11 Feb 2121

Benchmark Disability is no longer a condition to be eligible for the facility of a scribe for writing in conventional examinations - Supreme Court of India

Case : Vikash Kumar v. Union Public Service Commission & Ors. Civil Appeal No. 273 of 2021

Court : Supreme Court of India

Bench : Justice Dr Dhananjaya Y Chandrachud, Justice Indira Banerjee and Justice Sanjiv Khanna

Decided on : 11 Feb 2121

Relevant Statutes

Articles 14, 19 and 21 of the Constitution of India

Rights of Persons with Disabilities Act, 2016

Rights of Persons with Disabilities Rules, 2017

Civil Services Examination Rules 2018

Brief Facts and Procedural History

1. The appellant has a disability in the form of dysgraphia, commonly known as a Writer’s Cramp. In August 2016, he graduated with an MBBS degree from the Jawaharlal Nehru Institute of Post Graduate Medical Instruction and Research.

2. Intending to pursue a career in civil services, he appeared in 2017 for the Civil Services Exam. A scribe was provided to him by the Union Public Services Commission to enable him to appear in the written test. In the online application form for Civil Services Examination 2017, the appellant declared himself to be a person with a locomotor disability to avail the services of a scribe.

3. The Department of Personnel and Training issued the Civil Services Examination Rules 2018 providing for the manner and conduct of the examination. The general instructions provided that all candidates must write their papers in their hand and will not be allowed the help of a scribe except blind candidates; candidates with locomotor disability and cerebral palsy where the “dominant (writing) is affected to the extent of slowing the performance of function (minimum of 40% impairment)”.

4. In his online application for the Civil Services Examination 2018, the appellant declared himself to be a person with a benchmark disability of 40% or more. By an email, the appellant requested the Union Public Service Commission to provide him with a scribe for the examination. Union Public Service Commission rejected the request on the ground that the appellant did not meet the required criterion.

5. The appellant 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 the Union Public Service Commission. The Medical Board of Ram Manohar Lohia Hospital, Delhi denied the disability certificate to him. Aggrieved by the denial of the services of a scribe for the Civil Services Examination 2018, the appellant moved to the Central Administrative Tribunal. By an interim order, the Tribunal directed the Union Public Service Commission to provide him with a scribe to enable him to appear for the preliminary examination. The appellant’s result was withheld.

6. 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 as the appellant was held not to fulfil the criteria. The Tribunal also rejected a certificate issued by the National Institute of Mental Health and Neuro Sciences, on the ground that it failed to mention the extent of the disability. Finally, the Tribunal questioned the maintainability of the prayer of the appellant for a direction to the Union Public Service Commission to amend the Civil Services Examination Notification 2018. Since the relief was in the realm of advising the executive on policy matters, the Tribunal refrained from interfering in the matter.

7. The appellant instituted a writ petition before the High Court of Delhi and challenged the legality of the Civil Services Examination Rules 2018. Meanwhile, he obtained a medical certificate from the National Institute of Mental Health and Neuro Sciences (NIMHANS), Bangalore, declaring that he has a Writer’s Cramp and would require a scribe during his examinations. A Division Bench of the High Court of Delhi declined to interfere with the order of the Tribunal on the ground that the appellant had not qualified at the Preliminary Examination for Civil Services Examination 2018 and thus, the relief seeking an amendment of the Civil Services Examination 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.

8. The appellant challenged the order of the High Court of Delhi in appeal.

Issue of the Case

Whether the appellant is entitled to a scribe for writing in an examination organized under the Union Public Service Commission?

The Observations of the Court

1. The Honourable Supreme Court observed that:A citizen who suffers from a writer’s cramp travelled to the Supreme Court for the redressal of his grievance that he was denied a scribe in the civil services examination. Through statutes, rules, and regulations, the case raised core issues about the actual realization of equal opportunity and access to the disabled and their continuing quest for dignity. It tested what the law professes with how its ideas are realized. Voices such as those of the appellant are a constant reminder of the chasm between the law and reality. But they also provide a platform for change and evolution towards a better future.

