To deny rights recognized for persons with disabilities would be plainly ultravires the RPwD Act: SC

To deny the rights and entitlements recognized for persons with disabilities on the ground that they do not fulfil a benchmark disability would be plainly ultra vires the RPwD Act 2016

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. 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. (Para 63)

Vikash Kumar V/s Union Public Service Commission & Ors.

Civil Appeal No. 273 of 2021 Special Leave Petition (C) No. 1882 of 2021

Decided on 11th February, 2021

Counsel for the Appellants: Mr Rajan Mani

Counsel for the Respondents: Ms Madhavi Divan

A Three Judge bench of the Supreme Court consisting of Justice Dhananjaya Y Chandrachud, Justice Indira Banerjee and Justice Sanjiv Khanna allowed the Appellant’s appeal of providing him with a scribe for the Civil Services Exams.

The appellant has a disability in the form of dysgraphia, commonly known as a Writer’s Cramp Intending to pursue a career in the civil services, he appeared in 2017 for the Civil Services Examination (CSE). 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. Union Public Services Commission (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.

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, the Tribunal directed the UPSC to provide him a scribe to enable him to appear for the preliminary examination The results were published on 14 July 2018, but the appellant’s result was withheld.

Learned counsel appearing on behalf of the appellant, has made the following submissions: (i) The appellant has been issued medical certificates dated 21 March 2015 and 27 August 2018, which certify that he has a Writer’s Cramp and would require a scribe. These certificates prove that the appellant falls under Section 2(s) of the Act and is entitled to the protection of Rights of Persons with Disabilities Act, 2016 (RPwD Act). (ii) Writer’s Cramp, or dysgraphia, is a specific disability and is listed in entry 2(a) of the Schedule to the RPwD Act, 2016. Under Section 20, every government establishment is required to provide “reasonable accommodation” and a conducive environment to employees with disability. The provision of scribes and compensatory time during the examination to candidates such as the appellant are reasonable accommodations necessary to be provided under the RPwD Act, 2016. (iii) The CSE Rules 2018 fail to recognize that persons such as the appellant with a Writer’s Cramp have difficulty in writing in their own hand and thus, should be granted a similar facility of a scribe. (iv) Other institutions in India, such as the Institute of Chartered Accountants of India and the University of Delhi, recognize Writer’s Cramp as a disability for which candidates have been provided with scribes. (v) The extent of the disability of 6% as evaluated by the medical board of AIIMS pertains to the extent of his locomotor disability due to a chronic neurological condition and the inability in moving himself or objects. The evaluation does not pertain to the writing ability of the petitioner. Further, the medical report corroborates the prior medical certificates issued to the appellant and certifies that the appellant suffers from Writer’s Cramp which causes difficulty in writing. (vi) Insofar as the case of the appellant is concerned, his condition has been repeatedly affirmed by several medical authorities including National Institute of Mental Health and Neuro Sciences (NIMHANS), Bangalore and AIIMS. The AIIMS report which was pursuant to the order of this Court is clear in opining that the appellant has a specified disability inasmuch as he has a chronic neurological condition. This condition Forms part of Entry IV of the Schedule to the RPwD 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 a situation such as the present would negate the valuable rights and entitlements which are recognised by the RPwD Act 2016.

Learned Counsel appearing on behalf of the UPSC, has submitted that : (i) The issue relating to the entitlement of the appellant for the facility of a scribe for writing the CSE 2018 is governed by the rules framed by the DoPT. According to the CSE Rules 2018, persons with benchmark disabilities are provided with the facility of a scribe, if desired. In case of persons with a benchmark disability, the facility of a scribe is provided on the production of a certificate issued by a Chief Medical Officer of a Government Healthcare Institution to the effect that person concerned has a physical limitation to write and a scribe is essential to write the examination on the candidate’s behalf. (ii) The appellant had made an incorrect declaration in his application for the CSE 2018 by declaring that he belongs to the category of persons with benchmark disability without possessing the prescribed medical certificate; and (iii) The appellant has failed to challenge the legality of the CSE Rules 2018 and has only made claims under Section 20 of the RPwD Act, 2016.

At the heart of this case lies the principle of reasonable accommodation. Individual dignity under-girds the RPwD Act, 2016 . Intrinsic to its realization is recognizing the worth of every person as an equal member of society. Respect for the dignity of others and fostering conditions in which every individual can evolve according to their capacities are key elements of a legal order which protects, respects and facilitates individual autonomy. In its emphasis on substantive equality, the enactment of the legislation is a watershed event in providing a legal foundation for equality of opportunity to the disabled.

UPSC has specifically stated before this Court that a candidate who does not fulfil the description of a person with benchmark disabilities would not be entitled to a scribe. On the contrary, the MSJE has recognized the prevalence of other medical conditions “not identified as disabilities per se” but which may hamper the writing capability of a person. It specifically leaves it open to every examining body to consider such cases for the grant of scribe, extra time or other facilities. These divergent views of two Central Ministries before the Court are symptomatic of a policy disconnect.

Ms Madhavi Divan, learned Additional Solicitor General laid emphasis on the competitive nature of the CSE and of the need to preserve the purity of the examination. The difficulty in accepting the argument lies in the sequitur. There can be no doubt about the fact that the CSE is competitive in itself. There can similarly be no doubt about the need to preserve the purity of the examination. 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. There are two further responses to this argument. First, Ms. Divan has not furnished any empirical data to substantiate the assertion that persons with disabilities are misusing the facility of scribes to obtain any undue advantage. As noted earlier, a justification to provide a reasonable accommodation must be based on objective criteria. The conjecture as to misuse does not meet this test.

While framing the guidelines, we reiterate at the risk of repetition, that 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 6. In other words, a case-by-case approach must be adopted by the relevant body charged with the obligation of providing reasonable accommodation. This requires the relevant body to engage in a dialogue with the individual with disability. 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. (Para 76)

We find it apposite to mention here that 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. Taking note of the emergence of movements of persons with disabilities and the philosophy of “nothing about us without us”, the CRPD Committee in its General Comment No. 7 has also underscored the importance of such participative decision making by involving persons with disabilities and organizations of the persons with disabilities. (Para 77)

The appeal was allowed and the impugned judgment and order of the High Court of Delhi dated 25 September 2018 was set aside.

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Risikesh Dhanaki