India swaps 40-yr-old definition of blindness for WHO criteria: Move may allow blanket discrimination against visually impaired

Last week, as per a notification issued by the Union Health Ministry, India embraced the World Health Organisation’s (WHO) definition of blindness, and changed its four-decade old criteria of what blindness should be.  In the process, India would drastically bring down the number of people who will be considered ‘blind’ in the country.

Image used for representational purpose only.

Image used for representational purpose only.

The new definition suggests that a person who is unable to count fingers from a stipulated distance of three metres would be regarded as ‘blind’. The earlier definition of blindness, adopted in 1976, had a prerequisite of six metres. With the implementation of the new definition, the number of blind people would reduce from 1.20 crore to 80 lakh, according to the National Blindness survey 2007.

The rationale for the erstwhile definition of blindness was to include economic blindness cases that impede a person’s ability to earn wages, while the WHO criteria includes people who have social blindness, which hampers the day to day interactions in a person’s life.

The definition was revised so that comparable data could be generated so as to analyse it against global estimates and achieve the attain the WHO objective of reducing the prevalence of India to 0.3% of the total population by 2020.

Keeping this move in mind, the name of the government scheme that targets the blind population has been changed from the National Programme for Control of Blindness to the The National Programme for Control of Blindness and Visual Impairment, and its focus would be on both blind as well as visually impaired people.

Deputy Director General of National Programme for Control of Blindness (NPCB), Dr Promila Gupta, stated, “Because of the earlier definition, we were projecting a higher figure of blind people from India at any international forum, presenting ourselves in poor light.”

It is important to assess this decision of the Union Health Ministry in order to understand how this will impact the blind population legally. India ratified the United Convention on Rights of Persons with Disabilities (CRPD) in 2007. However, the domestic legislation that protects the rights of disabled persons, The Rights of Persons with Disabilities Act, 2016, was only passed in December.

This new legislation would replace The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which would be repealed. The Persons with Disabilities Act was inadequate in recognising the rights enunciated within the CRPD, and did not codify or mention basic CRPD principles of ‘legal capacity’ and ‘reasonable accommodation’.

While the new Act includes a number of new conditions in the disabilities list, it retains blindness as a disability, along with 21 other conditions, and a power to the central government for adding more types of conditions, if required. Low vision is also another condition in this list. The Act casts a responsibility upon appropriate governments to take effective measures to ensure that the persons with disabilities enjoy their fundamental rights equally with others.

The new Act most importantly codifies the principle of reasonable accommodation within the clause that defines ‘discrimination’. Section 2 (h) defines discrimination thus — “discrimination” in relation to disability, means any distinction, exclusion, restriction on the basis of disability which is the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field and includes all forms of discrimination and denial of reasonable accommodation”. It also defines reasonable accommodation as does the CRPD — “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.”

Keeping the new understanding of blindness in India, it is vital to question whether this decision would affect the legal capacity and fundamental freedoms of the 40 lakh population that was regarded as legally blind before this Health Ministry directive, but now have ceased to be so because of a new definition of the disability. How would this affect their employment and capacity to earn a livelihood? And most significantly, how would this affect the way reasonable accommodation is invoked for the blind?

In Pranay Kumar Poddar v. State of Tripura and Others (2017), the Supreme Court asked some very pertinent questions regarding blindness and employment in the medical practice. The bench comprising Justice Dipak Misra and Justice AM Khanwilkar directed the Medical Council of India to constitute a committee of experts to look into the areas of practice that MBBS aspirants with colour blindness could engage in.

The bench also stated that it was an obligation of the Medical Council of India to look into and take “progressive measure so that an individual suffering from CVD may not feel like an alien to the concept of equality, which is the fon juris of our Constitution.” The amicus curiae, Mr Vishwanathan, argued that since colour blindness was not regarded as a disability under the Persons with Disabilities Act, 1995 or the Rights of Persons with Disabilities Act 2016, there needs to be an examination of the nature and severity of colour blindness and the corresponding subjects they can practice.

The Supreme Court stated: “Total exclusion for admission to medical courses without any stipulation in which they really can practice and render assistance would tantamount to regressive thinking. The march of science, apart from our constitutional warrant and values, commands inclusion and not exclusion. That is the way a believer in human rights should think.”

In the case of Ashutosh Kumar v. Film and Television Institute of India (2017), the Bombay High Court upheld the rules laid down the Film and Television Institute of India (FTII) that stated that candidates suffering from colour blindness would not be suitable for the course. The Division Bench of Justice Shantanu Kemkar and Justice Prakash Naik rejected the petition of Ashutosh Kumar who was denied admission for a post-graduate course on editing at the Institute.

The court stated that the rules of FTII must be upheld and that the Ashutosh was suffering from colour blindness, and that there was no malafide or arbitrariness in the rules or the recommendations of the expert committee of the Institute. A Delhi High Court case of 2013 adjudicated that colour blindness was not a ground for denying promotion, and directed government authorities to treat CRPF personnel with colour blindness on par with others for promotion.

In Bhagwan Dass and Anr v. Punjab State Electricity Board (2008), the appellant had become completely blind during his service, and the respondent had categorically refused to accommodate him in an alternate position, and instead terminated his service according to the Persons with Disabilities Act.

The Supreme Court, in the case, took a protective view of persons with disabilities and reiterated the judgment in Kunal Singh v. Union of India:  “In construing a provision of a social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act.”

The judgments discussed indicate that there is not a contextual understanding or nuancing of how blindness is perceived in a legal sphere: This means that there is no pattern of adjudicating upon blindness and its relationship with legal rights and the principle reasonable accommodation at the workplace.

With the change in definition of blindness, this nuance is likely to get more difficult and as a result of this, several lakh people may be affected adversely. Changing the definition of blindness, without putting in place proper systems, has created a dangerous situation where blanket discrimination against the visually impaired may take place by both government as well as private actors.

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Updated Date: Apr 25, 2017 10:40:38 IST

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