In a dreadful decision (V Surendra Mohan vs State of Tamil Nadu), the apex court ruled that a visual impairment or hearing disability above 50% rendered an otherwise competent candidate unworthy of being a judge. Ironical, given that the scales of justice are balanced by a blindfolded lady. But irony aside, let’s tackle this at the level of the law as espoused in that sacrament we call the Constitution.(Biplov Bhuyan/HT PHOTO)
In a dreadful decision (V Surendra Mohan vs State of Tamil Nadu), the apex court ruled that a visual impairment or hearing disability above 50% rendered an otherwise competent candidate unworthy of being a judge. Ironical, given that the scales of justice are balanced by a blindfolded lady. But irony aside, let’s tackle this at the level of the law as espoused in that sacrament we call the Constitution.(Biplov Bhuyan/HT PHOTO)

OPINION |The SC ruling that a blind or a deaf person can’t be a judge goes against the Constitution’s spirit

Surendra Mohan, a visually impaired lawyer, was told that he was ineligible for the advertised post. Upon challenging this at the Madras High Court, he was permitted to sit the interview. But the court later ruled that he was ineligible to be a judge, as he suffered a 70% impairment. Upon appeal, the Supreme court endorsed this view.
By Shamnad Basheer
UPDATED ON JAN 26, 2019 08:39 AM IST

“In the little world in which children have their existence, there is nothing so finely perceived and finely felt, as injustice.”

Commenting on this Dickensian wisdom (in Great Expectations), Nobel laureate Amartya Sen writes: “…the strong perception of manifest injustice applies to adult human beings as well. What moves us…is not the realization that the world falls short of being completely just... but that there are clearly remediable injustices around us which we want to eliminate.”

Unfortunately, our Supreme Court lost a great opportunity to remedy one such injustice. In a dreadful decision (V Surendra Mohan vs State of Tamil Nadu), the apex court ruled that a visual impairment or hearing disability above 50% rendered an otherwise competent candidate unworthy of being a judge. Ironical, given that the scales of justice are balanced by a blindfolded lady. But irony aside, let’s tackle this at the level of the law as espoused in that sacrament we call the Constitution.

Article 14 guarantees to all of us the fundamental right to equality. At a broad level, this connotes the right to participate in society and contribute as meaningfully as the others. This constitutional promise has been translated for the differently abled through a series of Parliamentary enactments, the latest of which is the Right of Persons with Disabilities Act, 2016.

Under this law, as also its predecessor legislation (which applied to the facts of this case), all public establishments are to provide 3-4% reservation in identified posts for the differently abled (with some exceptions). The Tamil Nadu Public Service Commission (TNPSC) advertised certain posts for “civil judges”. This advertisement (notification) stated that candidates with visual/ hearing impairment were eligible, so long as their impairment was between 40-50%.

How this upper limit of 50% was arrived at is anyone’s guess! The apex court simply defers to the government wisdom on this, without questioning its scientific basis. It is also unclear as to how an advertisement by TNPSC pursuant to a “letter” from the government attained the status of an overriding legal norm.

Surendra Mohan, a visually impaired lawyer, was told that he was ineligible for the advertised post. Upon challenging this at the Madras High Court, he was permitted to sit the interview. But the court later ruled that he was ineligible to be a judge, as he suffered a 70% impairment. Upon appeal, the Supreme court endorsed this view.

Apart from breaching the letter and spirit of the Constitution, this regressive ruling also ignores the fact that some of our finest judges have been differently abled. In fact, one of Indian origin sat in the highest court of South Africa for many years. Justice Zak Yacoob was robbed of his vision as a child. But that didn’t stop him from entering the hallowed halls of justice where he served with exemplary juristic merit. Unfortunately, he would not have been considered fit enough to judge in India!

So, too, with Judges David S Tatel and David Szumowski, both of whom are 100% blind. All of these legal luminaries were interviewed by the disability team of Increasing Diversity by Increasing Access to Legal Education (IDIA ), an initiative to empower underprivileged communities through legal education. These interviews were submitted to the Hyderabad high court on behalf of one of IDIA’s visually impaired students, who wanted to be a judge. Although he’d graduated from a reputable national law university, he was told that he wasn’t worthy of being a judge.

He fought for a while and then gave up. For he had to put bread on the table for him and his family. Now he sits at a bank, where he dispenses cash instead of justice!

Is this the kind of inclusive justice our Constitution makers had in mind? What is even more appalling is the tendency of our courts to carve out a separate set of rules for themselves, for instance on the applicability of the RTI Act. Similarly, had a government department been accused of refusing employment in a case like this, the court would have come down hard on it. And yet our judges are loath to apply the same rules to themselves. Clearly, charity does not begin at home. But then again, this is not about charity. This is a constitutionally guaranteed right. And a promise to create an inclusive society. Even if it takes extra resources. For, in the end, that’s what the economics is about: to provide for reasonable accommodation/support in terms of manpower (scribes), IT support (screen reader software) etc.

