JUDGMENT : (A. Muhamed Mustaque, J.) : This case revolves around a challenge to a seemingly neutral rule of the Public Service Commission (PSC) regarding the submission of qualification certificates by the stipulated deadline, due to its disproportionate impact on individuals like Sabeena K.S., a 35-year-old differently-abled woman with 100% visual disability, the first respondent herein. Sabeena applied for the post of Upper Primary School (UP) Teacher in response to a notification issued by the PSC on 31/12/2019. The last date for receipt of completed applications was 05/02/2020. Unfortunately, she failed to upload her Kerala Teacher Eligibility Test (KTET) certificate, a mandatory qualification, with her application. Consequently, her application was rejected on 27/08/2021. PSC published a short list of candidates on 02/09/2021. Sabeena brought her grievance to the Tribunal, arguing that the rigid application of the rule unfairly discriminated against her due to her visual disability. Tribunal found that Sabeena had acquired the necessary qualifications, including the KTET certificate, well before the issuance of the notification. Tribunal emphasized that it defied common sense to suggest that she would have intentionally withheld submitting such a crucial certificate, given her 100% visual disability, and her total dependence on others to process the application online. Taking a humanitarian approach, the Tribunal directed the PSC to allow her to participate in the selection process despite her initial failure to upload the KTET certificate by the deadline. 2. This case raises an important question: whether the PSC's rule — although neutral on its face — fails to accommodate individuals with disabilities, thereby violating principles of equality and non-discrimination. The challenge involves considerations of whether reasonable accommodations for disabled candidates were provided and whether the rejection of her application was justifiable under the constitutional value of substantive equality, or if it violated rights under laws related to disability and equality in public employment (The Rights of Persons with Disabilities Act, 2016). 3. The learned counsel for the PSC, Shri P.C. Sasidharan, argued that the PSC’s rejection of an application which is not conforming to the notification’s stipulations is justifiable and cannot be contested before the Tribunal or this Court. He maintained that the PSC did not violate any laws in rejecting the application and that the Tribunal's contrary direction was improper. 3. The learned counsel for the PSC, Shri P.C. Sasidharan, argued that the PSC’s rejection of an application which is not conforming to the notification’s stipulations is justifiable and cannot be contested before the Tribunal or this Court. He maintained that the PSC did not violate any laws in rejecting the application and that the Tribunal's contrary direction was improper. The learned Standing Counsel cited the following judgments: Kerala Public Service Commission v. Varghese (1977 KHC 367), Public Service Commission v. Saroja Nambiyar (1978 KHC 405), State of U.P and Others v. Harish Chandra and Others (1996 KHC 1193), Binu Kumar K.R v. Kerala Public Service Commission and Others [ 2010(1) KHC 714 ] and in the judgment of a Division Bench of this Court in OP(KAT). No. 47 of 2017 (Manoj.P.J v. Kerala Public Service Commission and Others). 4. The learned counsel for the party respondent Adv.Shaj K. and Adv.Minu Vittorria Paulson submitted that the candidate's specific or "peculiar" disability warrants special consideration while applying the "normal rule." This implies that when a general rule or standard procedure exists, rigidly applying it may not be just or appropriate in this case, as the candidate's disability presents unique challenges, and ignoring these challenges could lead to an inequitable outcome. 5. While we acknowledge the legal principles cited by the PSC's counsel, our perspective differs. The concept of equal opportunity is not merely a constitutional ideal; it must be actively translated into reality. In emphasizing adherence to rules for fair competition, we must also consider the implications of these rules for diverse groups of people. 6. The rules assume that all candidates seeking public employment can apply following the stipulated process. However, the PSC's use of technology for streamlining applications may not be equally accessible to everyone. For instance, visually impaired candidates face significant challenges when using Information and Communication Technology (ICT) applications. It is specifically stipulated in the notification issued by the PSC that the conventional type of application will be summarily rejected. This raises an important question: Can the PSC treat visually challenged candidates the same as those who are visually abled under the same application rules? There cannot be much dispute that visually impaired individuals may require assistance. 