23 March 2017
Supreme Court
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PRANAY KUMAR PODDER Vs THE STATE OF TRIPURA

Bench: DIPAK MISRA,A.M. KHANWILKAR
Case number: C.A. No.-004393-004393 / 2017
Diary number: 31465 / 2015
Advocates: K. V. MOHAN Vs


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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4393 OF 2017 (Arising out of S.L.P.(C) No.27388 of 2015)

Pranay Kumar Podder  Appellant

                Versus

State of Tripura and Others Respondents  

W I T H

CIVIL APPEAL NO.4394 OF 2017 (Arising out of S.L.P.(C) No.30772 of 2015)

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. The  appellants,  after  crossing  two  scores  and  one,

nurtured  the  ambition,  which  is  quite  a  usual  feature  to

human nature unless the innate nature is distracted by some

kind of aberration, to prosecute medical education and for the

said purpose they appeared in the examination and obtained

the  requisite  marks  to  be  selected.   At  that  stage,  the  old

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saying  “the  proposals  conceived  in  mind  are  not  always

concretized” or the beginning does not achieve the end or for

many a reason, as it appears, took the principal seat and the

two students were declared to be ineligible to take admission

to MBBS course at the stage of counselling held on 23rd June,

2015 on the score that they suffered partial colour blindness.

In  such  a  situation,  the  appellants  being  determined  and

affirmatively  obstinate  not  to  abandon  their  pursuit,

approached the High Court of Tripura at Agartala in W.P.(C)

Nos.244 and 252 of 2015 seeking relief that the declaration of

ineligibility  by  the  concerned  Committee  was  absolutely

indefensible and legally impermissive.  The submission of the

appellants  was  built  on  the  foundation that  there  were  no

regulations framed by the Medical Council of India under the

Indian Medical  Council  Act,  1956, debarring the likes from

admission,  for  in  the  absence  of  a  regulation,  neither  any

instruction nor resolution of the MCI could throttle the right

to appear.

3. The stand and stance put forth by the appellants was

resisted by the State placing reliance on the recommendations

of the expert Committee of the Medical Council of India.  The

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said recommendations are as follows:-

“The expert committee deliberated at length about the importance of normal colour vision to pursue various subjects in the curriculum of MBBS course.  All the experts  unanimously  thought  that  the  presence  of normal colour vision was indispensable to acquire the desired competency of a MBBS doctor.  The presence of good colour vision is also essential to pursue post graduation  in  various  disciplines  of  Medicine  and Surgery.   Moreover,  as  the  normal  colour  vision  is essential  all  the  services  mentioned  under  the category  'Technical'  which  included  Indian  Police Service,  Indian  Forest  Service,  Railway  Engineering Service,  Indian  Railway  Traffic  Service,  Posts  on Marine establishment, Telegraph Engineering Services etc., it is imperative that the doctor who conducts the medical  exam of  these individuals  should also have normal colour vision.  The main recommendations of the Committee were as follows:-

The  testing  of  colour  vision  must  be  conducted  in respect  of  all  the  students  for  admission  to  MBBS course.  The colour defective students should not be allowed  to  pursue  the  MBBS  course  as  a  normal colour  vision  is  absolutely  necessary  for  such  a study.”

4. Apart  from  that,  reliance  was  also  placed  on  the

recommendations  dated  12th October,  2004  of  the  General

Body Meeting.  The said recommendations which are relevant

are extracted hereunder:-

“1.  Admission  of  visually  handicapped  persons  for MBBS:

It is mandatory that the students who are selected to join MBBS course should undergo an eye examination by a qualified Ophthalmologist and must be certified

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to have best corrected visual activity of 6/9 in each eye.  In case of one-eyed person, the best corrected visual activity should be 6/6. The candidate should be able to identify the three primary colours.

2. The time of onset blindness and continuation of their curriculum from thereon:

Retention  of  normal  vision  is  an  absolute  need  for undergoing the training in medical curriculum unlike in other streams of education like Arts and Science. Medicine  is  a  course  where  perfect  vision  is  the absolute  need.   The Committee  recommends that  a candidate  who  becomes  visually  challenged  after having been admitted to the course and completed to a reasonable extent his clinical training may still be considered fit for assessment and final examination. However,  if  the  candidate  develops  visual  challenge before acquiring reasonable amount of knowledge and skill  in clinical  and basic science he/she should be discharged from the course.”

