analysis

Updated: Jan 26, 2019 08:39 IST

“In the little world in which children have their existence, there is nothing so finely perceived and finely felt, as injustice.”

Commenting on this Dickensian wisdom (in Great Expectations), Nobel laureate Amartya Sen writes: “…the strong perception of manifest injustice applies to adult human beings as well. What moves us…is not the realization that the world falls short of being completely just... but that there are clearly remediable injustices around us which we want to eliminate.”

Unfortunately, our Supreme Court lost a great opportunity to remedy one such injustice. In a dreadful decision (V Surendra Mohan vs State of Tamil Nadu), the apex court ruled that a visual impairment or hearing disability above 50% rendered an otherwise competent candidate unworthy of being a judge. Ironical, given that the scales of justice are balanced by a blindfolded lady. But irony aside, let’s tackle this at the level of the law as espoused in that sacrament we call the Constitution.

Article 14 guarantees to all of us the fundamental right to equality. At a broad level, this connotes the right to participate in society and contribute as meaningfully as the others. This constitutional promise has been translated for the differently abled through a series of Parliamentary enactments, the latest of which is the Right of Persons with Disabilities Act, 2016.

Under this law, as also its predecessor legislation (which applied to the facts of this case), all public establishments are to provide 3-4% reservation in identified posts for the differently abled (with some exceptions). The Tamil Nadu Public Service Commission (TNPSC) advertised certain posts for “civil judges”. This advertisement (notification) stated that candidates with visual/ hearing impairment were eligible, so long as their impairment was between 40-50%.

How this upper limit of 50% was arrived at is anyone’s guess! The apex court simply defers to the government wisdom on this, without questioning its scientific basis. It is also unclear as to how an advertisement by TNPSC pursuant to a “letter” from the government attained the status of an overriding legal norm.

Surendra Mohan, a visually impaired lawyer, was told that he was ineligible for the advertised post. Upon challenging this at the Madras High Court, he was permitted to sit the interview. But the court later ruled that he was ineligible to be a judge, as he suffered a 70% impairment. Upon appeal, the Supreme court endorsed this view.

Apart from breaching the letter and spirit of the Constitution, this regressive ruling also ignores the fact that some of our finest judges have been differently abled. In fact, one of Indian origin sat in the highest court of South Africa for many years. Justice Zak Yacoob was robbed of his vision as a child. But that didn’t stop him from entering the hallowed halls of justice where he served with exemplary juristic merit. Unfortunately, he would not have been considered fit enough to judge in India!

So, too, with Judges David S Tatel and David Szumowski, both of whom are 100% blind. All of these legal luminaries were interviewed by the disability team of Increasing Diversity by Increasing Access to Legal Education (IDIA ), an initiative to empower underprivileged communities through legal education. These interviews were submitted to the Hyderabad high court on behalf of one of IDIA’s visually impaired students, who wanted to be a judge. Although he’d graduated from a reputable national law university, he was told that he wasn’t worthy of being a judge.

He fought for a while and then gave up. For he had to put bread on the table for him and his family. Now he sits at a bank, where he dispenses cash instead of justice!

Is this the kind of inclusive justice our Constitution makers had in mind? What is even more appalling is the tendency of our courts to carve out a separate set of rules for themselves, for instance on the applicability of the RTI Act. Similarly, had a government department been accused of refusing employment in a case like this, the court would have come down hard on it. And yet our judges are loath to apply the same rules to themselves. Clearly, charity does not begin at home. But then again, this is not about charity. This is a constitutionally guaranteed right. And a promise to create an inclusive society. Even if it takes extra resources. For, in the end, that’s what the economics is about: to provide for reasonable accommodation/support in terms of manpower (scribes), IT support (screen reader software) etc.

Perhaps justice isn’t blind after all. And some are indeed more equal than others.

Shamnad Basheer is the Bok Visiting Professor of Law at the University of Pennsylvania and the founder of Increasing Diversity by Increasing Access to Legal Education (IDIA)

The views expressed are personal