RAVINDER KUMAR DHARIWAL & ANR. versus THE UNION OF INDIA & ORS.
[2021] 13 S.C.R. 823, Supreme Court of India, 2021
Outcome: Appeal(s) allowed (Granted)
Segment: Body
evidence shows that the cognitive and conative
capacities of an employee have not been negated by
depression, and he is able to appreciate the wrongfulness
of his conduct and act accordingly, his culpability or
blameworthiness may be diminished by reason of the
depression. In which case, the employee’s depression must
be taken into account in determining an appropriate
sanction. A failure to properly take account of depression
before dismissal for misconduct could possibly result in
substantive unfairness.”
(emphasis supplied)
Thus, it has been held that the employers must be cognizant of the
role mental health disorders have played in the alleged misconduct and
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consider it as a mitigating factor even if the mental health disorder was
not incapacitating.
V Analysis
89. On the basis of our discussion of the above-mentioned
jurisdictions, the following conclusions emerge:
(i)
Mental health disorders are recognised as a disability as
long as they fulfil the defining criteria;
(ii)
The duty of providing reasonable accommodation to persons
with disabilities is sacrosanct. All possible alternatives must
be considered before ordering dismissal from service.
However, there are accepted defences to this principle. The
well-recognised exception to this rule is that the duty to
accommodate must not cause undue hardship or impose a
disproportionate burden on the employer – the interpretation
of these concepts may vary in each jurisdiction. In the US,
the duty to accommodate is also to be balanced with ensuring
the safety of the workplace (the direct risk defence)
provided that the threat to safety is based on an objective
assessment and not stereotypes. In Canada, the minority
concurring opinion in Stewart (supra) observed that
accommodating a person with substance dependency would
cause undue hardship to the employer in a safety-sensitive
workplace. The Court of Justice of EU also recognised
workplace safety as a legitimate occupational requirement
for imposing certain occupational standards. However, it
ruled that the standard should be proportionate to the
objective of workplace
safety that is sought to be achieved.
In this context, it will be useful to refer to the minority opinion
in Stewart (supra) which emphasizes that the duty to
accommodate is individualized. The employer must be
sensitive to how the individual’s capabilities can be
accommodated. The Committee on the Rights of Persons
with Disabilities in General Comment Six expressly notes
that the duty to accommodate is an “individualised reactive
duty” and “requires the duty bearer to enterinto dialogue
with the individual with a disability”. Thus, a blanket
approach to disability-related conduct will not suffice to show
that the employer has discharged its individualized duty to
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accommodate. It must show that it took the employee’s
individual differences and capabilities into account;
(iii)
Mental health disorders pose a unique challenge in disability
rights adjudication. Very often, persons are not aware of or
are in denial of their mental disability. Even if they hold the
awareness, to avoid stigma and discrimination, they tend to
not disclose their mental illness before an incident of
purported misconduct. Thus, they may fall foul of the
requirement to request a reasonable accommodation. In the
US, for instance, the requirement to provide reasonable
accommodation is prospective. In Canada, the majority in
Stewart (supra) observed that despite the substance
dependency, the employee had the ability to make a prior
disclosure of the dependency to the employer and could
have availed of the reasonable accommodation. However,
the minority opinion, emphatically observed that self-
reporting cannot be construed as accommodation for
persons who are in denial of their disability. The Committee
on the Rights of Persons with Disabilities in General
Comment Six notes that the duty to accommodate also
arises in cases where the duty bearer “should have realized
that the person in question had a disability that might require
accommodations to address barriers to exercising rights”;
and
(iv)
An issue that remains contentious is the examination of
misconduct charges against persons with mental health
disorders. There are two strands of
argument. One
argument is that mental disability often manifests as atypical
behaviour that may fall within the ambit of misconduct. If
such conduct is causally connected to the disability, then
dismissal on grounds of misconduct is discrimination based
on disability. This argument has been accepted by a few
courts in the US. In the minority opinion in Stewart (supra),
it was observed that making a distinction between the
disability and the disability-related conduct is akin to making
a distinction between a protected ground and conduct that
is intertwined with the protected ground. On the other hand,
it is argued that while mental health disorders may diminish
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the control a person has over their actions, it does not
necessitate that the persons have completely lost their ability
to comply with acceptable standards of workplace conduct.
