RAVINDER KUMAR DHARIWAL & ANR. versus THE UNION OF INDIA & ORS.

[2021] 13 S.C.R. 823

RAVINDER KUMAR DHARIWAL & ANR.

THE UNION OF INDIA & ORS.

(Civil Appeal No. 6924 of 2021)

DECEMBER 17, 2021

[DR. DHANANJAYA Y CHANDRACHUD, SURYA KANTAND VIKRAM NATH, JJ.]

Rights of Persons with Disabilities Act 2016 – s. 20 – Personswith Disabilities (Equal Opportunities, Protection of Rights and FullParticipation) Act 1951 – s. 47 – Non-discrimination in Governmentemployments – Disciplinary proceedings initiated against theappellant-Assistant Commandant in CRPF – Challenge to –Complaint against appellant alleging that he had stated that hewas obsessed with either killing or being killed and made threatthat he could shoot – Conduct of enquiries – In the first enquiry hewas suspended and Notice was issued, in the second his twoincrements were withheld and in the third, he was issued amemorandum – Thereafter, the appellant was categorized aspermanently disabled having 40-70% disability, and declared unfitfor duty, placing him under S5(P) category – Writ petitionchallenging the inquiry report and the notice issued in the firstenquiry – During pendency, the PwD Act repealed and RPwD Actof 2016 was enacted – When the disciplinary proceedings wereinitiated, the PwD Act was in force and the 2002 notification issuedthereunder, exempted the CRPF from the application of the provision– Single Judge of the High Court allowed the writ petition anddirected the State to consider the case of the petitioner in view of s.47 whereby no establishment would dispense with or reduce in rankan employee who acquires disability during service – However,Division Bench set aside the enquiry report and restored the enquiryproceedings to the stage of the recording evidence to enable theappellant to prove his mental disability by submission of materialdocuments – On appeal, held: Validity of the disciplinaryproceedings would be determined against the provisions of theRPwD Act instead of the PwD Act – 2002 notification not saved bys. 102 of the RPwD Act since s. 20 of the RPwD Act is notcorresponding to s. 47 of the PwD Act and no privilege accrued the

CDEF

Aemployer under the 2002 notification in terms of s. 6 of the GeneralClauses Act – Disciplinary proceedings are discriminatory andviolative of the provisions of the RPwD – Person with disability isentitled to protection under the RPwD Act as long as the disabilitywas one of the factors for the discriminatory act – Mental disabilityof person need not be the sole cause of the misconduct that led toBthe initiation of the disciplinary proceeding – Initiation ofdisciplinary proceedings against persons with mental disabilities isa facet of indirect discrimination – Such persons suffer adisproportionate disadvantage due to the impairment and are morelikely to be subjected to disciplinary proceedings – Thus, theCdisciplinary proceedings against the appellant set aside – GeneralClauses Act, 1897.

General Clauses Act, 1897: s. 6 – Effect of repeal under –Accrual of privilege – Held: Where central enactment repealsanother enactment, the repeal shall not affect the any legalDproceeding or investigation with respect to an accrued right, unlessa different intention appears from repealing statute – Privilege isaccrued only when the privilege holder does an act required toavail the privilege – It is not the mere hope or expectation of accrual.

Constitution of India: Art. 14 – Right to Equality – PrincipleEof Reasonable Accommodation – Held: Is one of the means forachieving substantive equality, pursuant to which disabledindividuals must be reasonably accommodated based on theirindividual capacities – Disability, as social construct, precedesthe medical condition of an individual, and sense of disability isintroduced because of the absence of access to facilities.F

Interpretation of statutes: Rule of interpretation – Held: Iftwo interpretation possible, the interpretation which furthersinternational law or gives effect to international law must bepreferred – Since Art. 5 of the Convention places the States underan obligation to provide both formal and substantive equality, anGinterpretation of the PwD Act that furthers the principles mentionedin Art. 5 must be undertaken, India being the signatory and havingratified the Convenion – Thus, even though the PwD Act does nothave an express provision laying down the general principle ofnon-discrimination against disabled persons, it must still have to beHread in the statute – United Nations Convention on the Rights of

Persons with Disabilities – Art. 5 – Rights of Persons withDisabilities Act 2016 – Persons with Disabilities (EqualOpportunities, Protection of Rights and Full Participation) Act 1951.

Mental Health: Rights of persons with mental disability vis-à-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 proceedingswould be determined against the provisions of the Rights ofPersons with Disabilities Act 2016 (RPwD Act) instead of thePersons with Disabilities (Equal Opportunities, Protection ofRights and Full Participation) Act 1995 (PwD Act) for the followingreasons:

(a) The respondent holds privilege under the 2002notification to not comply with the principles of non-discriminationand reasonable accommodation provided under Section 47 of thePwD Act. However, for privilege to accrue in terms of Section 6of the GCA Act 1897, mere expectation or hope is not sufficient.Rather, the privilege-holder must have done an act to avail of theright. The privilege provided by the 2002 notification wouldaccrue only when one of the punishments provided under Section47 has been imposed. However, in the instant case, thedisciplinary proceedings were challenged even before thepunishment stage could be reached. Therefore, the privilegeavailable to the respondent under the 2002 notification did notaccrue 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 theright of equality and non-discrimination held by persons withdisability. The principle of non-discrimination guides the entirestatute whose meaning and content find illumination in Article 5of the United Nations Convention on the Rights of Persons withDisabilities. An interpretation that furthers international law orgives effect to international law must be preferred. Therefore,even though the PwD Act does not have an express provision

Alaying 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 theRPwD Act since Section 20 of the RPwD Act is not correspondingto Section 47 of the PwD Act;

(ii) The disciplinary proceedings are discriminatory andviolative of the provisions of the RPwD since person with adisability is entitled to protection under the RPwD Act as long asthe disability was one of the factors for the discriminatory act;and the mental disability of person need not be the sole causeCof the misconduct that led to the initiation of the disciplinaryproceeding. Any residual control that persons with mentaldisabilities have over their conduct merely diminishes the extentto which the disability contributed to the conduct. The mentaldisability impairs the ability of persons to comply with workplacestandards in comparison to their able-bodied counterparts. SuchDpersons suffer disproportionate disadvantage due to theimpairment and are more likely to be subjected to disciplinaryproceedings. Thus, the initiation of disciplinary proceedingsagainst persons with mental disabilities is facet of indirectdiscrimination. [Para 106][921-B-G; 922-A-E]

1.2 The disciplinary proceedings against the appellantrelating to the first enquiry are set aside. The appellant is alsoentitled to the protection of Section 20(4) of the RPwD Act in theevent he is found unsuitable for his current employment duty.While re-assigning the appellant to an alternate post, should itFbecome necessary, his pay, emoluments and conditions of servicemust be protected. The authorities would be at liberty to ensurethat the assignment to an alternate post does not involve the useof or control over fire-arms or equipment which may pose dangerto the appellant or others in or around the work-place.[Para 107][922-E-G]G

2.1 Section 6 of the GCA provides that where centralenactment repeals another enactment, the repeal shall not affectany legal proceeding or investigation with respect to an accruedright, unless different intention appears from the repealingstatute. The general rule of interpretation is that newly enactedH

statute has prospective application. Section 6 of the GCA providesan exception to this rule, where pending legal proceeding orinvestigation would be guided by the old enactment, if any ‘right,privilege, obligation or liability’ has accrued to the parties underthe repealed law. [Para 17]860-G-H; 861-A]

2.2 Section 47 of the PwD Act states that no employeeworking in Government establishment, who acquires disabilityduring the course of service shall be (i) terminated fromemployment; (ii) reduced in rank; or (iii) denied promotion.Section 47 protects disabled employees from punitive actions onthe ground of disability. Since the 2002 notification exempts theCRPF from the application of Section 47, it is to be examined ifany right or privilege has accrued to the CRPF under the 2002notification. It is to be considered whether an exemption from aprotective provision such as Section 47 results in the accrual of aright or privilege in favour of the CRPF to continue pendingproceedings under the PwD Act in terms of Section 6 of the GCAAct 1897. [Para 18][861-F-H]2.3 For Section 6 of the GCA to be applicable, two conditionsneed to be fulfilled. Firstly, the respondent must possess ‘right,privilege, obligation, or liability’; and secondly, the ‘right,privilege, obligation, or liability’ must have accrued before therepeal of the old enactment or provision. Section 47 of the PwDAct is protective provision available to employees who aredisabled in the course of their employment. The provision placesan obligation on the employer to not impose punitive punishmentssuch as termination of employment, reduction in rank, and denialof promotion. Therefore, the employee has right to not bepunitively punished for their disability (and right to be reasonablyaccommodated), while the employer has duty not to imposesuch punitive punishments (and duty to reasonablyaccommodate). However, when the 2002 notification was notifiedexempting the CRPF from the application of the provision, theemployee lost the right to claim that they should not be punitivelypunished. By corollary, it would mean that the CRPF has beenexempted from its duty under Section 47, and thus holds aprivilege to impose punitive punishments against persons withdisabilities. [Para 20][863-B, C-F]

BCD

[2021] 13 S.C.R.

AW.N Hohfeld, Fundamental Legal Conceptions asapplied 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,Bthe privilege should have accrued to the respondent under the2002 notification before the repeal of the PwD Act. It is settledlaw that Section 6 of the GCA Act 1897 only protects accrual ofrights and privileges and not the mere hope or the expectationof accrual. [Para 21][863-F-G]

CHamilton Gell v. White (1922) 2 KB 422; Director ofPublic Works v. Ho Po Sang 2 (1961) 2 All ER 721;Abbot v. Minister for Lands (1895) AC 425 – referredto.

M.S Shivanda v. KSRTC (1980) 1 SCC 149 : [1980] 1DSCR 684; Bansidhar & Ors. v. State of Rajasthan &Ors. (1989) 2 SCC 557 : [1989] 2 SCR 152; Lalji RajaSons v. Firm Hansraj Nathuram [1971] 3 SCR 815;Thyssen Stahlunion Gmbh v. Steel Authority of IndiaLtd. (1999) 9 SCC 334 : [1999] 3 Suppl. SCR 461 –referred to.E2.5 The principles for the application of Section 6 of theGCA Act 1897 are that the party must possess right and theright ought to have accrued; that only specific rights and notabstract or inchoate rights are saved under Section 6 of the GCAAct 1897; that an abstract right becomes specific right, onlyFwhen the party does an act to avail himself of the right; and thatthe action necessary to avail an abstract right is dependent onthe nature of the right and the text of the statute. [Para 23][866-C-E]

2.6 The privilege that the respondent possesses under theG2002 notification would be an abstract or inchoate privilege unlessthe privilege has been acted upon by the respondent. It cannotbe argued that the privilege to demote or terminate the employeeis accrued on the initiation of the disciplinary proceedings. Theprivilege that the CRPF holds under the 2002 notification is aH

non-conditional abstract privilege that it always possesses. Inthe context of Section 6 of the GCA, these abstract privilegesare accrued or acquired only when the privilege- holder does anact as required under the statute or otherwise to avail of theprivilege. [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- holderdoes 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 wouldfirst have to be determined since the accrual of privilege woulddepend 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 readsas ‘Non- discrimination in Government Employment’. pertinentquestion that arises for consideration is whether the 2002notification exempts the employer from its duty of non-discrimination on the ground of disability, or whether it onlyexempts the specific forms of discrimination expressly mentionedin Section 47 of the PwD Act. [Para 26][867-C-D]

3.3 The facets of non-discrimination that guide the PwDAct are threefold: (i) right to formal equality, where no personshall be discriminated based on her disability; affirmative actionin pursuance of substantive equality under Section 33; andreasonable accommodation of persons with disabilities such asprovided under Section 47. There may be no specific provisionin the PwD Act-unlike the RPwD Act-which provides personswith disability the right of non-discrimination. However, sincethe principle of substantive equality (of providing equal outcomesthrough affirmative action and reasonable accommodation) ispremised on the principle of non-discrimination, there is no reasonto hold that the principle of non- discrimination, of treating everyperson equally irrespective of her disability does not guide theentire statute. [Para 28][869-G; 870-A-C]

3.4 By no stretch of imagination, can it be said that theprinciple of non-discrimination is limited to Section 47 of the PwD

AAct. Section 47 only provides the right of non- discriminationwith regard to specific forms of discrimination during the courseof employment. The general right against discrimination runsthrough the entire statute. The limited nature of Section 47becomes apparent when it is compared with Section 20 of theRPwD Act. Section 47 of the PwD Act, unlike Section 20 of theBRPwD Act, does not contain provision in the nature of sub-Section (1) of Section 20 which provides that governmentestablishment cannot discriminate against person with disabilityin “any matter” relating to employment. While the contours of“any matter” used in Section 20 of the RPwD Act are notCinterpreted in the instant case, it would suffice to say that Section20 of the RPwD Act casts net of protection wider than Section47 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 internationalDlaw or gives effect to international law must be used. Since Article5 places the States under an obligation to provide both formaland substantive equality, an interpretation of the PwD Act thatfurthers the principles mentioned in Article 5 must be undertaken.Therefore, even though the PwD Act does not have an expressprovision laying down the general principle of non-discriminationEagainst disabled persons, it must still have to be read in thestatute. Therefore, Section 47 only provides persons withdisability with the right against specific forms of discriminationand not the general right of non- discrimination which runs throughthe entire statute but which cannot be located in specificFprovision. Accordingly, the 2002 notification will also only exemptthe CRPF from the duty against those specific forms ofdiscrimination mentioned in Section 47. Correspondingly, the2002 notification only grants the employer the privilege ofdiscriminatory conduct in employment with respect to those actsspecified under Section 47 of the PwD Act. Thus, under the 2002Gnotification, the CRPF has the privilege to terminate, demote, ordeny promotion to employees with disabilities. It also has theprivilege to not abide by the principle of reasonableaccommodation in re-assigning the post of an employee with adisability. However, it does not have the privilege to discriminateH

against disabled employee in any other matter relating toemployment. The privilege under the 2002 notification will accrueonly when the disciplinary proceedings reach the stage ofpunishment and the respondent imposes one of the punishmentsmentioned in Section 47. The privilege can only accrue on thehappening of one or more events that are necessary for theaccrual. The accrual of the privilege cannot be based on anassumption, hope or expectation of exercising the privilege. Whenthe disciplinary proceedings reach the punishment stage, theappellant could have still been imposed other punishmentsprescribed under the Service Rules which are not included withinthe purview of Section 47 of the PwD Act. Therefore, no privilegeis 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; DisabledRights Group v. Union of India (2018) 2 SCC 397; JeejaGhosh v. Union of India (2016) 7 SCC 761 : [2016] 4SCR 638; Apparel Export Promotion Council v. A.K.Chopra (1999) 1 SCC 759 : [1999] 1 SCR 117; GithaHariharan v. Reserve Bank of India (1999) 2 SCC 228: [1999] 1 SCR 669; Justice Khanna in ADM Jabalpurv. Shivakant Shukla (1976) 2 SCC 521 : [1976] 0 Suppl.SCR 172 – referred to.

Commission for Social Development, Interim Reportof the Secretary General: Implementation of the WorldProgramme 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 anythingdone, or any action taken under the PwD Act shall be deemed tohave been done or taken under the ‘corresponding provisions’of the RPwD Act. The 2002 notification was issued under Section47 of the PwD Act. The 2002 notification would be saved underSection 102 (2) only if there is provision in the RPwD Act thatis ‘corresponding’ to Section 47 of PwD Act. [Para 35][873-D-E]

A4.2 Section 20 of the RPwD Act covers wider ambit whencompared to Section 47 of the PwD Act. Section 20(1) providesfor non-discrimination based on disability, which is provision inpursuance of the equality mandate in Article 5 of United NationsConvention on the Rights of Persons with Disabilities. Section20(2) states that reasonable accommodation and conduciveBenvironment free from barriers must be provided to persons withdisabilities. However, the provisions of Section 47 of the PwDAct only provide right to the employee to not be demoted,terminated, or denied promotion because of disability, andreasonable accommodation by adjusting posts. The principle ofCreasonable accommodation provided under Section 20(2) is notrestricted to the accommodations mentioned in Section 47. UnderSection 20(2), the employer has duty – in view of the principleof reasonable accommodation- to post person suffering fromdisability at place closer to home. This form of reasonableaccommodation is not provided under Section 47, though it mayDflow through the PwD Act. Therefore, Section 20 of the RPwDAct is not corresponding to Section 47 of the PwD Act. If anyother interpretation is placed, then the 2002 notification wouldbe deemed to exempt other rights that are available to disabledpersons under Section 20 of the RPwD Act, which were notEotherwise exempted under the PwD Act. Since there is nocorresponding provision, the exemption notification issued underSection 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 1897and Section 102 of the RPwD Act, the provisions of the PwD Actand the 2002 notification are not applicable to the instantFproceedings. [Para 38][875-A-E]

4.3 Since, the writ petition was filed before the Single Judgeof the High Court in 2015, before the enactment of the RPwDAct, the validity of the disciplinary proceedings could have onlybeen decided on the anvil of the provisions of the PwD Act.GHowever, the Single Judge ought not to have entered into theissue of the applicability of Section 47 of the PwD Act when thedisciplinary proceedings were challenged at the initial stage sinceSection 47 applies only at the punishment stage. The only question

before the High Court was whether it was justified for CRPF tohave initiated disciplinary proceedings against the appellant forthe alleged misconduct which was connected to his mentaldisability and whether the initiation of such proceedings wasdiscriminatory. At the relevant point of time, when the intra-courtappeal was filed against the judgement of the Single Judge, theRPwD Act had come into force. However, since no privilege hadaccrued to the respondent under the PwD Act, and the 2002notification was not saved under Section 102 of the RPwD Act,the Division Bench should have decided the intra-court appealon the provisions of the RPwD Act. This would entail that theappellant became entitled to the rights under Section 20 of theRPwD Act at the time when the intra-court appeal was being heard.When the appellant was before the Division Bench of the HighCourt, he was already diagnosed with permanent disability of40 to 70 percent by the government hospital. Further, theComposite Hospital by report dated 18 July 2016, declared theappellant unfit for duty and placed him under the S5(P) categorydue to his partial and limited response to all modalities oftreatment since 2009. The Division Bench also noted that thedocuments issued by the CRPF’s hospital indicate that theappellant has had mental disability for long time. In suchcircumstances, it was not appropriate for the High Court torestore the disciplinary proceeding on the ground that factualdetermination of the disability of the appellant is to be establishedthrough such 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 withdisabilities must not be discriminated against on the ground ofdisability, and the appropriate government shall ensure thatpersons with disability enjoy the right to live with dignity. Section2(h) of the RPwD Act defines discrimination. Section 20 of theRPwD Act states that no government establishment shalldiscriminate against any person with disability in matters relating

ABC

Ato employment. The disabled employee also has right toreasonable accommodation and to access workplace withoutbarriers. It further provides that no disabled employee shall beterminated, reduced in rank, or denied promotion because of thedisability. On the repeal of the PwD Act by the RPwD Act, the2002 Notification also lost its force of law. Between 27 DecemberB2016, when the RPwD Act had come into force and 18 August2021, when the 2021 notification was issued, there was noexemption notification in force. The Special Leave Petition wasinstituted on 5 October 2020. It has been held that when liscommences, all rights and obligations of the parties getCcrystallised on that date. Therefore, the rights of the parties wouldfreeze as on the date of filing the Special Leave Petition. In theSpecial Leave Petition filed before this Court, it was submittedthat the initiation of disciplinary proceedings is discriminatoryand violative of the provisions of the RPwD Act. Therefore, theright to non-discrimination in matters of employment providedDunder Section 20, accrued to the appellant on the filing of theSpecial Leave Petition since the 2021 notification had not beennotified at the relevant time. Thus, the 2021 notification wouldhave no application to the facts of the instant case. [Para 41][876-E-F, G-H; 877-A-D]EAmbalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co.(2001) 8 SCC 397 : [2001] 2 Suppl. SCR 195 – referredto.

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

6. When the interaction with the barriers causes personto feel ‘disabled’, it is extremely important to not stigmatize ordiscriminate against persons having mental health issues or anyother form of disability. Such discrimination would only furtherHentrench 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 mentaldisability and employment discrimination has revolved aroundSection 47 of the PwD Act. This Court while interpreting Section47 has held that the provision is applicable when the mentaldisability is acquired during service. While applying Section 47,the Court did not enter into an analysis of whether the mentaldisability was factor or had direct causal connection with thealleged misconduct that led to the dismissal. Thus, differentstandard applies to cases governed by Section 47. It is importantto clarify that the analysis undertaken in examining whetherdisciplinary proceedings can constitute discrimination againstpersons with disabilities would not influence the jurisprudenceon Section 47 of the PwD Act. Section 47 comes into play only atthe stage of impositions of sanctions, where an employee cannotbe dispensed with or reduced in rank. Since the jurisprudenceon this issue is yet to evolve in India, the legal policies andpractices adopted by other jurisdictions in relation to the rightsof persons with mental disabilities against employmentdiscrimination are analysed. It has also been specifically examinedhow courts in other jurisdictions have adjudicated misconductcharges when the alleged conduct is found to be connected tothe 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 Actin United States, Canada, European Union, South Africa it isconcluded that:

(i) Mental health disorders are recognised as disabilityas long as they fulfil the defining criteria;

(ii) The duty of providing reasonable accommodation topersons with disabilities is sacrosanct. All possible alternativesmust be considered before ordering dismissal from service.

