Vikash Kumar vs Union Public Service Commission on 11 February, 2021


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Supreme Court of India

Vikash Kumar vs Union Public Service Commission on 11 February, 2021

Author: Hon’Ble Dr. Chandrachud

Bench: Hon’Ble Dr. Chandrachud, M.R. Shah

                                                                                     Reportable

                                        IN THE SUPREME COURT OF INDIA
                                         CIVIL APPELLATE JURISDICTION

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



          Vikash Kumar                                                            …Appellant

                                                       Versus




          Union Public Service Commission & Ors.                                  …Respondents




                                                   JUDGMENT

Dr Dhananjaya Y Chandrachud, J

A. Factual background

B. The course run: The Tribunal and High Court of Delhi

C. These proceedings

C.1 Arguments of the appellant
C.2 Arguments of the UPSC
C.3. Arguments of the Union of India

Signature Not Verified

D.

Digitally signed by
Sanjay Kumar
The legal framework
Date: 2021.02.11
16:44:25 IST
Reason:

E. Two Government Ministries: A policy disconnect

1
F. Benchmark disability not a precondition to obtaining a scribe

G. Rights of Persons with Disabilities Act 2016: A paradigm-shift

G.1 A statutory manifestation of a constitutional commitment

G.2 Scheme of the 2016 Act

H. Reasonable accommodation

I. The argument of misuse

J. The language of our discourse

K. Realizing the transformative potential of the Rights of Persons with

Disabilities Act, 2016: From principle to practice

L. Case of the appellant

M. Formulation of new policy concerning access to scribes for persons

with disabilities

N. In summation

2
PART A

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’ examination 1. 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 2018 2 dated 7 February 2018 with the Rights of

Persons with Disabilities Act, 2016 3.

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

1
“CSE”
2
“CSE Rules 2018”
3
“RPwD Act, 2016”

3
PART A

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 Commission 4 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

2018 5. The Department of Personnel and Training 6 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.

4
“UPSC”
5
“CSE Notification 2018”
6
“DoPT”

4
PART B

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 Tribunal 7 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, 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. 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. The Tribunal also rejected a certificate dated 22 March

2015 issued by the National Institute of Mental Health and Neuro Sciences, on
7
“Tribunal”

5
PART B

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

UPSC to amend the CSE 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 CSE Rules 2018. Meanwhile, he obtained a medical

certificate dated 27 August 2018 from 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.

8 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.




                                           6
                                                                                PART C


C.        These proceedings

9         During the course of the proceedings, by an order dated 16 January 2020,

we directed the All India Institute of Medical Sciences 8 to constitute a medical

board to evaluate the condition of the appellant and render its opinion on (i)

whether he suffers from a benchmark disability within the meaning of Section 2(r)

and Section 2(zc) of the RPwD Act, 2016; and (ii) whether he is a ‘person with

disability’ under Section 2(s) of the RPwD Act, 2016 and the extent of the

disability. AIIMS, by its report dated 10 February 2020, opined that the appellant

suffers from a “chronic neurological condition” termed as bilateral Writer’s Cramp.

However, the report opines that while he does not suffer from a “benchmark

disability”, the appellant is a ‘person with disability’ under the RPwD Act, 2016.

The extent of the disability is assessed at 6%.

C.1       Arguments of the appellant

10        Mr Rajan Mani, 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. According to Section 2(s) of the RPwD Act, 2016, a

person with disability means a person with long-term, physical, mental,

intellectual and sensory impairment, which hinders their full and effective

participation in society. These certificates prove that the appellant falls

under Section 2(s) of the Act and is entitled to the protection of the Act;

8
“AIIMS”

7
PART C

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. The Ministry of Social Justice

and Empowerment 9, by a notification dated 14 January 2018, has also

recognized the specific learning disability of dysgraphia;

iii The CSE Rules 2018 and the CSE Notification 2018 are in violation of

Section 20 of the RPwD Act, 2016. Under Section 20, every government

establishment is required to provide “reasonable accommodation” and a

conducive environment to employees with disability. “Reasonable

accommodation” as defined in Section 2(y) means necessary and

appropriate modifications and adjustments to ensure that persons with

disabilities enjoy their rights equally with others. 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;

iv The CSE Rules 2018 and the CSE Notification 2018 violate Article 14 and

Article 16(1) of the Constitution and the RPwD Act, 2016 as they provide

for scribes only for candidates who are blind, those suffering from

locomotor disability or cerebral palsy. In the CSE Rules 2018, applications

are invited from all persons with disabilities and age relaxation is also

provided to them, including for those suffering from learning disabilities.

