DISABILITY INCLUSION AND ACCESS TO JUSTICE: AN ANALYSIS OF JUDICIAL INNOVATIONS AND OPINIONS DURING COVID-19 TIMES
The advent of the highly contagious Coronavirus in 2019, forced the entire world to go on nation-wide lockdowns. Offices closed, educational institutions sent their students home and all public gathering was banned. Amidst all this, confusion loomed heavy on coming up with strategies and ideas to continue normal working. The India judiciary has been exemplary during this time in their swiftness and readiness in adopting technology to continue to deliver justice.
In situations of crisis, it is always the disadvantaged who bears the brunt of it. The judiciary, being one of the pillars of democracy recognizes the need to uphold rule of law in all situations and especially in situations of crisis where all section of society suffers. Covid-era judiciary in India has witnessed increased vigilance in catering to the needs of persons with disability and ensuring a barrier-free path to access justice. This article presents an account of the various judicial innovations made to this regard. First part of this article begins with an explanation of constitutional rights upholding rule of law and equality for all, forming the basis of the entire article. The second, part is an analysis about the efforts made for improving court infrastructure such as the court building and websites, to make it disability friendly. The substantive part of the article third part throws light on the need of participation of persons with disabilities in the legal institutions for equal representation of their interests. I conclude with an appreciation of the progressive judicial innovations that have taken place in the last few years against the backdrop of the challenging covid-19 restrictions and hope that these innovation are just the beginning of an inclusive world with guarantee of access to justice and equality before law.
Keywords: Covid-19; Judicial Innovations; Reasonable Accommodations; Mental Health Awareness; Disability Rights.
The system of having laws and sanctions which govern every individual and their actions have existed ever since humankind realized the benefits of living together in societies. Time and time again various historical events have made it abundantly clear that without set laws, anarchy will prevail in society. The simple reasoning that laws and their related sanctions in case of any violation, provides security to the members of society in accepting to adhere by the set laws. The doctrine of rule of law is based on the idea that no person or institution is ever above the law, all are equal before it and justice is never biased for anybody. The existence of the doctrine of the rule of law is of immense importance in a democratic society for maintaining the trust people have on the word of law and the functioning of a society. It ensures supremacy of law and therefore, non-arbitrariness, against oppression and emphasizes on the universal nature of justice. The doctrine of rule of law guarantees equality of all in eyes of law and delivery of justice. Several provisions of the Constitution of India, 1950 give substance for the existence of rule of law in the country. For example, Article 14 mandates equality of all before the law and non-discrimination of the basis of sex, religion, caste, skin colour etc. Articles 15, 16, 23 further support this promise of equality by prohibiting discriminatory actions. Article 13 establishes supremacy of law by stating that executive created rules and bye-laws can be struck down if case they violate the provisions of the constitution and Article 21 guarantees the protection of life and liberty except by procedure established by law, again highlighting the essence of the doctrine of rule of law. Judiciary has upheld the basic structure of the constitution, which uphold rule of law, to be set in stone, which cannot be violated even by the law makers of the country2. The concept of access to justice flows from the understanding of the importance of rule of law and the guaranteed equality before law. Reading Article 14 in conjunction with Article 39A, the constitution states that state shall not deny any person of equal protection before the law and to this regard it is the state’s duty to ensure that such equality is achieved in the delivery of justice and no that no citizen is denied of their right by the reason of economic or other disabilities. Nationwide lockdowns around the world affected the functioning of judicial instructions. Harbingers of justice however, cannot afford to take a break. Whilst facing difficulties initially, courts around the world did not waste time to swing back into action by transitioning to online mode. The promise of access to justice was upheld even if not in traditional ways. Judicial innovations in times of crisis has stood for the interests the people to ensure that justice is never denied. This article seeks to shed light on some judicial pronouncements and opinions shared by judges during Covid-19 times to ensure disability inclusion and uphold access to justice.
It is estimated that 2.21% of the total population of India is that of differently abled people3. Likewise, ithas been a signatory to the United Nations Convention on the Rights of People with Disabilities4 since 2007 but it was only in 2016 that a national legislature was enacted with an aim to give effect the international agreement. The aim of the act is to ensure protection of their human rights, dignity and well-being, to which their disability- physical or intellectual-may act as an hindrance for their equal participation in society. Section 3 of the Rights of People with Disabilities, 2016 Act (hereinafter referred to as the “2016 Act” or “RPwD Act”) ensure non- discrimination of people with disabilities and sections 12 and 13 places the duty of ensuring that such individuals are supported by the state to accommodate and exercise their legal rights.
