by Gauraansh Arora and Joy Kukkar
INTRODUCTION
In India, the history of disability rights has been historically determined through a narrow, even patronising, scope of a welfare construct. In this context, the law assumed that compliance by employers was tantamount to tokenism, which was mostly the case in the public sector. This model is becoming outdated.
The signing of the Rights of Persons with Disabilities Act, 2016 (hereinafter, the “Act”), is indicative of a shift in the approach to disability that does not rely on charity but on rights and equitable participation. Instead of viewing disability as an individual tragedy that needs correction, the Act takes a social paradigm and acknowledges people with disabilities as deserving of equal treatment, to full participation, anticipating that disability is not only an individual limitation but a societal circumstance that diminishes equal accessibility.
Section 3 is in the heart of this transition as it embodies equality and non-discrimination. This section acts as an implicit catalyst to corporate India; it not only honours the practice of inclusiveness but also imposes a positive legal obligation on employers to provide accommodations to PwDs. Failure of Human Resources (hereinafter, “HR”) policies to meet these requirements exposes firms to significant legal risks.
To that end, Section 3 is central to the development of the inclusion of Persons with Disabilities (hereinafter, “PwDs”), and recent Supreme Court (hereinafter, “SC”) decisions have sweeping consequences when it comes to changing the way in which the operational structure of the private sector is characterised.
DISSECTING PART 3: BEYOND “DON’T DISCRIMINATE?
Section 3 supports the three core values of equality, dignity, and integrity. Referable as the Golden Triangle to PwDs, it mandates the presence of the relevant “Government” under Section 3(1) to guard such rights. It is important, though, that the term’ government’ is not misunderstood by corporates to be a blanket exemption; the SC is increasingly construing these obligations as horizontal rights and therefore extending them to private organisations that carry out public functions or offer services.
Section 3(3) emphasises the role of employers and provides that no employee with a disability should be in any way discriminated against unless such a practice is a proportionate method of meeting a legitimate end. A proportionality test is therefore proposed, which does not allow an indiscriminate ban on hiring people with certain conditions. In case of an employer refusing to employ a person based on disability, they must prove that the refusal is necessitated by the job itself and that there is no other way to reach the goal of the employer.
The employer must make required adjustments according to Section 3(5), which requires the element of Reasonable Accommodation. This might include altering the physical organisation of the office or the work process to support the ability of a worker with a disability to perform tasks.
The SC has defined undue burden as the only defence that employers can use; they are required to establish that the accommodation is so expensive or difficult that it will cause a severe negative impact on the company. This defence poses a significant threat to both heavily capitalised startups and multinational companies.
THE ANECDOTES WHICH CHANGED THE LAW.
The need to investigate SC cases that can be used as landmark cases is thus critical in shedding light on the underlying risks and shortcomings. The judicial system actively develops the law on disability rights, not just interprets it.
The Scribe Case: Vikash Kumar v. UPSC (2021)
This case is arguably the most influential to modern HR managers. Vikash Kumar, a civil services applicant, had dysgraphia (writer’s cramp). He asked a scribe to help in the 2018 Civil Servants Examination. The disability did not fit the benchmark disability standards-i.e., not certified as 40percent or above-and was therefore denied by UPSC.
The SC, led by HMJ D.Y. Chandrachud, dissented because the right to reasonable accommodations is fundamental. SC ruled that a PwD could not have to be disabled 40% to receive assistance; an employer had a positive duty to assist the employee when his or her condition hindered his/her participation. An employer cannot use technical definitions of benchmark disability to deprive an individual with a disability of access to needed resources.
Mental Health Workplace: Ravinder Kumar Dhariwal v. Union of India (2021)
This case brought the conception of mental health into the anti-discrimination dynamic directly. A Central reserve police force (CRPF) officer was found guilty of miscalculated behaviour (disciplinary action), which he ascribed to depressive and obsessive-compulsive disorder (OCD).
The SC presented the concept of Indirect Discrimination in which an objective policy, like strict discipline, is a penalty that is unfairly charged against an individual because of his or her disability. As a result, SC believed that a mandatory disciplinary measure against a mentally ill person may be discriminatory. Employers can now be required to determine whether an employee exhibits erratic behaviour due to a disability before they are fired or disciplined. Assuming so, instead of expelling the worker, they are required to provide accommodations, like a transfer, leave, or treatment recommendations.