7. We must consider whether the current system provides adequate support for visually challenged applicants to submit their applications online. This raises an important question: Can the PSC treat visually challenged candidates the same as those who are visually abled under the same application rules? There cannot be much dispute that visually impaired individuals may require assistance. 7. We must consider whether the current system provides adequate support for visually challenged applicants to submit their applications online. If it does not, we need to reflect on who is responsible for this oversight. These questions warrant examination in light of constitutional principles and the reasonable accommodation standards outlined in the Rights of Persons with Disabilities Act, 2016. 8. In this context, it is crucial to understand that substantive equality goes beyond merely treating everyone the same (which is the focus of formal equality). Instead, it recognizes that disadvantaged or marginalized groups, such as persons with disabilities, require special consideration to address the disadvantages they face. The goal is not just to provide equal opportunities, but to achieve actual equality in outcome by addressing systemic barriers, historical injustices, and real wrongs faced by those in marginalized positions. 9. A Division Bench of this Court (with Justice A. Muhamed Mustaque as part of the Bench) in O.P (KAT) Nos. 507/2023 and 521/2023, cited an article by Sandra Fredman, a renowned legal scholar from Oxford University, titled "Substantive Equality Revisited." Fredman argues that substantive equality involves a multi-dimensional approach, focusing not just on formal rules, but on correcting real-world disadvantages, ensuring that equality is meaningful and not just theoretical. It was held in para.4 of the original petition as follows: Our Constitution states about both formal and substantive equality. Formal equality is the result of a conscious approach to treat them equally without there being distinction or differences on gender attributes. Substantive equality on the other hand focuses on the space, if that space is not allowed to exist, it may result in discrimination based on sex. Thus, substantive equality allows us to create space, removing barriers that exist in gender attributes and accommodating differences. Substantive equality on the other hand focuses on the space, if that space is not allowed to exist, it may result in discrimination based on sex. Thus, substantive equality allows us to create space, removing barriers that exist in gender attributes and accommodating differences. Sandra Fredman, Faculty of Law, Oxford University, in her article “Substantive equality revisited”[Sandra Fredman, Substantive equality revisited, Article in International Journal of Constitutional Law, July 2016.(I.CON(2016)Vol.14 No.3,712-738), https://www.researchgate.net/publication/308182296_Substantive_equality_revisited , last visited on 11/12/2023], analysed substantial equality after adverting to judgments of US Courts and Canada and stated that right to equality should be capable of responding to real wrongs which must be sensitive to the wrongs experienced by women and other out-groups on account of their status and, further opined as follows: The right to equality should move beyond a formal conception that likes should be treated alike, a substantive conception resists capture by a single principle. Instead, drawing on the strengths of the familiar principles in the substantive equality discourse, a four dimensional principle is proposed: to redress disadvantage; to address stigma, stereotyping, prejudice and violence; to enhance voice and participation; and to accommodate difference and achieve structural change. Behind this is the basic principle that the right to equality should be located in the social context, responsive to those who are disadvantaged, demeaned, excluded, or ignored. This perspective supports a more nuanced understanding of equality, suggesting that to redress discrimination effectively, laws and policies must actively compensate for the unequal conditions faced by certain groups, rather than merely providing everyone with identical treatment. 10. The Apex Court in Ravinder Kumar Dhariwal and Another v. Union of India and Others [ (2023) 2 SCC 209 ] also referred to two facets of Indian Constitution delineating formal equality and substantive equality and held in para.37 as follows: “37.Article 14 of the Indian Constitution states that "[t]he State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India". The right to equality under the Indian Constitution has two facets – formal equality and substantive equality. While formal equality means that every person, irrespective of their attributes must be treated equally and must not be discriminated against; substantive equality is aimed at producing equality of outcomes through different modes of affirmative action. The right to equality under the Indian Constitution has two facets – formal equality and substantive equality. While formal equality means that every person, irrespective of their attributes must be treated equally and must not be discriminated against; substantive equality is aimed at producing equality of outcomes through different modes of affirmative action. The principle of reasonable accommodation is one of the means for achieving substantive equality, pursuant to which disabled individuals must be reasonably accommodated based on their individual capacities. Disability, as a social construct, precedes the medical condition of an individual. The sense of disability is introduced because of the absence of access to facilities.” 