Why the elevation of disabled advocate Moxa Kiran Thakker is important - Hindustan Times
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Why the elevation of disabled advocate Moxa Kiran Thakker is important

Apr 24, 2023 07:42 PM IST

Intrinsically, such appointments repudiate the theory that PwDs are not competent enough to discharge responsibilities.

On March 2, the Supreme Court (SC) collegium, comprising of three senior-most judges, recommended the elevation of Moxa Kiran Thakker as a judge in the Gujarat high court (HC). The collegium noted that Thakker is a competent lawyer with civil and criminal practice experience. Moreover, it said Thakker enjoys “a good personal and professional image and nothing adverse has come to notice with regard to her integrity.” The collegium noted that Thakker has overcome physical disabilities and that her appointment would, therefore, bring “greater inclusion to the composition of the High Court.”

On March 2, the Supreme Court (SC) collegium, comprising of three senior-most judges, recommended the elevation of Moxa Kiran Thakker as a judge in the Gujarat high court (HC). (A) PREMIUM
On March 2, the Supreme Court (SC) collegium, comprising of three senior-most judges, recommended the elevation of Moxa Kiran Thakker as a judge in the Gujarat high court (HC). (A)

While the resolution mentions that Thakker has physical disabilities, the nature and extent of her disabilities are unknown. This is the first time the SC collegium has nominated a lawyer with a disability for elevation as a judicial officer. In 2019, in the case of V Surendra Mohan v. State of Tamil Nadu, the SC affirmed the rejection of candidates with more than 40-50% visual disability as judges of the Madras HC because, it argued, a reasonable amount of sight and hearing is essential to discharge duties. In the 2021 judgment in Vikash Kumar. V. Union Public Service Commission and Ors., a three-judge SC bench, overruled Mohan, ruling that the judgment had failed to account for the principle of reasonable accommodation.

In Vikash Kumar, the SC noted that the Mohan judgment did not consider whether the appellant would have been able to discharge the duties of a civil judge (junior division) after being provided with the reasonable accommodations due to his disability. This analysis would have required consideration of: “the specific accommodations needed, the cost of providing them, reference to the efficacy with which other judges with more than 40-50% visual/hearing impairment in India and abroad can discharge judicial duties after being provided the necessary accommodations, amongst other factors.” Although Vikash Kumar did not deal with judicial appointments per se, it involved the crucial issue of articulating the principle of reasonable accommodation. The nomination of Thakkar is a giant step towards operationalising the holding of the SC in Vikash Kumar.

The importance of reasonable accommodation being provided to disabled officers was also underscored by the SC in the case of National Platform for the Rights of the Disabled v. Department of Empowerment for Persons with Disabilities and Others, by orally observing that a wholesale exclusion of persons with disabilities (PwDs) from a particular category of jobs, in this case, the police, may not be sustainable without exploring the possibility of applying the principle of reasonable accommodation.

The elevation of Thakker assumes significance because, with this appointment, the SC accords imprimatur to the eligibility and suitability of PwDs to the high constitutional office of an HC judge in particular, and the avocation of judgeship in general. This action has the potential to open opportunities for PwDs in the judiciary.

The appointment of PwDs as judges has intrinsic and instrumental value. Intrinsically, such appointments repudiate the theory that PwDs are not competent enough to discharge responsibilities. This point assumes significance, given that the Judges (Enquiry) Act, 1968, read together with Article 124 of the Constitution, envisages “the charge of” physical and mental incapacity as grounds for the disqualification of a judge [see Sections 3(5) – 3(7) of the Act.

Such an appointment also has instrumental value. As a woman and a PwD, Thakker would imbue her adjudication with a sense of greater respect for diversity and inclusion. The collegium rightly emphasised her merit, de-hyphenating its complex nexus with a physical disability.

The collegium, however, could have avoided using the term “overcoming” while describing Thakker’s interface with her disability. But the truth is PwDs don’t overcome disabilities; we learn to live with them and ensure that they don’t become hurdles. So perhaps “tackling” or “managing” would have been better words than overcoming. This minor issue aside, let us hope that the government will promptly notify Thakker’s appointment. Our judiciary and society will stand to benefit immensely from this appointment.

Rahul Bajaj is Co-Founder, Mission Accessibility, Senior Associate Fellow, Vidhi Centre for Legal Policy and Attorney, Ira Law

Sanjay Jain is professor of Law, National Law School, Bangalore

The views expressed are personal

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