GETTING THERE: COURT ARCHITECTURE AND INFRASTRUCTURES
MAKING COURT STRUCTURES DISABILITY FRIENDLY
The impact of covid-19 has been devastating for many and especially hard for people with disabilities. The Chief Justice N.V. Ramana had highlighted the dilapidated conditions of out court infrastructures earlier last year5. It is his opinion that court infrastructure and architecture must be replaced and rebuilt to ensure citizen’s accessibility to the courts and therefore justice. To this effect, there was a proposal to introduce the National Judicial Infrastructure Corporation (NJIC) with the intention to rebuild and update courts infrastructure. Other that replacing old- school mechanisms which are the likely causes of delays and backlogs, inclusion of technology may be expected but most importantly this is a call to make institutions of justice more accessible to individuals with various disabilities. Although there have been several judicial decisions in the past about making buildings and institutions more disability access friendly, there had not been any concrete steps taken to regard as a 2021 CJI directed survey suggested6. Government binding rules have not been implemented to ensure court buildings’ adherence to standards of accessibility as envisaged under section 40 read along with section 43 of the 2016 Act and the corresponding 2017 rules which directed accessibility of public spaces. A 2019 nationwide report by a legal think tank7 on the infrastructure of the country’s district courts, found that most of the courts did not have infrastructure which could be considered to be even baseline facilities such as a ramp at entrances to allow for hassle-free movement of wheelchairs, disabled washrooms or instructions in braille for the visually challenged. Out of the 665 districts in several of the country examined, only 27% of the court complexes featured a ramp, 11% had disable-friendly washrooms and performed the worst in terms of providing guidance to the visually impaired with only 2% having notices and instruction in braille8. The National Court Management System (NCMS)was set up in 2012 for looking into the prospect of upgradation of court complexes and courtrooms. The NCMS report suggested ‘universal design principles’ to make courts more user-friendly, include use of technology in order to increase accessibility, thus again, making the connection of access to justice with architectural requirements. The National Building Code of 2016 (NBC)also incorporated the principle of ‘universal design’ which in essence meant building of structures which provide for barrier-free access for people of old age and disabilities. The excuse of no specific mention of court building guidelines being given is in my opinion an excuse for the insufficient efforts made to make court complexes barrier free9. Courts are spaces where the public comes to seek justice and insufficient accommodations hindering their accessibility is a violation of the notion of equality, access to justice and legal aid envisaged under the constitution. Moreover under the 7thschedule of the constitution, it is the responsibility of the state and central government to fund for the maintenance and construction of court buildings.
Often, the discussion about access to justice and the underprivileged starts with the issue of monetary aid to which regard a lot has been done with the setting up of national, state level and district legal services authorities etc. However the discussion rarely stretches enough to look past just offering free legal services. Monetary disadvantage is not the only need of the underprivileged. Legal Aid must start with helping people to get access to the institutions of justice. Difficulty of access to justice is also often attributed to existing problems of pendency of cases and judicial vacancies. The solutions and therefore much of the dialogue has been towards increasing the number of functioning court complexes. However, building new complexes alone will not promote the notion of ‘barrier-free’ access to institutions of justice. There is an urgent requirement of modernizing and improving court infrastructure which was unorganized and difficult previously because of a “lack of planning and clearly designated roles of the judiciary and executive to improve court infrastructure”10. In the absence of an updated NCMS report, Vidhi’s nation-wide court infrastructure report and its policy recommendations present an alternate database for the government to look into towards improving court infrastructure11.
