Context

• Recently the Supreme Court of India has given a ruling in V. Surendra Mohan v. Union of India case which is regarded by the experts as one of the darkest in India’s disability rights movement.

Supreme Court’s Ruling

• The Court had to rule on the legality of the Tamil Nadu government’s policy of reserving the post of civil judge only for people whose percentage of blindness does not exceed 40-50%, resulting in the exclusion of the applicant who was 70% blind.

• It held that the government’s decision was rational and reasonable.

• It ruled that a judicial officer has to possess a reasonable amount of sight and hearing to discharge her functions.

• It accepted the claim that impaired vision makes it impossible to perform the functions required of judicial officers, such as assessing the demeanour of witnesses and reading and analysing evidence.

• It also accepted that asking a blind judicial officer to perform such administrative functions as recording dying declarations and conducting inquiries can result in avoidable complications.

Issue

However, the judgement is being seen as problematic by the experts for four key reasons.

1. Examples of success

• The view that a totally blind person cannot thrive as a judge is belied by several examples of successful judges who are blind.

• One is 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,

• 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.

• Yousaf Saleem who last year became Pakistan’s first blind civil judge.

2.  How can a blind 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.”

3. The Court’s unreasoned assertion is an outcome of their ignorance about the capabilities of the disabled.

• However, ignorance simply cannot be an excuse.

• 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 judgement in this case appear simply not to have bothered to notice the competence of the millions of disabled people who inhabit this world.

4. Reasonable accommodations

• As to obviating avoidable complications, the reasonable accommodations required by a blind judge may be considered irksome.

• However, it bears noting that “there is a distinct exhortatory dimension to be recognised in deciding whether an adjustment to assist a disabled person to overcome the disadvantage that she or he has in comparison to an able-bodied person is reasonable.”

• The constitutional promise of equality cannot be fully realised, if we lack the ability to even pay the price of making reasonable accommodations.

Conclusion

• When the Supreme Court tells that blindness makes someone intrinsically incapable of becoming a judicial officer, when it declares thousands of blind people as incompetence, its declaration cuts to the core of their confidence about the fairness and robustness of our judicial system.

• It is 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 one hope to be.