5. The Division Bench of the High Court expressed the view

that  the  guidelines  issued  by  the  Medical  Council  of  India

deserves to be given its due weightage by the Court and it

should not interfere solely on the ground that the Regulations

are  silent  with  regard  to  the  denial  of  admission  to  an

individual suffering from colour blindness.  Being of this view,

it dismissed the writ petition.

6. When the matter  was listed on the  previous occasion,

having regard to the nature of the issue that deserves to be

delved into, we had appointed Mr. K.V. Viswanathan, learned

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senior counsel, as Amicus Curiae to assist the Court.

7. We have heard Mr. K.V. Mohan, learned counsel for the

appellants,  Mr.  Vikas  Singh,  learned  senior  counsel  along

with  Mr.  Gaurav  Sharma,  learned  counsel  for  the  Medical

Council of India and Mr. Shivam Singh, learned counsel for

the State of Tripura.   Mr. Viswanathan, the learned friend of

the Court, has assisted the Court from many an angle.

8. It is submitted by Mr. Mohan, learned counsel appearing

for the appellants that the High Court has fallen into error by

coming  to  hold  that  in  the  absence  of  prohibition  in  the

Regulations, the opinion of the Committee would be binding.

That apart, it  is  urged  by him, final decision has not yet

been taken with  regard to  the  eligibility  of  candidates  who

suffer  from Colour  Vision  Deficiency  (CVD)  by  the  General

Body for the purpose of prosecuting medical courses.  Learned

counsel  would  submit  that  there  is  a  distinction  between

visually  handicapped  person  and  a  person  suffering  from

colour blindness or CVD, but the Medical Council of India has

treated both of them at par, as a consequence of which the

likes of the appellants have been compelled to face extreme

discrimination.   To  bolster  his  submission,  he  has

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commended  us  to  a  decision  of  the  Delhi  High  Court  in

Dr. Kunal Kumar vs. Union of India and Others1  and a

judgment of the Rajasthan High Court in  Parmesh Pachar

vs. Convener, Central2.

9. Mr.  Vikas  Singh,  learned senior  counsel  appearing for

the Medical Council of India, controverting the submissions of

Mr.  Mohan, contended that the Regulations by the Medical

Council  of India may not be always specific and exhaustive

and, therefore, in the absence of any specific regulation, it can

issue instructions/guidelines or frame or indicate or provide

guidance for the purpose of eligibility criteria as regards the

candidates who can take admission in the medical courses,

for a statutory Council, in all circumstances, may not be in a

position to visualise all kinds of situations.  It is his further

submission  that  the  General  Body  has  specified  that  the

candidates should be able to identify three primary colours

and the same would mean that  a person who suffers from

colour blindness is within the excluded category.  That apart,

submits Mr. Singh, the judgments rendered by the Delhi High

Court and the High Court of Rajasthan are prior to the date of

1  101 (2002) DLT 471 2  RLW 2003 (4) Raj 2284

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resolution passed by  the  General  Body and,  therefore,  this

Court should not lay much emphasis on the judgments of the

said High Courts.

10. Mr.  Shivam  Singh,  learned  counsel  appearing  for  the

State of Tripura, echoed the submissions of Mr. Vikas Singh,

learned senior counsel for the Medical Council of India.

11. Having noted the submissions of the learned counsel for

the  contesting  parties,  the  controversy  could  have  become

simpler as the issue that emerges for consideration is whether

the  Medical  Council  of  India  can  debar  the  candidates

suffering from CVD to undertake medical courses on the basis

of  a  decision  taken  by  the  General  Body,  but  Mr.

Viswanathan, learned senior counsel appearing as the friend

of the Court, submits that this Court should travel beyond the

narrow boundary of the binding effect of the decision or the

resolution of the General Body of the Medical Council of India

and  perceive  the  controversy  regard  being  had  to  the

international  framework,  research,  practice  and  prevalence.

We are disposed to think that the submission advanced by

Mr.  Viswanathan in this  regard is  absolutely  justified  and,

therefore,  we  are  impelled  to  proceed  to  record  the

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submissions advanced by him.