11. Jenny E. Goldschmidt in his Article “New Perspectives on Equality: Towards Transformative Justice through the Disability Convention?”[https://www.tandfonline.com/doi/full/10.1080/18918131.2017.1286131, last visited on 21.10.2024], observing intrinsic differences in human ability wrote as follows: “The substantive equality approach tries to address this problem, by not solely focusing on equal treatment, but by also incorporating the differences in outcome that may result from this same treatment. In positive law, substantive equality is reflected in the concept of indirect discrimination. The unequal effects of a seemingly neutral rule have to be taken into account. In the substantive equality approach we cannot be blind to differences, because differences should also be taken into account.” 12. Over the course of centuries, human rights jurisprudence, shaped by international conventions, has recognized substantive equality as an integral part of human rights. United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), which led to the enactment of the Rights of Persons with Disabilities Act, 2016, reflects a fundamental shift from the medical model of disability to a social model. As stated in Article 1 of UNCRPD, this shift aims to ensure that persons with disabilities can participate fully and effectively in society on an equal basis with others. Two key principles from both UNCRPD and the Rights of Persons with Disabilities Act are particularly relevant to the issues in this case: Accessibility and Reasonable Accommodation. Concept of Accessibility: 13. Persons with disabilities often face limitations in physical and sensory abilities, requiring mobility aids and assistive technologies to navigate daily life. Article 3 of UNCRPD specifically addresses the importance of accessibility. Concept of Accessibility: 13. Persons with disabilities often face limitations in physical and sensory abilities, requiring mobility aids and assistive technologies to navigate daily life. Article 3 of UNCRPD specifically addresses the importance of accessibility. In line with this, Section 40 of the Rights of Persons with Disabilities Act highlights the need for accessibility in the physical environment, ensuring that technology, infrastructure, and services—both in urban and rural areas—are inclusive. Further, Section 42 focuses on access to ICT, underscoring that information provided through ICT must be tailored to meet the needs of persons with disabilities. These statutory provisions aim to eliminate barriers in the physical environment and ICT, enabling persons with disabilities to access technology and information equally and effectively. Importance of Digital Accessibility: 14. Technology is engrained in every walk of our life. User competence is a challenge in digital space. The persons with disability also need to have access to digital space. There are four main guiding principles which are acknowledged as international standards to allow everyone to have an equal access to digital space. The four principles are perceivable, operable, understandable and robust, known as POUR. These principles were introduced in the year 1999 as part of Web Content Accessibility Guidelines by the World Wide Web Consortium. accessibility focuses on accessibility to web content or portal to individuals who have sensory and cognitive challenges. The digital accessibility as above intends to ensure that digital space is designed for user experience of all types. Although significant importance is placed on digital space, we cannot remain oblivious to the reality that our web applications or the portal have not been developed in such a manner for easy understanding of persons who are visually challenged. In such situations, digital accessibility can be provided in different forms by establishing facility centers to assist such visually challenged. Concept of Reasonable Accommodation: 15. The concept of reasonable accommodation originated from the Equal Employment Opportunity Act, 1972 of US to combat discrimination in the labour market. 16. In Article 2 of UNCRPD, ‘reasonable accommodation’ has been defined as follows: "Reasonable accommodation" means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms; 17. 