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SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, INDIRA BANERJEE, SANJIV KHANNA, JJ.
Vikash Kumar – Appellant
Versus
Union Public Service Commission and Others – Respondents
Civil Appeal No. 273 of 2021, Special Leave Petition (C) No. 1882 of 2021
Decided On : 11-02-2021
(A) Rights of Persons with Disabilities Act, 2016 – Section 2(r) and 2(s) – Benchmark disability – Definition in Section 2(r) applies in case of a specified disability – Conflating rights and entitlements which inhere in persons with disabilities with notion of benchmark disabilities does disservice to salutary purpose underlying enactment of Rights of Persons with Disabilities Act, 20166 – To deny rights and entitlements recognized for persons with disabilities on the ground that they do not fulfill a benchmark disability would be plainly ultra vires Rights of Persons with Disabilities Act, 2016 – Concept of a benchmark disability under Section 2(r) cannot be conflated with notion of disability under Section 2(s). (Paras 29, 30 and 31)
(B) Rights of Persons with Disabilities Act, 2016 – Section 3 – Additional support to disabled persons – There is a critical qualitative difference between 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 additional support and facilities that are necessary for them to offset impact of their disability – For a person with disability, constitutionally guaranteed fundamental rights to equality, six freedoms and right to life under Article 21 will ring hollow if they are not given this additional support that helps make these rights real and meaningful for them. (Paras 33, 34 and 35)
(C) Rights of Persons with Disabilities Act, 2016 – Sections 17, 20 and 21 – Civil Services Examination Rules 2018 – Physical disability(Writer’s Cramp) – Right to have help of Scribe in Civil Services’ Examination – Legislature has made a clear distinction between disability and benchmark disability – When government in recognition of its affirmative duties and obligations under Act 2016 makes provisions for facilitating a scribe during 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 – Provision for facility of a scribe is in pursuance of 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 – There is a fundamental fallacy on part of UPSE/DoPT in proceeding on the basis that facility of a scribe shall be made available only to persons with benchmark disabilities – This is occasioned by failure of MSJE to clarify their guidelines – Except in specific statutory context where norm of benchmark disability has been applied, it would be plainly contrary to both text and intent of enactment to deny rights and entitlements which are recognized as inhering in persons with disabilities on the ground that they do not meet threshold for a benchmark disability – To confine 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 plain terms as well as object of statute – Appellant would be entitled to facility of a scribe for appearing at Civil Services Examination and any other competitive selection conducted under authority of Government. (Paras 40, 41, 42 and 74)
(D) Rights of Persons with Disabilities Act, 2016 – Section 33 – Principle of Reasonable Accommodation – Reasonable accommodation requires 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 customization she seeks – Failure to meet individual needs of every disabled person will breach norm of reasonable accommodation – Flexibility in answering individual needs and requirements is essential to reasonable accommodation – Principle contains an aspiration to meet needs of class of persons facing a particular disability – Going beyond needs of class, specific requirement of individuals who belong to the class must also be accommodated – Principle of reasonable accommodation must also account for fact that disability based discrimination is intersectional in nature – Intersectional features arise in particular contexts due to presence of multiple disabilities and multiple consequences arising from disability – Disability cannot be truly understood by regarding it as unidimensional. (Paras 46 and 48)
(E) Rights of Persons with Disabilities Act, 2016 – Section 2(s) – Formulation of new policy concerning access to scribes for persons with disabilities – 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 realization of their rights – Cases such as present offer us an opportunity to make a meaningful contribution in project of creating RPwD generation in India – A generation of disabled people in India which regards as its birthright access to full panoply of constitutional entitlements, robust statutory rights geared to meet their unique needs and conducive societal conditions needed for them to flourish and to truly become co-equal participants in all facets of life – Union Government in Ministry of Social Justice and Empowerment directed to ensure framing of proper guidelines which would regulate and facilitate grant of a facility of a scribe to persons with disability within meaning of Section 2(s) where nature of disability operates to impose a barrier to candidate writing an examination – In formulating procedures, Ministry of Social Justice and Empowerment may lay down appropriate norms to ensure that condition of candidate is duly certified by such competent medical authority as may be prescribed so as to ensure that only genuine candidates in need of facility are able to avail of it – This exercise shall be completed within a period of three months. (Paras 75, 77 and 81)
Result : Appeal allowed.
Based on the provided legal document, here are the key points regarding the judgment in Vikash Kumar vs. Union Public Service Commission:
Subject: Disability Rights - Reasonable Accommodation
Act Referred: * CONSTITUTION OF INDIA: Art.14, Art.16(1) * RIGHTS OF PERSONS WITH DISABILITIES ACT: S.2(r), S.2(z)(c), S.2(s), S.20, S.56, S.57
Key Holdings and Observations:
(A) Distinction between Disability and Benchmark Disability: The definition of "benchmark disability" in Section 2(r) applies only where a specified disability is defined in measurable terms. Conflating the rights of "persons with disabilities" with the notion of "benchmark disabilities" disservices the purpose of the Rights of Persons with Disabilities Act, 2016. Denying rights on the ground that a person does not meet the benchmark threshold is ultra vires the Act.