2. During the proceedings, the Supreme Court had directed the All India Institute of Medical Sciences to constitute a medical board to evaluate the condition of the appellant and render its opinion on:

a. Whether he suffers from a benchmark disability within the meaning of Section 2(r) and Section 2(zc) of the Rights of Persons with Disabilities Act, 2016.

b. Whether he is a ‘person with disability’ under Section 2(s) of the Rights of Persons with Disabilities Act, 2016 and the extent of the disability.

3. All India Institute of Medical Sciences opined that the appellant suffers from a “chronic neurological condition” termed as bilateral Writer’s Cramp. However, he does not suffer from a “benchmark disability”, the appellant is a ‘person with disability’ under the Rights of Persons with Disabilities Act, 2016. The extent of the disability was assessed at 6%.

4. The Rights of Persons with Disabilities Act, 2016 embodies two distinct concepts when it speaks of ‘persons with benchmark disabilities’ [Section 2(r) and Section 2(zc)] and ‘persons with disability’ [Section 2(s)]. Section 2(r) encompasses both, a situation where a specified disability has not been defined in measurable terms, in which event it means a person with not less than 40% of the specified disability but also where a specified disability has been defined in measurable terms. A certification by the certifying authority is contemplated in regard to whether the person concerned does meet the specified norm as quantified.

5. The second concept embodied in Section 2(s) is that of a person with a disability. Section 2(s) unlike Section 2(r) is not tagged either with the notion of a specified disability or a benchmark disability as defined in Section 2(r). Section 2(s) has been phrased in broad terms to mean a person with a long-term physical, mental, intellectual, or sensory impairment which in interaction with various barriers hinders full and effective participation in society equally with others. Section 2(s) is significant because it recognizes firstly, the nature of the impairment, secondly, the interconnection of the impairment with various barriers, and thirdly, the impact of the impairment in hindering full and effective participation on a footing of equality.

6. Conflating the rights and entitlements which inhere in persons with disabilities with the notion of benchmark disabilities does dis-service to the salutary purpose underlying the enactment of the Rights of Persons with Disabilities Act, 2016. To deny the rights and entitlements recognized for persons with disabilities on the ground that they do not fulfil a benchmark disability would be ultra vires the Rights of Persons with Disabilities Act, 2016.

7. The fundamental postulate upon which the Rights of Persons with Disabilities Act, 2016 is based is the principle of equality and non-discrimination. Section 3 is an affirmative declaration of the intent of the legislature that the fundamental postulate of equality and non-discrimination is made available to persons with disabilities without constraining it with the notion of a benchmark disability. Section 3 is a statutory recognition of the constitutional rights embodied in Articles 14, 19, and 21 among other provisions of Part III of the Constitution. By recognizing a statutory right and entitlement on the part of persons who are disabled, Section 3 seeks to implement and facilitate the fulfilment of the constitutional rights of persons with disabilities. The other provisions follow upon the basic postulates embodied in Section 3 by applying them in specific contexts to ensure rights in various milieus such as community life, reproduction, access to justice and guardianship, guarantees for social security, health, rehabilitation, and recreation to persons with disabilities.

8. There is a critical qualitative difference between the barriers faced by persons with disabilities and other marginalized groups. 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. The Supreme Court in Jeeja Ghosh v. Union of India, (2018) 2 SCC 397, noted that a key component of equality is the principle of reasonable differentiation and specific measures must be undertaken, recognizing the different needs of persons with disabilities, to pave the way for substantive equality. 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.

9. The principle of reasonable accommodation has found a more expansive manifestation in the Rights of Persons with Disabilities Act, 2016. While most of the obligations under the Rights of Persons with Disabilities Act, 2016 are cast upon the government or local authorities, the Act and rules made under it have also imposed certain obligations on the private sector. The Supreme Court in Union of India v. National Federation of the Blind, (2013) 10 SCC 772 recognized that employment opportunities play an instrumental role in empowering persons with disabilities.

10. When the government in recognition of its affirmative duties and obligations under the Rights of Persons with Disabilities Act, 2016 makes provisions for facilitating a scribe during the Civil Services Examination, it cannot be construed to confer largesse or a privilege on a candidate. It is a statutory mandate to ensure that persons with disabilities can live a life of equality and dignity based on respect in society for their bodily and mental integrity.