DEF

AHowever, there are accepted defences to this principle. The well-recognised exception to this rule is that the duty to accommodatemust not cause undue hardship or impose disproportionateburden on the employer – the interpretation of these conceptsmay vary in each jurisdiction. In the US, the duty to accommodateis also to be balanced with ensuring the safety of the workplaceB(the direct risk defence) provided that the threat to safety is basedon an objective assessment and not stereotypes. In Canada, theminority concurring opinion in Stewart’s case observed thataccommodating person with substance dependency would causeundue hardship to the employer in safety-sensitive workplace.CThe Court of Justice of EU also recognised workplace safety asa legitimate occupational requirement for imposing certainoccupational standards. However, it ruled that the standard shouldbe proportionate to the objective of workplace safety that is soughtto be achieved. It would be useful to refer to the minority opinionin Stewart’s case which emphasizes that the duty to accommodateDis individualized. The employer must be sensitive to how theindividual’s capabilities can be accommodated. The Committeeon the Rights of Persons with Disabilities in General CommentSix expressly notes that the duty to accommodate is an“individualised reactive duty” and “requires the duty bearer toEenter into dialogue with the individual with disability”. Thus, ablanket approach to disability-related conduct will not suffice toshow that the employer has discharged its individualized duty toaccommodate. It must show that it took the employee’s individualdifferences and capabilities into account;

F(iii) Mental health disorders pose unique challenge indisability rights adjudication. Very often, persons are not awareof or are in denial of their mental disability. Even if they hold theawareness, to avoid stigma and discrimination, they tend to notdisclose their mental illness before an incident of purported

misconduct. Thus, they may fall foul of the requirement to requestGa reasonable accommodation. In the US, the requirement toprovide reasonable accommodation is prospective. In Canada,the majority in Stewart’s case observed that despite the substancedependency, the employee had the ability to make prior

disclosure of the dependency to the employer and could haveavailed of the reasonable accommodation. However, the minorityopinion, emphatically observed that self-reporting cannot beconstrued as accommodation for persons who are in denial oftheir disability. The Committee on the Rights of Persons withDisabilities in General Comment Six notes that the duty toaccommodate also arises in cases where the duty bearer “shouldhave realized that the person in question had disability thatmight require accommodations to address barriers to exercisingrights”; and

(iv) As regards, the examination of misconduct chargesagainst persons with mental health disorders, there are twostrands of argument. One argument is that mental disability oftenmanifests as atypical behaviour that may fall within the ambit ofmisconduct. If such conduct is causally connected to the disability,then dismissal on grounds of misconduct is discrimination basedon disability. This argument has been accepted by few courts inthe US. In the minority opinion in Stewart’s case, it was observedthat making distinction between the disability and the disability-related conduct is akin to making distinction between aprotected ground and conduct that is intertwined with theprotected ground. On the other hand, it is argued that whilemental health disorders may diminish the control person hasover their actions, it does not necessitate that the persons havecompletely lost their ability to comply with acceptable standardsof workplace conduct. In the US, most courts have held thatmisconduct is not protected under ADA. In Stewart’s case, themajority opinion of the Canadian Supreme Court held that theemployee with substance dependency retained some control tocomply with the policy of making prior disclosure of dependency.Thus, non-compliance with standards of workplace conduct canrightfully lead to dismissals and would not constitutediscrimination. South Africa adopts middle ground in this debate.In Legal Aid South Africa’s case, the court observes that two-pronged enquiry is required. It must first be considered basedon the evidence whether the mental health disorder is soincapacitating that the person is not able to appreciate the

Awrongfulness of the conduct or is unable to conduct themselvesin accordance with the required standard. Alternatively, if theevidence suggests that the person can appreciate thewrongfulness of their conduct and act accordingly, then theirculpability stands diminished because of the mental healthdisorder, and sanctions should be imposed accordingly.B[Para 89][910-B-H; 911-A-H; 912-A-E]

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

Borgialli v. Thunder Basin Coal Co. 235 F.3d 1284,1290 (10 th Cir.2000); Office of the Senate Sergeantat Arms v. Office of Senate Fair Employment Practices,95 F.3d 1102, 1107 (Fed. Cir. 1996); Bugg-Barber v.Randstad US, L.P. 271 F. Supp. 2d 120, 130 (D.D.C.2003); Burmistrz v. City of Chi. 186 F. Supp. 2d 863,875 (N.D. Ill. 2002); Hamilton v. Southwestern BellTelephone Co. 136 F.3d 1047, 1052 (5th Cir. 1998);Teahan v. Metro-North Commuter Railroad 951 F.2d511 (2d Cir. 1991); Den Hartog v. Wasatch Academy129 F.3d 1076, 1086 (10th Cir. 1997); Raytheon Co.v. Hernandez 540 U.S. 44 (2003); Martin Johnson andJane Doe on behalf of themselves and all other similarlysituated v. Frank Kendall, Secretary of the Air Force;Entrop v. Imperial Oil (2000) 50 OR (3d) 18; BritishColumbia (Public Service Employee RelationsCommission) v. BCGSEU [1999] 3 SCR 3; HK Danmarkv. Dansk Almennyttigt Boligselskab DAB and HKDanmark v. Pro Display A/S in Konkurs 11 April 2013,joined cases C-335/11 and C-337/11; Standard Bankof SA v. CCMA 3 (2008) 29 ILJ 1239 (LC); Smith v.Kit Kat Group(Pty) Ltd. (2017) 38 ILJ 483(LC);Pharmaco Distribution (Pty) Ltd. v. EWN (2017) 38 ILJ2496 (LAC); New Way Motor & Diesel Engineering(Pty) Ltd v. Marsland (2009) 30 ILJ 2875 (LAC); LegalAid South Africa v. Ockert Jansen (2020) 41 ILJ 2580(LAC) – referred to.

Gururaj, M Varghese et. al., National Mental HealthSurvey of India, 2015-16: Prevalence, patterns andoutcomes, (2016) NIMHANS Publication No 129,available at http://indianmhs.nimhans.ac.in/Docs/Report2.pdf; Richard M Duffy, Bredan Kelly,Concordance of the Indian Mental Healthcare Act 2017with the World Health Organization’s Checklist onMental Health Legislation, 11(1) International Journalof Mental Health Systems 48 (2017), available athttps://ijmhs.biomedcentral.com/articles/10.1186/s13033-017-0155-1; Committee on Rights of Personswith Disabilities, General Comment 1, available athttps://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/031/20/PDF/G1403120.pdf?OpenElement; HKranz, Calling in Depressed: Look at the Limitationsof Mental Illness in the Workplace, SayNoToStigma(2012), available at http://saynotostigma.com/2012/06/calling-in-depressed-a-look-at-the-limitations-of-mental-illness-in-the-workplace; Heather Stuart,Mental illness and employment discrimination, 19(5)Current Opinion in Psychiatry 522–526 (2006);Arunima Kapoor, Depressed People Need Not Apply:Mental Health Stigma Decreases Perceptions ofEmployability of Applicants with Depression, 7 YaleReview of Undergraduate Research in Psychology 84-94 (2017), available at https://cpb-us-w2.wpmucdn.com/campuspress.yale.edu/dist/a/1215/files/2017/06/Arunima-1amuxqj.pdf; Jayna Kothari, The UNConvention on Rights of Persons with Disabilities: AnEngine for Law Reform in India, 45(18) Economic andPolitical Weekly 65-72 (2010); Committee on Rightsof Persons with Disabilities, General Comment 1,available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/031/20/PDF/G1403120.pdf?OpenElement; Brendan D. Kelly, Mental Capacity,Human Rights, and the UN’s Convention of the Rightsof Persons with Disabilities, 49(2) Journal of theAmerican Academy of Psychiatry and the Law Online

[2021] 13 S.C.R.

152-156 (2021), available at http://jaapl.org/content/jaapl/49/2/152.full.pdf; Committee on the Rights ofPersons with Disabilities, General Comment 6,available at https://tbinternet.ohchr.org/layouts/15/treatybodyexternal/Download.aspx?symbolno=CRPD/C/GC/6&Lang=en; International LabourOrganization, Managing Disability in the Workplace:ILO Code of Practice, available at https://www.ilo.org/global/topics/safety-and-health-at-work/normative-instruments/code-of-practice/WCMS_107777/lang—en/index.htm; Brendan D. Kelly, Mental Health,Mental Illness, and Human Rights in India andElsewhere: 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 & MajorMichele Parchman, The Impact of the Americans withDisability Amendments Act of 2008 on the RehabilitationAct and Management of Department of the Army CivilianEmployees, 1 Army Lawyer 43 (2010); US EqualEmployment Opportunity Commission, EnforcementGuidance on Reasonable Accommodation and UndueHardship under the ADA, available at https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada#N_13_; Regulations To Implement TheEqual Employment Provisions Of The AmericansWith 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-health-conditions-workplace-your-legal-rights; Laura F.Rothstein, The Employer’s Duty to AccommodatePerformance and Conduct Deficiencies of Individualswith Mental Impairments Under DisabilityDiscrimination Laws, 47 Syracuse Law Review 931,967, 973 (1997); Jeffrey Swanson et al, JusticeDisparities: Does the ADA Enforcement System Treat

People with Psychiatric Disabilities Fairly?, 66(1)Maryland Law Review 94 (2007); Kelly CahillTimmons, Accommodating Misconduct Under theAmericans with Disabilities Act, 57 Florida Law Review187, 188-89 (2005); O’Brien, Christine Neylon andDarrow, Jonathan J., The Question Remains afterRaytheon Co. v. Hernandez: Whether No Rehire RulesDisparately Impact Alcoholics and Former DrugAbusers, 7 Journal of Business Law 157 (2004); BallyThun, Disability Rights Framework in Canada, 12(4)Journal of Individual Employment Rights 351-371(2007); Faisal Bhabha, Stewart v. Elk Valley: The Caseof Cocaine Using Coal Miner, All Papers 323 (2018),available at https://digitalcommons.osgoode.yorku.ca/all_papers/323; Ferri, Delia, The UnorthodoxRelationship between the EU Charter of FundamentalRights, the UN Convention on the Rights of Personswith Disabilities and Secondary Rights in the Court ofJustice Case Law on Disability Discrimination, 16(2)European Constitutional Law Review 275–305(2020); Estie Gresse, Melvin L.M Mbao, An Analysisof the Duty to Reasonably Accommodate DisabledEmployees: Comment of Jansen v. Legal Aid SouthAfrica, 24(1) Law, Democracy and Development 109(2020); Bassuday K & Rycroft A, ‘Incapacity ordisability? The Implications for Jurisdiction Ernstzen vReliance Group Trading (Pty) Ltd (C727/13) [2015]ZALCCT 42, 36(4) Industrial Law Journal 2516-2521(2015); Matilda Mbali Ngcobo, Court’s Treatment ofDepression in the Workplace: Incapacity, PoorPerformance, Misconduct and Disability, available athttps://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 athttps://maponya.co.za/wp-content/uploads/2018/03/The-invisible-illness-challenge-Without-Prejudice.pdf –referred to.

A8.1 Section 3 of the RPwD Act provides general guaranteeagainst non-discrimination and equality to persons with adisability. Section 20 specifically provides that no governmentestablishment shall discriminate against any person who hasacquired disability in any matter relating to employment.Discrimination has been given an expansive definition underBSection 2(h) of the RPwD Act. Section 2(h) prohibitsdiscrimination on the basis of disability. The provision does notuse the phrase ‘only’ on the basis of disability. While causalconnection may need to be established between the ground fordiscrimination and the discriminatory act, it is not required to beCshown that the discrimination occurred solely on the basis of theforbidden ground. As long as it can be shown that the forbiddenground played role in the discriminatory action, the action willviolate the guarantee against non-discrimination. [Paras 90,91][912-F-G; 913-B-C]

DNavtej Singh Johar v. Union of India (2019) 3 SCC39; Anuj Garg v. Hotel Association of India (2008) 3SCC 1 : [2007] 12 SCR 991; Patan Jamal Vali v. Stateof Andhra Pradesh 2021 SCC OnLine SC 343 –referred to.

E8.2 person with disability is not required to prove thatdiscrimination occurred solely on the basis that they had adisability. Disability needs to be one of the factors that led to thediscriminatory act. Thus, in the instant case, the appellant is onlyrequired to prove that disability was one of the factors that led tothe institution of disciplinary proceedings against him on theFcharge of misconduct. related enquiry then is to examinewhether the conduct of the employee with mental disability mustbe solely consequence of their disability or it is sufficient toshow that the disability was one of the factors for the conduct.[Para 94][915-D-F]G8.3 An interpretation that the conduct should solely be aresult of an employee’s mental disability would place many personswith mental disabilities outside the scope of human rightsprotection. It is possible that the appellant was able to exercisesome agency over his actions. But the appellant was still person

who was experiencing disabling effects of his condition. Thus inany event his agency was diminished. The over-emphasis on thechoice or agency of person with mental health disorder furthersthe stigma against them. This is not to say that persons with mentalhealth disorders are never in control of their actions. This mayperpetuate another stereotype that such persons are“dangerous”, who are more prone to commit violent or recklessacts. Studies indicate that there is no direct link between mentalhealth disorders and violence. There is no substantial differencebetween the patterns of violent conduct exhibited by personswith mental health disorders and others without such disorders.Persons with mental disabilities are not static entities. Thus, whatis required is nuanced and individualized approach to mentaldisabilities- related discrimination claims, which requiresunderstanding the nature of the disadvantage that such personssuffer. [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: ADangerous Conception, 142(5) American Journal ofPsychiatry 593-599 (1985). Claire Wilson, Raymond Nairnet. al., Constructing Mental Illness as Dangerous: PilotStudy, 33(2) Australian and New Zealand Journal ofPsychiatry 240-247; Lesli Bisgould, Human Rights Codev. Charter: Implications of Tranchemontagne Twists andTurns and Seventeen Volumes of Evidence, or HowProcedural Developments Might Have InfluencedSubstantive Human Rights Law, 9 JL & Equality 33(2012) – referred to.8.4 person with mental disability is entitled to theprotection of the rights under the RPwD Act as long they meetthe definitional criteria of what constitutes ‘person with adisability’ under Section 2(s). Having regard to the complex natureof mental health disorders, any residual control that persons withmental disabilities have over their conduct merely diminishesthe extent to which the disability contributed to the conduct, itdoes not eliminate it as factor. The appellant has been undergoing

Atreatment for mental health disorders for long time, since 2009.He has been diagnosed with 40 to 70 percent of permanentdisability by government hospital. While all CRPF personnelmay be subject to disciplinary proceedings on charges ofmisconduct, the appellant is more vulnerable to engage inbehavior that can be classified as misconduct because of his mentalBdisability. He is at disproportionate disadvantage of beingsubjected to such proceedings in comparison to his able-bodiedcounterparts. Thus, the disciplinary proceeding against theappellant is discriminatory and must be set aside. [Paras 97-98][916-F-G; 917-A-C]CLtd. Col. Nitisha and Ors. v. Union of India 2021 SCCOnLine SC 261 – referred to.

8.5 Sub-Section (4) of Section 20 advances the guaranteeof reasonable accommodation to persons with mental disabilities.The Government establishment has positive obligation to shiftDan employee who acquired disability during service to suitablepost with the same pay scale and service benefits. The provisionfurther states that if it is not possible to adjust the employeeagainst any post, he may be kept on supernumerary post until asuitable post becomes available or when they attain the age ofEsuperannuation, whichever is earlier. Reasonable accommodationis component of the right to equality and discrimination. In lightof Section 20(4) and the general guarantee of reasonableaccommodation that accrues to persons with disabilities, theappellant is entitled to be reassigned to suitable post havingthe same pay scale and benefits. The CRPF may choose to assignFhim post taking into consideration his current mental healthcondition. The suitability of the post is to examined based on anindividualised assessment of the reasonable accommodation thatthe appellant needs. The authorities can ensure that the post towhich the appellant is accommodated does not entail handling orGcontrol over firearms or equipment which can pose danger tohimself or to others in or around the workplace. [Paras 100-101][917-G-H; 918-A-B, D-F]

Vikas Kumar v. Union Public Service Commission(2021) 5 SCC 370; Avni Prakash v. National TestingHAgency Civil Appeal No. 7000 of 2021 – referred to.

8.6 The instant case involves complex question ofbalancing competing interests. This entails the right of personswith mental disabilities against discrimination in the course ofemployment and the interest of the CRPF in ensuring safeworking environment and maintaining combat force that canundertake security operations. While balancing the two, the roleassigned to the CRPF as para-military force must also berecognized. Rights are rarely of an absolute nature. Constitutionsoften provide the possibility of limiting those rights throughacceptable justifications. The proviso to sub-Section (1) of Section20 of the RPwD Act provides justification for violating the rightagainst discrimination in employment. It provides that theappropriate government, may, having regard to the type of workcarried on in any establishment exempt such an establishmentfrom the provisions of Section 20. The key words are “havingregard to the type of work”. This indicates that the government’sright to exempt an establishment from the provisions of Section20 which deals with employment discrimination is not absolute.In an appropriate case, standard for reviewing the justificationgiven by the government may have to be developed.[Para 102][918-G-H; 919-A, C-D]Tarunabh Khaitan, Beyond Reasonableness – ARigorous Standard of Review for Article 15Infringement, 50(2) Journal of the Indian Law Institute177-208 (2008) – referred to.

8.7 This Court at the very inception of the constitutionalrepublic had observed that measure that limits rights must havea proportional relationship to the right. With the passage of time,this Court has evolved test for applying proportionality analysisto rights-limiting measure. version of the proportionality testwas used by this Court in the context of anti-discriminationanalysis. Since then, the proportionality analysis has been usedin many other judgments in relation to other rights. [Para103][919-E-F; 920-B]

Chintaman Rao v State of MP AIR 1951 SC 118; VGRow v State of Madras AIR 1952 SC 196; ModernDental College and Research Centre v State of MadhyaPradesh (2016) 7 SCC 353 : [2016] 3 SCR 579; Anuj

ABC

[2021] 13 S.C.R.

AGarg 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. ReserveBBank of India (2020) 10 SCC 274 : [2020] 2 SCR 297;Akshay N Patel v. Reserve Bank of India Civil No. 6522of 2021 – referred to.

8.8 Sub-Section (3) of Section 3 of the RPwD Act itselfcontemplates undertaking proportionality analysis for rights-Climiting measure. The jurisprudence of Sections 3 and 20 of theRPwD Act would have to evolve. The journey has begun. ThisCourt has pondered over the possible trappings which standardof judicial review may adopt. Such an enquiry is rooted in, “theidea that something protected as matter of right may not beDoverridden by ordinary considerations of policy. Reasons justifyingan infringement of rights have to be of special strength”.[Paras 104-105][920-B-C; F-G; 921-A]

Mattias Kumm, Political Liberalism and the Structure ofRights : On the place and limits of the proportionalityErequirement, in L AW , R IGHTS AND ISCOURSE :T HEMES FROM THE L EGAL P HILOSOPHY OFR OBERT LEXY 131-166 (George Pavlakos ed.,Hart 2007) – referred to.

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

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6924of 2021.

From the Judgment and Order dated 15.11.2018 of the High Courtof Gauhati in Civil Writ Appeal No.294 of 2017.

Rajiv Raheja, Adv. for the Appellants.

Ms. Madhavi Divan, ASG, Ayush Puri, Nachiketa Joshi, T. A.Khan, Ms. Vimla Sinha, Ms. Priyanka Das, Ms. Preeti Rani, Ms. NidhiKhanna, Advs. for the Respondents.

AThe Judgment of the Court was delivered byDR. DHANANJAYA Y CHANDRACHUD, J.

AFactual Background.....................................................3

B.Submissions of Counsel..............................................10

C.Analysis....................................................................17

C.1Changing legal Regimes and the continuing quest forJustice..............................................................17

C.1.1 Section 6 of GCA: Accrual of Privilege.....19

C.1.2 Section 102 of the RPwD Act: The SavingsClause...................................................... 35

C.1.3 New Dawn: Appellant’s Rights under theRPwD Act..............................................39

C. 2Mental Disability and Discrimination...................41

C.2.1 The Indian Legal Framework....................41

C.2.2 Mental Health in the Disability RightsFramework..............................................45

C.2.3 Global Outlook on Employment and MentalHealth.................................................... .51

C.4Discipline and Punish: The Validity of the DisciplinaryProceedings......................................................59

C.4.1 Foreign Jurisdictions..................................60

C.4.2 Disciplinary Proceedings against theAppellant..................................................83

C.4.3 Reasonable Accommodation of theAppellant.................................................90

D.Epilogue....................................................................91

E.Conclusion................................................................94

1. The Division Bench of the Gauhati High Court allowed an appealagainst the judgment of the Single Judge of the High Court in petitionunder Article 226 of the Constitution challenging the disciplinaryproceedings initiated against the appellant. The Single Judge had directedthe State to consider the case of the petitioner in view of Section 47 ofthe Persons with Disabilities (Equal Opportunities, Protection of Rightsand Full Participation) Act 1995[1]. Allowing the appeal against the orderof the Single Judge, the Division Bench set aside the enquiry report andrestored the proceedings to the stage of evidence.

Factual Background

2. The appellant joined the Central Reserve Police Force[2] inNovember 2001. In 2003, he was appointed as Assistant Commandantand served in the Darrang and Haflong Districts of Assam. Betweenthe years 2005 to 2007, he served as Assistant Commandant inChhattisgarh, and between 2007 to 2008, he served in Srinagar.Subsequently, he was transferred to Ajmer where he was serving till2010. On 18 April 2010, while the appellant was serving in Ajmer, theDeputy Inspector General of Police[3] lodged complaint against him inthe Alwar Gate police station alleging that the appellant had stated thathe was obsessed with either killing or being killed and made threat thathe could shoot. The complaint reads as follows:

“It is to mention that in pursuance to the above referred letter,Sub Inspector Udai Singh came in the chamber of DIGP and whensitting with Sh V K Kaundal Commandant (staff) and with Sh.Sarwar Khan, Asstt. Comdt. Then only Sh. RK Dhariwal whowas posted in this Group Centre threatened that he is obsessedwith either to kill or being killed and he can even shoot. Thus it isevident that the mental state of this officer is not sound and hecan take life of anybody and can commit suicide and likewise.”

3. An enquiry was initiated against the appellant. memorandumwas issued on 8 July 2010 whereby the President proposed to hold anenquiry against the appellant under Rule 14 of the Central Civil Services(Classification, Control and Appeal) Rules 1965. Six charges were framed

1 “PwD Act”

2 “CRPF”

3 “DIGP”

Aagainst him which were that he remained absent from morning marker,used unparliamentary language, appeared in television channels and otherprint media without the prior approval of the Department, did not giveparade report, tried to intentionally cause an accident, and assaulted aDeputy Commandant. The appellant was placed under suspension witheffect from 8 October 2010 with the declared headquarter. TheBdepartmental enquiry was completed, and the enquiry officer submittedthe enquiry report dated 3 October 2013. Pursuant to the enquiry report,notice was issued to the appellant on 7 August 2015.