In the US, most courts have held that misconduct is not
protected under ADA. In Stewart (supra), the majority
opinion of the Canadian Supreme Court held that the
employee with substance dependency retained some control
to comply with the policy of making prior disclosure of
dependency. Thus, non-compliance with standards of
workplace conduct can rightfully lead to dismissals and
would not constitute discrimination. South Africa adopts a
middle ground in this debate. In Legal Aid South Africa
(supra), the court observes that a two-pronged enquiry is
required. It must first be considered based on the evidence
whether the mental health disorder is so incapacitating that
the person is not able to appreciate the wrongfulness of the
conduct or is unable to conduct themselves in accordance
with the required standard. Alternatively, if the evidence
suggests that the person can appreciate the wrongfulness
of their conduct and act accordingly, then their culpability
stands diminished because of the mental health disorder,
and sanctions should be imposed accordingly.
C.4.2 Disciplinary Proceedings against the Appellant
90. The question that comes up before this Court is whether it is
sufficient for the appellant to show that his mental health disorder
was
one of the factors that led to the initiation of disciplinary proceedings
against him for misconduct or is he required to prove that his disability
was the sole cause of disciplinary proceedings being instituted against
him. Section 3 of the RPwD Act provides a general guarantee against
non-discrimination and equality to persons with a disability. Section 20
specifically provides that no government establishment shall discriminate
against any person who has acquired a disability in any matter relating to
employment. Discrimination has been given an expansive definition under
Section 2(h) of the RPwD Act, which states thus:
“(h) “discrimination” in relation to disability, means any distinction,
exclusion, restriction on the basis of disability which is the purpose
or effect of impairing or nullifying the recognition, enjoyment or
exercise on an equal basis with others of all human rights and
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fundamental freedoms in the political, economic, social, cultural,
civil or any other field and includes all forms of discrimination and
denial of reasonable accommodation”
91. Section 2(h) prohibits discrimination on the basis of disability.
It is pertinent to note that the provision does not use the phrase ‘only’ on
the basis of disability. This Court in its decisions has observed that while
a causal connection may need to be established between the ground for
discrimination and the discriminatory act, it is not required to be shown
that the discrimination occurred solely on the basis of the forbidden
ground. As long as it can be shown that the forbidden ground played a
role in the discriminatory action, the action will violate the guarantee
against non-discrimination.
92. In Navtej Johar (supra), one of us (Dr DY Chandrachud) in
the concurring opinion expressed in the context of interpreting Article 15
of the Constitution that the non-discrimination clause does not permit
only single ground claims. Article 15 states that “The State shall not
discriminate against any citizen on grounds only of religion, race, caste,
sex, place of birth or any of them”. The concurring opinion observed
that limiting discrimination-related claims to a single ground by placing
reliance on ‘only’ is a formalistic interpretation of the guarantee against
non-discrimination. It was observed that discrimination, for instance,
based on “sex and another ground (‘sex plus’)” would
fall under the
ambit of Article 15. The opinion placed reliance on a judgment of this
Court in Anuj Garg v. Hotel Association of India108, which held that
socially ascribed gender roles or stereotypes regarding sex would not be
distinguishable from discrimination solely based on sex. The relevant
extract of the opinion is reproduced below:
“431. This formalistic interpretation of Article 15 would render
the constitutional guarantee against discrimination meaningless.
For it would allow the State to claim that the discrimination was
based on sex and another ground (“Sex plus”) and hence outside
the ambit of Article 15. Latent in the argument of the discrimination,
are stereotypical notions of the differences between men and
women which are then used to justify the discrimination. This
narrow view of Article 15 strips the prohibition on discrimination
of its essential content. This fails to take into account the
108 (2008) 3 SCC 1.
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intersectional nature of sex discrimination, which cannot be said
to operate in isolation of other identities, especially from the socio-
political and economic context. For example, a rule that people
over six feet would not be employed in the army would be able to
stand an attack on its disproportionate impact on women if it was
maintained that the discrimination is on the basis of sex and height.
Such a formalistic view of the prohibition in Article 15, rejects the
true operation of discrimination, which intersects varied identities
and characteristics.”