MAKING COURT WEBSITES INCLUSIVE
Towards making access to justice barrier free, the e-committee of the Supreme Court headed by Justice D.Y Chandrachud in 2021, made changes to the all the High Court websites to include audio captchas in an effort to accommodate the needs of the visually impaired persons12. The High Courts previously were only using visual captchas. In the wake of the pandemic and the swift transition to virtual hearings and e-fillings, etc. judiciary has become heavily dependent on technology today13. While the system of open courts and delivery of justice is deep rooted and does not seem to change anytime soon, it also certainly has become flexible with the rise of Online Dispute Resolution mechanisms. Presently however, it is a shared opinion that many of the technological developments that were undertaken due to the extraordinary circumstance, are here to stay due to their displayed efficiency and ease of access14. These include the revamping of the e-courts website allowing for e-fillings, e-payments etc. It is pertinent to note that now all District Courts, High Courts and the Supreme Court have the audio captcha facility and the already existing services of screen readers for assistance, furthering the objective of striving towards access to justice with inclusion of practices towards promoting equality and dignity of persons with disabilities. This welcome change is a reflection of the aim of E-courts services to ensure PwDs are able to access all information, integrating the principle of universal design for an inclusive justice system.
EQUAL FOOTING AND ACCESS TO JUSTICE: NEED FOR ENSURING PARTICIPATION IN THE LEGAL FIELD
GETTING INTO LAW SCHOOLS AND STARTING DIFFICULTIES OF PWDLEGAL PROFESSIONALS
Access to justice does not only mean getting appropriate support to get justice but also to get the opportunity to participate in the judicial system on equal footing. Participation of legal professionals with disabilities has always been challenging due to social stigmas and non- accommodation of this ableist world.It becomes imperative therefore to ensure a barrier-free environment for getting into law school and necessary conditions thereof required for students to carry out their studies. A 2018 diversity survey carried on across the leading National Law Universities (NLUs) of the country revealed that out of the 538 first year students surveyed, 6.21% of the participants reported having some form of disability15. Even though government funded educational institutions are supposed to have at least 5% reserved seats in the PwD category16, a lot of NLUs in practice do not conform to this requirement. A 2019 PIL filled against the Common Law admission Test (CLAT) consortium, the national exam for getting admission into National Law Universities highlighted how different national law school such as the NUSRL, Ranchi, NALSAR, Hyderabad and NLIU Bhopal, WBNUJS, DSNLU, Vishakhapatnam etc., either did not have the stipulated reserved seats for PwD candidates or grossly miscalculated the number of seats that should have been actually been reserved, leading to fewer number of seats and consequently, lesser opportunity than what the law mandates17. In 2020, Justice D.Y Chandrachud while addressing in an international summit on the theme of Legal professionals with Disabilities, prodded the consortium of CLAT to take into account the challenges that PwD candidates face while taking the examination and places them in a position of disadvantage in comparison to their able-bodied counterparts18. In the beginning of 2020, CLAT changed its examination pattern to include more comprehension based questions instead of direct question and the mathematics section included more of graph based questions, making it difficult for visually impaired test-takers to attempt the questions in absence of any alternative solution provided to them19. The All India Bar Examination (AIBE), the mandatory national exam which all Indian law graduates need to undertake in order to obtain a bar license for legal practice, also made headlines recently for refusing to provide reasonable accommodation, specifically provided for under the Guidelines for Conducting a Written Examination for Individuals with Benchmark Disabilities 2018, to a blind candidate who asked permission for certain flexibilities20.
Along with making court websites disabled friendly, Justice D.Y Chandrachud also issued advisory letter to all HC Chief Justices to include virtual court practices which are disabled- friendly for the betterment of the differently abled lawyers and litigants and ensuring equality under Article 14 and Article 19 (1) (g) with the right to practice any profession of a person’s choice. Ease of e-filling processes by taking into account the diverse needs of the PwDs was to be taken note of and implement any alternations if necessary. The suggestion of publishing judgements in HTML format along with its PDF format which is not user-friendly to the visually impaired was also made by him along with a plan to devise the practice of only using digital signatures or requiring signatures only on the last page of the paper book, to do away with the time consuming process of printing and scanning paper-books. Additionally it was also cautioned that excessive use of stamps and watermarks should not be used in a way which makes judgements and orders inaccessible21.
