Ravinder Kumar Dhariwal & Anr. vs The Union of India & Ors.

47 whereby no establishment would dispense with or reduce in rank an employee who acquires disability during service – However, Division Bench set aside the enquiry report and restored the enquiry proceedings to the stage of the recording evidence to enable the appellant to prove his mental disability by submission of material documents – On appeal, held: Validity of the disciplinary proceedings would be determined against the provisions of the RPwD Act instead of the PwD Act – 2002 notification not saved by s. 102 of the RPwD Act since s. 20 of the RPwD Act is not corresponding to s. 47 of the PwD Act and no privilege accrued the employer under the 2002 notification in terms of s. 6 of the General Clauses Act – Disciplinary proceedings are discriminatory and violative of the provisions of the RPwD – 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 – Mental disability of a person need not be the sole cause of the misconduct that led to the initiation of the disciplinary proceeding – Initiation of disciplinary proceedings against persons with mental disabilities is a facet of indirect discrimination – Such persons suffer a disproportionate disadvantage due to the impairment and are more likely to be subjected to disciplinary proceedings – Thus, the disciplinary proceedings against the appellant set aside – General Clauses Act, 1897.

General Clauses Act, 1897: s. 6 – Effect of repeal under – Accrual of privilege – Held: Where a central enactment repeals another enactment, the repeal shall not affect the any legal proceeding or investigation with respect to an accrued right, unless a different intention appears from a repealing statute – Privilege is accrued only when the privilege holder does an act required to avail the privilege – It is not the mere hope or expectation of accrual. Constitution of India: Art. 14 – Right to Equality – Principle of Reasonable Accommodation – Held: Is one of the means for achieving substantive equality, pursuant to which disabled individuals must be reasonably accommodated based on their individual capacities – Disability, as a social construct, precedes the medical condition of an individual, and sense of disability is introduced because of the absence of access to facilities. Interpretation of statutes: Rule of interpretation – Held: If two interpretation possible, the interpretation which furthers international law or gives effect to international law must be preferred – Since Art. 5 of the Convention places the States under an obligation to provide both formal and substantive equality, an interpretation of the PwD Act that furthers the principles mentioned in Art. 5 must be undertaken, India being the signatory and having ratified the Convenion – Thus, even though the PwD Act does not have an express provision laying down the general principle of non-discrimination against disabled persons, it must still have to be read in the statute – United Nations Convention on the Rights of Persons with Disabilities – Art. 5 – Rights of Persons with Disabilities Act 2016 – Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1951.

Mental Health: Rights of persons with mental disability visà-vis employment discrimination – Foreign jurisprudence – Comparative study of position in India, United States, Canada, European Union and South Africa – Discussed.

Allowing the appeal, the Court

HELD: 1.1 (i) The validity of the disciplinary proceedings would be determined against the provisions of the Rights of Persons with Disabilities Act 2016 (RPwD Act) instead of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 (PwD Act) 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 Act 1897, 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 did not accrue in terms of Section 6 of the General Clauses Act 1897 (GCA Act);

(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 United Nations Convention on the Rights of Persons with Disabilities. 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

(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 since 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 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. [Para 106][921-B-G; 922-A-E]

1.2 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 would 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. [Para 107][922-E-G]

2.1 Section 6 of the GCA provides that where a central enactment repeals another enactment, the repeal shall not affect any legal proceeding or investigation with respect to an accrued right, unless a different intention appears from the repealing statute. The general rule of interpretation is that a newly enacted statute has prospective application. Section 6 of the GCA provides an exception to this rule, where a pending legal proceeding or investigation would be guided by the old enactment, if any ‘right, privilege, obligation or liability’ has accrued to the parties under the repealed law. [Para 17]860-G-H; 861-A]

2.2 Section 47 of the PwD Act states that no employee working in a Government establishment, who acquires a disability during the course of service shall be (i) terminated from employment; (ii) reduced in rank; or (iii) denied promotion. Section 47 protects disabled employees from punitive actions on the ground of disability. Since the 2002 notification exempts the CRPF from the application of Section 47, it is to be examined if any right or privilege has accrued to the CRPF under the 2002 notification. It is to be considered whether an exemption from a protective provision such as Section 47 results in the accrual of a right or privilege in favour of the CRPF to continue pending proceedings under the PwD Act in terms of Section 6 of the GCA Act 1897. [Para 18][861-F-H]