16. In Article 2 of UNCRPD, ‘reasonable accommodation’ has been defined as follows: "Reasonable accommodation" means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms; 17. In the Rights of Persons with Disabilities Act, 2016 under Section 2(y), ‘reasonable accommodation’ has been defined as follows: (y) "reasonable accommodation" means necessary and appropriate modification and adjustments, without imposing a disproportionate or undue burden in a particular case, to ensure to persons with disabilities the enjoyment or exercise of rights equally with others; 18. The Apex Court in Vikash Kumar v. Union Public Service Commission and Others [ (2021) 5 SCC 370 ] recognized reasonable accommodation with intrinsic individual dignity and held in paragraphs 60 to 65 as follows: 60. At the heart of this case lies the principle of reasonable accommodation. Individual dignity undergirds the 2016 RPwD Act. Intrinsic to its realisation is recognising the worth of every person as an equal member of society. Respect for the dignity of others and fostering conditions in which every individual can evolve according to their capacities are key elements of a legal order which protects, respects and facilitates individual autonomy. In seeking to project these values as inalienable rights of the disabled, the 2016 RPwD Act travels beyond being merely a charter of non-discrimination. It travels beyond imposing restraints on discrimination against the disabled. The law does this by imposing a positive obligation on the State to secure the realisation of rights. It does so by mandating that the State must create conditions in which the barriers posed by disability can be overcome. The creation of an appropriate environment in which the disabled can pursue the full range of entitlements which are encompassed within human liberty is enforceable at law. In its emphasis on substantive equality, the enactment of the legislation is a watershed event in providing a legal foundation for equality of opportunity to the disabled. 61. As a social construct, disability encompasses features broader and more comprehensive than a medical condition. The 2016 RPwD Act recognises that disability results in inequality of access to a range of public and private entitlements. 61. As a social construct, disability encompasses features broader and more comprehensive than a medical condition. The 2016 RPwD Act recognises that disability results in inequality of access to a range of public and private entitlements. The handicaps which the disabled encounter emerge out of disability's engagement with the barriers created by prejudice, discrimination and societal indifference. Operating as restraining factors, these barriers have origins which can be traced to physical, social, economic and psychological conditions in society. Operating on the pre-existing restraints posed by disability, these barriers to development produce outcomes in which the disabled bear an unequal share of societal burdens. The legislation has recognised that remedies for the barriers encountered by the disabled are to be found in the social environment in which they live, work and cohabit with others. The barriers encountered by every disabled person can be remedied by recognising comprehensive rights as inhering in them; rights which impose duties and obligations on others. 62. The principle of reasonable accommodation acknowledges that if disability as a social construct has to be remedied, conditions have to be affirmatively created for facilitating the development of the disabled. Reasonable accommodation is founded in the norm of inclusion. Exclusion results in the negation of individual dignity and worth or they can choose the route of reasonable accommodation, where each individuals' dignity and worth is respected. Under this route, the “powerful and the majority adapt their own rules and practices, within the limits of reason and short of undue hardship, to permit realisation of these ends”. [Reasonable Accommodation in A Multicultural Society, Address to the Canadian Bar Association Continuing Legal Education Committee and the National Constitutional and Human Rights Law Section, 7-4-1995, Calgary, Alberta at 1.] 63. In the specific context of disability, the principle of reasonable accommodation postulates that the conditions which exclude the disabled from full and effective participation as equal members of society have to give way to an accommodative society which accepts difference, respects their needs and facilitates the creation of an environment in which the societal barriers to disability are progressively answered. Accommodation implies a positive obligation to create conditions conducive to the growth and fulfilment of the disabled in every aspect of their existence — whether as students, members of the workplace, participants in governance or, on a personal plane, in realising the fulfilling privacies of family life. Accommodation implies a positive obligation to create conditions conducive to the growth and fulfilment of the disabled in every aspect of their existence — whether as students, members of the workplace, participants in governance or, on a personal plane, in realising the fulfilling privacies of family life. The accommodation which the law mandates is “reasonable” because it has to be tailored to the requirements of each condition of disability. The expectations which every disabled person has are unique to the nature of the disability and the character of the impediments which are encountered as its consequence. 