4. second enquiry was initiated against the appellant through amemorandum dated 6 April 2011 on the charge that the petitioner withoutCdepositing the pistol and ammunition proceeded to Mukhed. The enquiryhas been completed and the punishment of withholding two incrementswas awarded.

5. third enquiry was initiated against the appellant. Thememorandum was issued on 17 February 2015 on the charges that whenDthe appellant was placed under suspension with the declared headquarterpursuant to the initiation of the first enquiry report, he remained absentwithout obtaining permission.

6. It is also necessary that we advert to the medical history of theappellant to understand the full purport of the issues before us. TheEappellant started facing obsessive compulsive disorder[4] and secondarymajor depression in 2009. He visited private psychologist at Kota,Rajasthan in 2009 and 2010. He also attended Kochhar psychiatricCentre, Delhi in 2011 and 2012. In 2012-2013, he received treatment inPGIMS, Rohtak. He was also treated at the Government Multi-SpecialtyFHospital at Chandigarh in 2013. In 2015, he visited Gauhati MedicalCollege for psychiatric treatment. He also visited the Composite Hospital,Gauhati in 2015 and was referred to the Composite Hospital in Delhi,where he was admitted for treatment between 4 August 2015 to 7 August2015. He was subsequently referred to Dr Ram Manohar Lohia Hospital,Delhi where he was categorized as permanently disabled, having 40 toG70 percent disability. The Composite Hospital by report dated 18 July2016, declared the appellant unfit for duty and placed him under theS5(P) category due to his partial and limited response to all modalities oftreatment since 2009.

H4 “OCD”

7. The Ministry of Social Justice and Empowerment, in exerciseof powers under Section 47 of the PwD Act issued notification on 10September 2002,[5] exempting all categories of ‘combatant personnel’ ofthe CRPF from the provisions of the Section. The notification reads asfollows:

“ NOTIFICATION

New Delhi, the 10th September, 2002

S.O.995(1)- In exercise of the powers conferred by proviso toSection 47 of the Persons with Disabilities (Equal Opportunities,Protection of Rights, and Full Participation) Act 1995 (I of 1996)the Central Government having regard to the type of work carriedon hereby exempt all categories of posts of ‘combatant personnel’only of the Central Para Military Forces (CPMFs) namely CentralReserve Police Force (CRPF), Border Security Force (BSF), IndoTibetan Border Police (ITBP), Central Industrial Security Force(CISF) and Assam Rifles from the provisions of the said Section.”

8. The PwD Act was repealed by the Rights of Persons withDisabilities Act 2016[6]. The Ministry of Social Justice and Empowerment,in exercise of powers conferred by the proviso to Section 20 of theRPwD Act issued notification dated 18 August 2021, similar to the2002 notification:

“NOTIFICATION

New Delhi, the 18th August, 2021

S.O. 3367(E).—In exercise of the powers conferred by the provisoto sub-section (1) of section 20 and the second proviso to sub-section (1) of section 34 of the Rights of Persons with DisabilitiesAct, 2016 (49 of 2016), the Central Government, in consultationwith the Chief Commissioner for Persons with Disabilities, havingregard to the nature and type of work, hereby exempts allcategories of posts of combatant personnel of Central ArmedPolice Forces, namely, Border Security Force, Central ReservePolice Force, Central Industrial Security Force, Indo-TibetanBorder Police, Sashastra Seema Bal and Assam Rifles from theprovisions of the said sections.”

5 “2002 notification”

6 “RPwD Act”

A9. standing order on the rehabilitation of force personnel wasissued by the Directorate General, CRPF on 27 July 2011. According tothe order, rehabilitation Board would be constituted which will subjectthe concerned person to critical examination to determine their physicaland mental capacity, aptitude and job requirement among others. Pursuantto the examination, it would be determined by the Board if the personBcan be rehabilitated within the force or whether he should be declaredunfit. The order provided list of jobs that can be given to personsrequired to be rehabilitated which included duties such as light duty, linemen, and hospital attendants. As for persons who hold the rank of anASI or above, they are to be posted in comparatively less operationalCactivities. The above standing order was amended on 14 August 2012altering the list of rehabilitative jobs.

10. The appellant challenged the inquiry report and the noticedated 7 August 2015 issued in the first enquiry in writ proceeding. TheSingle Judge of the High Court by an order dated 7 August 2015 issuedDnotice and passed an interim order directing that no further decisionshall be taken in the disciplinary proceedings initiated in the first enquiry.The contentions raised by the appellant were:

(i)He has disability within the meaning of Section 2(i) (vii)of the PwD Act. He is suffering from mental illness witha disability of more than 40 percent; andE

(ii)He is protected under Section 47 of the PwD Act whichprovides that person shall not be demoted or deniedpromotion on the grounds of disability. In view of Section47, the disciplinary proceedings cannot proceed any further.

The CRPF submitted that the Court should not interfere with theFdisciplinary proceedings in view of the seriousness of the charges, andthe enquiry must be allowed to be completed.

11. The Single Judge of the Gauhati High Court by judgmentdated 19 August 2016 allowed the writ petition and directed the respondentto consider the case of the petitioner in terms of the provisions of SectionG47 of the PwD Act. The reasons which guided the Single Judge are asfollows:

(i)Section 47 of the PwD Act states that no establishmentshall dispense with or reduce in rank, an employee whoacquires disability during his service. The provision alsoHvests positive obligation on the employer to reasonably

accommodate an employee, who owing to his disability isno more suitable for the post that he is holding. The provisionstates that he could be shifted to another post in the samepay-scale, and in case it is not possible to shift him to anotherpost, he is to be kept on supernumerary post until suitablepost is available;

(ii)There is no dispute that the petitioner had acquired disabilityduring his service. The mental disability certificate fromDr. Ram Mohan Lohia Hospital, New Delhi is sufficient toestablish that the appellant has mental disability of overforty percent;

(iii)The Supreme Court in Kunal Singh v. Union of India[7]held that Section 47 of the PwD Act is mandatory; and

(iv)In view of the above, the respondent should revisit the issueas to whether any action based on the enquiry report wouldserve any purpose in view of the mandatory directive underDSection 47.

12. The respondents filed an intra-court appeal against the judgmentof the Single Judge. The respondents contended that the appellant raisedthe contention of mental disability for the first time in the writ petition. Itwas argued that this contention had neither been raised in the reply tothe charge sheet nor in the reply to the enquiry report. The appellantargued that his wife had tried to bring the mental health issues faced byhim to the notice of the enquiry committee. However, the committee didnot permit her to place the submissions. The appeal was partly allowedby the Division Bench by judgment dated 15 November 2018, by whichthe enquiry proceedings were restored to the stage of recording evidenceto enable the appellant to prove his mental disability by submission ofmaterial documents. The reasons which guided the Division Bench wereas follows:

(i)The issue of whether the appellant is suffering from mentaldisability cannot be decided in writ proceeding since itwould require the evaluation of evidence, which cannot beundertaken by the High Court in an Article 226 proceedings.In these circumstances, the application of the provisions ofthe PwD Act is faulty;

A(ii)Even if the PwD Act is held applicable to the disciplinaryproceedings, an argument has been made that the 2002notification had been issued exempting the CRPF from theapplication of Section 47 of the PwD Act. However, theapplicability of the provisions of the PwD Act is dependenton an affirmative finding on the mental disability of theBappellant; and

(iii)On prima facie perusal of the material, it appears thatthe appellant has mental disability. The medical reportssubmitted by the appellant from the respondent’s hospitalindicate that he had OCD and depression for long time.CHowever, this is defence that must be put forth by theappellant during the enquiry.

Submissions of Counsel

13. Mr Rajiv Raheja, learned counsel appearing on behalf of theappellant, has made the following submissions:D

(i)The appellant was continuously posted in areas where anti-insurgency operations were being conducted from 2003 to2010. As consequence, he developed mental health issuesin 2008;

E(ii)The appellant is diagnosed with OCD, secondary majordepression, and bipolar affective disorder, which hedeveloped during service. Dr Ram Manohar Lohia Hospitalcategorized the appellant as having permanent disabilityin the range of 40-70 percent;

(iii)The appellant started taking treatment from psychiatristFin 2009-2010. He has taken treatments from Apollo HospitalDelhi, Rohtak Medical College, Government HospitalChandigarh, Dr Ram Manohar Lohia Hospital Delhi, andGauhati Medical College;

(iv)The events which led to the initiation of departmentalGenquiries took place between April 2010 and July 2012. AnFIR was registered against the appellant at the behest ofthe DIGP under whom the appellant was serving in Ajmer.It was alleged in the complaint that the appellant’s mentalstate is not sound, and he threatened to kill people andHcommit suicide. Instead of sending the appellant for medical

treatment, the DIGP initiated criminal action against him.Thereafter, three enquiries were instituted against theappellant;

(v)The departmental enquiries were initiated against theappellant for acts committed by him after developing severemental illnesses;

(vi)The first and third enquiries against the appellant are pending.The first enquiry has been restored to the stage of evidenceby the High Court in the impugned judgment. The secondenquiry is completed and the punishment of withholding twoincrements has been awarded to the appellant;

(vii)Section 18 (5) (b) and (d) of the Mental Healthcare Act2017 mandates that persons with mental illness should beposted in their native places and where good treatmentfacilities are available. The appellant was being treated inDelhi in 2010 but was posted to Mudkhed in Maharashtramaking it impossible for him to avail of medical care everyfortnight or even every month. In October 2014, theappellant was first posted in Gauhati and thereafter inSilchar. These locations are far from his hometown andtreatment centers;

(viii) The Composite Hospital, CRPF, Delhi admitted that theappellant has OCD and secondary major depression.Further, it acknowledged that the appellant has taken varioustreatments and was subjected to anti-anxiety agents, anti-depressants, anti-psychotics, sedatives, hypnotics,psychotherapy, behavior therapy, and electroconvulsivetherapy;

(ix)The appellant showed only partial response to the treatmentand is still symptomatic. He was categorized as S-3 butwas eventually classified as S-5 (permanent disability fromthe psychiatric side, 100 percent unfit) by the MedicalDirectorate of CRPF;

(x)On 14 April 2019, even the Court of Enquiry noted that theappellant has been diagnosed with OCD and secondarymajor depression. The appellant was directed to appear forreview before medical officers;

856SUPREME COURT REPORTS

A(xi)The behavior report issued by DIG, GC, CRPF, Gauhatidated 9 January 2019 stated that no duty was assigned tothe officer due to “mental disorder” and that the “officercaught mental disorder on duty”. In another behavior reportdated 27 January 2018, it was noted that the “officer hasnot been performing any duties since he is psychiatricBpatient”. DIG, GC, CRPF, Silchar in the behavior reportdated 5 January 2019 observed that the “officer lacks properreasoning and in making proper conclusive opinion [sic]”.Thus, while the CRPF concluded that the appellant has asevere mental illness, it still chose to proceed withCdepartmental enquiries;

(xii)The appellant made several requests for being transferredto the place where he was undergoing treatment. The lastsuch request was made on 16 March 2020;

(xiii) The principles of natural justice were not followed in theDdepartmental enquiries. Further, it is unreasonable to expecta person undergoing severe mental health issues to leadevidence and defend himself;

(xiv) The appellant is entitled to the protection granted underSection 20 of the RPwD Act, which is pari materia toESection 47 of the PwD Act;

(xv)The exemption granted to CRPF from the application ofprovisions of Section 47 under the PwD Act in terms of thenotification dated 10 September 2002 does not have anyeffect once the RPwD Act 2016 came into force; andF

(xvi) The order of the Department of Personnel and Trainingdated 25 February 2015 nullifies the exemption granted tothe CRPF by the 2002 notification.

14. Ms Madhavi Divan, the learned Additional Solicitor Generalappearing on behalf of the respondents, has urged that:G

(i)The appellant was involved in various acts of misconductduring 2010 and 2011, for which three different departmentalenquiries were initiated against him;

(ii)Both the pending departmental enquiries have been put onHhold till the appellant’s mental condition improves;

(iii)The appellant was transferred from time to time followingAthe transfer policy. The good work done by the appellant inthe past has no relevance to the specific charges ofmisconduct against him;(iv)Exposure to insurgency does not result in the developmentof mental health issues. Innumerable officers are posted inBsuch areas and are performing their duties;(v)The acts of misconduct were committed by the appellantwhen he was posted at peaceful station in Ajmer. Hewas residing near his hometown and was availing of static/home posting. Rajasthan is his home state. If he had anyCgrievance against senior officer, he should have followedproper procedure for registering such grievance;

BCD

(vi)The DIG, Ajmer CRPF was constrained to register an FIRagainst the appellant because there was an apprehensionthat the appellant will commit an untoward act;(vii)The appellant did not produce himself before the medicalofficer of the force for treatment. There is no indicationfrom the reports of medical officers that he has any mentalailment;(viii) According to AMR reports dated 20 October 2008, 28October 2009 and 26 June 2014, the appellant was placedin the medical category S-1 and was declared fit for duty.These reports do not indicate that the appellant has anymental illness;(ix)The appellant actively participated in the first and seconddepartmental enquiries which were conducted from 2010to 2014. He cross-examined witnesses and submitted adefence. He never claimed that he had mental healthdisorder. When the first departmental enquiry wascompleted by the Investigating Officer and the Union PublicService Commission advised that he be removed fromservice, the appellant claimed that he had mental illnessesto avoid the penalty;

(viii) According to AMR reports dated 20 October 2008, 28EOctober 2009 and 26 June 2014, the appellant was placedin the medical category S-1 and was declared fit for duty.These reports do not indicate that the appellant has anymental illness;(ix)The appellant actively participated in the first and secondF

(x)The Mental Healthcare Act was enacted in 2017, while theacts of misconduct relate to 2010 and 2011 when he wasposted in Ajmer;

A(xi)The appellant has been deployed in peaceful stations since2014. He was posted in Gauhati from 2014 to 2018 and inSilchar from 2018 onwards. Adequate medical facilities areavailable in these areas. Family accommodation is alsoavailable;

B(xii)The appellant was sent for Review Medical Examination inComposite Hospital, CRPF, Delhi where he was placed inthe S-5 category on 31 August 2016. He was declared unfitfor duty on account of being diagnosed with OCD andsecondary depression. It was recommended that his servicebe invalidated. To avoid such invalidation, the appellantCproduced two medical certificates issued by Gauhati MedicalCollege and Hospital, which declared him fit for any activitystating that he had no symptoms of mental illness;

(xiii) The appellant has taken contradictory stands. In the firstenquiry, he claimed that he had mental illness to avoid aDpenalty but when he was declared unfit for duty, he claimedto be medically fit. It is clear that the ploy of mental illnessis being used to mislead the department and the Court;

(xiv) On the order of the High Court dated 15 November 2018, aReview Medical Examination was conducted which placedEthe appellant in the medical category of S-3 because ofOCD and secondary depression. At the time, the appellantwas asymptomatic and was not on any medication.However, because he had record of mental illness, hewas placed under observation in medical category S-3 for24 weeks. Thereafter, Review Medical Examinations wereFconducted from 23 December 2019 to 30 December 2019in Composite Hospital, CRPF. The appellant was placed inmedical category S-3 on 31 December 2019;

(xv)The appellant has been evading Review MedicalExaminations because he is aware that if he is upgraded toGthe S-1 category, then the pending departmental enquirieswill recommence and if he is downgraded to S-5 category,he will be boarded out of service;

(xvi) The Review Medical Examinations conducted from 20January 2021 to 29 January 2021 place him in medicalHcategory S-2;

(xvii) The contention of the appellant that the exemption grantedto the CRPF from the application of Section 47 of the PwDAct was overruled by order of Department of Personneland Training dated 25 February 2015 is incorrect;

(xviii) After the enactment of the RPwD Act, proposal wassubmitted to the Central Government to exempt the CRPFfrom the provisions of Section 20 of the RPwD Act. Anotification to this effect was issued in 2021; and

(xix) According to the department standing orders, when CRPFpersonnel with mental illness are placed in medical categoryS-3 for maximum of 48 weeks and are not upgraded to S-C2 within 48 weeks, they are downgraded to S-5 and declaredpermanently unfit for service. Under the rehabilitation policyrelating to disabled force personnel, persons having mentalillness are immediately invalidated from service irrespectiveof their fitness at the time of recruitment. They cannot beretained or rehabilitated within the force since the job profileDof the CRPF personnel involves handling firearms.

Analysis

15. The PwD Act was repealed and the RPwD Act was enactedin 2016 during the pendency of the writ proceedings. Therefore, we firstdetermine the law applicable to the validity of the disciplinary proceedings.We would then discuss the legal frameworks on mental health. The finalsection discusses whether the initiation of disciplinary proceedings againstthe appellant was discriminatory.

C.1 Changing legal Regimes and the continuing quest forJustice

16. When the writ petition seeking to quash the disciplinaryproceedings was instituted before High Court, the PwD Act and the2002 notification were in force. However, the intra-court appeal againstthe judgment of the Single Judge was filed in 2017, after the RPwD Actcame into force. An exemption corresponding to the 2002 notificationwas issued under the RPwD Act in August 2021 when the Special LeavePetition was pending before this Court. Therefore, the primary issue isto decide the law that would apply to the proceedings before this Court.

17. The disciplinary proceedings were initiated by issuing amemorandum of charges in 2010. The enquiry report was submitted in

A2013, and the notice was issued in 2015. Thus, when the disciplinaryproceedings were initiated, the PwD Act was in force. The 2002notification was issued by the respondent under the proviso to Section47, exempting the CRPF from the application of the provision. The RPwDAct came into force on 27 December 2016. If any right has been accruedto either the appellant or the respondent under Section 47 or any otherBprovisions of the PwD Act, then the repeal of the Act would not affectthe legal proceedings unless different intention appears from readingof the RPwD Act, by virtue of Section 6 of the General Clauses Act1897[8]. Section 6 of the GCA reads as follows:

“6. Effect of repeal – Where this Act, or any [Central Act] orCRegulation made after the commencement of this Act, repealsany enactment hitherto made or hereafter to be made, then, unlessa different intention appears, the repeal shall not –

(a) revive anything not in force or existing at the time at whichthe repeal takes effect; orD(b) affect the previous operation of any enactment so repealed oranything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accruedor incurred under any enactment so repealed; or

E(d) affect any penalty, forfeiture or punishment incurred in respectof any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respectof any such right, privilege, obligation, liability, penalty, forfeitureor punishment as aforesaid, and any such investigation, legalFproceeding or remedy may be instituted, continued or enforced,and any such penalty, forfeiture or punishment may be imposedas if the repealing Act or Regulation had not been passed.”

Section 6 provides that where central enactment repeals anotherenactment, the repeal shall not affect any legal proceeding or investigationGwith respect to an accrued right, unless different intention appearsfrom the repealing statute. The general rule of interpretation is that anewly enacted statute has prospective application. Section 6 of the GCAprovides an exception to this rule, where pending legal proceeding orinvestigation would be guided by the old enactment, if any ‘right, privilege,

H8 “GCA”

obligation or liability’ has accrued to the parties under the repealed law.The issue which needs to be considered is whether any right, privilege,obligation or liability has accrued to the respondent in view of the 2002notification which exempts the CRPF from its duty to not discriminateagainst disabled employees under Section 47 of the PwD Act.

C.1.1 Section 6 of GCA: Accrual of Privilege

18. Section 47 of the PwD Act reads as follows:

“47. Non-discrimination in Government employments.—

(1) No establishment shall dispense with, or reduce in rank, anemployee who acquires disability during his service:

Provided that, if an employee, after acquiring disability is notsuitable for the post he was holding, could be shifted to someother post with the same pay scale and service benefits:

Provided further that if it is not possible to adjust the employeeagainst any post, he may be kept on supernumerary post until asuitable post is available or he attains the age of superannuation,whichever is earlier;

(2) No promotion shall be denied to person merely on the groundof his disability:

Provided that the appropriate Government may, having regard tothe type of work carried on in any establishment, by notificationand subject to such conditions, if any, as may be specified in suchnotification, exempt any establishment from the provisions of thissection.”

Section 47 states that no employee working in Governmentestablishment, who acquires disability during the course of serviceshall be (i) terminated from employment; (ii) reduced in rank; or (iii)denied promotion. Section 47 protects disabled employees from punitiveactions on the ground of disability. Since the 2002 notification exemptsthe CRPF from the application of Section 47, we will have to examine ifany right or privilege has accrued to the CRPF under the 2002 notification.This requires us to consider whether an exemption from protectiveprovision such as Section 47 results in the accrual of right or privilegein favour of the CRPF to continue pending proceedings under the PwDAct in terms of Section 6 of the GCA.

A19. In Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal &Co.[9], the issue before two judge Bench of this Court was whether thecourt of Rent Controller constituted under the Delhi Rent Control Act1958, or the ordinary civil court would have the jurisdiction to decide theeviction proceedings instituted by the landlord against the tenant. Section3 was amended to exclude tenancies whose monthly income exceededBRs. 3500 from the application of the Delhi Rent Control Act. In thatcase, the monthly rent was Rs. 8625. The eviction petition was filed bythe landlord in 1985 before the amendment of Section 3. While the petitionwas pending, Section 3 was amended, which excluded such tenanciesfrom the purview of the Act. The High Court had held that in view of theCamendment, only the ordinary civil court and not the Rent Controllerwould have jurisdiction over the eviction proceedings. The tenantcontended that since the tenant did not possess any vested right underthe Act before the amendment came into force, the Rent Controllerwould not have jurisdiction. The landlord contended that even if the tenantdid not possess any vested right, the landlord possessed vested right,Dand that in view of Section 6 of GCA, the pending proceedings shouldcontinue under the pre-amended Rent Control Act. This Court held thatthe tenant did not have any vested right under the Act. Furthermore, theCourt also held that the landlord does not have an accrued ‘right’ underSection 14 of the Delhi Rent Control Act. Section 14 of the Delhi Rent

EControl Act provides general protective right to the tenant againsteviction. The proviso to Section 14 lists specific grounds on which thetenant could be evicted. The Court held that since Section 14 is aprotective right conferred upon the tenant, it cannot be construed toprovide right to the landlord. In this context, it was observed:F“The right which is sought to be referred as vested right is onlyunder its proviso. Proviso cannot enlarge the main section. Whenmain section is only protective right of tenant, varioussubclauses of its proviso cannot be construed as it gives vestedright to landlord. The right if at all could be said of the landlord.

