“No Individual Is Left Behind”: Analysing Amar Jain Judgement

Authored by Darshit Agarwal, a 2nd-year law student at National Law University, Delhi

Supreme Court of India

The Supreme Court recently, in the combined hearing of two writ petitions, Amar Jain v. Union of India and Pragya Prasun v. Union of India (one filed by a 100% blind lawyer and the other filed by an acid-attack victim, respectively), addressed the issue of inaccessibility and problem being caused to the people who qualify as Person With Disability under the Right of Person with Disabilities Act 2016 (RPwd Act 2016), in getting their Know Your Customer (KYC)/ e-KYC process completed because of the traditional methods and practices being used to assess and complete the process. While critically analysing the judgment, the author tries to understand the narrative being drawn by the Apex Judiciary of India to protect the rights of Persons with Disabilities. 

Contentions of the Petitioner

The major contentions of the petitioners centred on the exclusionary nature of the current approach being taken. The relevant methods, practices, and website intermediaries currently used to confirm Know Your Customer (KYC), e-KYC, and video KYC were designed without considering the barriers that People with Disabilities (“PwD”) may face when using them. Further, due to the RBI Master Discretion Order, 2016, digital KYC has become mandatory for various institutions and sectors, making it essential for accessing essential services such as opening a bank account, investing in mutual funds, and filing ITR. The use of traditional practices arbitrarily discriminates against them by limiting their access to these welfare schemes and services.

They also contended that the traditional practices, which include, clicking a selfie, face recognition, verification of OTP in 30 seconds, etc., prevent the disabled individual from independently and autonomously complete the process, without any help of other person and thus violates their right to live with dignity and integrity, at par with others and as well goes against the statutory duty of the state under RPwD Act 2016 and RPwD Rules 2017 to implement ‘reasonable accommodation’ in-order to ensure integration of the PwD in the society, the actively removing the physical, social and other barriers, hindering their integration. Thus, petitioned the Court to direct the state accordingly.

Argument from the Respondents

Various state institutions were named as respondents in the petition, including the Reserve Bank of India (RBI), the Telecom Regulatory Authority of India (TRAI), the Securities and Exchange Board of India (SEBI), the Insurance Regulatory and Development Authority of India (IRDAI), etc. They are called upon due to the traditional practices and instruments used by these institutions to identify their customers and complete their KYC.

The central argument that the different counsels presented on behalf of the respondents was that the rules and guidelines of these institutions were already broad enough to include and provide for the inclusion and integration of the PwD. Further, even special arrangements were said to be made as per the rules, to provide for the completion of the KYC of the people and specialised and sensitised officers were present to help such people.

Response of the Supreme Court

Justice R. Mahadevan authored the judgment. The Court analysed and responded to the arguments of both sides and gave the judgment along various Constitutional and legal perspectives. It discussed the social nature of the disability, the Constitutional mandate and the duty upon the state to provide for the special arrangements and reasonable accommodations of people. It also discussed the ‘Super Statute’ nature of the statute and expounded on how a new baseline has been provided by it to interpret various other regulations.

The Court also analysed the current traditional practices involved by the regulatory bodies, such as eye-blinking, reading a random code or handwriting display code, etc., that, though functioning towards making the process digital and more efficient, have made it very difficult and beyond the accessibility of disabled people to complete the whole process individually or without someone else’s support.

Physical Impairment v. Social Disability

The Court expounded upon the modern Social Model of Disability, which marks a departure from the traditional individualistic model of disability. The conventional model of disability uses a very individualistic approach to disability and locates disability either in one’s medical defect or as a result of one’s own moral misconduct. However, the Social Model of Disability is the modern-day model to understand disability better and eliminate the barriers. According to the following model, there is a difference between impairment and disability. While impairment is considered a very regular part of the human body, with everyone suffering through one type of physical or mental impairment, disability is something that is deemed to be created by society because of the unnecessary barriers that society makes, which cause problems in the normal daily functioning of people.

It can be understood as the loss of opportunity for equal participation that arises due to societal interactions and the unnecessary barriers they create.  The Court referred to this social nature of the disability to explain how disability is something that is not individualistic and is instead something created by society by making things inaccessible for these people. This disability tends to limit the participation of people, and thus, it is a duty of the state to end this social disability.