General Commont No.6 of the Committee on the Rights of Persons with Disabilities clarify that ‘equal protection of law’ envisaged in the treaty necessarily implies the dual but distinct concepts of equality and non-discrimination. It places the burden on the state to make positive actions and make reasonable accommodations in the interest of PwD in order to actually ensure equal opportunities for all. This dual spirit of equality and positive discrimination leading to reasonable accommodation was held by the SC in a 2016 case22. In fact, denial of such accommodation in turn, constitutes discrimination23. The Supreme Court has upheld this concept of reasonable accommodation last year in the case of Vikash Kumar v. Union Public Service commission24. The issue was regarding the examinee, Vikash Kumar, not being given extra time or a scribe to write the Civil Service’s Examination who was suffering from Writer’s Cramp, also known as dysgraphia. The progressive judgment reiterated the definition of persons with disabilities under the RPwD Act to include any individual with ‘long term physical, mental, intellectual or sensory impairment which, in interaction with various barriers, hinders full and effective participation in society equally with others’ and therefore agreed with the ministry’s submission, even if a medical condition might not be categorized as a disability per say, if it has a negative impact on the examinees ability to write, there should be an accommodation of the candidate’s requests. UPSC’s submission that the candidate not meeting the benchmark disability threshold of being impaired by 40% did not apply in this case since it was not an instance of specific entitlements25 and therefore reasonable accommodations necessarily have to be provided in the spirit ensure equal access to PwD failing which, it would prove to be a violation of section 3 of the RPwD Act. Ensuring that all have equal access to opportunities is what makes the instrument of reasonable accommodation necessary to achieve substantive equality26. Justice’s R M Lodha who stressed that the executive must be liberal in matters of granting relief to the disabled so as to not be a barrier in their way27, also finds relevance here.
MENTAL HEALTH AND THE LEGAL PROFESSION
While on the topic on equality, non-discrimination and reasonable access, recently, in the case of Akanksha Singh v. High Court of Delhi &Ors. Upheld a decision of the Delhi High Court ruling in favour of a Judicial Services candidate who suffers from Bipolar Affective Disorder (BPAD)28. The issue was whether the candidate fulfilled the condition to deserve the benefit of the PwD reservation category. In another case of the Delhi HC, a similar matter was decided with similar line of reasoning29. The HC in its decision, relied on a previous case of Pankaj Mahajan v. Kajal30 to understand the nature of BPAD. In the Pankaj Mahajan case, it was held that Bipolar disorder is a lifelong incurable mental illness which can be suppressed with regular medication but cannot be cured. It was also noted that with medication and treatments, it is possible for such people suffering from BPAD to lead a healthy lifestyle. Having establish the serious nature and permanency of the nature of the disability, the court noted that the true reason for the rejection of the candidature was because the respondents were of the opinion that candidates having BPAD were not fit for the job of being a judicial officer which was not up to the respondent to decide as parliament enacted laws on reservations cannot be surpassed. As David Allen Larson stated in his paper, access to justice is not simple met by discarding barriers physical and architectural in nature but also be certain that there is no “unnecessary cognitive barriers through oversight or simply habit”. There is a requirement to empower PwDs and give them equal opportunities to advocate for themselves and others with disabilities. Even in the above mentioned case of Vikash Kumar v. Union of India, there was an emphasis added by the court that policy decisions regarding the betterment of PwDs must be taken in consultation with individuals with disabilities. Applying the same to access to justice, it must be ensured that no unfounded bias against PwD deprives them of engaging with and participating in the justice system, promoting their right to live with dignity and equality of employment guaranteed under article 16 of the Indian Constitution. In the present case, the respondent also could not place any evidence on record to support their contention that a person suffering from BPAD cannot discharge responsibilities of a judicial officer. Mere apprehension of a possible future detoriation of the candidate’s condition in the future is not enough to deny him his statutory right and there a violation of sections 20 and 30 of the 2016 RPwD Act31.
Mental ill-health issues such as depressive disorders ranks 7th on the list of disabilities in India being nearly one-sixth of all disorders as per a 2017 report by the Institute of Health Metrics and valuation32. In fact, the most economically productive age group of 18-44 year olds are said to be the most affected portion of the population33. In such a scenario, being discriminatory towards people with mental health disabilities or even general disabilities in general is a signature of an ableist society which is exclusionary in nature, rejecting diversity. India enacted the 2017 Mental Health Act implemental with the aim to protect the interest and rights of people with mental health disabilities with regards to their medical treatment and other related aspects. Awareness levels on mental health issues is low and often labelled as taboo. Physical disabilities and ailments receive treatment but when nobody is ready to talk about their mental health, fearing societal rejection, then it becomes very difficult to offer medical help and treat such illnesses. A majority of the people with mental health issues want to work however, they are not given that opportunity if they are not actively trying to hide it, which in turn makes them weary of getting the actual medical help that they need to get better and the legislative mandated provisions that are there for their betterment becomes void34. There is thus a hypocrisy in the way people with mental health problem are treated and the way they ought to be treated. The SC reiterated on the entitlement of PwDs for getting reasonable accommodations and that people with mental health disorders have a right against workplace bias and protection against termination under the Rights of Persons with Disabilities Act35. The judgement highlighted the importance of breaking existing socio-cultural barriers and not stigmatizing persons with any form of disability. Marginalization of people from workforce entirely does not only result in isolation, widens the number of dependent population but also hinders economic growth.
