Supreme Court: In a case where a citizen, who suffers from a writer’s cramp, was denied a scribe in the civil services’ examination, the 3-judge bench of Dr. DY Chandrachud*, Indira Banerjee and Sanjiv Khanna, JJ has held that writer’s cramp Forms part of Entry IV of the Schedule to the Rights of Persons with Disabilities Act, 2016 (RPwD Act 2016) and
“To deny the facility of a scribe in a situation such as the present would negate the valuable rights and entitlements which are recognised by the RPwD Act 2016.”
Background
The appellant, after obtaining an MBBS degree from the Jawaharlal Nehru Institute of Post Graduate Medical Instruction and Research, intended to pursue a career in the civil services. A scribe was provided to him by the Union Public Services Commission to enable him to appear in the written test for CSE in 2017. In the online application form for CSE 2017, the appellant declared himself to be a person with locomotor disability to avail the services of a scribe.
In his online application for the CSE 2018, the appellant declared himself to be a person with a benchmark disability of 40% or more. By his email dated 28 February 2018, the appellant requested the UPSC to provide him with a scribe for the examination. UPSC, by its letter dated 15 March 2018, rejected the request on the ground that a scribe could be provided only to blind candidates and candidates with locomotor disability or cerebral palsy with an impairment of at least 40% and the appellant did not meet this criterion.
He also sought to appear for selection to the post of Medical Officer pursuant to the Combined Medical Services Examination 2017 conducted under the auspices of UPSC. By a communication dated 12 February 2018, the disability certificate was denied to him by Medical Board of Ram Manohar Lohia Hospital, Delhi.
Tribunal’s decision
By a judgment dated 7 August 2018, the Tribunal dismissed the application filed by the appellant on the ground that, since Ram Manohar Lohia Hospital had refused to issue a disability certificate, the appellant could not claim access to a scribe as a disabled candidate. The Tribunal also noted that the appellant did not claim the facility of a scribe in the CSE 2017 or during his MBBS graduation examinations. The Tribunal held that though in para 5 of the CSE Notification 2018, the UPSC recognized the right to a scribe, it has been limited to blind candidates and candidates having locomotor disability and cerebral palsy, where a minimum 40% impairment exists. The appellant was held not to fulfill the criteria.
Delhi High Court’s decision
A Division Bench of the High Court of Delhi by an order dated 25 September 2018 declined to interfere with the order of the Tribunal on the ground that the appellant had not qualified at the Preliminary Examination for CSE 2018 and thus, the relief seeking an amendment of the CSE Rules 2018 to provide scribes to candidates with specific disabilities was rendered otiose. The appellant was granted liberty to file another application before the Tribunal in the future. This order of the High Court of Delhi has been challenged in appeal.
Supreme Court’s decision
Scheme of RPwD Act 2016
“Part III of our Constitution does not explicitly include persons with disabilities within its protective fold. However, much like their able-bodied counterparts, the golden triangle of Articles 14, 19 and 21 applies with full force and vigour to the disabled. The RPwD Act 2016 seeks to operationalize and give concrete shape to the promise of full and equal citizenship held out by the Constitution to the disabled and to execute its ethos of inclusion and acceptance.”
Section 3 casts an affirmative obligation on the government to ensure that persons with disabilities enjoy (i) the right to equality; (ii) a life with dignity; and (iii) respect for their integrity equally with others. By recognizing a statutory right and entitlement on the part of persons who are disabled, Section 3 seeks to implement and facilitate the fulfillment of the constitutional rights of persons with disabilities.
“There is a critical qualitative difference between the barriers faced by persons with disabilities and other marginalized groups. In order to enable persons with disabilities to lead a life of equal dignity and worth, it is not enough to mandate that discrimination against them is impermissible. That is necessary, but not sufficient. We must equally ensure, as a society, that we provide them the additional support and facilities that are necessary for them to offset the impact of their disability.”
According to the scheme of the RPwD Act, 2016 that “person with disability” and “person with benchmark disability” are treated as separate categories of individuals having different rights and protections. A third category of individuals “persons with disability having high support needs” has also been defined under the RPwD Act 2016.
The RPwD Act 2016 is fundamentally premised on the recognition that there are many ways to be, none more ‘normal’ or ‘better’ than the other. It seeks to provide the disabled a sense of comfort and empowerment in their difference.
Recognizing the state of affairs created by centuries of sequestering and discrimination that this discrete and insular minority has faced for no fault on its part, the RPwD Act 2016 aims to provide them an even platform to thrive, to flourish and offer their unique contribution to the world.
“It gives a powerful voice to the disabled people who, by dint of the way their impairment interacts with society, hitherto felt muted and silenced. The Act tells them that they belong, that they matter, that they are assets, not liabilities and that they make us stronger, not weaker.”