64. For instance, for a visually impaired person, the reasonable accommodation she requires might consist of screen magnification software or a screen reader [which can speak out the content on a computer screen in a mechanical voice]. It might also consist of content being made available in Braille and a sighted assistant. In the same way, for someone with a hearing impairment, reasonable accommodation could consist of speech-to-text converters, access to sign language interpreters, sound amplification systems, rooms in which echo is eliminated and lip-reading is possible. Similarly, for a person with dyslexia, reasonable accommodation could consist of access to computer programmes suited to meet their needs and compensatory time. 65. Failure to meet the individual needs of every disabled person will breach the norm of reasonable accommodation. Flexibility in answering individual needs and requirements is essential to reasonable accommodation. The principle contains an aspiration to meet the needs of the class of persons facing a particular disability. Going beyond the needs of the class, the specific requirement of individuals who belong to the class must also be accommodated. The principle of reasonable accommodation must also account for the fact that disability based discrimination is intersectional in nature. The intersectional features arise in particular contexts due to the presence of multiple disabilities and multiple consequences arising from disability. Disability therefore cannot be truly understood by regarding it as unidimensional. Reasonable accommodation requires the policy-makers to comprehend disability in all its dimensions and to design measures which are proportionate to needs, inclusive in their reach and respecting of differences and aspirations. Reasonable accommodation cannot be construed in a way that denies to each disabled person the customisation she seeks. Even if she is in a class of her own, her needs must be met. [Amita Dhanda, Prof. Reasonable accommodation cannot be construed in a way that denies to each disabled person the customisation she seeks. Even if she is in a class of her own, her needs must be met. [Amita Dhanda, Prof. of Law, NALSAR, “In a class of my own : Reasonable accommodation from a disability perspective” [ppt presentation].] While assessing the reasonableness of an accommodation, regard must also be had to the benefit that the accommodation can have, not just for the disabled person concerned, but also for other disabled people similarly placed in future. 19. Reasonable accommodation is designed to integrate individuals with disabilities into the broader social framework; rather than forcing them to conform to norms created for the physically able, it seeks to adapt societal structures to accommodate their differences. This concept is a crucial aspect of substantive equality, as it ensures that people with disabilities can participate fully in society by addressing their unique challenges. The universality of laws, when applied rigidly without considering individual differences, may undermine the ideal of substantive equality. Laws and policies that fail to accommodate the specific needs of persons with disabilities can perpetuate exclusion, despite their outward neutrality. Therefore, lawmakers and policymakers must be attuned to these issues and craft regulations that respond to these differences. Importantly, it is the duty of the Court to scrutinize the impact of general rules on those who are not in the same situation as others. By doing so, the judiciary ensures that the rule of law does not become a tool of inequality, but instead supports the broader goal of equal participation and opportunity for all members of society. In Khandige Sham Bhat and Anr. v. Agricultural Income-tax Officer, Kasaragod and Anr. ( AIR 1963 SC 591 ), the Apex Court emphasized the effect of law as a decisive factor to determine whether the law is discriminatory or not. In Lieutenant Colonel Nitisha & Ors v. Union of India & Ors.[ (2021) 15 SCC 125 ] the Apex Court again referred to the distinction between remote discrimination and real discrimination, and pointed out that indirect discrimination is cry foul of Article 14 of the Constitution of India. 20. It is appropriate to quote para.77 of the judgment of the Apex Court in Ravinder Kumar Dhariwal's case (supra), which reads as follows: "77. 