No Discrimination on the basis of Permanent Mental Disability is permitted

Shaunak Choudhury | SVKM’s NMIMS Kirit P. Mehta School of Law | 13^th May 2020

Bhavya Nain v. High Court of Delhi [W.P. (C) 5948/2019]

Facts

On 14^th November 2019, the High court of Delhi issued a public notice that invited online applications from eligible candidates for filling 147 vacancies for the Delhi Judicial Service. Out of the 147 vacancies 1 was reserved for Person having  autism, intellectual disability, specific learning disability, mental illness and multiple disabilities as mentioned under clauses (a) to (d) of Section 34(1) of the Rights of Persons with Disabilities Act, 2016 (RPwD Act). The Delhi High Court issued instructions that if a person was seeking reservation on account of being disabled, they were required to provide a certificate issued by a Government Hospital/ Medical Board to support their claim. Accordingly, the Petitioner, Bhavya Nain, got a certificate issued by the All India Institute of Medical Sciences (AIIMS), New Delhi, which declared that he had Bipolar Affective Disordered (BPAD). The Disability Certificate issued was valid for a period of 5 years (till 12^th December 2023) and it stated that the Petitioner had BPAD to the extent of 45%, his status is currently in remission and that his condition is likely to improve. After giving the Delhi Judicial Service Main Examination and the interview, the candidate was rejected on the ground that his disability was found to be temporary. 

Issues 

1. Whether BPAD is a long-term disorder.
2. Whether the Petitioner falls into the definition of a person with benchmark disability.
3. Whether the Administration of the High Court of Delhi can discriminate in employment as per section 20 of the RPwD Act.

Judgement

1. Since under section 34 of the RPwD Act, only persons with long term or permanent/lifelong disabilities can be given reservation, the question was whether BPAD as a condition can be categorised in that definition. The Court, in order to answer this question, looked at legal and medical literature to specifically determine whether BPAD can be called permanent or not. Cases such as Pankaj Mahajan v. Kajal ((2011) 12 SCC 1), Jeevan Rana v. State of Himachal Pradesh (2015 Cri LJ 4619) and the medical literature on the matter all suggested that BPAD is a permanent disorder. It has chronic relapses and, to a certain extent, its symptoms can be put under control through medication (lithium salts). Thus, the Court found that the condition itself is a permanent one that has a spectrum of symptoms, some severe (to the point suicidal tendencies) and some less so (mood swings). 
2. The Respondent brought the issue of whether the Petitioner would be considered as a person with benchmark disability. As per section 2 (r) of the RPwD Act, ‘a person with benchmark disability’ has to have a specified disability to the extent of 40% or more. The list of specified disabilities is given in the Act as a Schedule where point 3 of that Schedule speaks of “mental behavior”. The Respondent alleged that since at the time of certification, the Petitioner was having a remission (45% extent) and was to soon get better (as per the Disability Certificate), he would fall below the 40% mark and become ineligible for the reserved seat. 

The Court disagreed with this assessment as no evidence was provided to solidify that claim. So, the Court saw that till the certificate of the Petitioner is valid, the Respondent cannot arbitrarily claim that the extent of the condition will reduce during the Petitioner’s term as a Judicial Officer. The Respondent can also not discriminate against the Petitioner on the basis of a possible future eventuality as per LIC of India v. Chief Commissioner for Disabilities((2002) 101 DLT 434). 

The RPwD Rules also allows those individuals with a disability that may vary in any way (but is permanent), to receive a certificate. The Petitioner got his certificate under Rule 18 which provides the certificate to individuals with varying symptoms and Rule 19 affirms that those certificate holders may get reservations and other benefits. 

• The Court found that under section 20 (1) of the RPwD Act, only the appropriate government can exempt the provisions of section 20 (about discrimination). The administrative officers at the High Court of Delhi are not to be considered as the ‘appropriate government’ in this case. 

Thus, the High Court of Delhi ordered the Respondent to declare the Petitioner as selected for the Delhi Judicial Service without any further delay.