In absence of a utopian society ensuring access to justice is an ever long project of the judiciary
striving to make continuous efforts have to be made to bridge the gap between the marginalized and the privilege. Modern society most strive towards inclusivity in every sphere of life and access to justice is one of the most important facets. People with disabilities have the right to live with dignity and get opportunities which places them on equal footing with the rest of the society. In this light, the judicial innovations pertaining to disability inclusion made during the covid-19 times have made positive lasting changes for a better, inclusive judiciary promoting access to justice.
1 Arunima Samanta, OP Jindal Global University
2Kesavanada Bharti v. State of Kerala (1973) 4 SCC 225
3Government of India, Ministry of statistics and programme Implementation, National Statistical Office and Social Statistics Division, Persons with Disabilities (Divyangjan) in India- A Statistical profile: 2021http://www.nhfdc.nic.in/upload/nhfdc/Persons_Disabilities_31mar21.pdf accessed 15 February 2022
4UN General Assembly, Convention on the Rights of Persons with Disabilities, 13 December 2006, A/RES/61/106, Annex I, available at https://www.refworld.org/docid/4680cd212.html accessed 28 February 2022
5 Shreya Tripathi, ‘India must build, re-build its courts for disabled. Judicial infra key to justice delivery’ The print
(25 October, 2021) https://www.barandbench.com/news/supreme-court-judicial-infrastructure accessed 15
6Bhadra Sinha, ‘What is NJIC? Agency to monitor infrastructure development in trial courts, proposed by the CJI’ The print(23 September, 2021) https://theprint.in/judiciary/what-is-njic-agency-to-monitor-infrastructure- development-in-trial-courts-proposed-by-cji/738593/ accessed 15 February 2022
7ReshmaSekhar, SumathiChandrashekaran and DikshaSanyal, ‘Building Better Courts’ (Vidhi Centre for Legal Policy, 1 August 2019) https://vidhilegalpolicy.in/research/building-better-courts-surveying-the-infrastructure-of-
indias-district-courts/ accessed 15 February 2022
9AmbikaPandit, ‘New building code aims at access for the disabled’ (The Times of India, 6 June 2016) https://timesofindia.indiatimes.com/india/new-building-code-aims-at-access-for-the- disabled/articleshow/52613025.cms accessed 15 February 2022
10National Court Management System, NCMS Baseline Report on Court Development planning System (Infrastructure and Budgeting) https://main.sci.gov.in/pdf/NCMS/Court%20Development%20Planning%20System.pdf accessed 15 February 2022
11 See note 6.
12Debayan Roy, ‘Supreme Court e-Committee makes audio captchas available on all High court websites to facilitate access for visually impaired’ (Bar and Bench, 26 June 2021) https://www.barandbench.com/news/litigation/supreme-court-e-committee-makes-audio-captchas-available- on-all-high-court-websites-to-facilitate-access-for-visually-impaired accessed 15 February 2022
13ReshmaSekhar, “‘Justice now depends on technology,’ said SA Bobde. Indian judiciary has miles to go” (ThePrint, 1 November 2021) https://theprint.in/opinion/justice-now-depends-on-tech-said-sa-bobde-indian-
judiciary-has-miles-to-go/759606/ accessed 15 February 2022
14 ‘India among highest adopters of digital tech during pandemic: EY survey’ (Livemint, 18 March 2021) https://www.livemint.com/technology/tech-news/india-among-highest-adopters-of-digital-tech-during- pandemic-ey-survey-11616049834484.html accessed 15 February 2022
15 IDIA Diversity Survey Report, 2018-2019, Increasing Diversity by Increasing Access to Legal Educationhttps://www.idialaw.org/wp-content/uploads/2020/04/diversity-survey-2018-19.pdf accessed 15 February 2022
16Right of persons with Disabilities Act, 2016 section 32
17See note 14.