It flows only under the protective tenant’s umbrella which cannotGbe enlarged into vested right of landlord.”However, it was observed that Section 14 provides ‘privilege’to the landlord, and if the privilege has been accrued or acquired asrequired under Section 6 of GCA, then the Rent Controller would retain

H9 (2001) 8 SCC 397.

the jurisdiction to decide the proceedings. It was held that on the filing ofthe eviction petition, the privilege accrued to the landlord in view ofSection 6(c) of the GCA, and the pending proceeding was saved.

20. For Section 6 of the GCA to be applicable, two conditionsneed to be fulfilled. Firstly, the respondent must possess ‘right, privilege,obligation, or liability’; and secondly, the ‘right, privilege, obligation, orliability’ must have accrued before the repeal of the old enactment orprovision. According to WN Hohfeld, one of the greatest hindrances inthe clear understanding of legal problems is the readiness to terms alllegal relations as ‘rights’. According to him, right signifies an affirmativeclaim against another, and the correlative of right is duty. On the otherhand, privilege indicates freedom from the right or claim of another; itdenotes an absence of duty.[10] Hohfeld states that the correlative ofprivilege is ‘no right’. Section 47 of the PwD Act is protective provisionavailable to employees who are disabled in the course of theiremployment. The provision places an obligation on the employer to notimpose punitive punishments such as termination of employment,reduction in rank, and denial of promotion. Therefore, the employee hasa right to not be punitively punished for their disability (and right to bereasonably accommodated), while the employer has duty not to imposesuch punitive punishments (and duty to reasonably accommodate).However, when the 2002 notification was notified exempting the CRPFfrom the application of the provision, the employee lost the right to claimthat they should not be punitively punished. By corollary, it would meanthat the CRPF has been exempted from its duty under Section 47, andthus holds privilegeto impose punitive punishments against personswith disabilities.

21. For the application of Section 6 of the GCA, the privilegeshould have accrued to the respondent under the 2002 notification beforethe repeal of the PwD Act. It is settled law that Section 6 of the GCAonly protects accrual of rights and privileges and not the mere hope orthe expectation of accrual. In Hamilton Gell v. White[11], landlord hadgiven notice to quit to the tenant under the Agriculture Holdings Act1908. Under the Act, on receipt of the notice to quit, the tenant is entitledto compensation in such cases. Section 11 of the Act stipulates the

10 W.N Hohfeld, Fundamental Legal Conceptions as applied in Judicial Reasoning andother legal essays, (W.W. Cook ed., Yale University Press, 1919).11 (1922) 2 KB 422.

Afollowing two conditions to claim the right to compensation: (i) noticemust be given to the landlord to claim compensation; and (ii) thecompensation must be claimed within three months of quitting the tenancy.The tenant, in this case, had fulfilled the first condition, but before hecould comply with the second condition, the Agriculture Holdings Actwas repealed. The Court of Appeal was tasked to decide whether theBtenant’s right to claim compensation accrued under Section 38 of theInterpretation Act 1889, which is pari materia to the provisions of Section6 of the GCA. It was held that right had accrued to the tenant underthe Act. Three concurring opinions were given. Justice Bankes held thatthe tenant’s right to compensation depended on the act of the landlord,Cthat is, the landlord giving notice to the tenant to quit. Once the notice isgiven, the right to compensation is accrued to the tenant, subject to himcomplying with the conditions of the statute in so far as he could complyprior to the repeal. Scrutton LJ in his opinion states that the conditionsimposed in Section 11 were conditions of enforcement of the right andnot its acquisition. It was held that as soon as the tenant gave theDnotice to claim compensation, he was entitled to have the claiminvestigated by the arbitrator since Section 38 of the Interpretation Actsaves investigation with respect to the accrued right. Atkin L.Jdifferentiated between an abstract right and specific right, and heldthat the tenant had acquired the right of compensation when he quit hisEholding. It was held that only specific rights and not abstract rights areprotected under Section 38 of the interpretation Act:

“It is obvious that that provision was not intended to preserve theabstract rights conferred by the repealed Act, such for instanceas the right of compensation for disturbance conferred uponFtenants generally under the Act of 1908, for if it were the repealingAct would be altogether inoperative. It only applies to the specificrights given to an individual upon the happening of one or other ofthe events specified in the statute.”

The diverse and contradictory views on when the right tocompensation accrued to the tenant, indicate that accrual of rightsGdepends upon identifying when the right was accrued based on theconstruction placed on the statute.

22. In Director of Public Works v. Ho Po Sang[12], theinterpretation of Section 10 of the Interpretation Ordinance of Hong

Kong, which corresponds to Section 38 of the Interpretation Act 1889,and Section 6 of the GCA, was in issue. In this case, the Crown lesseeof premises in Hong Kong applied for renewal of his lease. Section 3A-E of the Landlord and Tenant Ordinance provided that if the Directorof Public Works gave rebuilding certificate, then the lessee was entitledto call the tenants to quit. The lessee applied for the rebuilding certificate,and the Director notified him of his intention to give the certificate. Thelessee served notice to the tenants under Section 3B(1) of the Ordinance;the tenants appealed to the Governor in Council under Section 3B(2);and the lessee cross-petitioned under Section 3B(3). When the cross-petition was pending, Section 3A-E of the Ordinance was repealed bythe Landlord and Tenant (Amendment) Ordinance 1957. However, afterthe repeal, the Director intended to give the lessee rebuilding certificate.In pursuance of his intention, the tenants were served with notice toquit. The tenants challenged the issuance of notice on the ground that onthe repeal of the provision, the Director did not have the legal authorityto issue rebuilding certificate. The challenge was allowed by the JudicialCommittee, on appeal from the Supreme Court of Hong Kong. It washeld that on the date of the repeal, the lessee did not have right to arebuilding certificate. The lessee only had hope to receive thecertificate, and it was thus not an accrued right. The Court alsodifferentiated between an investigation in respect of rights and aninvestigation to decide whether some right should or should not be given.In this context, it was observed:

“It may be, therefore, that under some repealed enactment righthas been given but that in respect of it some investigation or legalproceedings is necessary. The right is then unaffected andpreserved. It will be preserved even if process of quantificationis necessary. But there is manifest distinction between aninvestigation in respect of right and an investigation which is todecide whether some right should or should not be given.”

The above observation on accrual has been referred to withapproval in M.S Shivanda v. KSRTC[13]and Bansidhar & Ors. v.State of Rajasthan & Ors.[14]In Lalji Raja Sons v. Firm HansrajNathuram[15], Constitution Bench of this Court affirmed the observations

13 (1980) 1 SCC 149.14 (1989) 2 SCC 557.15 [1971] 3 SCR 815.

ABC

Aof Atkin L.J in Hamilton Gell (supra) where it was held that only specificrights and not abstract rights would be saved. This Court also endorsedthe observations made in Abbot v. Minister for Lands[16] where it washeld that the “the mere right (assuming it to be properly so-called) existingin the members of the community or any class of them to take advantageof an enactment, without any act done by an individual towards availingBhimself of that right, cannot properly be deemed to be ‘right accrued’within the meaning of the enactment.” In this context, in ThyssenStahlunion Gmbh v. Steel Authority of India Ltd.[17] this Court affirmedthe observations in Abbott (supra) and termed abstract rights as inchoaterights.C23. The principles for the application of Section 6 of the GCA aresummarised below:

(i)The party must possess right and the right ought to haveaccrued;

(ii)Only specific rights and not abstract or inchoate rights areDsaved under Section 6 of the GCA;

(iii)An abstract right becomes specific right, only when theparty does an act to avail himself of the right; and

(iv)The action necessary to avail an abstract right is dependenton the nature of the right and the text of the statute.E24. The privilege that the respondent possesses under the 2002notification would be an abstract or inchoate privilege unless the privilegehas been acted upon by the respondent. It cannot be argued that theprivilege to demote or terminate the employee is accrued on the initiationof the disciplinary proceedings. As observed by Atkin L.J in HamiltonFGell (supra), if such an interpretation was to be provided, then allprovisions of the repealing Act which are contradictory to the repealedAct would be inoperative. There are two classes of rights or privileges –conditional and non-conditional. The exercise of conditional privilegeis dependent on the fulfilment of certain conditions specified in the statute.GOn the other hand, party could hold privilege merely by being anactor in law without having to fulfil any conditions. Abstract privilegesare conditionally or unconditionally available, based on the provisions ofthe law. The privilege that the CRPF holds under the 2002 notification is

16 (1895) AC 425.H17 (1999) 9 SCC 334.

non-conditional abstract privilege that it always possesses. In thecontext of Section 6 of the GCA, these abstract privileges are accruedor acquired only when the privilege-holder does an act as required underthe statute or otherwise to avail of the privilege.

C.1.1.1 The Right of Non-discrimination and the PwD Act

25. As discussed above, the privilege is only accrued when theprivilege-holder does an act required under the statute to avail of theprivilege. To answer whether the privilege has accrued to the appellant,the nature of the privilege granted by the 2002 notification will first haveto be determined since the accrual of privilege would depend on thenature and content of the privilege itself.

26. The marginal note to Section 47 of the PwD Act reads as‘Non-discrimination in Government Employment’. pertinent questionthat arises for our consideration is whether the 2002 notification exemptsthe employer from its duty of non-discrimination on the ground of disability,or whether it only exempts the specific forms of discrimination expresslymentioned in Section 47 of the PwD Act. To answer this question, areference must be made to the general structure of the PwD Act.

27. The PwD Act was enacted to give effect to the ‘Proclamationon the Full Participation and Equality of the People with Disabilities inthe Asian and Pacific Region’ to which India is signatory. In April2002, the Economic and Social Commission for Asia and the Pacificproclaimed the decade (1993 -2002) as the Asian and Pacific Decade ofDisabled Persons. The proclamation aimed to promote the human rightsof disabled persons by providing an accessible environment, socialsecurity, safety nets and employment, and sustainable livelihoods,premised on equality and non-discrimination.[18] Chapter VII of the PwDAct is titled ‘Affirmative Action’, and Chapter VIII is titled ‘Non-Discrimination’. Sections 42 and 43 in Chapter VII stipulate that theappropriate Governments must formulate schemes to provide aids andpreferential allotment of land to persons with disabilities. Sections 44 to47 in Chapter VIII provide for special measures in transportation, roads,built environment and employment for persons with disabilities. Forinstance, Section 44 states that special measures must be taken to make

18 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.

Atransport vehicles such as buses and trains, and toilets in such transportvehicles accessible to persons with disability. Section 45 stipulates thatthe appropriate government must endeavour to, inter alia, make walkingon the roads for disabled persons more accessible by installing auditorysignals, and engraving on the zebra crossing. Section 46 provides that abuilt-in environment, conducive to persons with disabilities must beBprovided. While Sections 44 to 46 impose positive obligations on theState to reasonably accommodate persons with disabilities, Section 47imposes both positive and negative obligations on the Government. Sub-sections (1) and (2) of Section 47 state that the government employermust not terminate, demote or deny promotion on the ground of disability.CThe proviso provides positive obligation on the employer that if thepost is not suitable to the employee after acquiring disability, then hecould be shifted to another post with the same pay and service benefits.However, if it is not possible to adjust the employee against any post,then he may be kept on supernumerary post until he obtainssuperannuation.D28. Article 14 of the Indian Constitution states that “the Stateshall not deny to any person equality before the law or the equal protectionof the laws within the territory of India”. The right to equality under theIndian Constitution has two facets – formal equality and substantiveequality. While formal equality means that every person, irrespective ofEtheir attributes must be treated equally and must not be discriminatedagainst; substantive equality is aimed at producing equality of outcomesthrough different modes of affirmative action. The principle of reasonableaccommodation is one of the means for achieving substantive equality,pursuant to which disabled individuals must be reasonably accommodatedFbased on their individual capacities. Disability, as social construct,precedes the medical condition of an individual. The sense of disability isintroduced because of the absence of access to facilities. This Court inVikas Kumar v. Union Public Service Commission[19], recognisedthe social construction of disability and the necessity to provide reasonable

accommodation to such persons to comply with the full purport of theGequality provisions under the Constitution. One of us (DY Chandrachud,J)writing for the three- judge Bench observed:

“45 The principle of reasonable accommodation acknowledgesthat if disability as social construct has to be remedied, conditions

H19 (2021) 5 SCC 370.

have to be affirmatively created for facilitating the developmentof the disabled. Reasonable accommodation is founded in the normof inclusion. Exclusion results in the negation of individual dignityand worth or they can choose the route of reasonableaccommodation, where each individuals’ dignity and worth isrespected. Under this route, the “powerful and the majority adapttheir own rules and practices, within the limits of reason and shortof undue hardship, to permit realization of these ends.”

The provisions under Chapters VII and VIII are in furtherance ofthe principle of reasonable accommodation which is component of theguarantee of equality. This has been recognised by line of precedent.This Court in multiple cases has held that the principle of reasonabledifferentiation, recognizing the different needs of persons with disabilitiesis facet of the principle of equality.[20] In Jeeja Ghosh v. Union ofIndia[21], Justice K Siri observed:

“40. In international human rights law, equality is founded upontwo complementary principles: non-discrimination and reasonabledifferentiation. The principle of non-discrimination seeks to ensurethat all persons can equally enjoy and exercise all their rights andfreedoms. Discrimination occurs due to arbitrary denial ofopportunities for equal participation. For example, when publicfacilities and services are set on standards out of the reach ofpersons with disabilities, it leads to exclusion and denial of rights.Equality not only implies preventing discrimination(example, the protection of individuals against unfavourabletreatment by introducing anti-discrimination laws), but goesbeyond in remedying discrimination against groupssuffering systematic discrimination in society. In concreteterms, it means embracing the notion of positive rights,affirmative action and reasonable accommodation.”

(emphasis supplied)

The facets of non-discrimination that guide the PwD Act arethreefold: (i) right to formal equality, where no person shall be discriminatedbased on her disability; (ii) affirmative action in pursuance of substantive

20 Rajive Raturi v. Union of India, (2018) 2 SCC 413; Disabled Rights Group v. Unionof India, (2018) 2 SCC 397.

21 (2016) 7 SCC 761.

Aequality under Section 33; and (iii) reasonable accommodation of personswith disabilities such as provided under Section 47. There may be no specificprovision in the PwD Act – unlike the RPwD Act – which provides personswith disability the right of non-discrimination. However, since the principleof substantive equality (of providing equal outcomes through affirmativeaction and reasonable accommodation) is premised on the principle ofBnon-discrimination, there is no reason to hold that the principle of non-discrimination, of treating every person equally irrespective of her disabilitydoes not guide the entire statute.

29. The headings of all the provisions in Chapter III of the PwDAct use the phrase ‘non-discrimination’. Section 44 reads, non-Cdiscrimination in transport; Section 25 reads as ‘non-discrimination onroads’; Section 46 reads as ‘non-discrimination in the built environment’;and Section 46 reads as ‘non-discrimination in Government employment’.As discussed above, all these provisions are premised on the principle ofreasonable accommodation in public places and places of employment.DThe intent behind using the phrase ‘non-discrimination’ in the marginalnote is to emphasise that reasonable accommodation is facet of equalityand non-compliance with the principle of reasonable accommodationwould amount to discrimination. By no stretch of imagination, can it besaid that the principle of non-discrimination is limited to Section 47 of thePwD Act. Section 47 only provides the right of non-discrimination withEregard to specific forms of discrimination during the course ofemployment. The general right against discrimination runs through theentire statute. The limited nature of Section 47 becomes apparent whenit is compared with Section 20 of the RPwD Act. Section 20 of theRPwD Act reads thus:F“Section 20 - Non-discrimination in employment

(1) No Government establishment shall discriminate againstany person with disability in any matter relating toemployment:

Provided that the appropriate Government may, having regard toGthe type of work carried on in any establishment, by notificationand subject to such conditions, if any, exempt any establishmentfrom the provisions of this section.

(2) Every Government establishment shall provide reasonableaccommodation and appropriate barrier free and conduciveHenvironment to employees with disability.

(3) No promotion shall be denied to person merely on the groundof disability.

(4) No Government establishment shall dispense with or reducein rank, an employee who acquires disability during his or herservice

Provided that, if an employee after acquiring disability is not suitablefor the post he was holding, shall be shifted to some other postwith the same pay scale and service benefits:

Provided further that if it is not possible to adjust the employeeagainst any post, he may be kept on supernumerary post until asuitable post is available or he attains the age of superannuation,whichever is earlier.

(5) The appropriate Government may frame policies for postingand transfer of employees with disabilities.”

(emphasis supplied)

30. Section 47 of the PwD Act, unlike Section 20 of the RPwDAct, does not contain provision in the nature of sub-Section (1) ofSection 20 which provides that government establishment cannotdiscriminate against person with disability in “any matter” relating toemployment. While we are not interpreting the contours of “any matter”used in Section 20 of the RPwD Act in the present case, it would sufficeto say that Section 20 of the RPwD Act casts net of protection widerthan Section 47 of the PwD Act.

31. Moreover, India is signatory to and has ratified the UnitedNations Convention on the Rights of Persons with Disabilities[22]. Article5 of CRPD incorporates the principles of non-discrimination and equality,in both its formal and substantive forms. Article 5 reads as follows:

“5. Equality and Non-Discrimination:

1. States Parties recognise that all persons are equal before andunder the law and are entitled without any discrimination to theequal protection and equal benefit of the law.

2. States Parties shall prohibit all discrimination on the basisof disability and guarantee to persons with disabilities equal andeffective legal protection against discrimination on all grounds.

22 “CRPD”; India ratified the Convention on 1 October 2007.

A3. In order to promote equality and eliminate discrimination, StatesParties shall take all appropriate steps to ensure that reasonableaccommodation is provided.

4. Specific measures which are necessary to accelerate or achievede facto equality of persons with disabilities shall not be consideredBdiscrimination under the terms of the present Convention.”

(emphasis supplied)

Clause 2 stipulates that the State parties must prohibit discriminationon the basis of disability, and ensure protection against discrimination topersons with disability. Clauses 3 and 4 state that to ensure de factoCequality, the States shall promote equality and non-discrimination by takingappropriate steps for reasonable accommodation, and such steps takenshall not be considered as discrimination.

32. It is settled law that if two interpretations are possible, then theinterpretation which is in consonance with international law or gives effectto international law must be used.[23] Since Article 5 places the States underDan obligation to provide both formal and substantive equality, an interpretationof the PwD Act that furthers the principles mentioned in Article 5 must beundertaken. Therefore, even though the PwD Act does not have an expressprovision laying down the general principle of non-discrimination againstdisabled persons, it must still have to be read in the statute.

E33. Therefore, Section 47 only provides persons with disabilitywith the right against specific forms of discrimination and not the generalright of non-discrimination which runs through the entire statute but whichcannot be located in specific provision. Accordingly, the 2002notification will also only exempt the CRPF from the duty against thosespecific forms of discrimination mentioned in Section 47. Correspondingly,Fthe 2002 notification only grants the employer the privilege ofdiscriminatory conduct in employment with respect to those acts specifiedunder Section 47 of the PwD Act.

34. Thus, under the 2002 notification, the CRPF has the privilegeto terminate, demote, or deny promotion to employees with disabilities.GIt also has the privilege to not abide by the principle of reasonableaccommodation in re-assigning the post of an employee with disability.However, it does not have the privilege to discriminate against disabled

23 Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759; GithaHariharan v. Reserve Bank of India, (1999) 2 SCC 228; Justice Khanna in ADMHJabalpur v. Shivakant Shukla, (1976) 2 SCC 521.

employee in any other matter relating to employment. The privilege underthe 2002 notification will accrue only when the disciplinary proceedingsreach the stage of punishment and the respondent imposes one of thepunishments mentioned in Section 47. The privilege can only accrue onthe happening of one or more events that are necessary for the accrual.The accrual of the privilege cannot be based on an assumption, hope orexpectation of exercising the privilege. Rule 11 of the Central CivilServices (Classification, Control and Appeal) Rules 1965 under whichthe disciplinary proceedings were initiated provides that the governmentmay either impose major penalties such as compulsory retirement,reduction to lower pay scale, or minor penalties such as censure, orwithholding increments. When the disciplinary proceedings reach thepunishment stage, the appellant could have still been imposed otherpunishments prescribed under Rule 11 which are not included within thepurview of Section 47 of the PwD Act. Therefore, no privilege is accruedto the respondent under Section 47 of the PwD Act.

C.1.2 Section 102 of the RPwD Act: The Savings Clause

35. Section 102(2) of the RPwD Act states that anything done, orany action taken under the PwD Act shall be deemed to have been doneor taken under the ‘corresponding provisions’ of the RPwD Act. The2002 notification was issued under Section 47 of the PwD Act. The 2002notification will be saved under Section 102 (2) only if there is provisionin the RPwD Act that is ‘corresponding’ to Section 47 of PwD Act.

36. Constitution Bench of this Court in Pankajakshi (dead)through LRs’ v. Chandrika,[24] had to decide preliminary issue ofwhether Section 23 of the Tranvancore-Cochin High Court Act is‘corresponding’ to Section 9 of the Kerala High Court Act 1958. Section20(1) of the 1951 amendment to the Code of Civil Procedure stated, “Ifimmediately before the date on which the said Code comes into force inany Part State, there is in force in that State any law corresponding tothe said Code, that law shall on that date stand repealed”. It was heldthat the test that needs to be applied to identify if two statutes are‘corresponding’ is whether firstly, the subject- matter of the two statutesis essentially the same; and secondly, the main object and purpose aresubstantially similar. It was held that both the Acts are not substantiallysimilar since the object of the Travancore Act is to lay down thejurisdiction and powers of the High Court, while the object of the CivilProcedure Code was to lay down the procedure in civil matters alone.

A37. In Kalpana Kothari v. Sudha Yadhav[25], one of the issuesbefore the two-Judge Bench of this Court was whether Section 8 of theArbitration and Conciliation Act 1996[26] corresponds to Section 34 of theArbitration Act 1940. Section 34 provided for staying legal proceedingsinstituted when there is an arbitration proceeding. However, Section 8of the 1996 Act deals with the power to refer parties to arbitration whereBthere is an arbitration agreement. Therefore, it was held that both theprovisions do not correspond to each other.

