Rights of Persons with Disabilities Act, 2016 defines ‘barrier’ not as one posed by the medical condition of being disabled, but by “any factor including communicational, cultural, economic, environmental, institutional, political, social, attitudinal or structural factors which hampers the full and effective participation of persons with disabilities in society”. Medical condition could be only one of the many factors.
But the medical condition as a factor for barrier is better suited for medical institutions to take into account to provide medical treatment (unless medical treatment is being refused to the disabled, which would be a violation of the fundamental rights to life and to equality). Law, for the purpose of providing equal rights to persons with disabilities through reasonable accommodation, should take into account the barriers that crop up because of discrimination and indifference against the disabled.
Overall, the judgement of the high court is praiseworthy. But it could have been more coherent than what it is, especially because the jurisprudence surrounding reasonable accommodation in general is, especially in relation to the rights of persons with disabilities, in its nascent stage.