2.3 For Section 6 of the GCA to be applicable, two conditions need to be fulfilled. Firstly, the respondent must possess a ‘right, privilege, obligation, or liability’; and secondly, the ‘right, privilege, obligation, or liability’ must have accrued before the repeal of the old enactment or provision. Section 47 of the PwD Act is a protective provision available to employees who are disabled in the course of their employment. The provision places an obligation on the employer to not impose punitive punishments such as termination of employment, reduction in rank, and denial of promotion. Therefore, the employee has a right to not be punitively punished for their disability (and a right to be reasonably accommodated), while the employer has a duty not to impose such punitive punishments (and a duty to reasonably accommodate). However, when the 2002 notification was notified exempting the CRPF from the application of the provision, the employee lost the right to claim that they should not be punitively punished. By corollary, it would mean that the CRPF has been exempted from its duty under Section 47, and thus holds a privilege to impose punitive punishments against persons with disabilities. [Para 20][863-B, C-F]

W.N Hohfeld, Fundamental Legal Conceptions as applied in Judicial Reasoning and other legal essays, (W.W. Cook ed., Yale University Press, 1919 – referred to.

2.4 For the application of Section 6 of the GCA Act 1897, the privilege should have accrued to the respondent under the 2002 notification before the repeal of the PwD Act. It is settled law that Section 6 of the GCA Act 1897 only protects accrual of rights and privileges and not the mere hope or the expectation of accrual. [Para 21][863-F-G]

Hamilton Gell v. White (1922) 2 KB 422; Director of Public Works v. Ho Po Sang 2 (1961) 2 All ER 721; Abbot v. Minister for Lands (1895) AC 425 – referred to.

M.S Shivanda v. KSRTC (1980) 1 SCC 149 : [1980] 1 SCR 684; Bansidhar & Ors. v. State of Rajasthan & Ors. (1989) 2 SCC 557 : [1989] 2 SCR 152; Lalji Raja Sons v. Firm Hansraj Nathuram [1971] 3 SCR 815; Thyssen Stahlunion Gmbh v. Steel Authority of India Ltd. (1999) 9 SCC 334 : [1999] 3 Suppl. SCR 461 – referred to.

2.5 The principles for the application of Section 6 of the GCA Act 1897 are that the party must possess a right and the right ought to have accrued; that only specific rights and not abstract or inchoate rights are saved under Section 6 of the GCA Act 1897; that an abstract right becomes a specific right, only when the party does an act to avail himself of the right; and that the action necessary to avail an abstract right is dependent on the nature of the right and the text of the statute. [Para 23] [866-C-E]

2.6 The privilege that the respondent possesses under the 2002 notification would be an abstract or inchoate privilege unless the privilege has been acted upon by the respondent. It cannot be argued that the privilege to demote or terminate the employee is accrued on the initiation of the disciplinary proceedings. The privilege that the CRPF holds under the 2002 notification is a non-conditional abstract privilege that it always possesses. In the context of Section 6 of the GCA, these abstract privileges are accrued or acquired only when the privilege- holder does an act as required under the statute or otherwise to avail of the privilege. [Para 24][866-E-G; 867-A]

Hamilton Gell v. White (1922) 2 KB 422 – referred to.

