Recognition Of Capacity Of Persons Living With Mental Illness To Make Informed Choice- SC Explains Legal Framework Governing Rights Of Persons With Mental Disabilities
A three-Judge Bench of the Supreme Court comprising of Dr. D.Y. Chandrachud J., Surya Kant J. and Vikram Nath J. has rendered a landmark judgement touching upon the rights of persons with mental disabilities.
Mr. Rajiv Raheja, Advocate appeared on behalf of the appellant while Ms. Madhavi Divan, ASG advanced submissions on behalf of the respondents.
The Division Bench of the Gauhati High Court had allowed the appeal against the judgement of the Single Judge in a writ action filed under Article 226 impugning the disciplinary proceedings imitated against the appellant before the Supreme Court.
The Single Judge directed the State to consider the case in view of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 [PwD Act].
The Division Bench, as indicated above, allowed the appeal against Single Judge's order and while setting aside the enquiry report, restored the proceedings to the stage of evidence. Hence, the appeal before the Apex Court.
Factual Matrix: -
The appellant had joined CRPF in 2001. He then, served in various districts. In 2010, when he was positioned in Ajmer, the DIGP lodged a complaint against him alleging that he had stated that he was obsessed with either killing or being killed and made a threat that he could shoot. Enquiry was triggered and a memo was issued whereby six charges were framed. The appellant was placed under suspension. Enquiry report was prepared, and notice was issued to the appellant in 2015.
A second enquiry was initiated on the charge that appellant had, without depositing his pistol and ammunition, proceeded to Mukhed. The enquiry was completed and punishment of withholding two increments was awarded. A third enquiry was also initiated.
The Court adverted to the medical history of the appellant. The appellant started facing obsessive compulsive disorder and secondary major depression in 2009. He received psychiatric treatment. Dr. RML Hospital categorized him as permanently disabled having 40 to 70 % disability. He was declared unfit for duty and placed under S5(P) category due to his partial and limited response to all modalities of treatment since 2009. The Ministry of Social Justice and Empowerment, exercising its powers under Section 47 of PwD Act, issued a notification in 2002 exempting all categories of 'combatant personnel' of CRPF from provisions of the Section.
PwD was repealed by Rights of Persons with Disabilities Act, 2016 [RPwD]. A similar notification was issued under this Act.
The enquiry report from the first enquiry was challenged by the appellant via a writ action. Single Judge had issued notice and passed an interim order. The writ was eventually allowed by the Single Judge, as noted above. The appeal was partly allowed by the Division Bench; proceedings being restored to the stage of recording of evidence.
Analysis of the Court: -
The Apex Court noted that when writ was initially filed, the PwD Act and the notification issued under the said Act were in force. However, when the intra court appeal was filed, the RPwD Act came into force. The primary issue before the Court was to decide as to what law would apply to the proceedings before it.
The Court noted that if any right has accrued to the parties under provisions of PwD Act, then, the repeal of the said Act would not affect the proceedings unless a different intention appears from a reading of the RPwD Act by virtue of Section 6 of General Clauses Act.
The Court noted that for Section 6, GCA to be applicable, two conditions need to be fulfilled. The Court explained them in the following words "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." That privilege, as per the Court, should have accrued to the respondent under the 2002 notification before the repeal of the PwD Act.
The Court, thus, summarized the principles for application of Section 6, GCA as follows.
"(i) The party must possess a right and the right ought to have accrued;
(ii) Only specific rights and not abstract or inchoate rights are saved under Section 6 of the GCA;
(iii) An abstract right becomes a specific right, only when the party does an act to avail himself of the right; and
(iv) The action necessary to avail an abstract right is dependent on the nature of the right and the text of the statute."
The Court noted that in the context of Section 6, GCA, these abstract privileges are accrued when the privilege holder proceeds towards commission of an act as required under the statute or otherwise in order to avail the privilege.
The Court observed that in order to answer as to whether the privilege had been accrued to the appellant, the nature of the privilege granted by the 2002 notification will have to be determined as the accrual of the privilege would depend on nature and content of the said privilege.
The Court thus, carved out the question for its consideration as follows:-
"… A pertinent question that arises for our consideration is whether the 2002 notification exempts the employer from its duty of non-discrimination on the ground of disability, or whether it only exempts the specific forms of discrimination expressly mentioned in Section 47 of the PwD Act. To answer this question, a reference must be made to the general structure of the PwD Act."
The Court, then, proceeded to discuss the general structure of the PwD Act. The Court noted that disability as a social construct precedes the medical condition of an individual and the sense of disability is introduced as there is absence of access to facilities.
The Court relied on Vikas Kumar v. Union Public Service Commission, (2021) 5 SCC 370 wherein the social construction of disability and the necessity to provide reasonable accommodation to such persons to comply with the full purport of the equality provisions under the Constitution was recognized by the Court. The Court also relied on authorities wherein it was held that the principle of reasonable differentiation, that recognizes different needs of persons with disabilities, is a facet of the principle of equality.