12. It  is  canvassed  by  Mr.  Viswanathan  that  colour

blindness has to be understood as CVD and it happens when

someone cannot distinguish between certain colours, usually

between green and red and occasionally blue.  Emphasizing

on the  said aspect,  he has borrowed certain literature and

commented that the identification of  a bush that  has holly

berries  on it,  the  observation  by  a  pilot  of  the  patterns  of

coloured lights at an airport and learning about a person's

health by their  complexion are all  tasks in which a person

with CVD may fail.   Be it noted, the said concept finds place

in the Article written by J. Anthony B. Spalding.

13.  Learned  senior  counsel,  referring  to  various  study

material  available,  has  referred  to  Shinobu  Ishihar,  a

Professor at Tokyo Imperial University who, in the year 1916,

had developed a  diagnostic  method which is  still  the  most

common  test  for  colour  vision  deficiency;  and  that  test  is

called Ishihara test.   We do not intend to elaborate on the

methods of the said test.

14. Highlighting  on  the  causes  and  prevalence,  an  article

published under the heading “Colour Vision Deficiency” has

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been  brought  to  our  notice.  We  think  it  appropriate  to

reproduce the same:-

“a. Color deficiency is usually a hereditary condition linked to the ‘X’ Chromosome.

b. Color vision deficiency can also be acquired—not only as a result of diseases or conditions of the retina, optic nerve, or more posterior visual pathways in the brain—but also as a result of exposure to toxins and certain drugs.  Macular degeneration, optic neuritis, and strokes that affect certain areas of the occipital lobe, for example, can affect color perception.  Head injuries, systemic diseases that damages nerves (e.g., multiple sclerosis), heavy metal poisoning, and certain medications (e.g., anti-malarials) also can affect color vision adversely.

c. Unlike  congenital  color  vision defects,  acquired defects often affect visual acuity, are asymmetric from eye to eye, and may change as the disease changes”3.

d. Congenital CVD has a prevalence in the general population of 8% for men and 0.4% for women4.

e. Men are much more likely to be colorblind than women because  the  genes  responsible  for  the  most common,  inherited  color  blindness  are  on  the  X chromosome.   Inherited  color  blindness  can  be present  at  birth,  begin  in  childhood,  or  not  appear until the adult years5.

f. CVD prevalence varies from country to country and even race to race. Vijayalakshmi et al,  reported CVD in Hindu casts and religious groups of different parts of India. The prevalence reported was 2.1% in 7542 males and 0.2% in 3519 females [9]. In Western Nepal, in a study on 964 school children (10–19 years

3  Colour Vision Deficiency – Publication Review by : Stanley J. Swierzewski, III, M.D. 4  Color Vision Deficiency in the medical profession – J Anthony B Splading 5   Facts About Color Blindness – National Eye Institute of the National Institutes of  

Health, USA

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age group), CVD was found in 18 boys with prevalence of 3.8%, but none of the girls was found affected [12]. In USA, prevalence of CVD in junior medical students was 12.8% [10]. A study among medical students of Medical colleges, Kolkata, W.B. revealed prevalence of 4.8%  in  males.  The  prevalence  of  red-green  colour anomaly  among  males  was  27.3%  and  in  females, 34.8%.  There  was  significantly  higher  prevalence  of red green anomaly in females6.”

15. Learned senior counsel has reproduced certain passages

pertaining  to  diagnosis  of  colour blindness  from the  article

“Colour Blindness Causes, Risk Factors & Symptoms”.  They

read as under:-

“3. Diagnosis of Color Blindness

a. Inherited  color  vision  deficiency  is  usually diagnosed in early childhood using simple screening tests.   The Hardy-Rand-Ritter  (H-R-R_ and Ishihara Color Plates are used to evaluate the type and degree of color deficiency.  In these tests, the person is asked to  identify  the  colored  shapes  or  numbers  that  lie within  a  jumble  of  dots  and  vary  in  color  and intensity.  The physician detects and categorizes the deficiency based on the person's responses.

b. The D-15 and the Fransworth-Munsell 100-hue disk-matching  test  evaluate  the  ability  to  identify gradations of color by placing discs in order7.

c. In  a  September  2015  Article  in  the  Indian Journal of Opthalmology8, it is mentioned that Though many methods for  color  vision testing are available,

6  Prevalence of Colour vision Deficiency (CVD) In Medical Students in Kolkata, West Bengal Dipa Saha1, Kaushik Saha2 Volume 15, Issue 9 Ver. XII (September) 2016)  PP 01-03 www.iosrjournals.org