3.1 The privilege is only accrued when the privilege- holder does an act required under the statute to avail of the privilege. To answer whether the privilege has accrued to the appellant, the nature of the privilege granted by the 2002 notification would first have to be determined since the accrual of a privilege would depend on the nature and content of the privilege itself. [Para 25][867-B-C]

3.2 The marginal note to Section 47 of the PwD Act reads as ‘Non- discrimination in Government Employment’. A pertinent question that arises for consideration is whether the 2002 notification exempts the employer from its duty of nondiscrimination on the ground of disability, or whether it only exempts the specific forms of discrimination expressly mentioned in Section 47 of the PwD Act. [Para 26][867-C-D]

3.3 The facets of non-discrimination that guide the PwD Act are threefold: (i) right to formal equality, where no person shall be discriminated based on her disability; affirmative action in pursuance of substantive equality under Section 33; and reasonable accommodation of persons with disabilities such as provided under Section 47. There may be no specific provision in the PwD Act-unlike the RPwD Act-which provides persons with disability the right of non-discrimination. However, since the principle of substantive equality (of providing equal outcomes through affirmative action and reasonable accommodation) is premised on the principle of non-discrimination, there is no reason to hold that the principle of non- discrimination, of treating every person equally irrespective of her disability does not guide the entire statute. [Para 28][869-G; 870-A-C]

3.4 By no stretch of imagination, can it be said that the principle of non-discrimination is limited to Section 47 of the PwD Act. Section 47 only provides the right of non- discrimination with regard to specific forms of discrimination during the course of employment. The general right against discrimination runs through the entire statute. The limited nature of Section 47 becomes apparent when it is compared with Section 20 of the RPwD Act. Section 47 of the PwD Act, unlike Section 20 of the RPwD Act, does not contain a provision in the nature of subSection (1) of Section 20 which provides that a government establishment cannot discriminate against a person with a disability in “any matter” relating to employment. While the contours of “any matter” used in Section 20 of the RPwD Act are not interpreted in the instant case, it would suffice to say that Section

20 of the RPwD Act casts a net of protection wider than Section

47 of the PwD Act. [Paras 29, 30][870-D-F; 871-D-E]

3.5 It is settled law that if two interpretations are possible, then the interpretation which is in consonance with international law or gives effect to international law must be used. Since Article

5 places the States under an obligation to provide both formal and substantive equality, an interpretation of the PwD Act that furthers the principles mentioned in Article 5 must be undertaken. Therefore, even though the PwD Act does not have an express provision laying down the general principle of non-discrimination against disabled persons, it must still have to be read in the statute. Therefore, Section 47 only provides persons with disability with the right against specific forms of discrimination and not the general right of non- discrimination which runs through the entire statute but which cannot be located in a specific provision. Accordingly, the 2002 notification will also only exempt the CRPF from the duty against those specific forms of discrimination mentioned in Section 47. Correspondingly, the 2002 notification only grants the employer the privilege of discriminatory conduct in employment with respect to those acts specified under Section 47 of the PwD Act. Thus, under the 2002 notification, the CRPF has the privilege to terminate, demote, or deny promotion to employees with disabilities. It also has the privilege to not abide by the principle of reasonable accommodation in re-assigning the post of an employee with a disability. However, it does not have the privilege to discriminate against a disabled employee in any other matter relating to employment. The privilege under the 2002 notification will accrue only when the disciplinary proceedings reach the stage of punishment and the respondent imposes one of the punishments mentioned in Section 47. The privilege can only accrue on the happening of one or more events that are necessary for the accrual. The accrual of the privilege cannot be based on an assumption, hope or expectation of exercising the privilege. When the disciplinary proceedings reach the punishment stage, the appellant could have still been imposed other punishments prescribed under the Service Rules which are not included within the purview of Section 47 of the PwD Act. Therefore, no privilege is accrued to the respondent under Section 47 of the PwD Act. [Paras 32-34][872-D-G; 873-A-D]

Vikas Kumar v. Union Public Service Commission (2021) 5 SCC 370; Rajive Raturi v. Union of India (2018) 2 SCC 413 : [2017] 12 SCR 827; Disabled Rights Group v. Union of India (2018) 2 SCC 397; Jeeja Ghosh v. Union of India (2016) 7 SCC 761 : [2016] 4 SCR 638; Apparel Export Promotion Council v. A.K. Chopra (1999) 1 SCC 759 : [1999] 1 SCR 117; Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228 : [1999] 1 SCR 669; Justice Khanna in ADM Jabalpur v. Shivakant Shukla (1976) 2 SCC 521 : [1976] 0 Suppl. SCR 172 – referred to.