38. The test laid down in Pankajakshi (supra) is to identifycorresponding statutes. That test cannot be applied to identifycorresponding provisions, since much more specific analysis will haveCto be undertaken. provision is corresponding to another not merely ifthe provision deals with the same subject matter. Rather, the test mustbe whether both the provisions are essentially similar. If Section 47 ofthe PwD Act corresponds to Section 20 of the RPwD Act, then the2002 notification will be deemed to have been issued under Section 20,

Dand would hold the force of law. comparison of Section 47 of thePwD Act and Section 20 of the RPwD Act is given below:

25 (2002) 1 SCC 203.H26 “1996 Act”

Section 20 of the RPwD Act covers wider ambit whencompared to Section 47 of the PwD Act. Section 20(1) provides fornon-discrimination based on disability, which is provision in pursuanceof the equality mandate in Article 5 of CRPD. Section 20(2) statesthat reasonable accommodation and conducive environment freefrom barriers must be provided to persons with disabilities. However,the provisions of Section 47 of the PwD Act only provide right tothe employee to not be demoted, terminated, or denied promotionbecause of disability, and reasonable accommodation by adjustingposts. The principle of reasonable accommodation provided underSection 20(2) is not restricted to the accommodations mentioned inSection 47. For example, under Section 20(2), the employer has aduty – in view of the principle of reasonable accommodation – topost person suffering from disability at place closer to home.This form of reasonable accommodation is not provided under Section47, though it may flow through the PwD Act. Therefore, Section 20of the RPwD Act is not corresponding to Section 47 of the PwDAct. If any other interpretation is placed, then the 2002 notificationwould be deemed to exempt other rights that are available to disabledpersons under Section 20 of the RPwD Act, which were not otherwiseexempted under the PwD Act. Since there is no correspondingprovision, the exemption notification issued under Section 47 of thePwD Act will lose the force of law. Therefore, in view of thediscussion on both Section 6 of the GCA and Section 102 of theRPwD Act, the provisions of the PwD Act and the 2002 notificationare not applicable to the proceedings before us.

39. Since, the writ petition was filed before the Single Judge ofthe High Court in 2015, before the enactment of the RPwD Act, thevalidity of the disciplinary proceedings could have only been decided onthe anvil of the provisions of the PwD Act. However, the Single Judgeought not to have entered into the issue of the applicability of Section 47of the PwD Act when the disciplinary proceedings were challenged atthe initial stage since as observed above, Section 47 applies only at thepunishment stage. The only question before the High Court was whetherit was justified for CRPF to have initiated disciplinary proceedings againstthe appellant for the alleged misconduct which was connected to hismental disability and whether the initiation of such proceedings wasdiscriminatory.

A40. At the relevant point of time, when the intra-court appeal wasfiled against the judgement of the Single Judge, the RPwD Act hadcome into force. However, since no privilege had accrued to therespondent under the PwD Act, and the 2002 notification was not savedunder Section 102 of the RPwD Act, the Division Bench should havedecided the intra-court appeal on the provisions of the RPwD Act. ThisBwould entail that the appellant became entitled to the rights under Section20 of the RPwD Act at the time when the intra-court appeal was beingheard. When the appellant was before the Division Bench of the HighCourt, he was already diagnosed with permanent disability of 40 to 70percent by Dr Ram Manohar Lohia Hospital, which is governmentChospital. Further, the Composite Hospital by 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 oftreatment since 2009. The Division Bench also noted that the documentsissued by the CRPF’s hospital indicate that the appellant has had mentaldisability for long time. In such circumstances, it was not appropriateDfor the High Court to restore the disciplinary proceeding on the groundthat factual determination of the disability of the appellant is to beestablished through such proceedings.

C.1.3 New Dawn: Appellant’s Rights under the RPwDActE

41. Section 3 of the RPwD Act states that persons with disabilitiesmust not be discriminated against on the ground of disability, and theappropriate government shall ensure that persons with disability enjoythe right to live with dignity. Section 2(h) of the RPwD Act definesdiscrimination as follows:F

“(h) “discrimination” in relation to disability, means any distinction,exclusion, restriction on the basis of disability which is the purposeor effect of impairing or nullifying the recognition, enjoyment orexercise on an equal basis with others of all human rights andfundamental freedoms in the political, economic, social, cultural,Gcivil or any other field and includes all forms of discrimination anddenial of reasonable accommodation;”

Section 20 of the RPwD Act states that no governmentestablishment shall discriminate against any person with disability inmatters relating to employment. The disabled employee also has rightHto reasonable accommodation and to access workplace without barriers.

It further provides that no disabled employee shall be terminated, reducedin rank, or denied promotion because of the disability. Before proceedingto the merits of the case on the validity of the disciplinary proceedingsvis-a-vis the provisions of the RPwD Act, the applicability of the 2021notification to the facts of the present case will have to be determined.As explained above, on the repeal of the PwD Act by the RPwD Act,the 2002 Notification also lost its force of law. Between 27 December2016, when the RPwD Act had come into force and 18 August 2021,when the 2021 notification was issued, there was no exemption notificationin force. The Special Leave Petition was instituted on 5 October 2020.In Ambalal (supra), it was held that when lis commences, all rightsand obligations of the parties get crystallised on that date. Therefore, therights of the parties would freeze as on the date of filing the SpecialLeave Petition. In the Special Leave Petition filed before this Court, itwas submitted that the initiation of disciplinary proceedings isdiscriminatory and violative of the provisions of the RPwD Act. Therefore,the right to non-discrimination in matters of employment provided underSection 20, accrued to the appellant on the filing of the Special LeavePetition since the 2021 notification had not been notified at the relevanttime. Thus, the 2021 notification would have no application to the factsof this case.

C. 2 Mental Disability and Discrimination

Before proceeding to analyse the validity of the disciplinaryproceedings under the provisions of the RPwD Act, we find it imperativeto refer to the national and international legal framework governing therights of persons with mental disabilities.

C.2.1 The Indian Legal Framework

42. The National Mental Health Survey of India 2015-16(Prevalence, Pattern and Outcomes), was study undertaken by theMinistry of Health and Family Welfare, Government of India incollaboration with the National Institute of Mental Health and NeuroSciences, Bengaluru. The survey estimated that nearly 150 millionindividuals in India suffer from one or more mental illnesses.[27] The IndianLunacy Act 1912 was enacted to provide treatment and care for lunatic

27 Gururaj, M Varghese et. al., National Mental Health Survey of India, 2015-16:Prevalence, patterns and outcomes, (2016) NIMHANS Publication No 129, availableat http://indianmhs.nimhans.ac.in/Docs/Report2.pdf.

Apersons. Section 3(5) defined ‘lunatic’ as an idiot or person of unsoundmind. The Act dealt with the treatment of lunatics in asylums, and theprocedure for the ‘treatment’ of such persons. The Act proceeded onthe premise that ‘lunatics’ are dangerous for the well-being of societyand the fellow humans who inhabit the planet. Section 13 of the Actprovided wide powers to the police officers to arrest persons whomBthey have reason to believe to be ‘lunatics’.

43. The Mental Health Act 1987[28] was enacted, as the Preamblestates, ‘to consolidate and amend the law relating to the treatmentand care of mentally ill persons, to make better provision with respectto their property and affairs”. This Act replaced the Indian LunacyCAct. The 1987 Act was huge transformative leap from the LunacyAct which did not confer any right to live life of dignity to mentallyill persons. However, even the 1987 Act did not confer any agencyor personhood to mentally ill persons. The Act did not provide rights-based framework for mental disability but was rather restricted toDonly establishing psychiatric hospitals and psychiatric nursing homes,and administrative exigencies of such establishments. Under the Act,the ‘mentally ill person’ was defined as person ‘who is in need oftreatment by reason of any mental disorder other than mentalretardation’.

E44. The Mental Healthcare Act 2017[29] was enacted by Parliamentin pursuance of India’s obligations under CRPD, repealing the 1987 Act.Section 2 (s) of the 2017 Act defines ‘mental illness’ as follows:

“(s) “mental illness” means substantial disorder of thinking, mood,perception, orientation or memory that grossly impairs judgment,Fbehaviour, capacity to recognise reality or ability to meet theordinary demands of life, mental conditions associated with theabuse of alcohol and drugs, but does not include mental retardationwhich is condition of arrested or incomplete development ofmind of person, specially characterised by subnormality ofintelligence;”GSection 2(o) of the Act defines ‘mental healthcare’ to includeboth the diagnosis of the mental health condition of persons andrehabilitation for such persons with mental illness:

28 “1987 Act”H29 “2017 Act”

“(o) “Mental healthcare” includes analysis and diagnosis of aperson’s mental condition and treatment as well as care andrehabilitation of such person for his mental illness or suspectedmental illness;”

Section 18(1) provides that every person shall have right toaccess mental healthcare and treatment in Government-run or fundedhospitals. Sub-Section (2) of Section 18 states that the right to accessmental health care shall be available to everybody equally, without anydiscrimination based on gender, sex, caste, political belief or such. Itfurther states that the treatment shall be provided in the manner that isacceptable by the persons having mental illness and their caregivers.Sub-Section (1) of Section 19 states that every person with mental illnessshall have right to live in, be part of and not be segregated from society.Section 20 of the Act states that every person with mental illness shallhave right to live with dignity, and shall have right to be protectedfrom inhuman treatment in mental healthcare establishments. Section30 stipulates that the appropriate government shall take measures toensure that the provisions of the Act are given wide publicity throughvarious forms of media. Clause (b) of Section 30 states that programmesto reduce the stigma associated with mental illness must be planned andimplemented. Section 30(c) states that ‘appropriate government officersincluding police officers and other officers must be provided appropriateawareness and sensitization on mental health’. Section 115 of the 2017Act states that notwithstanding anything in Section 309 of the IndianPenal Code, any person who attempts to commit suicide shall bepresumed, unless proved otherwise, to have severe stress and shall notbe tried and punished under the Penal Code.

45. The 2017 Act provides rights-based framework of mentalhealthcare and has truly transformative potential. In stark differencefrom the provisions of the 1985 Act, the provisions of the 2017 Actrecognise the legal capacity of persons suffering from mental illness tomake decisions and choices on treatment, admission, and personalassistance. Section 2(o) includes within the definition of mental healthcare– diagnosis, treatment, and rehabilitation. Section 4 of the Act states thatevery person with mental illness shall be ‘deemed’ to have the capacityto make decisions regarding their mental healthcare and treatment ifthey are able to understand the relevant information, and the reasonablyforeseeable consequence of their decision. Sub-Section (3) of Section 4

Astates that merely because the decision by the person is perceivedinappropriate or wrong by ‘others’, it shall not mean that the persondoes not have the capacity to make decisions. The recognition of thecapacity of persons living with mental illness to make informed choicesis an important step towards recognizing their agency. This is in pursuanceof Article 12 of CRPD which shifts from substitute decision-makingBmodel to one based on supported decision-making.[30] Article 12 of CRPDreads as follows:

“Article 12 – Equal recognition before the law

1. States Parties reaffirm that persons with disabilities have theCright to recognition everywhere as persons before the law.

2. States Parties shall recognise that persons with disabilities enjoylegal capacity on an equal basis with others in all aspects oflife.

D3. States Parties shall take appropriate measures to provide accessby persons with disabilities to the support they may require inexercising their legal capacity.[…]”

(emphasis supplied)

46. Explanation 1 to Article 12 issued by the United NationsECommittee on the Rights of Persons with Disabilities discusses the‘universal legal capacity’ where all persons inherently possess legalcapacity regardless of disability or decision-making skills.[31] They mayhowever be provided with support (and not substitution) to exercisetheir legal capacity. This shift from the substituted legal capacity modelFto the supported legal capacity model is important for two reasons. Itrecognises the agency held by disabled persons; and adopts socialmodel of disability. It has been recognised by various scholars that the2017 Act is one of the most robust rights-based frameworks to tacklemental health concerns.[32]

G30 Explanation 1 to Article 12 CRPD by UN CRPD.31 ibid

32 Richard M Duffy, Bredan Kelly, Concordance of the Indian Mental Healthcare Act2017 with the World Health Organization’s Checklist on Mental Health Legislation,11(1) International Journal of Mental Health Systems 48 (2017), available at https://ijmhs.biomedcentral.com/articles/10.1186/s13033-017-0155-1H32 (2018) 5 SCC 1.

47. The Indian mental healthcare discourse has undergone asubstantial and progressive change. Persons living with mental illnesswere considered as ‘lunatics’ under the Indian Lunacy Act 1912 andwere criminalized and subject to harassment. There was moderateshift in the mental health discourse with the repeal of the Lunacy Act1912 and the enactment of the 1987 Act. However, the transformationin the mental health rights framework was profound when the 2017 Actwas enacted since it placed person having mental health issues withinthe rights framework.

C.2.2 Mental Health in the Disability Rights Framework

48. Section 2(i) of the PwD Act defines the phrase ‘disability’ tomean mental retardation and mental illness among others. Section 2(q)defines mental illness as mental disorder other than mental retardation.Section 2(r) defines mental retardation as condition of incompletedevelopment of person which is especially characterized by sub-normalintelligence. On the other hand, mental illness is classified as specifieddisability under the RPwD Act. The schedule to the Act provides anexpansive and clearer definition of mental illness, which is pari materiato the definition of mental illness under the 2017 Act. It is defined asfollows:

“(s) “mental illness” means substantial disorder of thinking, mood,perception, orientation or memory that grossly impairs judgment,behaviour, capacity to recognise reality or ability to meet theordinary demands of life, mental conditions associated with theabuse of alcohol and drugs, but does not include mental retardationwhich is condition of arrested or incomplete development ofmind of person, specially characterised by subnormality ofintelligence;”

49. Section 2(s) of the RPwD Act defines the word ‘person withdisability’ as ‘person with long term physical, mental, intellectual orsensory impairment which, in interaction with barriers, hinders his fulland effective participation in the society equally with others’. Section 2(c) defines barrier to mean ‘any factor including communicational,cultural, economic, environmental, institutional, political, social, attitudinalor structural factors which hampers the full and effective participationof persons with disabilities in society.’ On combined reading of thedefinitions provided in Section 2(s) and 2 (c) of the Act, it is evident thatthe RPwD – similar to the 2017 Act – defines disability as social

Aconstruct and not solely as medical construct. The Act does not definea mental impairment to solely constitute disability. Rather, it definesdisability based on the interaction of the impairment with the barrierswhich in effect hamper the effective participation of an individual.

50. The Indian judiciary has also been cognizant of the discourseBsurrounding mental illness and the social construction model of mentaldisability. In Common Cause v. Union of India[33], while deciding onthe constitutional validity of passive euthanasia, the Constitution Benchmade pertinent observations on Section 115 of the 2017 Act which rendersSection 309 of the Indian Penal Code largely ineffective, emphasisingthe necessity to view the act of committing suicide as an act ofCcircumstances (or in other words ‘barriers’). It was observed:

“366. [..]It mandates (unless the contrary is proved by theprosecution) that person who attempts to commit suicide issuffering from severe stress. Such person shall not be tried andpunished under the Penal Code. Section 115 removes the elementDof culpability which attaches to an attempt to commit suicide underSection 309. It regards person who attempts suicide as victimof circumstances and not an offender, at least in the absence ofproof to the contrary, the burden of which must lie on theprosecution. Section 115 marks pronounced change in our lawEabout how society must treat an attempt to commit suicide. Itseeks to align Indian law with emerging knowledge on suicide, bytreating person who attempts suicide needing care, treatmentand rehabilitation rather than penal sanctions.”

51. In the concurring opinion authored by one of us (Dr DYFChandrachud, J) in Navtej Singh Johar v. Union of India[34], the mentalhealth concerns of the LGBT community were highlighted. referencewas made to global psychiatric scholarship which emphasized that thereis clear correlation between the political and social environments, andthe mental health of an individual. Observing that laws persecuting sexualminorities and the societal stigma psychologically affect the well-beingGof the community, it was said:

“95. […]The repercussions of prejudice, stigma and discriminationcontinue to impact the psychological well-being of individuals

33 (2018) 5 SCC 1.H34 (2019) 3 SCC 39.

impacted by Section 377. Mental health professionals can takethis change in the law as an opportunity to re- examine their ownviews of homosexuality.

96. Counselling practices will have to focus on providing supportto homosexual clients to become comfortable with who they areand get on with their lives, rather than motivating them for change.Instead of trying to cure something that isn’t even disease orillness, the counsellors have to adopt more progressive viewthat reflects the changed medical position and changing societalvalues. There is not only need for special skills of counsellorsbut also heightened sensitivity and understanding of LGBT lives.The medical practice must share the responsibility to helpindividuals, families, workplaces and educational and otherinstitutions to understand sexuality completely in order to facilitatethe creation of society free from discrimination 228 where LGBTindividuals like all other citizens are treated with equal standardsof respect and value for human rights.”

Justice Nariman in his concurring opinion, commented on Section115 of the 2017 Act. He highlighted the affirmative duty of the Governmentto provide care, treatment and rehabilitation to persons having mentalhealth issues. The judgment also observed that Section 115 of the 2017Act has been enacted in furtherance of constitutional values:

“76. This Parliamentary declaration under Section 115 again is inkeeping with the present constitutional values, making it clear thathumane measures are to be taken by the Government in respectof person who attempts to commit suicide instead of prosecutinghim for the offence of attempt to commit suicide.”

52. In Accused X v. State of Maharashtra[35], three judge Benchof this Court was deciding whether post-conviction mental illness couldbe mitigating factor for commuting the punishment from death sentenceto life imprisonment. Holding that post-conviction mental illness could bea mitigating factor, it was observed:

“59. All human beings possess the capacities inherent in theirnature even though, because of infancy, disability, or senility, theymay not yet, not now, or no longer have the ability to exercise

them. When such disability occurs, person may not be in positionto understand the implications of his actions and the consequenceit entails. In this situation, the execution of such person wouldlower the majesty of law.”

53. In Mahendra KC v. The State of Karnataka[36], firstBinformation report was lodged against the accused person on the chargeof abetment to suicide under Section 306 of the Indian Penal Code 1860.A petition to quash the proceedings was filed under Section 482 CrPC.The Single Judge of the High Court, while quashing the proceedingsagainst the accused made observations diminishing the importance ofmental health. The High Court had observed as follows:C

“37. It is not the case of the deceased that the accused had deprivedhim of his wealth or have committed acts that have shattered hishopes in life or separated him from his family and friends.

41. [..] It is not the case of the prosecution that the deceased wasrunning away from or escaping the petitioner or his henchmen,but as is his habit, to visit his parents and to spend time with hisfriends. If the deceased had really felt threatened, he would havedefinitely approached the police. It is not that he was naive or notEworldly-wise. If his employment with the petitioner was true, thenthe Police Commissionerate was only stone’s throw away. It isnot that the deceased was weakling. The deceased by profession,is driver. profession where, accidents causing loss of life andlimb are daily occurrence and every driver is aware that hecould be involved in an accident at any time.F43. His act of attending relatives marriage in different townand his interacting with friends and relatives are all actions of anormal person and not of person under severe duress. Thecontention that this criminal case would jeopardize his careerprogression also cannot be brushed aside. It is also not forthcomingGas to how he sourced the poison.”

two judge Bench of this Court, of which one of us was part(DY Chandrachud, J), observed that these remarks of the Single Judgegravely undermined the mental health discourse in India. It was observed:

H36 2021 SCC OnLine SC 1021.

“The Single Judge has termed person who decided to commitsuicide ‘weakling’ and has also made observations on how thebehavior of the deceased before he committed suicide was notsuitable of person who is depressed and suffering from mentalhealth issues. Behavioural scientists have initiated the discourseon the heterogeneity of every individual and have challenged thetraditional notion of ‘all humans behave alike’. Individual personalitydifferences manifest as variation in the behavior of people.Therefore, how an individual copes up with threat- both physicaland emotional, expressing (or refraining to express) love, loss,sorrow and happiness, vary greatly in view of the multi-facetedhuman mind and emotions. Thus, observations describing themanner in which depressed person ought to have behaved deeplydiminishes the gravity of mental health issues.”

Since disability is social construct dependent on the interplaybetween mental impairment with barriers such as social, economic andhistorical among other factors, the one – size fits all approach can neverbe used to identify the disability of person. Disability is not universalbut is an individualistic conception based on the impairment that personhas along with the barriers that they face. Since the barriers that everyperson faces are personal to their surroundings – inter-personal andstructural, general observations on ‘how person ought to have behaved’cannot be made.

54. The legislative framework and decisions of this Court on theimpact of ‘barriers’ or circumstances on the mental health of an individualhave been discussed above. When the interaction with the barriers causesa person to feel ‘disabled’, it is extremely important to not stigmatize ordiscriminate against persons having mental health issues or any otherform of disability. Such discrimination would only further entrench thefeeling of being ‘disabled’.