However, the provision of scribes is limited to a few candidates;

v 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,

9
“MSJE”

8
PART C

should be granted a similar facility of a scribe;

vi 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;

vii The medical certificates dated 21 March 2015 and 27 August 2018 indicate

that the appellant falls within the definition of a “person with disability”

under the Act. Thus, even without a disability certificate, the appellant

should be granted the facility of a scribe;

viii The RPwD Act, 2016 makes a distinction between “persons with disability”

and “persons with benchmark disability”, the latter being those who are

certified by a disability certificate to have not less than 40% of the specified

disabilities enumerated under the Schedule to the Act. Persons with

benchmark disability are eligible for special provisions of reservation in

employment and higher education. However, Section 20 of the Act applies

to all persons with disabilities and is not limited to persons with benchmark

disability. Thus, even without the disability certificate, the appellant would

be entitled to measures of reasonable accommodation such as the

provision of a scribe for professional examinations; and

ix 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

9
PART C

causes difficulty in writing.

C.2    Arguments of the UPSC

11     Mr Naresh Kaushik, 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.

C.3. Arguments of the Union of India

12 Ms Madhavi Divan, learned Additional Solicitor General, appearing for the

Union of India, made the following submissions:

10
PART C

i According to the MSJE, Writer’s Cramp is not a disability, but a person

suffering from Writer’s Cramp has difficulty in writing. The MSJE had also

issued comprehensive guidelines dated 26 February 2013 on the conduct

of written examinations for persons with disabilities, which provide that the

facility of a scribe should only be allowed to a person with a disability of

40% or more. These guidelines were revised on 29 August 2018 which

provide for the facility of scribes in the category of candidates affected with

blindness, locomotor disability and cerebral palsy; and for other persons

with benchmark disability, a medical certificate has to be produced

certifying that there is a physical limitation to write and a scribe is essential

to write the examination on the candidate’s instructions;

ii Writer’s Cramp is not specifically included in the list of specified disabilities

in the Schedule of the RPwD Act, 2016. Thus, the guidelines dated 29

August 2018 are not applicable to persons suffering from Writer’s Cramp.

However, many such medical conditions which may hamper writing ability

have not been identified as disabilities. In these instances, the examining

body has to consider the cases of such candidates and whether facilities of

scribes and compensatory time is to be granted;

iii There is a whole swathe of facilities which are available to persons with

disabilities to ensure a more inclusive society – seats on public transport,

ramp facilities and toilets. Specific measures are undertaken in educational

institutions to facilitate the participation of persons with disabilities. The

percentage of disability is not relevant in these contexts. However, different

considerations govern the provision of facilities for persons with disabilities

11
PART D

in competitive examinations;

iv As an extension of [iii] above, the CSE conducted by the UPSC is an

extremely competitive examination. While there may be candidates below

the benchmark disability threshold deserving of the facility of scribes to

level the playing field, the abuse of this facility cannot be ruled out. In a

competitive examination of this nature, the purity of the examination has to

be preserved; and

v As regards the case of the appellant, a fresh medical examination should

be conducted, to specifically determine if his disability is such as to

necessitate a scribe.

D.    The legal framework

13    Broadly speaking, there are two sets of regulatory provisions which hold

the field. The first consists of the notifications issued by the DoPT in the Ministry

of Personnel, Public Grievances and Pensions.

14 On 7 February 2018, a notification was issued by the Ministry prescribing

the Rules for the Conduct of the CSE to be held by the UPSC in 2018. The

notification covers diverse aspects governing the conduct of the examination.

Among them is Section 1 of Appendix-I which incorporates the ‘plan of

examination’ and Section 2 which provides for the ‘scheme, subjects for the

preliminary and main examination’. This is followed by ‘general instructions’ for

the conduct of the preliminary and main examination for the civil services. Insofar

as is material, the general instructions contain the following stipulations:

12
PART D

“General Instructions {Preliminary as well as Main
Examination) :

(i) Candidates must write the papers in their own hand. In no
circumstances will they be allowed the help of a scribe to
write the answers for them. However, blind candidates and
candidates with Locomotor Disability and Cerebral Palsy
where dominant (writing) extremity is affected to the extent of
slowing the performance of function (minimum of 40%
impairment) will be allowed to write the examination with the
help of a scribe in both the Civil Services (Preliminary) as well
as in the Civil Services (Main) Examination.