93. In Patan Jamal Vali v. State of Andhra Pradesh109, this
Court noted the single-axis legislations which prohibit discrimination based
on a single ground make it difficult for an individual claiming differential
treatment to provide sufficient evidence because often “evidence of
discrete discrimination or violence on a specific ground may be absent
or difficult to prove.” While interpreting Section 3(2)(v) of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989
(prior to the amendment in 2015), this Court observed that the terms “on
the ground of” would not entail proving that the offence against a person
belonging to a Scheduled Caste or Scheduled Tribe took place solely on
the ground of their caste or tribal identity. If it is one of the factors, it will
fall within the ambit of Section 3(2)(v). This Court held thus:
“62. In the
above two extracts, this Court has interpreted Section
3(2)(v) to mean that the offence should have been committed
“only on the ground that the victim was a member of the Scheduled
Caste.” The correctness of this exposition. Is debatable. The
statutory provision does not utilize the expression “only on the
ground”. Reading the expression “only” would be to add a
restriction which is not found in the statute. The statute undoubtedly
uses the words “on the ground’ but the juxtaposition of “the” before
“ground” does not invariably mean that the offence ought to have
been committed only on that ground. To read the provision in that
manner will dilute a statutory provision which is meant to safeguard
the Scheduled Castes and Scheduled Tribes against acts of violence
which pose a threat to their dignity. As we have emphasized before
in the judgment, an intersectional lens enables us to view oppression
as a sum of disadvantage resulting from multiple marginalized
identities. To deny the protection of Section 3 (2) (v) on the premise
109 2021 SCC OnLine SC 343.
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that the crime was not committed against an SC & ST person
solely on the ground of their caste identity is to deny how social
inequalities function in a cumulative fashion. It is to render the
experiences of the most marginalized invisible. It is to grant impunity
to perpetrators who on account of their privileged social status
feel entitled to commit atrocities against socially and economically
vulnerable communities. This is not to say that there is no
requirement to establish a causal link between the harm suffered
and the ground, but it is to recognize that how a person was treated
or impacted was a result of interaction of multiple grounds or
identities. A true reading of Section 3(2)(v) would entail that
conviction under this provision can be sustained as long as caste
identity is one of the grounds for the occurrence of the offence.
In the view which we ultimately take, a reference of these
decisions to a larger bench in this case is unnecessary. We keep
that open and the debate alive for a later date and case.”
94. Similar considerations would govern our understanding of
discrimination under the RPwD Act. A person with a disability is not
required to prove that discrimination occurred solely on the basis that
they had a disability. Disability needs to be one of the factors that led to
the discriminatory act. Thus, in the present case, the appellant is only
required to prove that disability was one of the factors that led to the
institution of
disciplinary proceedings against him on the charge of
misconduct. A related enquiry then is to examine whether the conduct
of the employee with a mental disability must be solely a consequence
of their disability or it is sufficient to show that the disability was one of
the factors for the conduct.
95. An interpretation that the conduct should solely be a result of
an employee’s mental disability would place many persons with mental
disabilities outside the scope of human rights protection. It is possible
that the appellant was able to exercise some agency over his actions.
But the appellant was still a person who was experiencing disabling
effects of his condition. Thus in any event his agency was diminished.
The over-emphasis on the choice or agency of a person with a mental
health disorder furthers the stigma against them. As Justice Gascon’s
minority opinion in Stewart (supra) states, it furthers the stereotype that
persons with mental health conditions are “the authors of their own
misfortune” (para 58).
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96. This is not to say that persons with mental health disorders
are never in control of their actions. This may perpetuate another
stereotype that such persons are “dangerous”, who are more prone to
commit violent or reckless acts. Studies indicate that there is no direct
link between mental health disorders and violence. There is no substantial
difference between the patterns of violent conduct exhibited by persons
with mental health disorders and others without such disorders.110 Further,
we would like to emphasize that persons with mental disabilities are not
static entities. Earlier in the judgment, we had discussed how employment
opportunities and affirmative workplace policies help persons with
disabilities in coping with their illness and improving their mental health.
Thus, what is required is a nuanced and individualized approach to mental
disabilities-related discrimination claims, which requires understanding
the nature of the disadvantage that such persons suffer.