C.2.3 Global Outlook on Employment and Mental Health

55. International conventions like the CRPD recognise mentalhealth disorders as psychosocial disabilities.[37] Psychosocial disability issometimes characterised as an “invisible disability” because it is notalways obvious, unlike other disabilities that are observable. Employees

37 Committee on Rights of Persons with Disabilities, General Comment 1, available athttps://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/031/20/PDF/G1403120.pdf?OpenElement

Aoften do not disclose their mental health disorders, which leads to theinvisibilization of psychosocial disabilities.[38] The World HealthOrganisation and the World Psychiatric Association identify stigma as amajor cause of discrimination against persons with mental healthdisorders. Many people with mental health disorders are willing and ableto work. However, socio-structural barriers impede their participation inBthe workforce. People diagnosed with mental health disorders are lesslikely to be employed or are relegated to low-paying jobs that are notcommensurate with their qualifications and interests. Exclusion fromthe workforce not only creates conditions of material deprivation, but italso impacts self-confidence, and results in isolation and marginalizationCwhich exacerbates mental distress. To escape stigma and discrimination,persons with mental health issues painstakingly attempt to hide theirillnesses from co-workers and managers. Disclosure of mental healthstatus carries with it the possibility of being demoted, laid off, or beingharassed by co-workers. Resultantly, persons with mental health disorders

deprive themselves of workplace assistance and effective treatmentsDthat can improve their mental health.[39]

56. The stigmatization of mental health disorders is rooted in thecharacterization of individuals with mental illness as “violent anddangerous, dependent and incompetent, and irresponsible.”[40] Suchcharacterization not only influences how persons with mental healthEdisorders are perceived by others but also influences their self-worth.Mental health disorders are often attributed to an internal cause, forwhich the person is held responsible. This aggravates the stigma andprejudice. Even if person with mental health disorder learns to copewith it or goes into remission, past episodes and possibilities of future

Fepisodes put them at disadvantage in securing and sustainingemployment.[41]

38 Kranz, Calling in Depressed: Look at the Limitations of Mental Illness in theWorkplace, SayNoToStigma (2012), available at http://saynotostigma.com/2012/06/calling-in-depressed-a-look-at-the-limitations-of-mental-illness-in-the-workplace.G39 Heather Stuart, Mental illness and employment discrimination, 19(5)Current Opinionin Psychiatry522–526(2006).40 Arunima Kapoor, Depressed People Need Not Apply: Mental Health Stigma DecreasesPerceptions of Employability of Applicants with Depression, 7 Yale Review ofUndergraduate Research in Psychology 84-94 (2017), available at https://cpb-us--w2.wpmucdn.com/campuspress.yale.edu/dist/a/1215/files/2017/06/Arunima1amuxqj.pdfH41 Ibid

57. Thus, while the stigma and discrimination against persons withmental health disorders are rampant in society, as the highest constitutionalcourt of the country, it falls upon us to ensure that societal discriminationdoes not translate into legal discrimination. International conventionsprovide framework through which States can shape their laws andpolicies upholding the rights of persons with mental disabilities in tandemwith internationally recognised standards.

58. CRPD is an international human rights treaty of the UnitedNations which is intended to promote, protect and ensure the full andequal enjoyment of all human rights and fundamental freedoms by allpersons with disabilities.[42] It also aims to promote respect for theirinherent dignity.[43] It is holistic treaty that combines civil and politicalrights provided by anti-discrimination legislation along with an array ofsocial, cultural, and economic measures to fulfil the guarantee ofequality.[44] India is signatory to CRPD and has ratified it on 1 October2007. Article 1 of the CRPD provides an inclusive definition of personswith disabilities. It recognises that disability is an evolving concept andthat disability results from the interaction of persons with impairmentswith attitudinal and environmental barriers that hinders their fullparticipation in society[45]. Article 1 states thus:

“Persons with disabilities include those who have long-termphysical, mental, intellectual or sensory impairments which ininteraction with various barriers may hinder their full and effectiveparticipation in society on an equal basis with others.”

59. The Committee on the Rights of Persons with Disabilities,which monitors the implementation of CRPD in General Comment One[46]discusses the rights of persons with cognitive or psychosocial disabilitiesin the context of Article 12 of the CRPD. Article 12 states that personswith disabilities have the right to equal recognition before the law. TheCommittee notes that persons with cognitive or psychosocial disabilitiesare often denied legal capacity and are disproportionately subjected to

42 Article 1, CRPD 2006.

43 Ibid.

44 Jayna Kothari, The UN Convention on Rights of Persons with Disabilities: An Enginefor Law Reform in India, 45(18) Economic and Political Weekly 65-72 (2010).

45 Preamble, CRPD 2006.

46 Committee on Rights of Persons with Disabilities, General Comment 1, available athttps://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/031/20/PDF/G1403120.pdf?OpenElement

Asubstitute decision-making regimes. The Committee notes that, “[m]entalcapacity is not, as is commonly presented, an objective, scientific andnaturally occurring phenomenon. Mental capacity is contingent on socialand political contexts, as are the disciplines, professions and practiceswhich play dominant role in assessing mental capacity.” While thepresent case does not deal with the legal capacity of persons with mentalBhealth disorders, it is imperative to note that the CRPD recognises mentalhealth conditions as psychosocial disabilities[47]. Staying true to the socialmodel of disability, the Committee acknowledges that assessments ofmental capacity are informed by social and environmental factors. Therecognition of the legal capacity of persons with psychosocial disabilitiesCconfers on them legal personhood, where they can be bearer of rightsand exercise those rights.60. Article 2 of the CRPD defines discrimination on the basis ofdisability in the following terms:“Discrimination on the basis of disability” means any distinction,Dexclusion or restriction on the basis of disability which has thepurpose or effect of impairing or nullifying the recognition,enjoyment or exercise, on an equal basis with others, of all humanrights and fundamental freedoms in the political, economic, social,cultural, civil or any other field. It includes all forms ofEdiscrimination, including denial of reasonable accommodation”61. While the CRPD recognises the denial of reasonableaccommodation as discrimination based on disability, it also specificallyimposes positive duty on States under Article 5 (3) to take all appropriatesteps to ensure the provision of reasonable accommodation.

F62. Article 27 of the CPRD in the context of work and employment,inter alia, imposes the following obligations on State Parties to:

(i)Recognise the right to work and employment of personswith disabilities;

(ii)Prohibit discrimination in matters of employment; and

(iii)Provide reasonable accommodation at the workplace.

47 See also, Brendan D. Kelly, Mental Capacity, Human Rights, and the UN’s Conventionof the Rights of Persons with Disabilities, 49(2) Journal of the American Academy ofPsychiatry and the Law Online 152-156 (2021), available at http://jaapl.org/content/Hjaapl/49/2/152.full.pdf

The relevant provisions of Article 27 are extracted below:

“(1) States Parties recognise the right of persons with disabilitiesto work, on an equal basis with others; this includes the right tothe opportunity to gain living by work freely chosen or acceptedin labour market and work environment that is open, inclusiveand accessible to persons with disabilities. States Parties shallsafeguard and promote the realization of the right to work,including for those who acquire disability during the courseof employment, by taking appropriate steps, includingthrough legislation, to, inter alia:

(a) Prohibit discrimination on the basis of disability with regard toall matters concerning all forms of employment, includingconditions of recruitment, hiring and employment, continuance ofemployment, career advancement and safe and healthy workingconditions;

(b) Protect the rights of persons with disabilities, on an equal basiswith others, to just and favourable conditions of work, includingequal opportunities and equal remuneration for work of equal value,safe and healthy working conditions, including protection fromharassment, and the redress of grievances...

(i) Ensure that reasonable accommodation is provided topersons with disabilities in the workplace

(k) Promote vocational and professional rehabilitation, jobretention and return-to-work programmes for persons withdisabilities.”

(emphasis added)

63. The Committee on the Rights of Persons with Disabilities inGeneral Comment Six[48] provides that to achieve de facto equality in theworkplace and to fulfil the duty of providing reasonable accommodationunder Article 5 (3), the States parties, inter alia, should:

48 Committee on the Rights of Persons with Disabilities, General Comment 6, availableat https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRPD/C/GC/6&Lang=en

A(i)Promote the right to supported employment, which includeswork assistance;

(ii)Recognise denial of reasonable accommodation asdiscrimination and also prohibit multiple and intersectionaldiscrimination and harassment;

(iii)Allow proper transition into and out of employment in anon-discriminatory manner; and

(iv)Provide equal and effective access to benefits andentitlements, such as retirement and unemployment benefits.These entitlements must not be infringed through exclusionCfrom employment, aggravating the situation of exclusion.

64. The International Labour Organization[49] has created the Codeof Practice in Managing Disability in Workplace 2002[50] to guideemployers to adopt positive strategy in managing disability-related issuesin the workplace.[51] It is normative document and is intended to be readDin the context of local conditions and applied according to national lawand practice.[52] Section 1.4 of the ILO Code defines ‘disabled person’as person whose prospects to secure, return to, retain, and advance insuitable employment are substantially reduced due to duly recognisedphysical, sensory, intellectual or mental impairment. Section 6 of theILO Code deals with job retention of employees with disabilities. UnderEthis section, sub-section 6.1 provides the policy on acquired disabilities.The sub-section reads thus:

“6.1.1. Where existing employees acquire disability whilein employment, employers can continue to benefit from theiraccumulated expertise and experience by taking steps toFenable them to retain their employment. In developing astrategy for managing disability in the workplace, employersshould include measures for job retention including:

(a) early intervention and referral to appropriate services;

(b) measures for gradual resumption of work;G

49 “ILO”

50 “ILO Code”

51 International Labour Organization, Managing Disability in the Workplace: ILO Codeof Practice, available at https://www.ilo.org/global/topics/safety-and-health-at-work/normative-instruments/code-of-practice/WCMS_107777/lang—en/index.htmH52 Ibid.

(c) opportunities for workers with disabilities to test workor obtain experience in an alternative job if they are unableto resume their previous jobs;

(d) the use of support and technical advice to identify anyopportunities and any adjustments which might be required.

6.1.2. In seeking to facilitate job retention or return to work by adisabled employee, employers should be aware of the range ofpossible options. In some cases, the employee may be able toreturn to the same job as before, with no changes. In other cases,some adjustments may be required to the job itself, to theworkstation or the working environment. In yet other cases, itmay be necessary for the person to move to different job in theworkplace. The disability management strategy should includemeasures to promote job retention in each of these forms. Thesemay include training or retraining for the person concerned, theprovision of information to supervisors and co-workers, the useof devices and appliances, the right to access to other supports asappropriate, as well as modifications or alternative options in theprocedures needed to perform the job so that any existing conditionis not exacerbated.

6.1.3. In developing measures for the redeployment of workerswith disabilities, employers should take into account theoccupational preferences of those workers and consult with workerrepresentatives, if necessary.

6.1.4. When worker acquires disability, the employershould ensure that accommodation measures are fullyconsidered in order to utilize the residual potential and skillsof that worker, before other steps are taken.

6.1.5. The competent authorities should provide guidance, servicesand incentives to employers, groups of employers and employers’organizations, in order to maximize opportunities for people withdisabilities to retain their employment, and to resume work speedilyfollowing an accident, injury, disease, changed capacity or disablingcondition. These could include measures which allow forindividual counselling, individual rehabilitation plans or jobretention programmes, aiming to promote opportunities forthese workers in their current or another occupation in

Awhich they can make use of their talents and experience,as far as possible without loss of earnings. Such measuresshould be developed in consultation with employers’ organizationsand workers’ organizations, relevant professionals andorganizations of persons with disabilities.”

(emphasis supplied)

65. The discussion above indicates there is an internationalconsensus that persons with mental health disorders have right againstworkplace discrimination and are entitled to reasonable accommodation.Both the CRPD and the ILO Code promote policies of job retention andCrehabilitation for persons with mental disabilities. While CRPD has beeninstrumental in shaping mental health legislation in many countries,specifically in terms of access to treatment and protecting patientautonomy[53], it is imperative that the discourse on persons with mentalhealth disorders is not limited to biomedical and health issues. Thediscourse needs to expand to fundamental issues of housing, education,Dsupport, and employment. The present case presents one such opportunity.C.4. Discipline and Punish: The Validity of the DisciplinaryProceedings

66. much more formative question that remains is whetherdisciplinary proceedings against the appellant constitute workplaceEdiscrimination. This question has important repercussions for personswith mental disabilities who find themselves falling foul of the standardsof workplace conduct on account of their disability. In such instances,disciplinary proceedings may take the form of discrimination because aperson with mental disability may have an impaired ability to complyFwith workplace standards. Often the process of the disciplinaryproceedings is the punishment. Since in section C.1.3 of the judgment,we have established that provisions of the RPwD Act would be applicableto the case before us, we will examine the validity of the proceedingsunder the RPwD Act.

G67. The jurisprudence in Indian law relating to mental disabilityand employment discrimination has revolved around Section 47 of thePwD Act. This Court while interpreting Section 47 has held that the

53 Brendan D. Kelly, Mental Health, Mental Illness, and Human Rights in India andElsewhere: What are we aiming for?, 58 (Suppl 2) Indian Journal of Psychiatry S168-HS174 (2016), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5282611/.

provision is applicable when the mental disability is acquired duringservice. While applying Section 47, the Court did not enter into an analysisof whether the mental disability was factor or had direct causalconnection with the alleged misconduct that led to the dismissal.[54] Thus,a different standard applies to cases governed by Section 47. It isimportant to clarify that the analysis that we undertake below in examiningwhether disciplinary proceedings can constitute discrimination againstpersons with disabilities will not influence the jurisprudence on Section47 of the PwD Act.68. Here we are assessing the preliminary question of whetherdisciplinary proceedings can be instituted against the atypical conduct ofan employee who has mental disability. Section 47 comes into playonly at the stage of impositions of sanctions, where an employee cannotbe dispensed with or reduced in rank.

69. Since the jurisprudence on this issue is yet to evolve in India,we have analyzed the legal policies and practices adopted by otherjurisdictions in relation to the rights of persons with mental disabilitiesagainst employment discrimination. We have also specifically examinedhow courts in other jurisdictions have adjudicated misconduct chargeswhen the alleged conduct is found to be connected to the mental disabilityof the employee.

C.4.1 Foreign Jurisdictions

I United States

70. The Americans with Disabilities Act[55] was enacted in 1990 tolay down “comprehensive national mandate for the elimination ofdiscrimination against individuals with disabilities”.[56] ADA covers suchindividuals who have physical or mental impairment that substantiallylimits one or more of the major life activities.[57] Title I of the ADA prohibitsemployment discrimination because of the disability of an individual inrespect of job application procedures, hiring, advancement, discharge ofemployees, employee compensation, training, or other terms, conditions,and privileges of employment.[58] The Rehabilitation Act 1973, which

54 Geetaben Ratilal Patel v. District Primary Education Officer (2013) 7 SCC 182.55 “ADA”56 42 U.S.C. § 12101(b)(1).57 42 U.S. C. § 12102 (1).58 42 U.S. C. § 12112.

Aapplies to employers receiving federal funds was precursor to theADA and presently applies to federal agencies in relation to disability-related claims. The standards of ADA apply for assessing violationsunder the Rehabilitation Act 1973.[59]

71. ADA encapsulates denial of reasonable accommodation asBdiscrimination unless the employer can demonstrate that theaccommodation casts an undue hardship on the business operations.[60]Reasonable accommodation measures under the ADA include makingexisting facilities accessible and usable by persons with disabilities,restructuring jobs, modifying work schedules, and re-assignment to vacantpositions.[61] An employer is not required to accommodate an employeeCwith disability if they pose direct threat to the safety of others thatcannot be mitigated by reasonable accommodation.[62] In Borgialli v.Thunder Basin Coal Co.[63], coal mine blaster was diagnosed withmultiple mental health disorders including depression, anxiety, andpersonality disorders. He was discharged because of the threats he madeDabout injuring himself and others. The Court of Appeals, Tenth Circuitheld that he posed direct risk to the safety of others and himself,especially because he worked with high-power explosives. Further, anemployer does not have the duty to eliminate essential functions or thefundamental duties of an employment position to reasonably accommodatean employee with disability. However, the employer must take intoEconsideration if such essential functions can be performed with reasonableaccommodation.[64]

72. The Equal Employment Opportunity Commission[65], which isempowered to enforce Title I of the ADA, in its enforcement guidancerelating to mental health conditions has observed that while employersF

59 Major William E. Brown & Major Michele Parchman, The Impact of the Americanswith Disability Amendments Act of 2008 on the Rehabilitation Act and Management ofDepartment of the Army Civilian Employees, 1 Army Lawyer 43 (2010).

60 Ibid.

61 42 U.S.C. § 12111.G62 42 U.S.C. § 12113.63 235 F.3d 1284,. 1290 (10 th Cir.2000).

64 US Equal Employment Opportunity Commission, Enforcement Guidance onReasonable Accommodation and Undue Hardship under the ADA, available at https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada#N_13_; Also, see Regulations To Implement The EqualEmployment Provisions Of The Americans With Disabilities Act.H65 “EEOC”

do not have to hire persons who cannot perform particular employmentduty or pose direct threat to the safety of others and self, the employer“cannot rely on myths or stereotypes” in relation to mental healthconditions. There must be some objective evidence to the effect thateven with reasonable accommodation person with mental disabilitycannot perform the required tasks, or they pose safety risk. Theguidance also provides examples of reasonable accommodation forpersons with mental disability that include quiet office space, changesin supervisory methods, and permission to work from home.[66] However,the employer’s duty to reasonably accommodate person is prospective,i.e., it is triggered when the employee informs the employer of the disabilityand requests an accommodation. For instance, the Court of Appeals forthe Federal Circuit held that an employer was not obligated toaccommodate plaintiff’s depression and alcoholism (considered as adisability under ADA) before it knew of it. [67] In many cases, especiallyrelating to misconduct-related discharges, employees fail to requestaccommodation before engaging in the misconduct, which results innegative outcomes for their discrimination-related claims.[68] It has beenargued that giving “second chance” to the employee can be classifiedas reasonable accommodation where the employee has failed to askfor reasonable accommodation prospectively and has committedmisconduct.[69]

73. Commentators have noted that under the ADA, persons withmental health disorders have not fared as well as those with physicaldisabilities and have not been able to capitalize on the gains of the disabilityrights movement.[70] crucial issue that comes up before courts is whethera person having mental disabilities can be discharged on account ofmisconduct. Many mental disabilities manifest themselves in conduct.

66 EEOC, Depression, PTSD, & Other Mental Health Conditions in the Workplace:--Your Legal Rights, available at https://www.eeoc.gov/laws/guidance/depressionptsdother-mental-health-conditions-workplace-your-legal-rights

67 Office of the Senate Sergeant at Arms v. Office of Senate Fair Employment Practices,95 F.3d 1102, 1107 (Fed. Cir. 1996) cited in Ibid.

68 Bugg-Barber v. Randstad US, L.P., 271 F. Supp. 2d 120, 130 (D.D.C. 2003); Burmistrzv. City of Chi., 186 F. Supp. 2d 863, 875 (N.D. Ill. 2002).

69 Laura F. Rothstein, The Employer’s Duty to Accommodate Performance and ConductDeficiencies of Individuals with Mental Impairments Under Disability DiscriminationLaws, 47 Syracuse Law Review 931, 967, 973 (1997).

70 Jeffrey Swanson et al, Justice Disparities: Does the ADA Enforcement System TreatPeople with Psychiatric Disabilities Fairly?, 66(1) Maryland Law Review 94 (2007).

ABC

AIn the United States, most courts have held that employees with disabilitieswho engage in misconduct are not protected by the ADA. In Hamiltonv. Southwestern Bell Telephone Co.[71], the US Court of Appeals,Fifth Circuit held that discharge of an employee with PTSD was notdiscrimination based on disability rather it was the failure of the employeeto “recognise the acceptable limits of behaviour in workplaceBenvironment.” However, few courts have held that if an employee isdischarged because of conduct causally connected to disability, itconstitutes discrimination and violates ADA unless the person is notqualified for the job.[72] In Teahan v. Metro-North CommuterRailroad,[73] the plaintiff had raised discrimination claim under theCRehabilitation Act 1973. The plaintiff had substance abuse problemand regularly remained absent from work. His employment wasterminated because of absenteeism. The Court of Appeals, Second Circuitheld that there cannot be any distinction between the “handicap and its

consequences”. Thus, if the plaintiff can prove that his absenteeismDwas solely consequence of substance abuse, his discharge wouldconstitute discrimination based on disability. Likewise, in Den Hartogv. Wasatch Academy,[74] the Court of Appeals, Tenth Circuit rejectedthe division between disability and disability-related conduct under theADA regime. It recognised that mental health disorders presentthemselves as atypical behaviour. It held that, “[t]o permit employersEcarte blanche to terminate employees with mental disabilities on the basisof any ‘abnormal’ behaviour would largely nullify the ADA’s protectionof the mentally disabled”. The court further held that the employer shouldfirst assess if the misconduct can be remedied by reasonableaccommodation measure. If that is not possible, the employer canFterminate the employment only if any express defence applies such asthe “direct threat” defence or if the rules that have been violated are“job-related” and are “business necessity”. Otherwise, the courtobserved, if the employee can perform essential functions of the job,certain atypical conduct causally connected with the disability must betolerated or accommodated.G

71 136 F.3d 1047, 1052 (5th Cir. 1998).

72 Kelly Cahill Timmons, Accommodating Misconduct Under the Americans withDisabilities Act, 57 Florida Law Review 187, 188-89 (2005).

73 951 F.2d 511 (2d Cir. 1991).H74 129 F.3d 1076, 1086 (10th Cir. 1997).

74. In Raytheon Co. v. Hernandez[75], the US Supreme Courtconsidered the issue of disability-related misconduct. The plaintiff havingfailed drug test chose to resign in lieu of discharge. After receivingtreatment for his addictions, he applied to be rehired by Raytheon. Theemployer had policy of not rehiring former employees who have beenpreviously discharged or who resigned in lieu of discharge. Raytheonargued that the decision to not rehire the plaintiff was made without anyawareness of his past record. The court held that neutral no-hire policycan be legitimate non-discriminatory ground for Raytheon to not rehirethe plaintiff. Thus, the plaintiff could not, it was held, raise the claim ofdisparate treatment based on disability. However, the court remandedthe issue relating to the disparate impact of the neutral no-hire rule onmembers of protected group to the Court of Appeals, Ninth Circuit,which had conflated the analysis between disparate treatment anddisparate impact. The court held:“…In so holding, the Court of Appeals erred by conflating theanalytical framework for disparate-impact and disparate-treatmentclaims. Had the Court of Appeals correctly applied the disparate-treatment framework, it would have been obliged to conclude thata neutral no-rehire policy is, by definition, legitimate,nondiscriminatory reason under the ADA. And thus the onlyremaining question would be whether respondent could producesufficient evidence from which jury could conclude that“petitioner’s stated reason for respondent’s rejection was in factpretext.”

Commentators have argued that the court implicitly rejected theTeahan (supra) approach where employees can prove intentionaldiscrimination or disparate treatment merely by proving that their conductwas consequence of mental disability, collapsing the differencebetween the disability and manifestation of that disability.[76] However, ifa claim of disparate treatment fails, plaintiff can still establish that afacially neutral employment policy disparately impacted those who havea disability.[77]

75 540 U.S. 44 (2003).

76 Kelly Cahill Timmons, Accommodating Misconduct Under the Americans withDisabilities Act, 57 Florida Law Review 187, 188-89 (2005).