(B) Additional Support and Reasonable Accommodation: There is a critical qualitative difference between barriers faced by persons with disabilities and other marginalized groups. Mere non-discrimination is insufficient; society must provide additional support to offset the impact of disability. Constitutional rights (equality, freedoms, right to life) ring hollow without such support.
(C) Right to a Scribe: The provision for a scribe is a statutory mandate to ensure equality and dignity, not a privilege or largesse. It is a fallacy to restrict scribe facilities only to persons with benchmark disabilities. The appellant, suffering from Writer's Cramp (a chronic neurological condition), is entitled to a scribe for Civil Services Examinations and other competitive selections.
(D) Principle of Reasonable Accommodation: This principle requires measures to be proportionate to needs, inclusive, and respectful of differences. It demands flexibility to meet individual needs, not just the needs of a class. Failure to accommodate individual needs breaches the norm. Disability discrimination is intersectional and cannot be viewed unidimensionally.
(E) Policy Formulation and Consultation: The Ministry of Social Justice and Empowerment (MSJE) is directed to formulate proper guidelines within three months to regulate the grant of scribes for persons with disabilities under Section 2(s). These guidelines must ensure certification by competent medical authorities. Crucially, policy must be formulated with the consultation and involvement of persons with disabilities ("nothing about us without us").
(F) Divergence in Government Ministries: A policy disconnect was noted between the UPSC/DoPT (which strictly followed rules limiting scribes to benchmark disabilities) and the MSJE (which acknowledged the need for case-by-case consideration for conditions not specifically listed as disabilities). The Court criticized this lack of alignment.
(G) Misuse Arguments Rejected: The argument that scribes could be misused to cheat in competitive exams was rejected. The burden of proof for misuse lies with the objector, and conjecture is not objective criteria. Punishing a whole class of disabled people based on the actions of "bad apples" is unjust.
(H) Language and Discourse: The Court emphasized the need to shift from a medical model of disability (viewing it as suffering/disease) to a human rights/social model. Language used in discourse must empower and include persons with disabilities rather than alienate them.
JUDGMENT :
DHANANJAYA Y. CHANDRACHUD, J.
(A) Factual background
1. A citizen who suffers from a writer’s cramp has travelled to this Court. The grievance is that he was denied a scribe in the civil services’ examination1 [“CSE”]. The case has run its course through the judicial system as an individual grievance. But its contours present portents of the aspirations of a whole class of persons whose daily engagement with physical disability defines their continuing quest for dignity. Through a maze of statutes, rules, and regulations, the case raises core issues about the actual realization of equal opportunity and access to the disabled. It tests what the law professes with how its ideals are realized. The language of our discourse, as much as its outcome, should generate introspection over the path which our society has traversed and the road that lies ahead in realizing the rights of the disabled. 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. Down to its bare bones, this appeal turns upon the interface of the Civil Services Examination Rules 20182 [“CSE Rules 2018”] dated 7 February 2018 with the Rights of Persons with Disabilities Act, 20163 [“RPwD Act, 2016”].
3. 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, popularly known by the acronym JIPMER. Intending to pursue a career in the civil services, he appeared in 2017 for the CSE. A scribe was provided to him by the Union Public Services Commission4 [“UPSC”] to enable him to appear in the written test. 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. On 7 February 2018, UPSC issued a notification for the CSE 20185 [“CSE Notification 2018”]. The Department of Personnel and Training6 [“DoPT”] issued the CSE Rules 2018 providing for the manner and conduct of the examination. The general instructions provided that all candidates must write their papers in their own hand and will not be allowed the help of a scribe. Exceptions to this rule were provided for 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).” Candidates within the exception were allowed the help of a scribe. An additional ‘compensatory time’ of twenty minutes per hour was also to be granted to such candidates.
4. 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.
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 UPSC. In order to obtain a disability certificate, he approached the Medical Board of Ram Manohar Lohia Hospital, Delhi. By a communication dated 12 February 2018, the disability certificate was denied to him. This led the appellant to preface a challenge before the Central Administrative Tribunal7 [“Tribunal”] where the case is still pending adjudication.
(B) The course run: The Tribunal and High Court of Delhi
6. Aggrieved by the denial of the services of a scribe for the CSE 2018, the appellant moved the Tribunal. By an interim order dated 30 May 2018, th
(1) For a person with disability, provision for facility of a scribe is in pursuance of statutory mandate to ensure that persons with disabilities are able to live a life of equality and dignity base....
The court established that all persons with disabilities are entitled to reasonable accommodations during examinations, ensuring no discrimination based on the nature of disability.
The court affirmed that visually impaired candidates are entitled to choose their scribes without restrictive qualifications, emphasizing compliance with statutory guidelines.
Denial of scribe facilities to visually impaired candidates violates statutory provisions and constitutional rights under the Rights of Persons with Disabilities Act, 2016.
Section 3 of RPWD Act directs appropriate government to ensure that persons with disabilities enjoy right to equality, life with dignity and respect for his or her integrity equally with others.
The court established that the qualification of a scribe must be one step below the candidate's minimum educational requirement, adhering to the established educational framework.
The main legal principle established in the judgment is the obligation to provide reasonable accommodation to disabled individuals, as mandated by the Right of Persons with Disabilities Act, 2016. Th....
The court ruled that visually impaired candidates are eligible for judicial service, striking down discriminatory rules and emphasizing the need for reasonable accommodation and separate cut-off mark....
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