Capable even if disabled

An institutional display of pure and simple discrimination dressed up as legal reasoning is unacceptable

January 29, 2019 12:02 am | Updated 12:11 am IST

One of the darkest moments in the American disability rights movement was the American Supreme Court’s decision, in 1927, upholding the forced sterilisation of a mentally infirm woman, reasoning that it helped get rid of those who would sap the state of its strength by swamping it with incompetence. Similarly, in India, the Supreme Court’s ruling last Tuesday, in V. Surendra Mohan v. Union of India, has to be regarded as one of the darkest in India’s disability rights movement.

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. The judgment is problematic for four key reasons.

Examples of success

First, 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, to 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. There is also former San Diego County Court judge David Szumowski, who has described the view that a blind person lacks the wherewithal to become a judge as an unfair characterisation, to Yousaf Saleem who, last year, became Pakistan’s first blind civil judge.

Second, how, some contend, 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.”

Those voicing such a statement of cynicism might find it equally hard to imagine how a blind person can write an article for The Hindu , as this writer is doing, or study computer science, as many blind Indians have done or be a successful civil servant, as Beno Zephine N.L. is.

Third, the Court’s unreasoned assertion is an outcome of their ignorance about the capabilities of the disabled. However, as Laura Wolk notes, ignorance simply cannot be an excuse in 2019. 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 judgment in this case appear simply not to have bothered to notice the competence of the millions of disabled people who inhabit this world.

As Judge Szumowski asks Indian judges, “if you went blind while on the bench, and were able to efficiently discharge your responsibility before this, how would you feel if told that you can no longer continue as a judge, even if you are able to perform your functions with some amount of retraining and adaptive tech?”

Reasonable accommodations

Fourth, 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.” It does not lie in our mouth to say that we are truly committed to ensuring that the constitutional promise of equality is fully realised, if we lack the ability to even pay the price of making reasonable accommodations.

This is not just of academic interest for me. On my path to becoming a blind postgraduate law student at the University of Oxford as a Rhodes Scholar, I have often been compelled to engage with the cynicism of those who thought that something was simply too difficult and messy for me to do as a blind person. And perhaps some things were, and continue to be, comparatively more difficult. But those experiences also helped me cultivate the ability to assert myself and to find ways of thriving in a world not designed for me — qualities that many able-bodied persons do not possess to the same degree and qualities which were recently recognised by a sitting Supreme Court judge in open court.

When my Supreme Court tells me that my blindness makes me intrinsically incapable of becoming a judicial officer, when it arrogates to itself the power to stamp a badge of incompetence on thousands like me about whom it knows nothing, its declaration cuts to the core of my confidence about the fairness and robustness of our judicial system. Indeed, it is telling that even the applicant in this case took it as a given that those who are completely blind for all intents and purposes, like me, cannot become a judge; it only argued that a partially blind person can become a judge. I have never had any interest in becoming part of the judiciary. However, I earnestly believe that 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 we hope to be.

Rahul Bajaj is a postgraduate law student at the University of Oxford, as a Rhodes Scholar

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