Commission for Social Development, Interim Report of the Secretary General: Implementation of the World Programme of Action concerning Disabled Persons (1999), available at https://www.un.org/esa/socdev/enable/disecne5.htm#VI – referred to.

4.1 Section 102(2) of the RPwD Act states that anything done, or any action taken under the PwD Act shall be deemed to have been done or taken under the ‘corresponding provisions’ of the RPwD Act. The 2002 notification was issued under Section

47 of the PwD Act. The 2002 notification would be saved under Section 102 (2) only if there is a provision in the RPwD Act that is ‘corresponding’ to Section 47 of PwD Act. [Para 35][873-D-E]

4.2 Section 20 of the RPwD Act covers a wider ambit when compared to Section 47 of the PwD Act. Section 20(1) provides for non-discrimination based on disability, which is a provision in pursuance of the equality mandate in Article 5 of United Nations Convention on the Rights of Persons with Disabilities. Section 20(2) states that reasonable accommodation and a conducive environment free from barriers must be provided to persons with disabilities. However, the provisions of Section 47 of the PwD Act only provide a right to the employee to not be demoted, terminated, or denied promotion because of disability, and reasonable accommodation by adjusting posts. The principle of reasonable accommodation provided under Section 20(2) is not restricted to the accommodations mentioned in Section 47. Under Section 20(2), the employer has a duty – in view of the principle of reasonable accommodation- to post a person suffering from disability at a place closer to home. This form of reasonable accommodation is not provided under Section 47, though it may flow through the PwD Act. Therefore, Section 20 of the RPwD Act is not corresponding to Section 47 of the PwD Act. If any other interpretation is placed, then the 2002 notification would be deemed to exempt other rights that are available to disabled persons under Section 20 of the RPwD Act, which were not otherwise exempted under the PwD Act. Since there is no corresponding provision, the exemption notification issued under Section 47 of the PwD Act would lose the force of law. Therefore, in view of the discussion on both Section 6 of the GCA Act 1897 and Section 102 of the RPwD Act, the provisions of the PwD Act and the 2002 notification are not applicable to the instant proceedings. [Para 38][875-A-E]

4.3 Since, the writ petition was filed before the Single Judge of the High Court in 2015, before the enactment of the RPwD Act, the validity of the disciplinary proceedings could have only been decided on the anvil of the provisions of the PwD Act. However, the Single Judge ought not to have entered into the issue of the applicability of Section 47 of the PwD Act when the disciplinary proceedings were challenged at the initial stage since Section 47 applies only at the punishment stage. The only question before the High Court was whether it was justified for CRPF to have initiated disciplinary proceedings against the appellant for the alleged misconduct which was connected to his mental disability and whether the initiation of such proceedings was discriminatory. At the relevant point of time, when the intra-court appeal was filed against the judgement of the Single Judge, the RPwD Act had come into force. However, since no privilege had accrued to the respondent under the PwD Act, and the 2002 notification was not saved under Section 102 of the RPwD Act, the Division Bench should have decided the intra-court appeal on the provisions of the RPwD Act. This would entail that the appellant became entitled to the rights under Section 20 of the RPwD Act at the time when the intra-court appeal was being heard. When the appellant was before the Division Bench of the High Court, he was already diagnosed with a permanent disability of

40 to 70 percent by the government hospital. Further, the Composite Hospital by a report dated 18 July 2016, declared the appellant unfit for duty and placed him under the S5(P) category due to his partial and limited response to all modalities of treatment since 2009. The Division Bench also noted that the documents issued by the CRPF’s hospital indicate that the appellant has had a mental disability for a long time. In such circumstances, it was not appropriate for the High Court to restore the disciplinary proceeding on the ground that a factual determination of the disability of the appellant is to be established through such a proceedings. [Paras 39, 40][875-F-H; 876-A-D]

Pankajakshi (dead) through LRs’ v. Chandrika (2016)