97. The South African jurisprudence in assessing claims of
misconduct relating to disability presents a middle path where an enquiry
is to be conducted to assess whether the mental disability is incapacitating,
which would then nullify the charge of misconduct. In the event, it is not
incapacitating, the mental disability would still serve as a mitigating factor
in the imposition of sanctions. However, this approach also has a limitation
where
it focuses too much on the nature of impairment than the
disadvantage. It has the possibility of making disability rights adjudication
more complex and less accessible since it would require reliance on
medical experts to assess how debilitating the mental disability is.111
This also makes the disability regime vulnerable to being relegated to a
medical model of disability rather than a social model. Thus, in the Indian
context, a person with a mental disability is entitled to the protection of
the rights under the RPwD Act as long they meet the definitional criteria
of what constitutes a ‘person with a disability’ under Section 2(s).
98. Having regard to the complex nature of mental health disorders,
any residual control that persons with mental disabilities have over their
110 Linda A. Teplin, The Criminality of Mentally Ill: A Dangerous Conception, 142(5)
American Journal of Psychiatry 593-599 (1985). See also Claire Wilson, Raymond
Nairn et. al., Constructing Mental Illness as Dangerous: A Pilot Study, 33(2) Australian
and New Zealand Journal of Psychiatry 240-247.
111 Lesli Bisgould, Human Rights Code v. Charter: Implications of Tranchemontagne
Twists and Turns and Seventeen Volumes of Evidence, or How Procedural Developments
Might Have Influenced Substantive Human Rights Law, 9 JL & Equality 33 (2012).
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conduct merely diminishes the extent to which the disability contributed
to the conduct, it does not eliminate it as a factor. The appellant has been
undergoing treatment for mental health disorders for a long time, since
2009. He has been diagnosed with 40 to 70 percent of permanent
disability by a government hospital. While all CRPF personnel may be
subject to disciplinary proceedings on charges of misconduct, the appellant
is more vulnerable to engage in behavior that can be classified as
misconduct because of his mental disability. He is at a disproportionate
disadvantage of being subjected to such proceedings in comparison to
his able-bodied counterparts. The concept of indirect discrimination has
been recognized by this Court in Ltd. Col. Nitisha and Ors. v. Union
of India112, which is closely tied with the conception of substantive equality
that pervades the international and Indian disability-rights regime. Thus,
the disciplinary proceeding against the appellant is discriminatory and
must be set aside.
C.4.3 Reasonable Accommodation of the Appellant
99. In section C.1.3 of the judgment, we have held that the 2021
notification exempting the CRPF from the application of Section 20 will
not be applicable to the present proceedings since the rights crystallized
when the appellant preferred the special leave petition.
100. Section 20 (4) of the RPwD provides thus:
“(4) No Government establishment shall dispense with or reduce
in rank, an employee who
acquires a disability during his or her
service:
Provided that, if an employee after acquiring disability is not suitable
for the post he was holding, shall be shifted to some other post
with the same pay scale and service benefits:
Provided further that if it is not possible to adjust the employee
against any post, he may be kept on a supernumerary post until a
suitable post is available or he attains the age of superannuation,
whichever is earlier.”
Sub-Section (4) of Section 20 advances the guarantee of
reasonable accommodation to persons with mental disabilities. The
Government establishment has a positive obligation to shift an employee
112 2021 SCC OnLine SC 261.
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who acquired a disability during service to a suitable post with the same
pay scale and service benefits. The provision further states that if it is
not possible to adjust the employee against any post, he may be kept on
a supernumerary post until a suitable post becomes available or when
they attain the age of superannuation, whichever is earlier. In Vikas
Kumar (supra), this Court observed that persons with disabilities face
unique barriers, which must be mitigated through the provision of specific
measures. This Court held:
“43. There is a critical qualitative difference between the barriers
faced by persons with disabilities and other marginalised groups.
In order to enable persons with disabilities to lead a life of equal
dignity and worth, it is not enough to mandate that discrimination
against them is impermissible. That is necessary, but not sufficient.
We must equally ensure, as a society, that we provide them the
additional support and facilities that are necessary for them to
offset the impact of their disability.”