7  Supra 3 8  Tests for Colour Vision Deficiency: Is it time to revise the standards – Nidhi  

Pandey, A.K. Chandrakar, M.L. Garg : Pt. J.N.M. Medical College, Raipur

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there  is  no  consensus  on  the  ideal  method,  with different countries using different tests.  In India, the Ishihara  charts  are  the  most  widely  used,  with additional  use  of  Edridge-Green  lantern  in  civil services and Martin lantern in armed forces.[1,2]  The Ishihara test  is  quick and easy  and is  an excellent screening  tool  to  detect  those  with  red-green  CVD. However, it has a limited ability to classify CVD and determine its severity.  Organizations that require the correct  recognition  of  colored  signals  (principally transport groups such as the Civil Aviation Authority, Railways, Maritime, and Naval and Air force) depend on  a  standard  lantern  test  which  imitates  actual signal systems simulating the workplace. Lanterns do not specifically screen for color defects. It is surprising that even now, the general design of lanterns has not changed very much since their creation in 1891. With the exception of the Farnsworth lantern used in the USA, there are scarce studies on the validation and reliability of lanterns.  The panel tests, including the Farnsworth  Panel  D-15  and  Farnsworth–Munsell 100-hue tests, are much more accurate in classifying color  deficiency.  Farnsworth  Panel  D-15  Test  is considerably  quicker  and  more  convenient  test  for routine  clinical  use.  Though  not  very  sensitive,  its speed  and  accuracy  make  it  useful.  The  relative insensitivity  can  also  be  an  asset  in  judging  the practical  significance  of  mild  degrees  of  color deficiency.  For  example,  individuals  who  fail  the Ishihara plates but pass the D-15 panel will probably not  have  color  discrimination  problems under  most circumstances  and  in  most  jobs.[3]  Nagels anomaloscopes  is  considered  the  gold  standard  for color vision testing in clinical research, however, it is an  expensive  instrument  requiring  an  experienced examiner's skills.  Color vision is graded into higher and lower grade depending on the size of the aperture in the Edridge-Green lantern (1.3 mm vs. 13 mm),[1] with  the  technical  services  category  of  Indian  civil services,  which  includes  police  services  requiring higher grade of color vision. The United States police service no longer implements a color vision standard

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though monochromats are barred.[4]  Those who fail initial  color  vision  screening  by  pseudoisochromatic plates should be further evaluated by anamaloscope or D-15 test to include anomalous trichromats who are the most numerous among the CVD persons.  In an ongoing  study,  500 candidates  who appeared in the divisional medical board were studied.  Ishihara chart was used for initial screening of all candidates with  further  use  of  Edridge-Green  lantern  for candidates found to have CVD and selected for jobs requiring high grade of color vision. Sixty candidates (13%)  were  found  to  have  CVD;  39  of  those  were selected for jobs requiring accurate color perception. None of the candidates found to have CVD on testing by Ishihara chart could pass the lantern test. Only 21 candidates found to have CVD were previously aware of their deficiency.

d. The Edridge Green-Lantern Test, 1891 is claimed to  simulate  railway  signals  and  is  used  in  testing engine drivers in Great Britain.  It was used by the U.S.  Navy  for  qualification  of  midshipmen  and  line officers prior to adoption of the Farnsworth Lantern Test in 19539.

e. The  Fransworth  Lantern  Test  is  the  final qualifying test for the U.S. Navy, the U.S. Coast Guard Academy, and the U.S. Merchant Marine Academy.  It also may be used by the U.S. Army for qualification of pilots  and  by  the  U.S.  FAA  Aviation  Medical Examiners.   In  addition,  it  is  used  by  some  U.S. railroad systems and other organizations.10”

16. It is worth noting that Mr. J. Anthony B. Splading, in his

article, has found that medical professionals and practitioners

suffering from CVD have difficulty in detecting11:-

9    Color Vision Tests – National Research Council (US) Committee on Vision -  Procedures for Testing Color Vision; Report of Working Group 41. Washington (DC) : National Academies Press (US); 1981

10    Supra 9 11    The Truth About Color Vision in Healthcare – Dr. Terrace L. Waggoner Sr., O.D,

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• “Body color changes (pallor, cyanosis,  jaundice) • Skin rashes and erythema - • Stage I pressure ulcers - • Blood or bile in urine, faces, sputum, vomit - • Malaena – Mouth and throat conditions -  • Test strips for blood and urine - • Color coded charts, slides, and prints - • Color coded medications - • Color sensitive monitors”