77 O’Brien, Christine Neylon and Darrow, Jonathan J., The Question Remains afterRaytheon Co. v. Hernandez: Whether No Rehire Rules Disparately Impact Alcoholicsand Former Drug Abusers, 7 Journal of Business Law 157 (2004).

A75. Recently on 13 September 2013, class-action suit was filedbefore the US District Court of Connecticut on behalf of thousands ofAir Force veterans who have claimed that Air Force awards less-than-honourable discharges to service members on account of minor infractionswithout recognizing the role mental health or sexual trauma plays inmoulding the conduct that leads to such discharges. The suit is pending.[78]B

II Canada

76. Three legislations govern the disability rights regime in Canada.The Employment Equity Act of Canada 1995[79] prohibits discrimination,inter alia, against persons with disabilities. Section 2 of EEAC reads thus:

C“The purpose of this Act is to achieve equality in the workplaceso that no person shall be denied employment opportunities orbenefits for reasons unrelated to ability and, in the fulfilment ofthat goal, to correct the conditions of disadvantage in employmentexperienced by women, Aboriginal peoples, persons withdisabilities and members of visible minorities by giving effect toDthe principle that employment equity means more than treatingpersons in the same way but also requires special measures andthe accommodation of differences.”

Section 3 of the EEAC defines ‘persons with disabilities’ in thefollowing terms:E

“persons with disabilities means persons who have long-term orrecurring physical, mental, sensory, psychiatric or learningimpairment and who

(a)consider themselves to be disadvantaged in employment byFreason of that impairment, or

(b) believe that employer or potential employer is likely toconsider them to be disadvantaged in employment by reason ofthat impairment,

and includes persons whose functional limitations owing to theirGimpairment have been accommodated in their current job orworkplace; (personnes handicapées)”

78 Martin Johnson and Jane Doe on behalf of themselves and all other similarly situatedv. Frank Kendall, Secretary of the Air Force, available at https://law.yale.edu/sites/default/files/area/clinic/vlsc_johnson_v_kendall_complaint_09-13-2021.pdfH79 “EEAC”

77. The second important piece of federal legislation is theCanadian Charter of Rights and Freedoms[80], ratified as Part-I of theConstitution Act 1982. The CCRF seeks to balance individual and grouprights and is the first national constitution in the world to recognise theright to equality of persons with disabilities.[81] Section 15 (1) of the CCRFstipulates:

“Every individual is equal before and under the law and has theright to the equal protection and equal benefit of the law withoutdiscrimination and, in particular, without discrimination based onrace, nation or ethnic origin, colour, religion, sex, or mental orphysical disability.”

78. The third significant legislation is the Canadian Human RightsAct 1978[82], which, inter alia, applies to government employees andemployees of industries and businesses falling under federal jurisdictionor considered as part of the federal government. Section 2 of theCHRA provides thus:

“The purpose of this Act is to extend the laws in Canada to giveeffect, within the purview of matters coming within the legislativeauthority of Parliament, to the principle that all individuals shouldhave an opportunity equal with other individuals to make forthemselves the lives that they are able and wish to have and tohave their needs accommodated, consistent with their duties andobligations as members of society, without being hindered in orprevented from doing so by discriminatory practices based onrace, national or ethnic origin, colour, religion, age, sex, sexualorientation, gender identity or expression, marital status, familystatus, genetic characteristics, disability or conviction for anoffence for which pardon has been granted or in respect ofwhich record suspension has been ordered.”

79. In British Columbia (Public Service Employee RelationsCommission) v. BCGSEU[83], the Canadian Supreme Court held thatonce it is established that prima facie discrimination exists, the burden

80 “CCRF”

81 Bally Thun, Disability Rights Framework in Canada, 12(4) Journal of IndividualEmployment Rights 351-371 (2007).

82 “CHRA”

83 [1999] 3 SCR 3.

Ashifts on the employer to justify the discrimination, which involves provingthat it provided reasonable accommodation. The court developed three-stage test based on proportionality to determine whether an employermay use the bona fide occupational requirement[84] defence after anemployee or job applicant has shown prima facie case ofdiscrimination. The Court laid down the three-prong test in the followingBterms:

“(54.) (1) that the employer adopted the standard for purposerationally connected to the performance of the job;

(2) that the employer adopted the particular standard in an honestCand good faith belief that it was necessary to the fulfilment of thatlegitimate work-related purpose; and

(3) that the standard is reasonably necessary to the accomplishmentof that legitimate work-related purpose. To show that the standardis reasonably necessary, it must be demonstrated that it isDimpossible to accommodate individual employees sharing thecharacteristics of the claimant without imposing undue hardshipupon the employer.”

80. Alcohol and drug addictions are considered physical and mentaldisabilities by most labour boards and human rights tribunals in Canada.[85]EIn Entrop v. Imperial Oil,[86] the Ontario Court of Appeal, following thedecision in British Columbia (Public Service Employee RelationsCommission) (supra) held that randomized drug and alcohol testingcan be bona fide operational requirement in safety-sensitive workplaces.In the context of dismissals, the court considered whether single positivetest would warrant termination from employment. The court observed:F“112. […] dismissal in all cases is inconsistent with Imperial Oil’sduty to accommodate. To maintain random alcohol testing as aBFOR, Imperial Oil is required to accommodate individualdifferences and capabilities to the point of undue hardship. Thataccommodation should include consideration of sanctionsGless severe than dismissal and, where appropriate, the

84 “BFOR”; available under Section 13 of the British Columbia Human Rights Code85 Faisal Bhabha, Stewart v. Elk Valley: The Case of Cocaine Using Coal Miner, AllPapers 323 (2018), available at https://digitalcommons.osgoode.yorku.ca/all_papers/323H86 (2000) 50 OR (3d) 18.

necessary support to permit the employee to undergo atreatment or rehabilitation program”.

(emphasis supplied)

81. In Stewart v. Elk Valley Coal Corp.[87], S had been workingin coal mine for over decade. The mine operators had zero-tolerancepolicy towards the use of illegal drugs. The policy created an exceptionwhere, if the employee made prior disclosure of any dependence issues,they could take the benefit of rehabilitation policy instead of beingdismissed. On such disclosure, the employee could obtain treatment andreturn to work. Although S was aware of the policy, he did not discloseto the employer that he used to consume cocaine on his days off. It isimportant to note that the Alberta Human Rights Tribunal had found thatS himself was not aware of the addiction. One day, S was involved in anaccident while operating vehicle at work. There was minimal damageand no one was injured. But the employer directed S to undergo drugtest and he tested positive for cocaine. S admitted to the employer thathe believed he was addicted to cocaine. However, since the disclosurewas not made before the incident, the employer did not accommodatehis possible addiction under the workplace policy. He was terminatedfrom employment for breaching the company policy, not because of hisdrug addiction but on account of his drug use. The majority (six out ofnine) of the Canadian Supreme Court found that there was no requirementto accommodate since there was no prima facie discrimination. Themajority observed that addiction was not factor in the dismissal. S wasdismissed because he failed to comply with the policy. S still maintainedsome ability to comply with the terms of the policy despite the addiction.The majority also held that it cannot be said that the policy adverselyaffected protected group i.e., persons with disability since the policyimpacted both recreational drug users and drug addicts. The minorityconcurring opinion given by two judges observed that there was primafacie discrimination because even if it was assumed that S had somecontrol over the use of drugs, it did not eliminate drug addiction as one ofthe factors for dismissal. However, they held that the employer couldnot have accommodated S any further without encountering unduehardship. They gave significant weight to the fact that S was employedin safety-sensitive workplace. Any other disciplinary action short of

Adismissal would have undermined the deterrent effect of the zero-tolerance policy causing undue hardship. They further pointed that theemployer had offered S the possibility for reapplying after six monthsprovided he underwent rehabilitation, for which they would reimburse50 percent of the costs in the event he is re-hired. The sole dissentingopinion argued that persons with addictions are stigmatized and oftenBstereotyped as “the authors of their own misfortune”. The dissentingopinion observed that the case fell in the bracket of indirect discriminationwhere neutral policy against drugs adversely impacted those personswho had dependency on drugs. While the policy affected all workersequally, S because of his dependency faced clear impairment inCcomplying with the policy. The protected ground needs to be only one ofthe factors leading to termination. The minority opinion also observedthat the choice threshold conceptualized by the majority effectivelyremoves the rights holder from protection and stigmatizes them furtherby blaming marginalized groups for their choices. The judge highlightedthat distinctions have never been made between protected grounds andDconduct that is inextricably linked to such grounds. Thus, the majorityerred in creating distinction between drug addiction and taking drugs.Finally, the minority opinion observed that the duty to accommodate isan individualized assessment. The pre-incident accommodation, wherethe employee could have disclosed their addiction was not available to SEsince he was not aware of his addiction, denial is symptom of substancedependency. The judge opined that the deterrent effect of the zero-tolerance policy could have been achieved by alternatives short ofdismissal like suspension without pay.

III European UnionF

82. The European Union[88] recognises the duty to accommodatepersons with disabilities in the employment context. Article 5 of theEmployment Equality Directive[89] 2000 provides thus:

“Reasonable accommodation for disabled personsGIn order to guarantee compliance with the principle of equaltreatment in relation to persons with disabilities, reasonableaccommodation shall be provided. This means that employers shall

88 “EU”H89 “EU Directive”

take appropriate measures, where needed in particular case, toenable person with disability to have access to, participate in,or advance in employment, or to undergo training, unless suchmeasures would impose disproportionate burden on the employer.This burden shall not be disproportionate when it is sufficientlyremedied by measures existing within the framework of thedisability policy of the Member State concerned.”

83. The Court of Justice of the EU has moved beyond the medicalmodel of disability towards social model evolving its understanding ofdisability in accordance with the CRPD.[90] In two joint HK Danmark[91]cases, the court held thus:

“41. …if curable or incurable illness entails limitation whichresults in particular from physical, mental or psychologicalimpairments which in interaction with various barriers may hinderthe full and effective participation of the person concerned inprofessional life on an equal basis with other workers, and thelimitation is long-term one, such an illness can be covered by theconcept of ‘disability’ within the meaning of Directive 2000/78.”

Article 2 of the EU Directive recognises both direct and indirectdiscrimination. Article 4 of the EU Directive provides an exception todiscriminatory conduct where such conduct “constitutes genuine anddetermining occupational requirement, provided that the objective islegitimate, and the requirement is proportionate.” In Tartu Vangla[92], aprison officer was dismissed because his hearing acuity, without correctiveaids, did not meet the minimum standards of sound perception underEstonian regulations. The Court of Justice held that while the regulationspursue legitimate aim of securing the safety of persons and publicorder in prison, the requirement that the prison officer must meet theminimum standards of sound perception without hearing aid, or theemployment would be terminated is not proportionate for attaining theobjective of the regulations. The court held that the absolute nature of

90 Ferri, Delia, The Unorthodox Relationship between the EU Charter of FundamentalRights, the UN Convention on the Rights of Persons with Disabilities and SecondaryRights in the Court of Justice Case Law on Disability Discrimination, 16(2) EuropeanConstitutional Law Review 275–305 (2020).

91 HK Danmark v. Dansk Almennyttigt Boligselskab DAB and HK Danmark v. ProDisplay A/S in Konkurs, 11 April 2013, joined cases C-335/11 and C—337/11.92 Case C-795/19

Athe regulation did not reasonably accommodate the prison officer, whichamounted to disability-based discrimination. The court observed thus:

“44 However, it must be remembered that legislation is appropriatefor ensuring attainment of the objective pursued only if it genuinelyreflects concern to attain it in consistent and systematic manner[internal citations omitted].

45 It is apparent from the information contained in the order forreference that compliance with the minimum standards of soundperception prescribed by Regulation No 12 is assessed withoutthere being, for the prison officer concerned, any possibility ofusing hearing aid on that occasion, whereas, when assessingcompliance with the standards laid down in that regulation asregards visual acuity, the officer may use corrective devices suchas contact lenses or spectacles. However, the wearing, loss ordeterioration of contact lenses or spectacles may also hinder theperformance of prison officer’s duties and create risks for himor her comparable to those resulting from the use, loss ordeterioration of hearing aid, particularly in the situations ofphysical confrontation which that officer may encounter.

46 As regards, next, whether that requirement is necessary inorder to attain the objectives pursued by Regulation No 12, namelypreserving the safety of persons and public order, it should berecalled that non-compliance with the minimum standards of soundperception prescribed by that regulation constitutes an absolutemedical impediment to the exercise of the duties of prison officer.Those standards apply to all prison officers, without the possibilityof derogation, regardless of the establishment to which thoseofficers are assigned or the position they hold. Moreover, thatregulation does not allow for an individual assessment of prisonofficer’s ability to perform the essential functions of thatoccupation notwithstanding any hearing impairment on his or herpart.

47 However, as is apparent from paragraphs 15 and 39 of thisjudgment, the tasks of those officers include the supervising ofpersons placed under electronic surveillance by means of asurveillance system, as well as monitoring surveillance andsignalling equipment, without involving frequent contacts with the

prisoners. Furthermore, it is apparent from the order for referencethat Regulation No 12 does not take into account the fact that ahearing impairment may be corrected by means of hearing aidswhich can be miniaturised, sit inside the ear or be placed underheadgear.”

While the above decision deals with physical disability, it laysdown important principles regarding how the dismissal of an employeefrom service is measure of last resort. Further, it is not sufficient toshow that the employer’s discriminatory conduct was in pursuance of alegitimate workplace objective, the employer should be able to establishthat the discriminatory measure is proportionate to the objective that issought to be achieved.

IV South Africa

84. South Africa does not have specific disability-relatedlegislation.[93] The Employment Equity Act 1998[94] seeks to achieve equityat the workplace by prohibiting unfair discrimination including on theground of disability. Section 6(1) of the EEA reads thus:

“No person may unfairly discriminate, directly or indirectly againstan employee, in any employment policy or practice, on one ormore grounds, including race, gender, sex, pregnancy, marital status,family responsibility, ethnic or social origin, colour, sexualorientation, age, disability, religion, HIV status, conscience, belief,political opinion, culture, language or birth.”

Section 1 of the EEA describes persons with disabilities as “peoplewho have long-term or recurring physical or mental impairment whichsubstantially limits their prospects of entry into, or advancement in,employment.” Employment Equity Act No 55 of 2018: Code of GoodPractice on Employment of Persons with Disabilities 2015[95] providesguidance on how to interpret and comply with the mandate of EEA.Clause 5.1 of the Code defines discrimination on the basis of disabilityas:

93 Estie Gresse, Melvin L.M Mbao, An Analysis of the Duty to Reasonably AccommodateDisabled Employees: Comment of Jansen v. Legal Aid South Africa, 24(1) Law,Democracy and Development 109 (2020).

94 “EEA”

95 “Code”

A“any distinction, exclusion or restriction on the basis of disabilitywhich has the purpose or effect of impairing or nullifying therecognition, enjoyment or exercise, on an equal basis with others,of all human rights and fundamental freedoms in the political,economic, social, cultural, civil or any other field. It includes allforms of discrimination, including denial of reasonableBaccommodation.”

(emphasis supplied)

In addition, the Technical Assistance Guidelines on theEmployment of Persons with Disabilities 2017 adds further clarity to theimplementation of the EEA and the Code.C

85. The Labour Relations Act 1995[96] governing the right to fairlabour practices protects employees from unfair dismissal.[97] Section 188of the LRA provides that misconduct can be ground for dismissalunless the employer fails to prove that the reason for dismissal was theemployee’s conduct or capacity. Schedule 8 of the LRA providesDguidelines to be followed to dismiss employees for misconduct in fairmanner. Incapacity is also listed as ground for dismissal under Section188 (1) (a) of the LRA. Incapacity means that an employee is not ableto undertake essential functions of the job due to an illness or injury.[98]Item 10 of the Code of Good Practice: Dismissal of the LRA providesthat the employer should make an enquiry into all possible alternativesEshort of dismissal if an employee would remain absent due to the illnessor injury.[99] The duty to accommodate the incapacity of the employer ishigher when that incapacity develops during work and requires eithermodifications of the work environment or alternative employment.[100] InSmith v. Kit Kat Group (Pty) Ltd.[101], distinction was made betweenF

96 “LRA”

97 Section 185 (a) of the LRA98 Standard Bank of SA v. CCMA, 3 (2008) 29 ILJ 1239 (LC).99 Item 10 (1) of the Code100 Item 10 (4) of the Code

101 (2017) 38 ILJ 483 (LC). The Court observed, “What the respondent needed to doGwas to have conducted proper incapacity investigation into what consequences thisspeech impediment would have on the applicant’s ability to discharge his duties. Therespondent needed to properly and objectively assess to what extent the applicant’sability to interact with fellow employees or suppliers was impacted upon (the applicanthad little dealings with customers). Further, and if there was an impact, it needed to beexplored how the applicant could possibly be accommodated. But what the respondentdid was to simply assume that disability automatically equates to incapacity, which isHnot so.”

disability and incapacity. An employee is termed as incapacitated only ifthe employer cannot accommodate them or they refuse the reasonableaccommodation. The Labour Court clarified that the employer must firstengage in an incapacitating enquiry to assess to what extent the disabilityimpacts the employment functions. If there is an impact, the employermust consider how the employee could be reasonably accommodatedunless the accommodation constitutes an unjustifiable hardship for theemployer. Commentators have noted that courts often use the termsdisability and incapacity interchangeably because the measures that areto be adopted for accommodating an employee with disability areeffectively not different from the measures that may be undertaken tofind alternatives before dismissing an employee for incapacity. Both canbe considered parallel processes.[102]

86. In Pharmaco Distribution (Pty) Ltd. v. EWN[103], the seniormanagement in the employment agency was aware that the employeehad bipolar disorder, for which she was taking medications. Theemployment contract provided that the employee can be subjected tomedical examinations, including psychological evaluations. The employerdirected the employee to undergo medical examination, which sherefused. She was dismissed from service on charge of misconduct fornot complying with the employer’s instruction. The Labour Court ofAppeal, affirming the decision of the Labour Court, observed that theemployer would not have subjected her to psychiatric assessment butfor her bipolar disorder, and she would not have been consequentlydismissed. Thus, the employer’s conduct constituted unfair discriminationbased on disability under Section 6 of the EEA and the dismissal wasautomatically unfair under the LRA. It is also significant that the courtfound that although the employee was on medication and her conditionwas under control, she still had disability. [104]102 Bassuday K & Rycroft A, ‘Incapacity or disability? The Implications for JurisdictionErnstzen v Reliance Group Trading (Pty) Ltd (C727/13) [2015] ZALCCT 42, 36(4)Industrial Law Journal 2516-2521 (2015).103 (2017) 38 ILJ 2496 (LAC).

104 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.

A87. In New Way Motor & Diesel Engineering (Pty) Ltd v.Marsland,[105] the employee suffered nervous breakdown after his wifedeserted him. He was hospitalized. When he returned to work, he wasostracized and verbally abused by the appellant and management. Adisciplinary hearing was instituted against him for poor work performanceamongst other charges. Thereafter, the employee terminated his contractBwhen his work was outsourced. The Labour Court held that the employeehas been constructively dismissed and the dismissal constitutes unfairdiscrimination against the employee on grounds of mental health. Thecourt observed that mental health played significant role in the dismissal.The Labour Court of Appeal also upheld the dismissal as automaticallyCunfair in terms of the amended LRA. The Court of Appeal furtherobserved that the conduct of the appellant had violated the human dignityof the employee. Commentators have observed that this lays down theposition that dismissal of employees having depression can only be anact of last resort and alternatives should be considered before suchdismissal.[106]D

88. In Legal Aid South Africa v. Ockert Jansen[107], the LabourCourt of Appeal of South Africa dealt with an employee who wasdiagnosed with depression and high anxiety during the course of service.Disciplinary proceedings had been instituted against the employee as hehad been absent from work without notice and that he was insolent andEdefiant to the management of the company. He was eventually dismissedfrom service. He challenged the proceedings in the Labour Court andreceived an order in his favour. However, the Labour Court of Appealruled against him. In doing so it held thus:

“[40] The stresses and pressures of modern-day life being whatFthey are, depression is common in the workplace. Employers fromtime to time will need to manage the impact of depression on anindividual employee’s performance. The approach to be followedwill depend on the circumstances.

[41] In the first instance, depression must be looked at as formGof ill health. As such, an incapacitating depression may be

105 (2009) 30 ILJ 2875 (LAC).

106 Rangata, The “Invisible” Illness Challenge, Employment Law, (2015), available athttps://maponya.co.za/wp-content/uploads/2018/03/The-invisible-illness-challenge-Without-Prejudice.pdfH107 (2020) 41 ILJ 2580 (LAC).

legitimate reason for terminating the employment relationship,provided it is done fairly in accordance with process akin to thatenvisaged in Items 10 and 11 of the Code of Good Practice:Dismissal. If an employee is temporarily unable to work fora sustained period due to depression, the employer mustinvestigate and consider alternatives short of dismissalbefore resorting to dismissal. If the depression is likely toimpair performance permanently, the employer mustattempt first to reasonably accommodate the employee’sdisability. Dismissal of depressed employee for incapacitywithout due regard and application of these principles willbe substantively and/or procedurally unfair.[42] Depression may also play role in an employee’s misconduct.It is not beyond possibility that depression might, in certaincircumstance negate an employee’s capacity for wrongdoing. Anemployee may not be liable for misconduct on account ofsevere depression impacting on his state of mind (cognitiveability) and his will (conative ability) to the extent that he isunable to appreciate the wrongfulness of his conduct and/or is unable to conduct himself in accordance with anappreciation of wrongfulness. Should the evidence supportsuch conclusion, dismissal for misconduct would beinappropriate and substantively unfair, and the employerwould need to approach the difficulty from an incapacity oroperational requirements perspective. Alternatively, wherethe evidence shows that the cognitive and conativecapacities of an employee have not been negated bydepression, and he is able to appreciate the wrongfulnessof his conduct and act accordingly, his culpability orblameworthiness may be diminished by reason of thedepression. In which case, the employee’s depression mustbe taken into account in determining an appropriatesanction. failure to properly take account of depressionbefore dismissal for misconduct could possibly result insubstantive unfairness.”