The principle that reasonable accommodation is a component of
the right to equality and discrimination was reiterated by this Court in
Avni Prakash v. National Testing Agency113.
101. In light of Section 20(4) and the general guarantee of
reasonable accommodation that accrues to persons with disabilities, the
appellant is entitled to be reassigned to a suitable post having the same
pay scale and
benefits. The CRPF may choose to assign him a post
taking into consideration his current mental health condition. The suitability
of the post is to examined based on an individualised assessment of the
reasonable accommodation that the appellant needs. The authorities can
ensure that the post to which the appellant is accommodated does not
entail handling or control over firearms or equipment which can pose a
danger to himself or to others in or around the workplace.
D Epilogue
102. The present case involves a complex question of balancing
competing interests. Specifically, this entails the right of persons with
mental disabilities against discrimination in the course of employment
and the interest of the CRPF in ensuring a safe working environment
and maintaining a combat force that can undertake security operations.
113 Civil Appeal No. 7000 of 2021.
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While balancing the two we must also recognize the role assigned to the
CRPF as a para-military force. Tarunabh Khaitan has commented that
rights are rarely of an absolute nature. Constitutions often provide the
possibility of limiting those rights through acceptable justifications. He
gives an example of Article 19(1) of the Constitution, where a justification
clause has been in-built into the text of the Constitution. On the other
hand, he points out, while Article 14 is not subject to an express justification
clause, judges have evolved the reasonable classification test to assess
whether a differential treatment can be justified under Article 14. He
argues that the difference between the two models of justification is
merely semantic.114 The proviso to sub-Section (1) of Section 20 of the
RPwD Act provides a justification for violating the right against
discrimination in employment. It provides that the appropriate
government, may, having regard to the type of work carried on in any
establishment exempt such an establishment from the provisions of
Section 20. The key words here to note are “having regard to the type of
work”. This indicates that the government’s right to exempt an
establishment from the provisions of Section 20 which deals with
employment discrimination is not absolute. In an appropriate case, a
standard for reviewing the justification given by the government may
have to be developed.
103. This Court at the very inception of the
constitutional republic
had observed that a measure that limits rights must have a proportional
relationship to the right.115 With the passage of time, this Court has
evolved a test for applying proportionality analysis to a rights-limiting
measure.116 A version of the proportionality test was used by this Court
in Anuj Garg v. Hotels Association of India117 in the context of anti-
discrimination analysis. This Court was examining the constitutionality
of a provision which prohibited the employment of women in premises
that served alcohol to the public. While adjudicating whether such a
restriction was justified, this Court considered whether the restriction’s
“legitimate aim of protecting the interests of women is proportionate to
114 Tarunabh Khaitan, Beyond Reasonableness – A Rigorous Standard of Review for
Article 15 Infringement, 50(2) Journal of the Indian Law Institute 177-208 (2008).
115 Chintaman Rao v State of MP AIR 1951 SC 118; VG Row v State of Madras AIR
1952 SC 196.
116 Modern Dental College and Research Centre v State of Madhya Pradesh, (2016) 7
SCC 353.
117 (2008) 3 SCC 1.
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the other bulk of well-settled gender norms such as autonomy, equality
of opportunity, right to privacy et al.” The Court held that the measure
was not proportional because instead of enhancing the security of women
and empowering them, it imposed restrictions on their freedom. The
Court, however, used strict scrutiny and proportionality interchangeably
in the judgment. Since then, the proportionality analysis has been used in
many other judgments in relation to other rights.118
104. Sub-Section (3) of Section 3 of the RPwD Act itself
contemplates undertaking a proportionality analysis for a rights-limiting
measure. Section 3 of the RPwD Act provides thus:
“3. Equality and non-discrimination.—
(1) The appropriate Government shall ensure that the persons
with disabilities enjoy the right to equality, life with dignity and
respect for his or her integrity equally with others.
(2) The appropriate Government shall take steps to utilise the
capacity of persons with disabilities by providing appropriate
environment.
(3) No person with disability shall be discriminated on the
ground of disability, unless it is shown that the impugned
act or omission is a proportionate means of achieving a
legitimate aim.
(4) No person shall be deprived of his or her personal liberty only
on the ground of disability.