18Meera Emmanuel, ‘CLAT has perpetrated exclusion of disabled test-takers from the legal profession: Justice DY Chandrachud’ (Bar and Bench, 4 December 2020) https://www.barandbench.com/news/clat-exclusion-disabled- test-takers-legal-profession-justice-dy-chandrachud accessed 15 February 2022
19Puniti Pandey, ‘CLAT 2020: New exam pattern will have more comprehension-based questions’ (Education
Times, 6 January 2020) https://www.educationtimes.com/article/careers-others/73098417/CLAT-2020-New-
exam-pattern-will-have-more-comprehension-based-questions accessed 15 February 2022
20 “‘BCI Creating Entry Barriers For Disabled Lawyers’: Says Blind AIBE Candidate; Seeks proper Implementation of 2018 PwD Guidelines” (LiveLaw, 8 January, 2021) https://www.livelaw.in/top-stories/bar- council-of-india-aibe-persons-with-disability-blind-law-student-168124 accessed 15 February 2022
21‘India: Suggestions to make virtual courts accessible for persons with disabilities’ (The Global Initiative for Inclusive ICTs, 1 January 2021)India: Suggestions to Make Virtual Courts Accessible for Persons with Disabilities – G3ict: The Global Initiative for Inclusive ICTs accessed 15 February 2022
22Jeeja Ghosh v. Union of India (2016) 7 SCC 761
23UN Committee on Right of Persons with Disabilities, ‘General comment no.6 on Article 5: Equality and non- discrimination’, adopted 9 March 2018 https://www.ohchr.org/en/hrbodies/crpd/pages/gc.aspx accessed 15
24Vikash Kumar v. Union Public Service commission, 2021 SCC OnLine SC 84
25 Right of persons with Disabilities Act, 2016 section 32
26RongeetPoddar, ‘Indian Supreme Court Upholds Reasonable Accommodation for Persons with Disabilities’ (Oxford Human Rights Hub, 17 February, 2021) https://ohrh.law.ox.ac.uk/indian-supreme-court-upholds- reasonable-accommodation-for-persons-with-disabilities/ accessed 15 February 2022
27SunandaBhandre Foundation v. Inion of India (2018) 2 SCC 397
28Pranshu Bharti, ‘Supreme Court upholds order calling for lawyer with bipolar disorder as judicial officer’ (Bar and Bench, 14 December, 2021)https://www.barandbench.com/news/litigation/supreme-court-upholds-order- calling-for-lawyer-with-bipolar-disorder-to-be-appointed-as-judicial-officer
29Bhavya Nain v. High Court of Delhi, WP (c) No. 5948 of 2019, decided on 8/05/2021
30Pankaj Mahajan v. Kajal (2011) 12 SCC 1
31LIC of India v. Chief Commiccioner for Disabilities (2002) 101 DLT 434
32Institute for Health Metrics and Evaluation. <www.healthdata.org/India> accessed 15 February 2022
33Neerja Birla, ‘Mental health in India: 7.5% of the country affected; less than 4000 experts available’ (The Economic Times, 10 October, 2019) https://economictimes.indiatimes.com/magazines/panache/mental-health- in-india-7-5-of-country-affected-less-than-4000-experts-available/articleshow/71500130.cms?from=mdr accessed 15 February 2022
34SushmaKumari and Gita JyotiOjha, ‘Employment status of persons Living With Mental Illness in India: Ground Reality’ (2005) (7)10 International Journal of Research Review https://www.ijrrjournal.com/IJRR_Vol.7_Issue.10_Oct2020/IJRR0052.pdf accessed 15 February 2022.
35UtkarshAnand, ‘disciplinary action against people with mental disabilities a facet of discrimination: Supreme
Court’ (Hindustan Times, 18 December, 2021) https://www.hindustantimes.com/india-news/disciplinary-action- against-people-with-mental-disabilities-a-facet-of-discrimination-supreme-court-101639766104226.htmlaccessed 15 February 2022