Divorce and Dignity: Reasonable Accommodations, Jeeja Ghosh v. Union of India (2016)
Jeeja Ghosh, a notable disability rights activist who is a cerebral palsy sufferer, was refused boarding on a SpiceJet movie flight, when the crew members found her disability disturbing. SC determined that this humiliation breaches the right of an individual to dignity as stipulated in Article 21 of the Constitution. The airline was fined ₹10 lakh for damages.
This decision becomes a red flag warning to those offering services privately; they are not the only ones who bear liability and not confined to the aviation, hospitality, or tech industry. Nor are stereotyped ignorance or alleged safety issues enough of an excuse to warrant discrimination.
The Rule of “No Termination”: Ch. Joseph v. Telangana State Road Transport Corporation (2025).
In a case just decided by the SC, a driver who had been made to retire early because of colour blindness was ruled in favour. The employer claimed that the employee was no longer fit to hold the position they had initially employed him to occupy. The SC reinstated the idea that the discretion of the employer ceases at the point where the dignity of the employee starts. To this end, an employee who falls ill during the course of employment may not be sacked but can be appointed to the appropriate position where the salary and benefits are similar to the previous job, or the employer may provide a supernumerary position until the employee attains his or her retirement age in the event that one is not already at that age.
USE OF THE CORPORATE LIABILITY ANGLE.
In the definition of an establishment under the Act, section 2 (i) the reference to a private establishment is also present directly, and it can be understood as a business, firm, cooperative or practically any type of an organisation that has been notified by the government. It is the duty of every such establishment to issue an Equal Opportunity Policy (EOP) under Section 21 and also to register it with the State Commissioner of Persons with Disabilities. This registration is a statutory exercise, though many businesses treat this statutory obligation as a “tick-box” exercise. The EOP shall specify the available facilities and amenities, the places that will be allocated to PwDs, the selection procedure, training opportunities, and consideration of preferences during the process of providing residential accommodation, as required by Rule 8 of the Rules of the Rights of Persons with Disabilities, 2017. These are under the oversight of a Liaison Officer. The establishment that does not register its EOP, or does not maintain it, is considered non-compliant.
FINANCIAL SANCTIONS AND THE REPUTATION OF AN ORGANISATION.
The Act provides a list of financial fines in Section 89 of non-compliance but the reputational harm involved can be greater. Violations with the first instance can be fined up to ₹ 10,000, and later repetitions may be fined by up to ₹5 lakhs. Section 92 marks the introduction of a Punishment of Atrocities, which makes it illegal to knowingly and willingly insult or intimidate a PwD. Such conduct is punishable to a maximum of five-year imprisonment. When a manager ridicules an employee at a team meeting regarding their disability, the resultant PR blowback may result in a criminal case against them, thus highlighting the value the corporation should place on its reputation.
A COMPARATIVE SURVEY OF THE WESTERN FRONTIERS.
A comparison between Indian laws and those of other jurisdictions sheds some light on critical differences. The most important glass ceiling is the Americans with Disabilities Act (ADA) in the United States, which provides reasonable accommodation, unless the accommodation of an employer will cause undue hardship. The unprecedented burden of defence is typical of the United States standard.
A similar obligation is used in the United Kingdom to make reasonable adjustments under the Equality Act 2010. However, the regulatory framework of India is significantly more bureaucratic. The ADA does not entail registration of internal policies by organisations with a government commissioner, whereas the Indian Act does. This regulation alleviates control, something that most multinational enterprises in India often ignore.
A DIRECTIONS IN DISABILITY RIGHTS JURISPRUDENCE.
The history of Indian disability law shows a shift in law towards formal compliance and substantive equality. The jurisprudence of the future will probably question the breadth of the action of undue burden on the part of the private sector, with a possible extension of the horizontality of instances of rights up to the state level.
Indirect discrimination, especially targeting psychosocial disability, in facially neutral workplace policies, should be questioned in the wake of the Ravinder Kumar Dhariwal case. Legal scholars need to investigate the manner in which private employment contracts are converted into the means of constitutional compliance in Section 3. A task of the legal community is to formulate a corporate jurisprudence that considers inclusion a non-negotiable condition of human dignity, as opposed to a regulatory obligation.
For corporate entities, to go beyond legal adherence, corporate organisations are advised to expose the EOP to the State Commissioner, designate specific budgets based on reasonable accommodations and the presence of accessible infrastructure, eliminate any form of discrimination, and revamp disciplinary codes comprehensively. In this way, the Indian corporate culture can transition beyond a position of procedural adherence to the realm of substantive, real inclusion.
* Gauraansh and Joy are Second Year law students at National Law University, Jodhpur and Members of the Centre for Disability Studies and Empowerment, NLU Jodhpur.