17. Learned  senior  counsel  would  submit  that  the

Ophthalmologist  Association  of  Australia  has  issued  a

publication in 200912 which covers the following aspects:-

“i. No  medical  course  excludes  students  with abnormal colour vision, with the possible exception of a medical college in Taiwan that is known to have had a policy in 1995 of excluding students if  they failed the D-15 test.

ii. There have been colour vision requirements for medical  courses  in  Japan but  efforts  to  relax these began in the late 1980s and it seems they have been successful.

Iii. The prevalence of abnormal colour vision among medical practitioners is probably the same as it is in the general  population.   While  medical  practitioners with abnormal colour vision have reported that they sometimes  made  errors  due  to  their  colour  vision deficiency, it is not known how often they occur and how serious they are.

iv. The errors that do occur need to be viewed in the context  of  the  fact  that  medical  error  is  not uncommon and has a  variety  of  causes.   The right

Terrace L. Waggoner Jr.  12    J Anthony B Spalding, Barry L. Cole, Fraz A Mir: Advice for medical students and  

practitioners with colour vision deficiency: a website resource – Clin Exp Optom  2010; 93: 1: 39-41

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approach to error minimization is to recognise errors when they occur, identify their cause and find ways to avoid their recurrence.  This approach should apply to errors  that  may  arise  because  of  abnormal  colour vision.

v. Medical  practitioners  with  abnormal  colour vision can minimise errors by their choice of specialty, by placing reliance on sources of information that do not depend on colour and making sure they have good observation conditions, especially good lighting.

vi. It was suggested that all medical students who have abnormal colour vision should be aware of their deficiency before entering a medical course, that they should know its severity and have an appreciation of the  kind  of  problems it  may  cause  in  their  chosen career.”

18. Relying on the aforesaid literature, it is submitted by the

learned  senior  counsel  that  considering  that  an  MBBS

student  is  also  authorized  to  perform  surgeries  and  the

complete diagnosis and prognosis of a disease or disorder may

sometimes  depend  upon  colour  detection,  there  is

requirement  for  restriction  in  the  field  of  practice  of  an

individual  with  CVD  in  this  country.   He  has  mentioned

certain areas where difficulties  may arise.   The said areas,

according to him, are:-

“Pathology

Surgery and Surgical Branches (Ophthalmology, ENT, Gynae, Orthopaedics Etc.)

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Skin

General Medicine etc.”

19. According to the learned senior counsel, there are certain

areas where an individual with CVD can effectively practice

and they are:-

“Psychiatry

Social and Preventive Medicine

Anatomy

Physiology

Pharmacology etc.

Anaesthetics”

20. At this juncture, we may refer to the decision of the Delhi

High Court in Dr. Kunal Kumar  (supra).  The learned Single

Judge  of  the  High  Court  of  Delhi  made  the  following

observations:-

“At  the  outset,  I  may  notice  that  there  is  not hindrance  or  restriction  on the  petitioner,  who is  a duly  qualified  and  registered  medical  petitioner  to carry out his practice as a general  physician.  He is authorized  to  prescribe  drugs  and  treat  patients, without  acquiring  any  further  post  graduate qualification.  The  petitioner  has  been  found  to  be meritorious student. He is found to be eligible for a course in M.D. (Pathology),  based on his ranking in the examination. Based on the report as received from L.L.R.M. College,  regarding the  colour blindness,  he had  been  declined  admission  to  M.D.  (Pathology). There  appears  to  be  some  justification  for  denying admission  to  the  petitioner  in  Pathology.  This  is

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because in Pathology the concerned pathologist has to examine  various  colour  slides  under  a  microscope. The  inability  to  distinguish  colours  could  be  a handicap in minute examination of  various bacteria and  examination  of  different  slides.  However,  this should not prevent the petitioner from pursuing other courses  or  disciplines,  where  colour  blindness  may not be a handicap. ”

In  the  said  case,  the  High  Court  issued  a  writ  of

mandamus to grant admission to the petitioner therein in the

post-graduate course of Psychiatry.  

