Dear All, As far as my preliminary reading of the case suggests, the decision primarily hinges on the fact that the respondent concerned had colour blindness. Now lack of colour perception or reduced colour perception finds no mention in the PWD Act. Blindness and low vision both have specific definitions in the Act, and a literal reading of the legislation by the Court meant that the respondent was not entitled to claim benefit under section 47. Section 47 comes into picture in a post-employment situation, and section 47(2) says that no person shall be denied promotion merely on grounds of disability. The definition of disability includes blindness and low vision. In a way, the SC is suggesting that colour blindness is not a disability under the PWD Act. Even if it were one, the promotion was denied not merely on grounds of the disability, but for some other reasons as well, i.e. the adverse effects of the disability on the employee’s ability to perform the higher duties or functions attached to the promotional post. The person was found not fit since he had failed to meet the minimum B1 medical standards for promotion as Chief Research Assistant keeping in view safety, security and efficiency concerns. I’m not really sure of the nature of work expected of a CRA at the RDSO. Is colour perception integral for the performance of the kind of tasks expected of the respondent? If not, shouldn’t the order stipulating such medical standards have been quashed for such a discriminatory exclusion? Was there no possibility at all for a reasonable accommodation being made by the employer? In other words, couldn’t the respondent be provided with special equipments/devices to undertake his job?The Judges may have done better by being a bit more pragmatic and trying to look into all these issues instead of deferring to the prescribed medical standards. This judgment is reflective of a dominant trend in India- the medicalization of disability- the problem is seen as inherent in the impairment and body, and not in the inaccessible social structures. But it is also true that the Court has to decide cases on the basis of the written law as laid down in statute books. In this case, it was constrained by a medicalized definition of disability enshrined in the PWD Act. The Act is in serious need of reform. However, by the show of a little bit of judicial craftsmanship, it may have been possible to expand the definition of disability to include within its ambit the lack of or reduction in colour perception. I am not at all trying to say that the respondent should have been entitled to the promotion irrespective of consequences and other circumstances. His condition may indeed have been such that he may not have been in a position to deliver the goods even after taking everything into account. The disappointment has been the refusal of the highest Court to arrive at a reasonable conclusion after considering all issues involved. What happens to the commitment to the human rights agenda when it comes to the disability sector? Regards, Moiz.
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