6 SCC 157 : [2016] 3 SCR 1018; Kalpana Kothari v. Sudha Yadhav (2002) 1 SCC 203 : [2001] 4 Suppl. SCR 598 – referred to.

5.1 Section 3 of the RPwD Act states that persons with disabilities must not be discriminated against on the ground of disability, and the appropriate government shall ensure that persons with disability enjoy the right to live with dignity. Section 2(h) of the RPwD Act defines discrimination. Section 20 of the RPwD Act states that no government establishment shall discriminate against any person with a disability in matters relating to employment. The disabled employee also has a right to reasonable accommodation and to access a workplace without barriers. It further provides that no disabled employee shall be terminated, reduced in rank, or denied promotion because of the disability. On the repeal of the PwD Act by the RPwD Act, the 2002 Notification also lost its force of law. Between 27 December 2016, when the RPwD Act had come into force and 18 August 2021, when the 2021 notification was issued, there was no exemption notification in force. The Special Leave Petition was instituted on 5 October 2020. It has been held that when a lis commences, all rights and obligations of the parties get crystallised on that date. Therefore, the rights of the parties would freeze as on the date of filing the Special Leave Petition. In the Special Leave Petition filed before this Court, it was submitted that the initiation of disciplinary proceedings is discriminatory and violative of the provisions of the RPwD Act. Therefore, the right to non-discrimination in matters of employment provided under Section 20, accrued to the appellant on the filing of the Special Leave Petition since the 2021 notification had not been notified at the relevant time. Thus, the 2021 notification would have no application to the facts of the instant case. [Para 41] [876-E-F, G-H; 877-A-D]

Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co. (2001) 8 SCC 397 : [2001] 2 Suppl. SCR 195 – referred to.

5.2 On a combined reading of the definitions provided in Section 2(s) and 2 (c) of the Act, it is evident that the RPwD – similar to the 2017 Act – defines disability as a social construct and not solely as a medical construct. The Act does not define a mental impairment to solely constitute a disability. Rather, it defines disability based on the interaction of the impairment with the barriers which in effect hamper the effective participation of an individual. [Para 49][881-H; 882-A-B]

6. When the interaction with the barriers causes a person to feel ‘disabled’, it is extremely important to not stigmatize or discriminate against persons having mental health issues or any other form of disability. Such discrimination would only further entrench the feeling of being ‘disabled’. [Para 54][885-F] Common Cause v. Union of India (2018) 5 SCC 1 : [2018] 6 SCR 1; Navtej Singh Johar v. Union of India (2019) 3 SCC 39; Accused X v. State of Maharashtra (2019) 7 SCC 1 : [2019] 6 SCR 1; Mahendra KC v. The State of Karnataka 2021 SCC OnLine SC 1021 – referred to.

7.1 The jurisprudence in Indian law relating to mental disability and employment discrimination has revolved around Section 47 of the PwD Act. This Court while interpreting Section

47 has held that the provision is applicable when the mental disability is acquired during service. While applying Section 47, the Court did not enter into an analysis of whether the mental disability was a factor or had a direct causal connection with the alleged misconduct that led to the dismissal. Thus, a different standard applies to cases governed by Section 47. It is important to clarify that the analysis undertaken in examining whether disciplinary proceedings can constitute discrimination against persons with disabilities would not influence the jurisprudence on Section 47 of the PwD Act. Section 47 comes into play only at the stage of impositions of sanctions, where an employee cannot be dispensed with or reduced in rank. Since the jurisprudence on this issue is yet to evolve in India, the legal policies and practices adopted by other jurisdictions in relation to the rights of persons with mental disabilities against employment discrimination are analysed. It has also been specifically examined how courts in other jurisdictions have adjudicated misconduct charges when the alleged conduct is found to be connected to the mental disability of the employee. [Paras 67-69][892-G-H; 893-A-B, C-E]

7.2 On basis of the foreign jurisdictions on Disabilities Act in United States, Canada, European Union, South Africa it is concluded that:

(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 wellrecognised 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’s case 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. It would be useful to refer to the minority opinion in Stewart’s case 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 enter into 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 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, the requirement to provide reasonable accommodation is prospective. In Canada, the majority in Stewart’s case 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) As regards, 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’s case, it was observed that making a distinction between the disability and the disabilityrelated 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 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’s case, 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’s case, the court observes that a twopronged 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. [Para 89][910-B-H; 911-A-H; 912-A-E]

Geetaben Ratilal Patel v. District Primary Education Officer (2013) 7 SCC 182 : [2013] 17 SCR 900 – referred.