Perhaps justice isn’t blind after all. And some are indeed more equal than others.

Shamnad Basheer is the Bok Visiting Professor of Law at the University of Pennsylvania and the founder of Increasing Diversity by Increasing Access to Legal Education (IDIA)

The views expressed are personal

SHARE THIS ARTICLE ON
app
Close
There is evidence to indicate that the PLA's work and engineering force deployed to upgrade infrastructure in occupied Aksai Chin moved back after completion of work last month
There is evidence to indicate that the PLA's work and engineering force deployed to upgrade infrastructure in occupied Aksai Chin moved back after completion of work last month

India should be wary of Chinese mind games

UPDATED ON JAN 13, 2021 12:31 PM IST
  • Withdrawal from the vast Tibetan and Xinjiang military region means little in an era of stand-off weapons and long-range missiles. The Chinese PLA has capacity to deploy troop divisions within a week with metalled roads and optical fibre cables up to the last military post and advanced landing grounds (ALGs) all along the LAC.
Close
President Xi Jinping, unconcerned about China's isolation, is expected to take steps that raise tensions ahead of the 100th anniversary of the communist party
President Xi Jinping, unconcerned about China's isolation, is expected to take steps that raise tensions ahead of the 100th anniversary of the communist party

Xi Jinping is preparing for a special birthday party. It has repercussions

UPDATED ON JAN 10, 2021 02:26 PM IST
  • The 100th-anniversary celebrations of the Chinese communist party would be projected as a strong counter to the so-called ‘century of humiliation’ that the Chinese empire and the Republic of China faced between 1839 and 1949 at the hands of western powers, Russia and Japan.
Close
Oli has been emboldened to stick to power even by breaking the party. In the process, the shallowness of Oli’s opportunistic and politically driven anti-Indian nationalism has been exposed(AFP)
Oli has been emboldened to stick to power even by breaking the party. In the process, the shallowness of Oli’s opportunistic and politically driven anti-Indian nationalism has been exposed(AFP)

What India should, and shouldn’t, do in Nepal

By SD Muni
UPDATED ON JAN 08, 2021 07:59 PM IST
Irrespective of whether Nepal has elections or witnesses the restoration of Parliament, a prudent course for India would be to let Nepal cope with its internal political mess
Close
India is currently the world’s third largest consumer of oil with growing demand and limited domestic supplies. Import in 2019-20 was 1.6 billion barrels and will increase as its economy expands.(REUTERS)
India is currently the world’s third largest consumer of oil with growing demand and limited domestic supplies. Import in 2019-20 was 1.6 billion barrels and will increase as its economy expands.(REUTERS)

To secure India’s energy future, create a sovereign wealth fund and invest

By Amit Bhandari
UPDATED ON JAN 07, 2021 07:43 PM IST
Norway is an example of prudent management of the windfall from high oil prices of the past, with which it set up a rainy day fund — now one of the most powerful and successful in the world. India is witnessing a similar windfall, in reverse, due to low oil prices — and needs to plan for the time when prices will be higher. That time is now.
Close
Health workers conduct a dry run of Covid-19 vaccination programme, New Delhi, January 6, 2021(Sanchit Khanna/HT PHOTO)
Health workers conduct a dry run of Covid-19 vaccination programme, New Delhi, January 6, 2021(Sanchit Khanna/HT PHOTO)

Devising a vaccine strategy for India

By Reuben Abraham and Anup Malani
UPDATED ON JAN 07, 2021 07:43 PM IST
Focus on allocation, distribution, financing, communication and certification
Close
The white supremacist disregard for the sanctity of law has been on the increase during the Trump presidency and the contrast with how Washington dealt with peaceful protests by African-Americans in recent months is illustrative of the deep racial fissures that still fester in US society.(AP)
The white supremacist disregard for the sanctity of law has been on the increase during the Trump presidency and the contrast with how Washington dealt with peaceful protests by African-Americans in recent months is illustrative of the deep racial fissures that still fester in US society.(AP)

January 6: A black day for US democracy

By C Uday Bhaskar
UPDATED ON JAN 07, 2021 07:41 PM IST
The erosion of democracy in the US, led by a defeated president, emboldened by his white supremacist base, will have both domestic and geopolitical consequences
Close
The shutdown of courts across India provided an opportunity to adapt to digital modes of working(Sonu Mehta/HT PHOTO)
The shutdown of courts across India provided an opportunity to adapt to digital modes of working(Sonu Mehta/HT PHOTO)

Ensure access to justice in a post-Covid world

By Leah Verghese
UPDATED ON JAN 07, 2021 07:20 AM IST
Any move towards the online functioning of courts must account for the digital divide in India
Close
Great cities and societies are not those that unquestioningly preserve everything from the past. They evolve and add new things while retaining the best from the past
Great cities and societies are not those that unquestioningly preserve everything from the past. They evolve and add new things while retaining the best from the past