11. As a matter of legislative policy, the provisions in Chapter VI of the Rights of Persons with Disabilities Act, 2016 have been made applicable to those with benchmark disabilities where a higher threshold of disability is stipulated. Except in the specific statutory context where the norm of benchmark disability has been applied, it would be contrary to both the text and intent of the enactment to deny the rights and entitlements which are recognized as inhering in persons with disabilities on the ground that they do not meet the threshold for a benchmark disability.

12. The Union Public Service Commission had fundamentally erred in the construction placed on the provisions of the Rights of Persons with Disabilities Act, 2016. 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.

13. 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 that accepts difference respects their needs and facilitates the creation of an environment in which the societal barriers to disability are progressively answered. Reasonable accommodation requires the policymakers to comprehend disability in all its dimensions and to design measures that are proportionate to needs, inclusive in their reach and respecting differences and aspirations.

14. Reasonable accommodation determinations must be made on a case-by-case basis, in consultation with the disabled person concerned. [Committee on the Rights of Persons with Disabilities, General Comment 6 at para 25(c)]

15. In V Surendra Mohan v. State of Tamil Nadu, (2019) 4 SCC 237 the decision of the Tamil Nadu Public Service Commission to impose a ceiling of 40-50% visual/hearing impairment to be eligible to be appointed as a Civil Judge (Junior Division) was challenged through an appeal by V Surendra Mohan having 70% disability; which got dismissed by the two-judge Bench of the Supreme Court.

16. This judgment was delivered by the Supreme Court after India became a party to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and the Rights of Persons with Disabilities Act, 2016, came into force. The aforesaid view is innocent of the principle of reasonable accommodation. This Court did not consider whether the failure of the Tamil Nadu Public Service Commission to provide reasonable accommodation to a judge with a disability above the impugned ceiling was statutorily or constitutionally tenable. There was no reference to whether the appellant would have been able to discharge the duties of a Civil Judge (Junior Division), after being provided with the reasonable accommodations necessitated by his disability. This view was rendered in a case under the 1995 Act which has now been replaced by the Rights of Persons with Disabilities Act, 2016 and in light of the absence of a reasonable accommodation analysis, the V Surendra Mohan v. State of Tamil Nadu, (2019) 4 SCC 237 judgment stood on a legally vulnerable footing. It would not be a binding precedent, after enforcement of the Rights of Persons with Disabilities Act, 2016.

17. 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.

18. 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.

19. To think that persons with disabilities who do not have a benchmark disability but 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. 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.

20. The most significant loser as a consequence of the Union Public Service Commission’s rigid approach, in this case, is the Union Public Service Commission itself. For it is denying the nation the opportunity to be served by highly competent people who claim nothing but access to equal opportunity and a barrier-free environment.

21. 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.

22. The language of our discourse must evince a clear desire to make the disabled feel empowered and included, not alienated and situated on a different footing from their able-bodied counterparts - whether on a pedestal or in a cage. The Tribunal, in its judgment, couched the disability of the appellant in terms of ‘suffering’ and ‘disease’. Even if the usage is unintentional, its enduring impact in shaping the way society views the disabled and the way they view themselves cannot be ignored. Our discourse must be couched in terms that reflect the recognition of a human rights model to viewing disability. Insensitive language offends the human dignity of persons with disabilities.

23. The Honourable Supreme Court emphasized the need 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.

24. The All India Institute of Medical Sciences report pursuant to the order of the Supreme Court opined that the appellant has a specified disability since he has a chronic neurological condition which forms part of Entry IV of the Schedule to the Rights of Persons with Disabilities Act, 2016. The writer’s cramp has been found successively to be a condition which the appellant has, making it difficult for him to write a conventional examination. To deny the facility of a scribe in such a situation would negate the valuable rights and entitlements which are recognized by the Rights of Persons with Disabilities Act, 2016.

25. Lack of involvement of the disabled in such processes of making decisions, leading to their voice not being heard and their grievances remaining unaddressed.

The Decision Held by the Court

1. The Honourable Supreme Court allowed the appeal and set aside the impugned judgment and order of the High Court of Delhi.

2. The appellant was held to be entitled to the facility of a scribe for appearing at the Civil Services Examination and any other competitive selection conducted under the authority of the government.

3. The Union Government in the Ministry of Social Justice and Empowerment was directed 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, within three months of the receipt of a certified copy of this judgment, in consultation with the public, specifically with persons with disabilities and organisations representing them.

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