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CRPD/C/GC/6&Lang=en; International Labour

Organization, Managing Disability in the Workplace: ILO Code of Practice, available at https://www.ilo.org/global/topics/safety-and-health-at-work/normativeinstruments/code-of-practice/WCMS_107777/lang— en/index.htm; Brendan D. Kelly, Mental Health, Mental Illness, and Human Rights in India and Elsewhere: What are we aiming for?, 58 (Suppl 2) Indian Journal of Psychiatry S168-S174 (2016), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5282611/; Major William E. Brown & Major

Michele Parchman, The Impact of the Americans with Disability Amendments Act of 2008 on the Rehabilitation Act and Management of Department of the Army Civilian Employees, 1 Army Lawyer 43 (2010); US Equal Employment Opportunity Commission, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA, available at https://www.eeoc.gov/laws/guidance/enforcement-guidancereasonable-accommodation-and-undue-hardshipunder-ada#N_13_; Regulations To Implement The Equal Employment Provisions Of The Americans With Disabilities Act; EEOC, Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights, available at https://www.eeoc.gov/laws/guidance/depression-ptsd-other-mental-healthconditions-workplace-your-legal-rights; Laura F. Rothstein, The Employer’s Duty to Accommodate Performance and Conduct Deficiencies of Individuals with Mental Impairments Under Disability

Discrimination Laws, 47 Syracuse Law Review 931, 967, 973 (1997); Jeffrey Swanson et al, Justice Disparities: Does the ADA Enforcement System Treat People with Psychiatric Disabilities Fairly?, 66(1) Maryland Law Review 94 (2007); Kelly Cahill

Timmons, Accommodating Misconduct Under the

Americans with Disabilities Act, 57 Florida Law Review 187, 188-89 (2005); O’Brien, Christine Neylon and Darrow, Jonathan J., The Question Remains after Raytheon Co. v. Hernandez: Whether No Rehire Rules Disparately Impact Alcoholics and Former Drug Abusers, 7 Journal of Business Law 157 (2004); Bally Thun, Disability Rights Framework in Canada, 12(4) Journal of Individual Employment Rights 351-371 (2007); Faisal Bhabha, Stewart v. Elk Valley: The Case of Cocaine Using Coal Miner, All Papers 323 (2018), available at https://digitalcommons.osgoode.yorku.ca/all_papers/323; Ferri, Delia, The Unorthodox Relationship between the EU Charter of Fundamental Rights, the UN Convention on the Rights of Persons with Disabilities and Secondary Rights in the Court of Justice Case Law on Disability Discrimination, 16(2) European Constitutional Law Review 275–305

(2020); Estie Gresse, Melvin L.M Mbao, An Analysis of the Duty to Reasonably Accommodate Disabled Employees: A Comment of Jansen v. Legal Aid South Africa, 24(1) Law, Democracy and Development 109 (2020); Bassuday K & Rycroft A, ‘Incapacity or disability? The Implications for Jurisdiction Ernstzen v Reliance Group Trading (Pty) Ltd (C727/13) [2015] ZALCCT 42, 36(4) Industrial Law Journal 2516-2521 (2015); Matilda Mbali Ngcobo, Court’s Treatment of Depression in the Workplace: Incapacity, Poor Performance, Misconduct and Disability, available at https://researchspace.ukzn.ac.za/bitstream/handle/10413/18678/Ngcobo Matilda Mbali 2019.pdf?

sequence=1&isAllowed=y.; Rangata, The “Invisible” Illness Challenge, Employment Law, (2015), available at https://maponya.co.za/wp-content/uploads/2018/03/Theinvisible-illness-challenge-Without-Prejudice.pdf – referred to.