The new architecture of a new India

PUBLISHED ON JAN 06, 2021 08:23 PM IST
India needs iconic buildings for functional reasons, to reflect new aspirations, and move past the colonial legacy
Close
The tribunal reasoned that India’s decision to retroactively apply the law, without a specific justification, created a new tax burden on a transaction that was not taxable at the time it was carried out, ie. in 2006(Shutterstock)
The tribunal reasoned that India’s decision to retroactively apply the law, without a specific justification, created a new tax burden on a transaction that was not taxable at the time it was carried out, ie. in 2006(Shutterstock)

India’s retrospective taxation blunder is still extracting heavy costs

By Prabhash Ranjan
UPDATED ON JAN 07, 2021 07:20 AM IST
In endeavouring to extract revenue through retroactive taxation that damages investor sentiment in the long run, India is being penny-wise and pound-foolish
Close
It should be clear that the UP Prohibition of Unlawful Conversion of Religion law infantilises Indian citizens, reduces them to the level of subjects, and authorises State intrusion into the most personal of domains, that of individual conscience.(AFP)
It should be clear that the UP Prohibition of Unlawful Conversion of Religion law infantilises Indian citizens, reduces them to the level of subjects, and authorises State intrusion into the most personal of domains, that of individual conscience.(AFP)

Eliminate State and social interference in matters of conscience

By Gautam Bhatia
PUBLISHED ON JAN 05, 2021 06:52 PM IST
The UP conversion law is unconstitutional. But the debate does not end with this one law, as it also replicates many existing provisions from other laws, which have been left standing for too long. India cannot call itself a constitutional democracy until social interference in matters of conscience is eliminated from its laws, once and for all.
Close
Farmers during their protest against the new farm laws, New Delhi, January 3, 2021(PTI)
Farmers during their protest against the new farm laws, New Delhi, January 3, 2021(PTI)

Understanding the rationale of farm protests

By Vijay Inder Singla and Aadil Singh Boparai
UPDATED ON JAN 06, 2021 06:13 AM IST
We need an empathetic government with a moral compass to urgently find a solution to the satisfaction of the farmers. Engaging in dilatory tactics and subterfuge will further exacerbate the growing trust deficit between the farming community and the Centre.
Close
By standing up militarily to China on the Himalayan borders, India also made it possible for smaller nations at the receiving end of Chinese aggression to envision the possibility that subservience to China is not the only option(ANI)
By standing up militarily to China on the Himalayan borders, India also made it possible for smaller nations at the receiving end of Chinese aggression to envision the possibility that subservience to China is not the only option(ANI)

The Delhi-Beijing battle in South Asia

By Harsh V Pant
UPDATED ON JAN 06, 2021 06:13 AM IST
China’s influence has grown, but contrary to conventional narrative, it is not necessarily ‘winning’. India has retained its focus
Close
Facebook Chairman and CEO Mark Zuckerberg testifies at a House Financial Services Committee hearing in Washington, US, October 23, 2019(REUTERS)
Facebook Chairman and CEO Mark Zuckerberg testifies at a House Financial Services Committee hearing in Washington, US, October 23, 2019(REUTERS)

Silicon Valley is in for a rough ride

By Vivek Wadhwa & Tarun Wadhwa
PUBLISHED ON JAN 04, 2021 08:21 PM IST
The days of regulators prioritising innovation over compliance may be over. The traditionally warm relationship between the Democratic Party and Big Tech is becoming contentious
Close
Covid-19 has taught all governments many lessons. But the most important one will be this: The strength of our social safety net will determine the heights the Indian economy will scale.(PTI)
Covid-19 has taught all governments many lessons. But the most important one will be this: The strength of our social safety net will determine the heights the Indian economy will scale.(PTI)

Only a strong social security net can ensure economic growth

By Jasmine Shah
UPDATED ON JAN 04, 2021 09:13 PM IST
The economic response of the Aam Aadmi Party government in Delhi has focused primarily on the poor and created the closest equivalent of a universal social safety net anywhere in India
Close
This undated handout photo obtained on October 6, 2020, from the University of California Los Angeles (UCLA) shows US astronomer and professor Andrea Ghez. Roger Penrose of Britain, Reinhard Genzel of Germany and Andrea Ghez of the US won the Nobel Physics Prize on October 6, 2020 for their research into black holes(AFP)
This undated handout photo obtained on October 6, 2020, from the University of California Los Angeles (UCLA) shows US astronomer and professor Andrea Ghez. Roger Penrose of Britain, Reinhard Genzel of Germany and Andrea Ghez of the US won the Nobel Physics Prize on October 6, 2020 for their research into black holes(AFP)

Will physics un-gender itself in the new decade?

By Prajval Shastri
PUBLISHED ON JAN 04, 2021 08:18 PM IST
Physicists need to internalise that being allowed to follow one’s passion at taxpayers’ expense is a privilege. All accomplishments are a consequence of that privilege, and from that follows the responsibility to correct the injustices.
Close
SHARE
Story Saved
OPEN APP