21. The Division Bench of the High Court of Rajasthan, in

the  case  of  Parmesh  Pachar (supra),  referred  to  certain

literature in the field and, eventually, opined thus:-

“Thus, it is clear that in British, American, Australian and  Canadian  medical  schools,  a  student  suffering from  colour  blindness  is  not  barred  from  being admitted. In the opinion of Professor Roger Robinson, Retired  Professor  of  Paediatrics  at  Guy's  Hospital Medical  School,  London,  as  expressed  in  his  letter dated  28.6.2002  (referred  to  above),  denial  of admission to a candidate by a medical school on the basis  of  red-green  colour  blindness  is  unacceptable and discriminatory. It  is  interesting to note  that  the Medical  Council  of India  has  recognised  medical  degrees  of  various foreign  universities  even  though  they  are  admitting students  with  colour  vision  deficiency  or  colour blindness. The Second Schedule to the Indian Medical Council Act, 1956, reveals that Bachelor of Medicine and  Bachelor  of  Surgery  from University  of  Bristol, University of Leeds, University of Liverpool, University of  London,  University  of  Oxford,  University  of Sheffield,  University  of  Wales,  University  of

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Edinburgh,  University  of  Glasgow,  University  of Dundee, University of New South Wales, University of Melbourne, Dalhousie University etc., are recognised.  It is queer logic that while a colour blind student can seek admission in the aforesaid foreign universities, he cannot seek admission in the home University. In case he qualifies in Bachelor of Medicine or Bachelor of Surgery in spite of his colour vision deficiency, his qualification will be recognised in India just because he  has  the  stamp  of  a  foreign  university.  The deficiency which is  considered to be a handicap for the  purposes  of  grant  of  admission  in  a  home university, no longer remains a debarring factor. This hypocritical policy has no logic and relevancy.  

22. As advised, at present, we do not intend to either lean in

favour of the view of the Delhi High Court or generally accept

the perception of the view of the High Court of Rajasthan.

23. In  the  course  of  deliberation,  it  is  submitted  by  Mr.

Viswanathan  that  complete  ban  on  the  admission  of

individuals  suffering  from CVD to  the  MBBS course  would

violate conferment of equal opportunities and fair treatment.

To  buttress  the  said  submission,  he  has  drawn  immense

inspiration from certain articles from the Convention on the

Rights of  Persons with Disabilities and Optional  Protocol  to

which India is a signatory.   Article 1 of the said Convention

deals with 'purpose'.  It is as follows:-

“The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all

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human  rights  and  fundamental  freedoms  by  all persons with disabilities, and to promote respect for their inherent dignity.

Persons with disabilities include those who have long-term  physical,  mental,  intellectual  or  sensory impairments  which  in  interaction  with  various barriers  may  hinder  their  full  and  effective participation in society on an equal basis with others.”

24. Article  3  stipulates  'general  principles'.   We  think  it

appropriate to extract the same:-

“The principles of the present Convention shall be: a. Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;

b. Non-discrimination;

c. Full  and  effective  participation  and  inclusion  in society;

d. Respect  for  difference and acceptance of  persons with  disabilities  as  part  of  human  diversity  and humanity;

e. Equality of opportunity;

f. Accessibility;

g. Equality between men and women;

h. Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.”

25. Article 4 provides for 'general obligations' and Article 9 of

the Convention lays the postulate of  accessibility.   Learned

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senior  counsel  would  emphasize  on  the  concept  of

accessibility, especially, clause (g) of Article 9.  That apart, he

has drawn our attention to Article 51(c) of the Constitution of

India which is as follows:-

“51. Promotion of  international  peace and security.- The State shall endeavour to -

(c)  foster  respect  for  international  law  and  treaty obligations in the dealings of organised peoples with one another.”

26. On the basis of the aforesaid, it is urged by the learned

senior counsel that with the progress of science, expansion of

many vistas of knowledge, inclusive culture having regard to

inclusive society and respect for differently-abled persons, it is

obligatory on the part of the Medical Council of India to take a

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.

27. In  Union  of  India  vs.  Devendra  Kumar  Pand  and

Others13,  a  two-Judge  Bench  has,  after  referring  to  two

authorities  in  Union  of  India  vs.  Sanjay  Kumar14 and

Kunal Singh vs. Union of India15, expressed doubt whether

13 (2009) 14 SCC 546 14 (2004) 6 SCC 708 15   (2003) 4 SCC 524

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a person lacking colour perception can claim to be a person

entitled to any benefit under the Act.   

