The International Labour Organisation (ILO), Supreme Court, hijab, and fundamental rights have recently taken center stage as the Karnataka High Court delivered its verdict on a controversial issue. This revolves around the court’s support for a state circular that mandated students in educational institutions to adhere to prescribed uniforms. In doing so, the court effectively upheld the denial of entry to students wearing the hijab. The court also dismissed an argument advocating for Muslim girls to wear headscarves based on the ‘reasonable accommodation’ principle.
Exploring the Principle of ‘Reasonable Accommodation’
The principle of ‘reasonable accommodation’ is a pivotal concept aimed at fostering equality, endorsing the conferment of positive rights, and eliminating discrimination, whether disability, health condition, or personal belief oriented. Its application is primarily in the realm of disability rights, casting light on the state and private parties’ positive obligation to offer additional support to individuals with disabilities, thereby facilitating their full and active participation in society.
In terms of the constitutionally assured fundamental rights to equality (Article 14), the six freedoms (Article 19), and the right to life (Article 21), these provisions would be rendered hollow without the additional support provided under this principle, making the rights tangible and meaningful.
Rights of People with Disabilities Act, 2016 & UNCRPD Article 2
Article 2 of the UN Convention on the Rights of People with Disabilities (UNCRPD) underlines the necessity of appropriate modifications and adjustments that don’t impose a disproportionate or undue burden. This ensures persons with disabilities enjoy or exercise all human rights and fundamental freedoms equally with others.
In India, the Rights of People with Disabilities Act, 2016 defines reasonable accommodation as necessary and appropriate modification and adjustments, not imposing a disproportionate or undue burden in a particular case, to ensure equal rights enjoyment or exercise for persons with disabilities.
Case Study: International Labour Organisation (ILO)
In 2016, the ILO launched a practical guide promoting diversity and inclusion through workplace adjustments. This guide focuses on four categories of workers: workers with disabilities, workers living with HIV and AIDS, pregnant workers and those with family responsibilities, and workers practicing a particular religion or belief.
A modified working environment, shortened or staggered work hours, additional supervisory staff support, and reduced work commitments are among the accommodations that can be made.
Legal Position in India
The definition of ‘discrimination’ in Section 2(h) of the Rights of People with Disabilities Act, 2016 includes ‘denial of reasonable accommodation’. There have been key court rulings in the country regarding reasonable accommodation, such as Jeeja Ghosh and Another v. Union of India and Others (2016) and Vikash Kumar v. UPSC (2021).
In these cases, the courts held that equality not only implies preventing discrimination but also includes remedying discrimination against groups suffering systematic discrimination in society. This encompasses the notion of positive rights, affirmative action, and reasonable accommodation. The failure to provide reasonable accommodation constitutes discrimination.
This discourse further underscores the benefits available under the law for the millions of people with disabilities in India, such as free schooling till the age of 18 years in government run schools, preferential land allotment for business setup, and ramps in public buildings.