(emphasis supplied)

Thus, it has been held that the employers must be cognizant of therole mental health disorders have played in the alleged misconduct and

Aconsider it as mitigating factor even if the mental health disorder wasnot incapacitating.

V Analysis

89. On the basis of our discussion of the above-mentionedjurisdictions, the following conclusions emerge:B

(i)Mental health disorders are recognised as disability aslong as they fulfil the defining criteria;

(ii)The duty of providing reasonable accommodation to personswith disabilities is sacrosanct. All possible alternatives mustbe considered before ordering dismissal from service.However, there are accepted defences to this principle. Thewell-recognised exception to this rule is that the duty toaccommodate must not cause undue hardship or impose adisproportionate burden on the employer – the interpretationof these concepts may vary in each jurisdiction. In the US,the duty to accommodate is also to be balanced with ensuringthe safety of the workplace (the direct risk defence)provided that the threat to safety is based on an objectiveassessment and not stereotypes. In Canada, the minorityconcurring opinion in Stewart (supra) observed thataccommodating person with substance dependency wouldcause undue hardship to the employer in safety-sensitiveworkplace. The Court of Justice of EU also recognisedworkplace safety as legitimate occupational requirementfor imposing certain occupational standards. However, itruled that the standard should be proportionate to theobjective of workplace safety that is sought to be achieved.In this context, it will be useful to refer to the minority opinionin Stewart (supra) which emphasizes that the duty toaccommodate is individualized. The employer must besensitive to how the individual’s capabilities can beaccommodated. The Committee on the Rights of Personswith Disabilities in General Comment Six expressly notesthat the duty to accommodate is an “individualised reactiveduty” and “requires the duty bearer to enterinto dialoguewith the individual with disability”. Thus, blanketapproach to disability-related conduct will not suffice to showthat the employer has discharged its individualized duty to

accommodate. It must show that it took the employee’sindividual differences and capabilities into account;

(iii)Mental health disorders pose unique challenge in disabilityrights adjudication. Very often, persons are not aware of orare in denial of their mental disability. Even if they hold theawareness, to avoid stigma and discrimination, they tend toBnot disclose their mental illness before an incident ofpurported misconduct. Thus, they may fall foul of therequirement to request reasonable accommodation. In theUS, for instance, the requirement to provide reasonableaccommodation is prospective. In Canada, the majority inCStewart (supra) observed that despite the substancedependency, the employee had the ability to make priordisclosure of the dependency to the employer and couldhave availed of the reasonable accommodation. However,the minority opinion, emphatically observed that self-reporting cannot be construed as accommodation forDpersons who are in denial of their disability. The Committeeon the Rights of Persons with Disabilities in GeneralComment Six notes that the duty to accommodate alsoarises in cases where the duty bearer “should have realizedthat the person in question had disability that might requireEaccommodations to address barriers to exercising rights”;and

(iv)An issue that remains contentious is the examination ofmisconduct charges against persons with mental healthdisorders. There are two strands of argument. Oneargument is that mental disability often manifests as atypicalbehaviour that may fall within the ambit of misconduct. Ifsuch conduct is causally connected to the disability, thendismissal on grounds of misconduct is discrimination basedon disability. This argument has been accepted by fewcourts in the US. In the minority opinion in Stewart (supra),it was observed that making distinction between thedisability and the disability-related conduct is akin to makinga distinction between protected ground and conduct thatis intertwined with the protected ground. On the other hand,it is argued that while mental health disorders may diminish

the control person has over their actions, it does notnecessitate that the persons have completely lost their abilityto comply with acceptable standards of workplace conduct.In the US, most courts have held that misconduct is notprotected under ADA. In Stewart (supra), the majorityopinion of the Canadian Supreme Court held that theemployee with substance dependency retained some controlto comply with the policy of making prior disclosure ofdependency. Thus, non-compliance with standards ofworkplace conduct can rightfully lead to dismissals andwould not constitute discrimination. South Africa adopts amiddle ground in this debate. In Legal Aid South Africa(supra), the court observes that two-pronged enquiry isrequired. It must first be considered based on the evidencewhether the mental health disorder is so incapacitating thatthe person is not able to appreciate the wrongfulness of theconduct or is unable to conduct themselves in accordancewith the required standard. Alternatively, if the evidencesuggests that the person can appreciate the wrongfulnessof their conduct and act accordingly, then their culpabilitystands 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 issufficient for the appellant to show that his mental health disorder wasone of the factors that led to the initiation of disciplinary proceedingsagainst him for misconduct or is he required to prove that his disabilityFwas the sole cause of disciplinary proceedings being instituted againsthim. Section 3 of the RPwD Act provides general guarantee againstnon-discrimination and equality to persons with disability. Section 20specifically provides that no government establishment shall discriminateagainst any person who has acquired disability in any matter relating toGemployment. Discrimination has been given an expansive definition underSection 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 purposeor effect of impairing or nullifying the recognition, enjoyment orexercise on an equal basis with others of all human rights and

fundamental freedoms in the political, economic, social, cultural,civil or any other field and includes all forms of discrimination anddenial 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’ onthe basis of disability. This Court in its decisions has observed that whilea causal connection may need to be established between the ground fordiscrimination and the discriminatory act, it is not required to be shownthat the discrimination occurred solely on the basis of the forbiddenground. As long as it can be shown that the forbidden ground played arole in the discriminatory action, the action will violate the guaranteeagainst non-discrimination.

92. In Navtej Johar (supra), one of us (Dr DY Chandrachud) inthe concurring opinion expressed in the context of interpreting Article 15of the Constitution that the non-discrimination clause does not permitonly single ground claims. Article 15 states that “The State shall notdiscriminate against any citizen on grounds only of religion, race, caste,sex, place of birth or any of them”. The concurring opinion observedthat limiting discrimination-related claims to single ground by placingreliance on ‘only’ is formalistic interpretation of the guarantee againstnon-discrimination. It was observed that discrimination, for instance,based on “sex and another ground (‘sex plus’)” would fall under theambit of Article 15. The opinion placed reliance on judgment of thisCourt in Anuj Garg v. Hotel Association of India[108], which held thatsocially ascribed gender roles or stereotypes regarding sex would not bedistinguishable from discrimination solely based on sex. The relevantextract of the opinion is reproduced below:

“431. This formalistic interpretation of Article 15 would renderthe constitutional guarantee against discrimination meaningless.For it would allow the State to claim that the discrimination wasbased on sex and another ground (“Sex plus”) and hence outsidethe ambit of Article 15. Latent in the argument of the discrimination,are stereotypical notions of the differences between men andwomen which are then used to justify the discrimination. Thisnarrow view of Article 15 strips the prohibition on discriminationof its essential content. This fails to take into account the

Aintersectional nature of sex discrimination, which cannot be saidto operate in isolation of other identities, especially from the socio-political and economic context. For example, rule that peopleover six feet would not be employed in the army would be able tostand an attack on its disproportionate impact on women if it wasmaintained that the discrimination is on the basis of sex and height.BSuch formalistic view of the prohibition in Article 15, rejects thetrue operation of discrimination, which intersects varied identitiesand characteristics.”

93. In Patan Jamal Vali v. State of Andhra Pradesh[109], thisCourt noted the single-axis legislations which prohibit discrimination basedCon single ground make it difficult for an individual claiming differentialtreatment to provide sufficient evidence because often “evidence ofdiscrete discrimination or violence on specific ground may be absentor difficult to prove.” While interpreting Section 3(2)(v) of the ScheduledCastes and the Scheduled Tribes (Prevention of Atrocities) Act 1989

D(prior to the amendment in 2015), this Court observed that the terms “onthe ground of” would not entail proving that the offence against personbelonging to Scheduled Caste or Scheduled Tribe took place solely onthe ground of their caste or tribal identity. If it is one of the factors, it willfall within the ambit of Section 3(2)(v). This Court held thus:

E“62. In the above two extracts, this Court has interpreted Section3(2)(v) to mean that the offence should have been committed“only on the ground that the victim was member of the ScheduledCaste.” The correctness of this exposition. Is debatable. Thestatutory provision does not utilize the expression “only on theground”. Reading the expression “only” would be to add aFrestriction which is not found in the statute. The statute undoubtedlyuses the words “on the ground’ but the juxtaposition of “the” before“ground” does not invariably mean that the offence ought to havebeen committed only on that ground. To read the provision in thatmanner will dilute statutory provision which is meant to safeguardGthe Scheduled Castes and Scheduled Tribes against acts of violencewhich pose threat to their dignity. As we have emphasized beforein the judgment, an intersectional lens enables us to view oppressionas sum of disadvantage resulting from multiple marginalizedidentities. To deny the protection of Section 3 (2) (v) on the premise

H109 2021 SCC OnLine SC 343.

that the crime was not committed against an SC & ST personsolely on the ground of their caste identity is to deny how socialinequalities function in cumulative fashion. It is to render theexperiences of the most marginalized invisible. It is to grant impunityto perpetrators who on account of their privileged social statusfeel entitled to commit atrocities against socially and economicallyvulnerable communities. This is not to say that there is norequirement to establish causal link between the harm sufferedand the ground, but it is to recognize that how person was treatedor impacted was result of interaction of multiple grounds oridentities. true reading of Section 3(2)(v) would entail thatconviction under this provision can be sustained as long as casteidentity is one of the grounds for the occurrence of the offence.In the view which we ultimately take, reference of thesedecisions to larger bench in this case is unnecessary. We keepthat open and the debate alive for later date and case.”94. Similar considerations would govern our understanding ofdiscrimination under the RPwD Act. person with disability is notrequired to prove that discrimination occurred solely on the basis thatthey had disability. Disability needs to be one of the factors that led tothe discriminatory act. Thus, in the present case, the appellant is onlyrequired to prove that disability was one of the factors that led to theinstitution of disciplinary proceedings against him on the charge ofmisconduct. related enquiry then is to examine whether the conductof the employee with mental disability must be solely consequenceof their disability or it is sufficient to show that the disability was one ofthe factors for the conduct.

95. An interpretation that the conduct should solely be result ofan employee’s mental disability would place many persons with mentaldisabilities outside the scope of human rights protection. It is possiblethat the appellant was able to exercise some agency over his actions.But the appellant was still person who was experiencing disablingeffects of his condition. Thus in any event his agency was diminished.The over-emphasis on the choice or agency of person with mentalhealth disorder furthers the stigma against them. As Justice Gascon’sminority opinion in Stewart (supra) states, it furthers the stereotype thatpersons with mental health conditions are “the authors of their ownmisfortune” (para 58).

A96. This is not to say that persons with mental health disordersare never in control of their actions. This may perpetuate anotherstereotype that such persons are “dangerous”, who are more prone tocommit violent or reckless acts. Studies indicate that there is no directlink between mental health disorders and violence. There is no substantialdifference between the patterns of violent conduct exhibited by personsBwith mental health disorders and others without such disorders.[110] Further,we would like to emphasize that persons with mental disabilities are notstatic entities. Earlier in the judgment, we had discussed how employmentopportunities and affirmative workplace policies help persons withdisabilities in coping with their illness and improving their mental health.CThus, what is required is nuanced and individualized approach to mentaldisabilities-related discrimination claims, which requires understandingthe nature of the disadvantage that such persons suffer.

97. The South African jurisprudence in assessing claims ofmisconduct relating to disability presents middle path where an enquiryDis to be conducted to assess whether the mental disability is incapacitating,which would then nullify the charge of misconduct. In the event, it is notincapacitating, the mental disability would still serve as mitigating factorin the imposition of sanctions. However, this approach also has limitationwhere it focuses too much on the nature of impairment than thedisadvantage. It has the possibility of making disability rights adjudicationEmore complex and less accessible since it would require reliance onmedical experts to assess how debilitating the mental disability is.[111]This also makes the disability regime vulnerable to being relegated to amedical model of disability rather than social model. Thus, in the Indiancontext, person with mental disability is entitled to the protection ofFthe rights under the RPwD Act as long they meet the definitional criteriaof what constitutes ‘person with 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

G110 Linda A. Teplin, The Criminality of Mentally Ill: Dangerous Conception, 142(5)American Journal of Psychiatry 593-599 (1985). See also Claire Wilson, RaymondNairn et. al., Constructing Mental Illness as Dangerous: Pilot Study, 33(2) Australianand New Zealand Journal of Psychiatry 240-247.

111 Lesli Bisgould, Human Rights Code v. Charter: Implications of TranchemontagneTwists and Turns and Seventeen Volumes of Evidence, or How Procedural DevelopmentsMight Have Influenced Substantive Human Rights Law, 9 JL & Equality 33 (2012).H

conduct merely diminishes the extent to which the disability contributedto the conduct, it does not eliminate it as factor. The appellant has beenundergoing treatment for mental health disorders for long time, since2009. He has been diagnosed with 40 to 70 percent of permanentdisability by government hospital. While all CRPF personnel may besubject to disciplinary proceedings on charges of misconduct, the appellantis more vulnerable to engage in behavior that can be classified asmisconduct because of his mental disability. He is at disproportionatedisadvantage of being subjected to such proceedings in comparison tohis able-bodied counterparts. The concept of indirect discrimination hasbeen recognized by this Court in Ltd. Col. Nitisha and Ors. v. Unionof India[112], which is closely tied with the conception of substantive equalitythat pervades the international and Indian disability-rights regime. Thus,the disciplinary proceeding against the appellant is discriminatory andmust 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 2021notification exempting the CRPF from the application of Section 20 willnot be applicable to the present proceedings since the rights crystallizedwhen the appellant preferred the special leave petition.

100. Section 20 (4) of the RPwD provides thus:

“(4) No Government establishment shall dispense with or reducein rank, an employee who acquires disability during his or herservice:

Provided that, if an employee after acquiring disability is not suitablefor the post he was holding, shall be shifted to some other postwith the same pay scale and service benefits:

Provided further that if it is not possible to adjust the employeeagainst any post, he may be kept on supernumerary post until asuitable post is available or he attains the age of superannuation,whichever is earlier.”

Sub-Section (4) of Section 20 advances the guarantee ofreasonable accommodation to persons with mental disabilities. TheGovernment establishment has positive obligation to shift an employee

Awho acquired disability during service to suitable post with the samepay scale and service benefits. The provision further states that if it isnot possible to adjust the employee against any post, he may be kept ona supernumerary post until suitable post becomes available or whenthey attain the age of superannuation, whichever is earlier. In VikasKumar (supra), this Court observed that persons with disabilities faceBunique barriers, which must be mitigated through the provision of specificmeasures. This Court held:

“43. There is critical qualitative difference between the barriersfaced by persons with disabilities and other marginalised groups.In order to enable persons with disabilities to lead life of equalCdignity and worth, it is not enough to mandate that discriminationagainst them is impermissible. That is necessary, but not sufficient.We must equally ensure, as society, that we provide them theadditional support and facilities that are necessary for them tooffset the impact of their disability.”DThe principle that reasonable accommodation is component ofthe right to equality and discrimination was reiterated by this Court inAvni Prakash v. National Testing Agency[113].101. In light of Section 20(4) and the general guarantee ofreasonable accommodation that accrues to persons with disabilities, theEappellant is entitled to be reassigned to suitable post having the samepay scale and benefits. The CRPF may choose to assign him posttaking into consideration his current mental health condition. The suitabilityof the post is to examined based on an individualised assessment of thereasonable accommodation that the appellant needs. The authorities canFensure that the post to which the appellant is accommodated does notentail handling or control over firearms or equipment which can pose adanger to himself or to others in or around the workplace.

Epilogue

102. The present case involves complex question of balancingGcompeting interests. Specifically, this entails the right of persons withmental disabilities against discrimination in the course of employmentand the interest of the CRPF in ensuring safe working environmentand maintaining combat force that can undertake security operations.

While balancing the two we must also recognize the role assigned to theCRPF as para-military force. Tarunabh Khaitan has commented thatrights are rarely of an absolute nature. Constitutions often provide thepossibility of limiting those rights through acceptable justifications. Hegives an example of Article 19(1) of the Constitution, where justificationclause has been in-built into the text of the Constitution. On the otherhand, he points out, while Article 14 is not subject to an express justificationclause, judges have evolved the reasonable classification test to assesswhether differential treatment can be justified under Article 14. Heargues that the difference between the two models of justification ismerely semantic.[114] The proviso to sub-Section (1) of Section 20 of theRPwD Act provides justification for violating the right againstdiscrimination in employment. It provides that the appropriategovernment, may, having regard to the type of work carried on in anyestablishment exempt such an establishment from the provisions ofSection 20. The key words here to note are “having regard to the type ofwork”. This indicates that the government’s right to exempt anestablishment from the provisions of Section 20 which deals withemployment discrimination is not absolute. In an appropriate case, astandard for reviewing the justification given by the government mayhave to be developed.

103. This Court at the very inception of the constitutional republichad observed that measure that limits rights must have proportionalrelationship to the right.[115] With the passage of time, this Court hasevolved test for applying proportionality analysis to rights-limitingmeasure.[116] version of the proportionality test was used by this Courtin Anuj Garg v. Hotels Association of India[117] in the context of anti-discrimination analysis. This Court was examining the constitutionalityof provision which prohibited the employment of women in premisesthat served alcohol to the public. While adjudicating whether such arestriction 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 – Rigorous Standard of Review forArticle 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 AIR1952 SC 196.

116 Modern Dental College and Research Centre v State of Madhya Pradesh, (2016) 7SCC 353.

117 (2008) 3 SCC 1.

Athe other bulk of well-settled gender norms such as autonomy, equalityof opportunity, right to privacy et al.” The Court held that the measurewas not proportional because instead of enhancing the security of womenand empowering them, it imposed restrictions on their freedom. TheCourt, however, used strict scrutiny and proportionality interchangeablyin the judgment. Since then, the proportionality analysis has been used inBmany other judgments in relation to other rights.[118]

104. Sub-Section (3) of Section 3 of the RPwD Act itselfcontemplates undertaking proportionality analysis for rights-limitingmeasure. Section 3 of the RPwD Act provides thus:

C“3. Equality and non-discrimination.—(1) The appropriate Government shall ensure that the personswith disabilities enjoy the right to equality, life with dignity andrespect for his or her integrity equally with others.

(2) The appropriate Government shall take steps to utilise theDcapacity of persons with disabilities by providing appropriateenvironment.

(3) No person with disability shall be discriminated on theground of disability, unless it is shown that the impugnedact or omission is proportionate means of achieving alegitimate aim.E(4) No person shall be deprived of his or her personal liberty onlyon the ground of disability.

(5) The appropriate Government shall take necessary steps toensure reasonable accommodation for persons with disabilities.”F(emphasis supplied)

(emphasis supplied)

105. The jurisprudence of Sections 3 and 20 of the RPwD Actwould have to evolve. Our journey has begun. Here we have ponderedover the possible trappings which standard of judicial review may adopt.Such an enquiry is rooted in, “the idea that something protected as aGmatter of right may not be overridden by ordinary considerations ofpolicy…Reasons justifying an infringement of rights have to be of

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 andMobile Association of India v. Reserve Bank of India (2020) 10 SCC 274; Akshay NPatel v. Reserve Bank of India Civil No. 6522 of 2021.H

special strength”.[119] We have not indicated any final thoughts on howthe proviso to Section 20 (1) is to be interpreted.

Conclusion

106. In view of the discussion above, we summarise our findingsbelow:

(i)The validity of the disciplinary proceedings shall bedetermined against the provisions of the RPwD Act 2016instead of the PwD Act 1995 for the following reasons:

(a)The respondent holds privilege under the 2002notification to not comply with the principles of non-Cdiscrimination and reasonable accommodation providedunder Section 47 of the PwD Act. However, for aprivilege to accrue in terms of Section 6 of the GCA,mere expectation or hope is not sufficient. Rather, theprivilege-holder must have done an act to avail of theright. The privilege provided by the 2002 notificationDwould accrue only when one of the punishmentsprovided under Section 47 has been imposed. However,in the instant case, the disciplinary proceedings werechallenged even before the punishment stage couldbe reached. Therefore, the privilege available to therespondent under the 2002 notification was not accruedEin terms of Section 6 of the GCA;(b)Section 47 of the PwD Act is not the sole source ofthe right of equality and non-discrimination held bypersons with disability. The principle of non-discrimination guides the entire statute whoseFmeaning and content find illumination in Article 5 ofthe CRPD. An interpretation that furthersinternational law or gives effect to international lawmust be preferred. Therefore, even though the PwDAct does not have an express provision laying downGthe principle of equality vis-à-vis disabled persons, itwill have to be read into the statute; and

119 Mattias Kumm,Political Liberalism and the Structure of Rights: On the place and limits of theproportionality requirement, in Law, Rights and Discourse: Themes from the LegalPhilosophy of Robert Alexy 131-166 (George Pavlakos ed., Hart 2007)

(c)The 2002 notification is not saved by Section 102 ofthe RPwD Act since Section 20 of the RPwD Act isnot corresponding to Section 47 of the PwD Act;

(ii)The disciplinary proceedings are discriminatory and violativeof the provisions of the RPwD for the following reasons:

(a)A person with disability is entitled to protection underthe RPwD Act as long as the disability was one ofthe factors for the discriminatory act; and

(b)The mental disability of person need not be thesole cause of the misconduct that led to the initiationCof the disciplinary proceeding. Any residual controlthat persons with mental disabilities have over theirconduct merely diminishes the extent to which thedisability contributed to the conduct. The mentaldisability impairs the ability of persons to comply withDworkplace standards in comparison to their able-bodied counterparts. Such persons suffer adisproportionate disadvantage due to the impairmentand are more likely to be subjected to disciplinaryproceedings. Thus, the initiation of disciplinaryproceedings against persons with mental disabilitiesEis facet of indirect discrimination.

107. The disciplinary proceedings against the appellant relating tothe first enquiry are set aside. The appellant is also entitled to theprotection of Section 20(4) of the RPwD Act in the event he is foundunsuitable for his current employment duty. While re-assigning theFappellant to an alternate post, should it become necessary, his pay,emoluments and conditions of service must be protected. The authoritieswill be at liberty to ensure that the assignment to an alternate post doesnot involve the use of or control over fire-arms or equipment which maypose danger to the appellant or others in or around the work-place.

G108. The Civil Appeal is accordingly allowed in the above terms.109. Pending application(s), if any, stand disposed of.

Nidhi Jain

Appeal allowed.