28. In  this  regard,  a  passage  from  Justice  Sunanda

Bhandare Foundation vs. Union of India and Another16 is

apt quoting.  It reads as under:-

“9. Be that as it may, the beneficial provisions of the 1995 Act cannot be allowed to remain only on paper for years and thereby defeating the very purpose of such  law  and  legislative  policy.  The  Union,  States, Union Territories and all those upon whom obligation has been cast under the 1995 Act have to effectively implement  it.   As  a  matter  of  fact,  the  role  of  the governments  in  the  matter  such  as  this  has  to  be proactive.  In the matters of  providing relief  to those who are differently abled, the approach and attitude of the executive must be liberal and relief oriented and not obstructive or lethargic.  A little concern for this class who are differently abled can do wonders in their life and help them stand on their own and not remain on  mercy  of  others.  A  welfare  State,  that  India  is, must accord its best and special attention to a section of  our  society  which  comprises  of  differently  abled citizens. This is true equality and effective conferment of equal opportunity.”  

29. We  are  absolutely  conscious  that  the  said  authorities

have  been  rendered  in  the  context  of  the  Persons  with

Disabilities  (Equal  Opportunities,  Protection  of  Rights  and

Full Participation Act), 1995  (for short, 'the 1995 Act') and the

said Act has been repealed in 2016 and a new Act, i.e., the

Rights of Persons with Disabilities Act, 2016 (49 of 2016) has

16 (2014) 14 SCC 383

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come into force.  The present case, needless to say, does not

deal with any kind of reservation as laid down in the said Act.

However,  it  is  urged  by  Mr.  Viswanathan,  learned  Amicus

Curiae,  that  once  colour  blindness  is  not  considered  as  a

disability under the 1995 Act and also not a disability under

the 2016 Act, the nature and severity of colour blindness and

the disciplines they can practise has to be given a re-look.

30. Though we are not deciding the controversy at present,

for  we  are  inclined  to  issue  certain  directions  to  have  a

complete  picture  and  projection,  yet  we  are  disposed  to

observe that a human being is a magnificent creation of the

Creator  and  that  magnificence  should  be  exposed  in  a

humane, magnanimous and all-inclusive manner so that all

tend  to  feel  that  they  have  their  deserved  space.   Total

exclusion  for  admission  to  medical  courses  without  any

stipulation  in  which  they  really  can  practise  and  render

assistance would tantamount to regressive thinking.  When

we conceive of global phenomenon and universal brotherhood,

efforts are to be made to be within the said parameters.  The

march of science, apart from our constitutional warrant and

values, commands inclusion and not exclusion.  That is the

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way a believer in human rights should think.  

31. In view of the aforesaid submissions, we direct as

follows:-

(I) The  Medical  Council  of  India  shall  constitute  a

Committee of experts that shall include the representatives of

the  Medical  Council  of  India,  experts  from  genetics,

ophthalmology, psychiatry and medical education, who shall

be from outside the members of the Medical Council of India.

At  this juncture,  we must appreciably state  that  Mr.  Vikas

Singh, learned senior counsel, has submitted that the Court

may say that the persons as experts who are to be taken from

outside,  shall  be  from  the  All  India  Institute  of  Medical

Sciences (AIIMS), and the Post Graduate Institute of Medical

Education and Research, Chandigarh.

(II) The Medical  Council  of  India may also invite Mr.  K.V.

Viswanathan along with Mr. M. Shoeb Alam to assist them to

take a view.  Be it noted, Mr. Vikas Singh has gladly accepted

the suggestion.

(III) The expert Committee shall review the situation and take

note of the prevalent conditions of the study and practice and

suggest changes for adoption in the medical course keeping in

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view the international practices.

(IV) The  expert  Committee  shall  also  concentrate  on

diagnostic  test  for  progress  and review of  the  disorder  and

what are the available prosthetics aids to assist CVD medical

practitioners and what areas of practice could they undertake

without difficulty with these aids.

(V) The Committee shall meet within a period of three weeks

and submit a report to this Court within three months hence.

32. Let the matter be listed for further hearing on 11th July,

2017.

       

...........................J.    [Dipak Misra]

...........................J.    [A.M. Khanwilkar]

New Delhi March 23, 2017.