8.1 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. Section 2(h) prohibits discrimination on the basis of disability. The provision does not use the phrase ‘only’ on the basis of disability. 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. [Paras 90, 91][912-F-G; 913-B-C]

Navtej Singh Johar v. Union of India (2019) 3 SCC 39; Anuj Garg v. Hotel Association of India (2008) 3 SCC 1 : [2007] 12 SCR 991; Patan Jamal Vali v. State of Andhra Pradesh 2021 SCC OnLine SC 343 –

referred to.

8.2 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 instant 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. [Para 94][915-D-F]

8.3 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. 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. Persons with mental disabilities are not static entities. 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. [Paras 95-96][915-F-G; 916-A-C]

Stewart v. Elk Valley Coal Corp. [2017] 1 SCR 591 – referred to.

Linda A. Teplin, The Criminality of Mentally Ill: A Dangerous Conception, 142(5) American Journal of Psychiatry 593-599 (1985). 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; 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) – referred to.

8.4 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). Having regard to the complex nature of mental health disorders, any residual control that persons with mental disabilities have over their 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. Thus, the disciplinary proceeding against the appellant is discriminatory and must be set aside. [Paras 9798][916-F-G; 917-A-C] Ltd. Col. Nitisha and Ors. v. Union of India 2021 SCC OnLine SC 261 – referred to.

8.5 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 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. Reasonable accommodation is a component of the right to equality and discrimination. 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. [Paras 100101][917-G-H; 918-A-B, D-F] Vikas Kumar v. Union Public Service Commission (2021) 5 SCC 370; Avni Prakash v. National Testing Agency Civil Appeal No. 7000 of 2021 – referred to.

8.6 The instant case involves a complex question of balancing competing interests. 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. While balancing the two, the role assigned to the CRPF as a para-military force must also be recognized. Rights are rarely of an absolute nature. Constitutions often provide the possibility of limiting those rights through acceptable justifications. 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 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. [Para 102][918-G-H; 919-A, C-D]

Tarunabh Khaitan, Beyond Reasonableness – A

Rigorous Standard of Review for Article 15

Infringement, 50(2) Journal of the Indian Law Institute 177-208 (2008) – referred to.

8.7 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. With the passage of time, this Court has evolved a test for applying proportionality analysis to a rights-limiting measure. A version of the proportionality test was used by this Court in the context of anti-discrimination analysis. Since then, the proportionality analysis has been used in many other judgments in relation to other rights. [Para 103][919-E-F; 920-B]

Chintaman Rao v State of MP AIR 1951 SC 118; VG Row v State of Madras AIR 1952 SC 196; Modern Dental College and Research Centre v State of Madhya Pradesh (2016) 7 SCC 353 : [2016] 3 SCR 579; Anuj Garg v. Hotel Association of India (2008) 3 SCC 1 : [2007] 12 SCR 991; Puttaswamy v Union of India (2017) 10 SCC 1 : [2017] 10 SCR 569; Puttaswamy (II) v Union of India (2019) 1 SCC 1 : [2018] 8 SCR 1; Anuradha Bhasin v Union of India (2020) 3 SCC 637; Internet and Mobile Association of India v. Reserve Bank of India (2020) 10 SCC 274 : [2020] 2 SCR 297; Akshay N Patel v. Reserve Bank of India Civil No. 6522 of 2021 – referred to.

8.8 Sub-Section (3) of Section 3 of the RPwD Act itself contemplates undertaking a proportionality analysis for a rightslimiting measure. The jurisprudence of Sections 3 and 20 of the RPwD Act would have to evolve. The journey has begun. This Court has 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 special strength”. [Paras 104-105][920-B-C; F-G; 921-A]

Mattias Kumm, Political Liberalism and the Structure of Rights : On the place and limits of the proportionality requirement, in L AW , R IGHTS AND D ISCOURSE : T HEMES FROM THE L EGAL P HILOSOPHY OF

R OBERT A LEXY 131-166 (George Pavlakos ed., Hart 2007) – referred to.

Kunal Singh v. Union of India (2003) 4 SCC 524 : [2003] 1 SCR 1059 – referred to.