"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Friday, March 12, 2010

Recent Judgments

Syed Bashir-ud-din Qadri v. Nazir Ahmed Shah,

CIVIL APPEAL NOS.2281-2282 OF 2010, Date of Judgment 10-03-10

The case originated from J&K where the appellant with disability due to cerebral palsy was appointed as teacher and was found to be capable of discharging the duties by the Head Master and a committee appointed for evaluating the performance.

Later on, another contender for the post filed a petition before the J&K HC and caused to appoint a medical commission. As if to show the height of insensitivity, in an unprecedented move, the HC called the appellant personally to court and put questions directly to him. Ultimately ordered disengagement of the appellant from teaching duties and directed the State Govt. to find an appropriate post for him. Aggrieved by that order, the present appeal is filed before SC and got a favourable judgment from bench consisting of Justices Altmas Kabeer and Cyriac Joseph.

The judgment contains; discussion about the principle of reasonable accommodation, direction to judiciary as to what orientation it ought to have while reading PWD Act, and a censuring of the HC for mechanically reading the provision.


Badri said...

What's wrong with the court asking the concerned person to appear before the court? If a person can teach, she can appear before a court of law which would want to see for itself if the said person can really discharge her duties as a teacher. While the order for disengagement of service may be insensitive depending on the facts, what is the insensitivity in asking a person to appear before the court when she is capable of doing so?

Jasmine said...

The High Court on two different proceedings relating to the same person on the same issue of appointment has caused to set up three committees to see whether he is eligible to perform his duties. One of them is a medical body. This is despite the fact that his name came first in the merit list. Incidentally, the J&K PWD Act was notified in the period between the merit list and appointment.

An Expert Committee appointed by the HC held a view that “the speech of the appellant is comprehensible up to 80% to 90% as indicated by the students themselves and the further certificate given that the appellant could handle lower classes easily even if the roll is big and where the teaching is done through models.”

The very fact of being called in person to a court and questions put directly by the judges could be intimidating to any. When this is done to a person already suffering from speech disability, the impact could be worse. Basing the decision on the impression formed in such an interview would be unjustified. If that be case why was the person put to all the trouble of being present before three committees for assessment. As I understand from the judgment, this personal audition was done in an appellate procedure.

Anonymous said...

Thanks so much for pointing out the disability judgment. The only thing that can be said is that the Court did not really use the non-discrimination language in coming to its conclusion. The person was selected in the general category and did not require the benefit of reservation. In fact, the State Government’s notification on reservation came sometime after the selection was made. I am not too sure about the JKPWD Act, but as far as the PWD Act is concerned, we do not find a general non-discrimination only on grounds of disability provision like 15(1) or even 16(2) of the Constitution. Discrimination is prohibited only in matters of promotion. And again, no person’s services can be discontinued if a disability is acquired during employment.
Otherwise ma’am, I would love to have your take on personal autonomy being used to read in new groups/catagories/classes under 15 and 16. Arent the both of them exhaustive? For example, 15 does not use dissent and place of residence. So can the State be precluded from discriminating only on these grounds under 15? Besides, what if it is scientifically established in the future that things such as lethargy, the ability to work hard and the like are inate endowments difficult to do anything about and therefore as much a reflection of personal autonomy as the explicitly laid down catagories? If personal autonomy is not the correct common thread, then how do we go about judicially expanding 15 and 16? Given its close ended language, shouldn’t the judiciary resist this expanding business and wait for the Constitution to be amended only if the Parliament so wishes?
I will be greatful for your inputs.