Arif Mustafa Hussain
The Supreme Court of India, in its ruling in Ravinder Kumar Dhariwal v. Union of India, took the progressive approach of transformative equality in uplifting the position of individuals with a mental disability under the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as “the Act/RPwD”). The court also relied heavily on foreign jurisprudence in laying down precedent in a relatively new area of the law. One of the questions the Constitutional Court was vexed with was whether disciplinary proceedings for misconduct, instituted against the appellant, a Central Reserve Police Officer (“CRPF”) who had been suffering from a mental disability was discriminatory or not. The misconduct in question was the appellant’s mental state which prompted him to verbally threaten firing his weapon in the presence of a senior police officer. Subsequently, a police complaint was lodged against the appellant which led to the initiation of proceedings against him.
Approach taken by the Court
During its analysis of the issue, the Court took three measures. Firstly, the court elevated ‘dignity’ and ‘equality’ under Section 3 to a background value, indicating that the same is a core commitment of the Act. This step noted the positive obligation of the State to ensure the fulfilment of the rights of persons with disabilities, as envisaged under the same provision. Secondly, it used the provisions of the Mental Healthcare Act, 2017 as a supporting authority to note the intent of the State to provide a framework for rights concerning mental health.Lastly, to counter and address the arguments of the respondent, one that the aspect of mental disability was not raised prior to the proceedings in the Supreme Court, and second, that the appellant did not produce himself before the medical officer of the force for treatment, the Court used international jurisprudence in elaborating the definition of “non-discrimination in employment” under Section 20 of the Act which mandates that the State not discriminate against any person in matters pertaining to employment, and provide reasonable accommodation to employees with disbailities. While the ruling of the Court elevates the position of individuals with mental health issues, it can also be argued that the reasoning developed by the Court in pursuance of the third step can, in itself, be used as a standard for judicial review in the future.
Reliance On International Jurisprudence
The Court supported its usage of international authorities as persuasive jurisprudence by highlighting that mental disability rights in India are in their nascent stages. However, the usage of international jursiprudence in recognising indirect discrimination and striking down discriminatory practices can also be traced to the recent ruling in Lt. Col. Nitisha & Ors. v . Union of India & Ors., where Chandrachud J. recognised indirect gender discrimination and granted permanant commissions to eligible women officers of the Indian Army. He pointed out that it is imperative to spot the causal link between the provision or practice, and the disproportionate effect it has on a disadvantaged person, as laid down in the case of Essop v. Home Office (UK Border Agency) by the Supreme Court of the United Kingdom. Furthermore, the Court relied on the case of Ontario Human Rights Commission v. Simpsons-Sears, wherein the Canadian Supreme Court stated that creating a restrictive condition even without the intention to do so can be discriminatory. This understanding was used by the Indian Court to shift its stance from a formal equality approach which focuses on the consistent treatment of all to a substantive equality approach which takes the peculiar characteristics of the affected class into consideration.
Taking inspiration from the aforementioned case, the Court in the present dispute, initially perused through Explanation 1 to Article 12 of the Convention of the Rights of Persons with Disabilities. This established that there has been a shift from the ‘substitution’ model which entails a decision-maker providing consent on behalf of the person with disability to the ‘support’ model which includes recognising the legal capacity of such persons and providing them with alternative environment for decision making. This rationale bears importance , as it highlights a socio-legal basis for mandating the practice of reasonable accommodation. The Court observed that:
“On a combined reading of the definitions provided in Section 2(s) and 2 (c) of the Act, it is evident that the RPwD – similar to the 2017 Act – defines disability as a social construct and not solely as a medical construct.”
Notably, Article 12 of the Convention was used as the underlying norm to interpret the provisions of the concerned statutes, to consider a person with a mental disability as ‘disadvantageous’ in the social hierarchy. Even though the act explicitly recognises the positive obligation of the state to ensure reasonable accommodation, India has lacked judicial precedents adjudicating upon the dismissal of an employee with a mental disability where the job includes adhering to a set code of conduct. Consequently, the court relied on foreign jurisprudence to bring mental disability under the lens of anti-discrimination to balance the right of reasonable accommodation with workplace standards and expectations.
The first case of importance was the ruling in Den Hartog v. Wasatch Academy, wherein the United States Court of Appeal for the Tenth Circuit, laid down the ‘direct threat’ test, which gives weightage to the essential function of the job and allows for reasonable accommodation only for behaviours which can be tolerated and are causally connected to the disability. Even though this test does not fully encapsulate a rights-based approach, it laid the foundation for a stronger reliance on ‘causal connection’ in the case of a disability.
The correct application of the reasonable accommodation obligation was then made out from the dissenting opinion in Stewart v. Elk Valley Coal Corp, decided by the Supreme Court of Canada which revolved around the dismissal of a coal mine worker who tested positive for drug use. While the majority opinion believed that there was no discrimination because the dismissal was not a consequence of the addiction but of the drug policy test which did not specifically target a protected group, Gascon J. observed that even a neutral policy that affects all workers equally will still lie in the scope of indirect discrimination. The rationale behind this dissent was that a decision based on a policy that has been framed by keeping the majority in mind would treat a person with disabilities in the same manner as able-bodied persons. This would amount to nullifying the rights conferred on persons with disabilities for their protection. Another crucial aspect of the minority opinion included by the Supreme Court was the creation of a system of individualised assessment, and to recognise the dilution of the agency of the employee due to their disability.
The cumulative reading of the above two opinions helped the Court lay down that if a mental disability was a factor for a dismissal, it would be considered as a discriminatory act, thereby engraving the principle of causal connection under the anti-discrimination test. In its conclusion, the Court observed that even though there is a standard rule of instituting disciplinary proceedings against CRPF personnel on account of misconduct, that rule created a ‘disproportionate’ disadvantage for the appellant as he is more vulnerable than other able-bodied personnel in engaging in behaviour that can be construed as misconduct.
Formulation of a Standard for Judicial Review
The claim of the Supreme Court was that this approach is merely the beginning as this decision does not lay down any finality on how Section 20 of the Act is to be interpreted, and can only be used as an inspiration within some already established standard of judicial review, noting that
“The jurisprudence of Sections 3 and 20 of the RPwD Act would have to evolve. Our journey has begun. Here we have pondered over the possible trappings which a standard of judicial review may adopt.”
However, it can be argued this creation of a test for discrimination can, in itself be used as a standard while adjudicating upon the right of persons with mental disabilities under the Act. The test can be construed as follows- Firstly, the employee should be in a disadvantageous position. Secondly, there should be an aversive action towards an employee which includes actions in pursuance of workplace policies. And finally, the aversive action should have a causal connection with the mental disability of the employee, exacerbating the disadvantage. Fulfilment of the above three ingredients would amount to discriminatory treatment, and a violation of Section 20 of the Act. and the affected person would retain his right to reasonable accommodation.
In pursuance of this the Court held that the instituted disciplinary proceedings against the appellant are discriminatory and violative of the provisions of the Act as it is a form of indirect discrimination, and directed the authorities to offer an alternate post to the appellant which would not result in a direct threat to the appellant or around him.
The Court in its final order also explicitly mentioned that as long as mental disability is one of the factors for a discriminatory action, the person with disability would be entitled to protection under RPwD Act. This precedent has given the scope for the Courts to recognise that a person with mental disability can continue to exercise agency over their actions and has reduced the stigma around mental disability.
The author is a final year student at Symbiosis Law School, Noida