The Court noted that even though there was no specific provision in the PwD Act – unlike the RPwD Act, which provides persons with disabilities the right of non-discrimination, since the principle of substantive equality is premised on principle of non-discrimination, there was no reason to hold that the principle of non-discrimination does not run through the PwD Act. The Court noted that Section 20 of the RPwD Act casts a wider net of protection than Section 47 of the PwD Act.
The Court relied on Article 5 of United Nations Convention on Rights of Persons with Disabilities to invoke principles of non-discrimination and equality. The Court noted that if two interpretations are possible, then the interpretation in consonance with the international law ought to be brought into play.
The Court, therefore, came to the following conclusion.
"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."
The Court noted that even though CRPF would have the privilege to not abide by principle of reasonable accommodation in re-assigning the post of an employee with disability, it does not have the privilege to discriminate against a disabled employee in any other matter relating to employment. The Court came to the conclusion that no privilege accrued to the respondent under Section 47 of the PwD Act.
The Court then proceeded to discuss Section 102 of the RPwD Act, i.e., the Savings Clause. The Court noted that the 2002 notification will be saved under Section 102(2) fo the RPwD Act only if there was a provision under the RPwD Act which was "corresponding" to Section 47 of the PwD Act.
The Court concluded that Section 20 of the RPwD Act was not corresponding to Section 47 of the PwD Act. The Court held that provisions of PwD Act and the 2002 notification were not applicable to the proceedings before it.
The Court noted that the Single Judge ought not to have entered into the issue of applicability of Section 47 of the PwD Act when the disciplinary proceedings were challenged at the initial stage as Section 47 applies only at the punishment stage.
The Court noted that since RPwD Act was in force at the time of intra court appeal, the Division Bench ought to have decided the same on the provisions of the said Act.
The Court then, proceeded to discuss the rights of the appellant under the RPwD Act. The Court noted that rights of parties freeze as on the date of filing of SLP and hence, right to non-discrimination under Section 20 of RPwD Act accrued to the appellant on the filing of the SLP. The Court noted that 2021 notification would have no application in the instant case.
The Court then referred to the national and international framework governing the rights of persons with mental disabilities. The Court noted that the recognition of the capacity of persons living with mental illness to make informed choices is an important step towards recognizing their agency. The Court also discussed a global outlook on employment and mental health. The Court noted that the stigmatization of mental health disorders is rooted in the characterization of individuals with mental illness as "violent and dangerous, dependent and incompetent, and irresponsible.
The Court also analyzed as to how other foreign jurisdiction have adjudicated misconduct charges when the alleged conduct is found to be connected to the mental disability of the employee.
The Court noted that the duty of providing reasonable accommodation to persons with disabilities is sacrosanct and all possible alternatives must be considered before ordering their dismissal from service.
The Court observed that the well-recognized exception to the principle was that the duty cast to accommodate must not cause undue hardship or impose a disproportionate burden on the employer. The interpretation of the same may change as per the jurisdiction.
The Court noted that a blanket approach to disability related conduct would not suffice to show that employer has discharged its duty to accommodate. The Court held that the employer must show that it took into account the differences and capabilities of the individual concerned.
The Court then considered the question as to whether it is sufficient for the appellant to show that this mental health disorder was one of the factors which led to initiation of disciplinary proceedings or is he required to prove that his disability was the sole cause of disciplinary proceedings being instituted against him.
The Court noted that it was possible that the appellant was able to exercise some agency over his actions, however, he was still a person who was experiencing disabling effects of his condition. The Court held that the over-emphasis on the choice or agency of a person with a mental health disorder furthers the stigma against them.
The Court also noted that there was no substantial difference between the patterns of violent conduct exhibited by persons with mental health disorders and others without it.
Thus, the Court noted, 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.
The Court held that the appellant is entitled to be reassigned to a suitable post having same pay scale and benefits in light of Section 20(4) of the RPwD Act and guarantee under reasonable accommodation.
The Court acknowledged that the instant case involved a complex question of balancing competing interests. The Court noted that while balancing the two, it must also recognize the role assigned to the CRPS as a para-military force.
The Court noted that the jurisprudence of Section 3 and 20 of the RPwD Act will evolve as the journey has just begun.
The Court held that the validity of disciplinary proceedings shall be determined against provisions of RPwD Act as against PwD Act. The Court held that the disciplinary proceedings were discriminatory and violative of the provisions of RPwD Act. The disciplinary proceedings qua the first enquiry were set aside and the appellant was entitled to protection under Section 20(4) of the RPwD Act.
The Court noted that if the appellant is reassigned to an alternate post, his pay and other conditions must be protected. The Civil Appeal was allowed accordingly.
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