(5) The appropriate Government shall take necessary steps to
ensure reasonable accommodation for persons with disabilities.”
(emphasis supplied)
105. The jurisprudence of Sections 3 and 20 of the RPwD Act
would have to evolve. Our journey has begun. Here we have pondered
over the possible trappings which a standard of judicial review may adopt.
Such an enquiry is rooted in, “the idea that something protected as a
matter of right may not be overridden by ordinary considerations of
policy…Reasons justifying an infringement of rights have to be of a
118 Puttaswamy v Union of India (2017) 10 SCC 1; Puttaswamy (II) v Union of India
(2019) 1 SCC 1; Anuradha Bhasin v Union of India(2020) 3 SCC 637; and Internet and
Mobile Association of India v. Reserve Bank of India (2020) 10 SCC 274; Akshay N
Patel v. Reserve Bank of India Civil No. 6522 of 2021.
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special strength”.119 We have not indicated any final thoughts on how
the proviso to Section 20 (1) is to be interpreted.
E Conclusion
106. In view of the discussion above, we summarise our findings
below:
(i)
The validity of the disciplinary proceedings shall be
determined against the provisions of the RPwD Act 2016
instead of the PwD Act 1995 for the following reasons:
(a)
The respondent holds a privilege under the 2002
notification to not comply with the principles of non-
discrimination and reasonable accommodation provided
under Section 47 of the PwD Act. However, for a
privilege to accrue in terms of Section 6 of the GCA,
mere expectation or hope is not sufficient. Rather, the
privilege-holder must have done an act to avail of the
right. The privilege provided by the 2002 notification
would accrue only when one of the punishments
provided under Section 47 has been imposed. However,
in the instant case, the disciplinary proceedings were
challenged even before the punishment stage could
be reached. Therefore, the privilege available to the
respondent under the 2002 notification was not accrued
in terms of Section 6 of the GCA;
(b)
Section 47 of the PwD Act is not the sole source of
the right of equality and non-discrimination held by
persons with disability. The principle of non-
discrimination guides the entire statute whose
meaning and content find illumination in Article 5 of
the CRPD. An interpretation that furthers
international law or gives
effect to international law
must be preferred. Therefore, even though the PwD
Act does not have an express provision laying down
the principle of equality vis-à-vis disabled persons, it
will have to be read into the statute; and
119 Mattias Kumm,
Political Liberalism and the Structure of Rights: On the place and limits of the
proportionality requirement, in Law, Rights and Discourse: Themes from the Legal
Philosophy of Robert Alexy 131-166 (George Pavlakos ed., Hart 2007)
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(c)
The 2002 notification is not saved by Section 102 of
the RPwD Act since Section 20 of the RPwD Act is
not corresponding to Section 47 of the PwD Act;
(ii)
The disciplinary proceedings are discriminatory and violative
of the provisions of the RPwD for the following reasons:
(a)
A person with a disability is entitled to protection under
the RPwD Act as long as the disability was one of
the factors for the discriminatory act; and
(b)
The mental disability of a person need not be the
sole cause of the misconduct that led to the initiation
of the disciplinary proceeding. Any residual control
that persons with mental disabilities have over their
conduct merely diminishes the extent to which the
disability contributed to the conduct. The mental
disability impairs the ability of persons to comply with
workplace standards in comparison to their able-
bodied counterparts. Such persons suffer a
disproportionate disadvantage due to the impairment
and are more likely to be subjected to disciplinary
proceedings. Thus, the initiation of disciplinary
proceedings against persons with mental disabilities
is a facet of indirect discrimination.
107. The disciplinary proceedings against the appellant relating to
the first enquiry are set aside. The appellant is also entitled to the
protection of Section 20(4) of the RPwD Act in the event he is found
unsuitable for his current employment duty. While re-assigning the
appellant to an
alternate post, should it become necessary, his pay,
emoluments and conditions of service must be protected. The authorities
will be at liberty to ensure that the assignment to an alternate post does
not involve the use of or control over fire-arms or equipment which may
pose a danger to the appellant or others in or around the work-place.
108. The Civil Appeal is accordingly allowed in the above terms.
109. Pending application(s), if any, stand disposed of.
Nidhi Jain
Appeal allowed.