When the government in recognition of its affirmative duties and obligations under the RPwD Act 2016 makes provisions for facilitating a scribe during the course of the Civil Services Examination, it cannot be construed to confer a largesse. Nor does it by allowing a scribe confer a privilege on a candidate. The provision for the facility of a scribe is in pursuance of the statutory mandate to ensure that persons with disabilities are able to live a life of equality and dignity based on respect in society for their bodily and mental integrity.
“To confine the facility of a scribe only to those who have benchmark disabilities would be to deprive a class of persons of their statutorily recognized entitlements. To do so would be contrary to the plain terms as well as the object of the statute.”
Reasonable accommodation
“The cornerstone of the reasonable accommodation principle is making adjustments that enable a disabled person to effectively counter the barriers posed by their disability.”
At the heart of this case lies the principle of reasonable accommodation. Individual dignity undergirds the RPwD Act, 2016 . Intrinsic to its realization is recognizing the worth of every person as an equal member of society.
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. 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.
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 customization she seeks. Even if she is in a class of her own, her needs must be met.”
Possibility of misuse
“To think that persons with disabilities who do not have a benchmark disability but nonetheless request access to a scribe, as a class, have the objective of gaming the system is to misunderstand their aspiration, to stamp them with a badge of cheaters and to deprive them of their lawful entitlements.”
Additional Solicitor General Madhavi Divan emphasised on the competitive nature of the CSE and of the need to preserve the purity of the examination. The Court, however, found it difficult to accept the argument and said that there can be no doubt about the fact that the CSE is competitive in itself but the apprehension that the facility of a scribe should not be misused can furnish no valid ground to deprive the whole class of citizens – persons with disability who need a scribe – from the statutory entitlements which emanate from the provisions of the enactment, on the supposition that someone may misuse the provisions of the law.
“Undue suspicion about the disabled engaging in wrongdoing is unwarranted. Such a view presumes persons with disabilities, as a class, as incompetent and incapable of success absent access to untoward assistance. The disabled confront stereotypes in several aspects of their day to day lives. One of them is that they do not perform as well as others. Like other stereotypes, this one is also totally flawed and contrary to reality. Such an ableist premise is inconsistent with the approach to disability enshrined in the UNCRPD and the RPwD Act 2016.”
When an able-bodied student engages in cheating, the normal consequence is their disqualification or other suitable punitive action. The same consequence can flow from a candidate using their disability to game the system.
“The system may be vulnerable to being gamed by able-bodied persons, however, it is the persons with disabilities who are being asked to bear the cost of maintaining the purity of the competitive examinations by giving up their legal entitlements on the presumption that there is a possibility of misuse.”
Realizing the transformative potential of the Rights of Persons with Disabilities Act 2016
The nodal Ministry, in coordination with other relevant actors, must make a concerted effort to ensure that the fruits of the Act actually reach the intended beneficiaries. In this regard,
- Article 8(2) of the UNCRPD outlines the awareness-raising measures that must be undertaken. These must be conducted to recognize and advance knowledge of the skills and abilities of persons with disabilities and of their contributions to the workforce and foster respect for the decisions of persons with disabilities in their family life.
- Sensitization programmes must be held at educational institutions and in professional spheres on the condition of disability and the rights of disabled persons and the like.
- The government must give effect to these provisions regularly to sensitize our society to the everyday challenges that may be imposed by the actions or inactions of the able-bodied on their disabled counterparts.
Formulation of new policy concerning access to scribes for persons with disabilities
- Union Government in the Ministry of Social Justice and Empowerment to ensure the framing of proper guidelines which would regulate and facilitate the grant of a facility of a scribe to persons with disability within the meaning of Section 2(s) where the nature of the disability operates to impose a barrier to the candidate writing an examination.
- In formulating the procedures, the Ministry of Social Justice and Empowerment may lay down appropriate norms to ensure that the condition of the candidate is duly certified by such competent medical authority as may be prescribed so as to ensure that only genuine candidates in need of the facility are able to avail of it. This exercise shall be completed within a period of three months.
- While framing the guidelines, the Union Government should be mindful that the duty to provide reasonable accommodation is an individualized duty as has also been noted by the CRPD Committee in General Comment. In other words, a case-by-case approach must be adopted by the relevant body charged with the obligation of providing reasonable accommodation.
- While considering the financial cost and resources available for the provision of accommodation, the overall assets rather than just the resources of the concerned unit or department within an organization must be taken into account. It should also be ensured that persons with disability are not required to bear the costs of the accommodation.
- Consultation with persons with disabilities and their involvement in decision making about matters affecting their lives is necessary to bring about any meaningful change in the realization of their rights.
[Vikash Kumar v. Union Public Service Commission, 2021 SCC OnLine SC 84, decided on 11.02.2021]
*Judgment by: Justice Dr. DY Chandrachud