Disciplinary proceedings against those with mental disabilities indirect discrimination: SC

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The Supreme Court on Friday held that a person with a disability, including mental, is entitled to protection under the Rights of Persons with Disabilities Act, as long as the disability was one of the factors for the discriminatory act.

A bench of Justices D.Y. Chandrachud, Surya Kant, and Vikram Nath noted that mental health disorders are often attributed to an internal cause, for which the person is held responsible, which aggravates the stigma and prejudice.

Justice Chandrachud, who authored the judgment on behalf of the bench, said that even if a person with a mental health disorder learns to cope with it or goes into remission, past episodes and possibilities of future episodes put them at a disadvantage in securing and sustaining employment.

“Thus, while the stigma and discrimination against persons with mental health disorders are rampant in society, as the highest constitutional court of the country, it falls upon us to ensure that societal discrimination does not translate into legal discrimination,” he said in the 97-page judgment.

Justice Chandrachud emphasised that mental disability impairs the ability of persons to comply with workplace standards in comparison to their able-bodied counterparts, and as a result, such persons suffer a disproportionate disadvantage. “Thus, the initiation of disciplinary proceedings against persons with mental disabilities is a facet of indirect discrimination,” he added.

Citing the Persons with Disability (PwD) Act, the bench said the provision places an obligation on the employer to not impose punitive punishments such as termination of employment, reduction in rank, and denial of promotion.

“Therefore, the employee has a right to not be punitively punished for their disability (and a right to be reasonably accommodated), while the employer has a duty not to impose such punitive punishments (and a duty to reasonably accommodate),” it noted.

The bench noted that disability, as a social construct, precedes the medical condition of an individual, and the sense of disability is introduced because of the absence of access to facilities. It added that India is a signatory to and has ratified the United Nations Convention on the Rights of Persons with Disabilities, and cited various clauses that the state parties must prohibit discrimination on the basis of disability, and ensure protection against discrimination to persons with disability.

The apex court allowed an appeal filed by Ravinder Kumar Dhariwal, an Assistant Commandant in a central police force organisation, who faced inquiries and suspension on various counts — alleged use of unparliamentary language, appearing in television channels and other print media without the prior approval of the department, and trying to intentionally cause an accident, and assaulting a Deputy Commandant.

The petitioner was diagnosed with obsessive compulsive disorder and secondary major depression in 2009. He was categorised as permanently disabled, having 40 to 70 per cent disability.

The top court emphasised that it is extremely important to not stigmatise or discriminate against persons having mental health issues or any other form of disability.

“The duty of providing reasonable accommodation to persons with disabilities is sacrosanct. All possible alternatives must be considered before ordering dismissal from service,” it said.

The bench said it is wrong to conclude that persons with mental health disorders are never in control of their actions. “This may perpetuate another stereotype that such persons are ‘dangerous’, who are more prone to commit violent or reckless acts,” it added.

Citing the petitioner’s protection under the RPwD Act, the top court set aside the disciplinary proceedings against him in the first enquiry. “While re-assigning the appellant to an alternate post, should it become necessary, his pay, emoluments and conditions of service must be protected. The authorities will be at liberty to ensure that the assignment to an alternate post does not involve the use of or control over fire arms or equipment which may pose a danger to the appellant or others in or around the workplace,” it said.

20211217-211940

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