20. It is appropriate to quote para.77 of the judgment of the Apex Court in Ravinder Kumar Dhariwal's case (supra), which reads as follows: "77. Since disability is a social construct dependent on the interplay between mental impairment with barriers such as social, economic and historical among other factors, the one-size-fits-all approach can never be used to identify the disability of a person. Disability is not universal but is an individualistic conception based on the impairment that a person has along with the barriers that they face. Since the barriers that every person faces are personal to their surroundings — interpersonal and structural, general observations on "how a person ought to have behaved" cannot be made." 21. The Apex Court in a recently delivered judgment in Civil Appeal No. 10611/2024, again referred to the “one size fit all” norm which cannot be applied in all circumstances and ordered that the State should mitigate such anomalies. After referring to the above referred judgments, it was held as follows: The reasonable accommodation as defined in Section 2(y) of the RPwD Act should not be understood narrowly to mean only the provision of assisting devices and other tangible substances which will aid persons with disabilities. If the mandate of the law is to ensure a full and effective participation of persons with disabilities in the society and if the whole idea was to exclude conditions that prevent their full and effective participation as equal members of society, a broad interpretation of the concept of reasonable accommodation which will further the objective of the RPwD Act and Article 41 of the Directive Principles of State Policy is mandated. 22. It is important to highlight that while the PSC mandates an online application process, it has failed to provide adequate measures or assistance for visually challenged individuals to successfully complete and submit their applications. The PSC’s application process requires candidates to provide detailed information, strictly in line with notifications, Special Rules, and other statutory provisions. Given the technical and complex nature of the process, this task cannot reasonably be performed by just anyone on behalf of the candidate. It demands a high level of familiarity with both the rules and the procedural nuances. For visually impaired candidates, who often rely on third-party assistance, this presents a significant barrier. Given the technical and complex nature of the process, this task cannot reasonably be performed by just anyone on behalf of the candidate. It demands a high level of familiarity with both the rules and the procedural nuances. For visually impaired candidates, who often rely on third-party assistance, this presents a significant barrier. Their dependency on others for accurately completing such a detailed and procedural task inherently limits their autonomy, and subjects them to an additional layer of difficulty that sighted candidates do not face. This failure to account for the needs of visually impaired individuals in the digital application process effectively excludes them from participating on an equal footing with their peers. 23. PSC discarded the conventional method of application. PSC’s General Conditions 26A and 27, do not consider the specific disadvantages faced by visually impaired candidates, who often rely on third-party assistance to submit online applications. This exclusionary approach disregards the need for accessibility and reasonable accommodation within the digital environment—a fundamental aspect of substantive equality which cannot be confined to the physical world alone. The failure to address the unique needs of visually impaired individuals in the online application process amounts to a denial of their right to equal opportunity. The duty of the State extends beyond merely providing access to public buildings and services; it must also ensure that digital platforms are accessible to everyone, including persons with disabilities. This obligation flows from both international and domestic law, specifically, UNCRPD and the Rights of Persons with Disabilities Act, 2016. PSC is a constitutional body, and it has a constitutional obligation to provide a fair opportunity to all prospective candidates to apply without barriers. The digital accessibility as such has to be read as part of substantial equality. The State and PSC are bound to address disadvantages faced by persons with visual disability. The State might realize equality cannot be achieved if the differences of such candidates are not responded to. Every race begins from a starting point. The starting points of all runners of the race cannot be the same. The starting point of the race of a person with a disability must be different from the candidate with ability. The State and PSC failed to recognise and acknowledge this. Our systems are designed for those with sight. Our laws are created for those who can see. The starting points of all runners of the race cannot be the same. The starting point of the race of a person with a disability must be different from the candidate with ability. The State and PSC failed to recognise and acknowledge this. Our systems are designed for those with sight. Our laws are created for those who can see. Our constitution gave us vision, yet we fail to recognise the blind. In doing so, we too become blind. Therefore, it is the duty of the PSC and the State to provide measures to allow visually challenged to submit applications online without barriers. The State or PSC are bound to establish service centers providing services to persons with disabilities including the visually challenged. We hope the State and the PSC will do the best for them. With that hope, we dismiss this original petition.