SC Has Backtracked on Its Ruling on ‘Level Playing Field’ for Visually Impaired

The apex court has held that it is fair, logical and reasonable to have a stipulation that makes the blind ineligible for the post of judges.

Blindfolded Lady Justice is a universally-accepted personification of the idea of justice. ‘Justice is blind’ is a well-received idiom, but cannot the blind become a justice/judge?

On Tuesday, the Supreme Court of India, in its judgment upholding the Tamil Nadu Public Service Commission’s stipulation of 50% disability limit in hearing impairment or visual impairment for post of judicial officer, remarked thus: “A judicial officer in a state has to possess reasonable limit of the faculties of hearing, sight and speech in order to hear cases and write judgments and, therefore, stipulating a limit of 50% disability in hearing impairment or visual impairment as a condition to be eligible for the post is a legitimate restriction i.e. fair, logical and reasonable.”

“It is well within the power of appointing authority to prescribe eligibility looking to the nature of the job, which is to be performed by holder of a post,” the bench comprising Justice Ashok Bhushan and Justice K.M. Joseph said while denying relief to a judge aspirant V. Surendra Mohan from Tamil Nadu, who was held ineligible for the post of judicial officer (civil judge) as it was found that he has 70% disability in visual impairment.

Whither right to dignity of the blind?

In a judgment delivered in December 2017, in which the Supreme Court set deadlines to make public places accessible to visually disabled, some important observations vis-à-vis rights of visually impaired have been made.

It said: “This expansive understanding of right to life assumes greater proportions in respect of persons with visual impairments, who need a higher number of compensative skill enhancing facilities in order to go about their daily lives without suffering the indignity of being generally perceived as being dependent and helpless.”

It had also added: “It becomes imperative to provide such facilities so that these persons also are ensured level playing field and not only they are able to enjoy life meaningfully, they contribute to the progress of the nation as well.”

A year later, when the same Supreme Court holds that it is fair, logical and reasonable to have a stipulation which makes the blind ineligible for the post of judges, it sounds too ironical. How could they contribute to the progress of the nation if the doors of one of its important organ, is kept shut for them? Will making them ineligible to the post of a judge ensure level playing field? When the apex body of judiciary, says it is fair to have such a stipulation, what happens to their dignity? Does the judiciary perceive them as being dependent and helpless?

The restriction, it appears, seems to have been imposed without any reason and logic. To put it bluntly, it is absolutely unfair to say that a blind man is not capable to become a judge.

Facts say otherwise about the ‘eligibility’ of the blind to become judges.

Justice Zakeria Mohammed Yacoob (South Africa)

Meningitis made Zakeria Mohammed Yacoob blind when he was 16 months old. But no one and nothing stopped him from joining the Constitutional Court of South Africa, as a judge, at his age of 50. He served as its judge till 2013 and has written many judgments, including the celebrated one in Grootboom case.

In his interview to IDIA, he explained how he used to manage hearings and decide cases. He said that he was provided with a very efficient, legally-trained PA, a talking computer, Braille printer and a note-taker that converted text into Braille and vice-versa (Braille note).

He also said: “The theory that people need to SEE witnesses to assess their credibility is nonsensical to say the least – but is supported by too many sighted people.”

Justice Richard Bernstein (Michigan, US)

Justice Richard Bernstein became the first blind judge in Michigan in November 2014 and has been serving the Michigan Supreme Court ever since. Justice Bernstein has been classified as legally blind since birth as a result of retinitis pigmentosa.

T. Chakkaravarthy (Tamil Nadu, India)

Judge T. Chakkaravarthy had become the first visually-impaired judicial officer in Tamil Nadu in the year 2009. It was only in the year 2014 that the TNPSC limited the disability limit to 50%.

Judge Brahmananda Sharma (Rajasthan, India)

Last year, in Rajasthan, Brahmananda Sharma started his career as a civil judge and judicial magistrate of Sarwar town of Ajmer district. He lost his eyesight due to glaucoma at the age of 22. He uses an e-speak device connected to a computer, which converts and records the notes made by the reader into speech. He requests lawyers to read their plaints and attached documents, records the same and goes through them several times over.

Judge Yousaf Saleem (Pakistan)

Last year, Pakistan also got its first-ever blind civil judge. Yousaf Saleem is a gold medalist from the University of Punjab in LLB (Honors) Programme of the year 2014 and also topped the written examination of civil judges conducted by the Lahore high court in the year 2017 amongst 6,500 candidates. But he was not selected in the interview on the ground that he was blind. Taking suo motu cognizance of this incident, the Chief Justice of Pakistan (CJP) issued a press release and observed that a person can hold the post of a judge even if he is blind, provided he meets all the other qualifications. The CJP had then directed the Lahore High Court to reconsider his candidature.

The Rights Of Persons With Disabilities Act, 2016

This Act lists some important rights and entitlements to persons with disability. The government is bound to:

  • Ensure that the persons with disabilities enjoy the right to equality, life with dignity and respect for his or her integrity equally with others. (To say that, a blind cannot become a judge is a violation of his/her right to life with dignity.)
  • To take steps to utilise the capacity of persons with disabilities by providing the appropriate environment. (Just like Justice Zak was provided with necessary assistance by the South African Constitutional Court, our system can also provide them ‘appropriate environment’.)
  • Not to discriminate on the ground of disability, unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim. (The legitimate aim in the case of judiciary is to impart justice; with technological and human assistance, a blind judge can impart justice.)

The new Act defines “Person with disability” as a person with long-term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others. Let us not make artificial barriers like this, if we cannot help break them.

We live in the 21st century. Science and technology have made possible the things we earlier thought impossible. Now with the help of gadgets, it is possible to overcome any disability.

It is pertinent to quote an observation from judgment by Justice A.K. Sikri in Shanti Bhushan vs Supreme Court of India. It reads: “However, the fundamental qualities which the public seek in a judge have remained the same, as these are eternal verities, which will never change. These are wisdom, patience, a sense of practical reality, fairness and balance, independence of mind and knowledge of law, moral courage or fortitude, and a total commitment that justice should be administered according to law. At the end of the day, it is the virtue of righteousness, impartiality, objectivity and scholarship which a Judge commands to ensure respectability to his judgment.”

All these qualities of a judge might be found in blind judge aspirants if we do not declare them ineligible before they could show to the world that they can indeed judge.

This article was first published on LiveLaw. Read the original here