The story so far: The Karnataka High Court has ruled in favour of the State’s circular that students in educational institutions should only wear prescribed uniforms, and where no code was prescribed, they should wear “such attire that would accord with equality and integrity and would not disrupt public order”. The decision effectively upheld the denial of entry to students wearing the hijab. The court rejected an argument in support of permitting Muslim girls wearing head-scarves that was based on the principle of ‘reasonable accommodation’. This meant that the court did not favour making any change or adjustment to the rule that could have enabled the students to maintain their belief or practice even while adhering to the uniform rule.
What is it?
‘Reasonable accommodation’ is a principle that promotes equality, enables the grant of positive rights and prevents discrimination based on disability, health condition or personal belief. Its use is primarily in the disability rights sector.
Editorial | Essentially flawed: On the Karnataka High Court’s hijab verdict
Article 2 of the UN Convention on the Rights of People with Disabilities (UNCRPD) defines reasonable accommodation as “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”.
The International Labour Organization (ILO), in its recommendation on HIV/AIDS and the world of work, defines it as “any modification or adjustment to a job or to the workplace that is reasonably practicable and enables a person living with HIV or AIDS to have access to, or participate or advance in, employment”.
How does the principle work?
The general principle is that reasonable accommodation should be provided, unless some undue hardship is caused by such accommodation.
In 2016, the ILO came out with a practical guide on promoting diversity and inclusion through workplace adjustments. The need for workplace accommodation may arise in a variety of situations, but four categories of workers were chosen for the guide: workers with disabilities, workers living with HIV and AIDS, pregnant workers and those with family responsibilities, and workers who hold a particular religion or belief. These categories of workers come across different kinds of barriers at work. These may result in either loss of employment or lack of access to employment. “The provision of reasonable accommodation plays a major role in addressing these barriers and thus contributes to greater workplace equality, diversity and inclusion,” says the ILO guide.
A modified working environment, shortened or staggered working hours, additional support from supervisory staff and reduced work commitments are ways in which accommodation can be made. Suitable changes in recruitment processes — allowing scribes during written tests or sign language interpreters during interviews — will also be a form of accommodation.
What is the legal position on this in India?
In India, the Rights of People with Disabilities Act, 2016, defines ‘reasonable accommodation’ as “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”.
The definition of ‘discrimination’ in Section 2(h) includes ‘denial of reasonable accommodation’.
In Section 3, which deals with equality and non-discrimination, sub-section (5) says: “The appropriate Government shall take necessary steps to ensure reasonable accommodation for persons with disabilities.”
In Jeeja Ghosh and Another v. Union of India and Others (2016), the Supreme Court, while awarding a compensation of ₹10 lakh to a passenger with cerebral palsy who was evicted from a flight after boarding, said: “Equality not only implies preventing discrimination ..., but goes beyond in remedying discrimination against groups suffering systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation.”
The Supreme Court elaborated on the concept in Vikash Kumar v. UPSC (2021). This was a case in which the court allowed the use of a scribe in the Union Public Service Commission examination for a candidate with dysgraphia, or writer’s cramp. The court ruled that benchmark disability, that is a specified disability to the extent of 40%, is related only to special reservation for the disabled in employment, but it need not be a restriction for other kinds of accommodation. It also said failure to provide reasonable accommodation amounts to discrimination.
In the recent Karnataka verdict on wearing the hijab, the High Court did not accept the argument based on a South African decision that reasonable accommodation can be made for allowing minor variations to the uniform to accommodate personal religious belief. The appeal against the verdict in the Supreme Court provides an opportunity to see if the concept can be used in the realm of belief and conscience too.