Constitutional Mandate

The Court also relied on the Rajiv Raturi judgment, wherein it observed that the existing RPwD guidelines, owing to their merely recommendatory character, had not been effectively implemented. Consequently, the Court directed the Union to frame mandatory guidelines and ensure their strict enforcement. Significantly, the Court in Rajiv Raturi underscored that ‘accessibility’ constitutes a fundamental right, forming an essential component of life, liberty, and freedom of movement under Article 21 of the Constitution. Further, the state must ensure that this accessibility is provided correctly to ensure inclusivity. The Court examined the rights of the disabled person, recognising them not as a new right but as a fundamental principle deeply embedded in various international treaties and conventions, which play a foundational role in ensuring access to equal opportunities and rights. It acknowledged these special provisions as of paramount importance and fundamental nature in providing for the Right to Live with Dignity and Integrity of the PwD.

It emphasised how the lack of accessibility to various government welfare schemes and services violates the right to equality under Article 14 of the PwD, as it directly and indirectly limits their ability to engage in community life or benefit from these schemes and services without any cause or reasonable differentiation.

The Court also recognised the state’s responsibility and Constitutional mandate to make special arrangements for the PwD. It stated that, though Articles 15 and 16 do not specifically mention physical or mental impairment or disability as grounds for special arrangements. However, just like how it is an obligation upon the state to provide for special arrangements for the socially and economically backward classes and women, who suffer from the various discriminatory barriers created by society, so should the state provide for the PwD, who are suffering because of the social barriers being made against them by society.

The United Nations Convention on the Rights of Persons with Disabilities 2006, to which India is a signatory and enacted the Right of Persons with Disability Act 2016 in furtherance of the same, also highlights upon the duty of the state and relevant stake-holders, to actively work towards removing the barriers (defined as ‘any factor including communicational, cultural, economic, environmental, institutional, political, social, attitudinal or structural factors which hampers the full and effective participation of persons with disability in society’) and making reasonable accommodation (‘necessary and appropriate modifications and adjustments without imposing disproportionate or undue burden, to ensure the disable people exercise of their rights equally and without any problem’).

A Super Statute

One of the significant points emphasised and delivered upon in the judgment was about the ‘Super Statute’ nature of the Rights of Persons with Disabilities Act 2016. The Court referred to its judgment of In Re: Recruitment of Visually Impaired in Judicial Services, where the court stated that due to the importance and the fundamental nature of the RPwD Act, it has gained the status of the ‘Super Statute’, and thus any violation of the rights granted under the statute is equivalent to the violation of Fundamental Rights.

The term ‘Super Statute’ was used and elaborated upon by William N. Eskridge and John Ferejohn in their article ‘Super Statutes’, where they elaborated that some statutes which successfully penetrate the public normative and institutional culture deeply are called public statutes. These statutes are often well deliberated and tend to exhaustively and properly address a broader issue. The authors even acknowledged such a statute as a more informal way of amending the Constitution or providing a new baseline along which various other statutes and sometimes even the Constitution are interpreted.

By referring to the RPwD Act 2016 as a ‘Super Statute’, as explained in the article, the Court emphasised the fundamental nature of the statute, successfully penetrating through various public institutions. The Act can be understood as providing a completely new baseline along which the different statutes and practices of the state need to be interpreted and tested, with violation of the Act being tantamount to the violation of a Fundamental Right enshrined under the Constitution. The statute, though, was passed under Article 253, and to fulfil India’s international obligation, it brings a major change to the current legal framework and the public culture of India.

The Court’s reference to the statute as a Super Statute is also in line with its advice to the legislature to amend and include disability as one of the grounds under Article 15 and its emphasis upon the state’s obligation to provide reservation to the PwD.

Conclusion

The Supreme Court issued 20 guidelines, disposing of the petitions and directing the regulatory authorities to take special care and follow the guidelines to ensure that the special facilities or facilities provided in general are properly functioning, up-to-date and accessible for the impaired people to use and no unnecessary social barriers are created against them.

Therefore, what the judgment did was not only concretely uphold it as a mandatory duty of the state to make reasonable accommodation for the inclusivity of the PwD, but also recognise it as a right, equivalent to the Fundamental Right, to ask for these reasonable accommodations. By drawing the Super Statute narrative surrounding the nature of the RPwD Act 2016, it acknowledged the undeniable and necessary nature of the reasonable accommodations. It upheld the Act as the new baseline, along which even the Constitution must be interpreted, to ensure equal recognition and participation of the people. The Court truly attempted to “Foster an Environment Where No Individual is Left Behind”.