(ii) Compensatory time of twenty minutes per hour shall be
permitted for the Blind candidates and the candidates with
locomotor disability and cerebral palsy where dominant
(writing) extremity is affected to the extent of slowing the
performance of f1,mction (minimum of 40% impairment) in
both the Civil Services (Preliminary) as well as in the Civil
Services (Main) Examination.”

These rules have since been amended in 2019. Apart from the notification which

has been issued by the UPSC, there are guidelines which have been prescribed

by the MSJE in the Department of Empowerment of Persons with Disabilities. A

notification has been issued on 4 January 2018 in exercise of the powers

conferred by Section 56 of the RPwD Act, 2016. Section 56 is comprised in

Chapter X of the RPwD Act, 2016 titled as “Certification of Specified Disabilities”.

Section 56 provides that:

“56. Guidelines for assessment of specified disabilities. –
The Central Government shall notify guidelines for the
purpose of assessing the extent of specified disability in a
person.”

15 Thus, the guidelines which have been notified on 4 January 2018 trace

their origin to the statutory power conferred by Section 56 of the RPwD Act, 2016.

In their prefatory recital, the guidelines record that the Department of

13
PART D

Empowerment of Persons with Disabilities constituted an expert committee to

suggest these guidelines “for evaluation and procedure of certification by various

specified disabilities”. The expert committee in turn constituted eight sub-

committees for dealing with the following categories:

             “(i)      locomotor disability;
              (ii)     visual impairment;
              (iii)    hearing impairment;
              (iv)     chronic neurological conditions;
              (v)      persons affected with blood related disorders;
              (vi)     developmental disorders;
              (vii)    mental illness; and
              (viii)   multiple disabilities;”


Following the deliberations of the expert committee, the guidelines were notified

in the form of S.O. 76(E). Insofar as is material, the guidelines stipulate that:

“Now, therefore, in exercise of powers conferred by Section
56 of the Rights of Persons with Disabilities Act, 2016 (49 of
2016), the Central Government hereby notifies the guidelines
for the purpose of assessing the extent of following specified
disabilities in a person after having considered the
recommendations of the Ministry of Health and Family
Welfare as provided at Annexure II, namely:-

I. locomotor disability including cerebral palsy, leprosy
cured, dwarfism, acid attack victims and muscular
dystrophy;

             II.       blindness and low-vision;
             III.      deaf and hard of hearing and speech and language
                       disability;
             IV.       intellectual disability and specific learning disabilities;
             V.        mental illness;
             VI.       chronic neurological conditions;
             VII.      haemophilia, thalassemia and sickle cell disease; and
             VIII.     multiple disabilities.


             2. The said guidelines for the purpose of assessing

disabilities at Annexure II shall supersede the guidelines for
evaluation of various disabilities and procedure for

14
PART D

certification vide Government of India, Ministry of Social
Justice and Empowerment notification number 16-18/97-NI I.
dated the 1st June 2001 and the guidelines for evaluation and
assessment of mental illness and procedure of certification
vide Government of India, Ministry of Social Justice and
Empowerment notification number 16-18/97-NI dated the 18th
February 2002, except as respects things done or omitted to
be done before such supersession.

Note· :- In terms of Section 57 of the Rights of the Persons
with Disabilities Act, 2016 (49 of 2016), the State
Governments or as the case may be, Union Territory
Administrators shall designate persons, having requisite
qualifications and experience, as certifying authorities, who
shall be competent to issue the certificate of disability and
also notify the jurisdiction within which and the terms and
conditions subject to which, the certifying authority shall
perform its certification functions.

Note: The Director General of Health Services, Ministry of
Health and Family Welfare, Government of India shall be the
final authority to decide upon cases where any controversy or
doubt arises in matters relating to interpretation of the
definitions or classifications or evaluation procedure regarding
the said guidelines.”

16 The guidelines in Annexure-II to the notification cover various heads of

disability including locomotor disability. Some of the relevant provisions under the

above head are extracted below:

“1.1. Guidelines for Evaluation of Permanent Physical
Impairment (PPI) of Upper Extremities

(a) The estimation and measurement shall be made
when the clinical condition has reached the stage of
maximum improvement from the medical treatment.
Normally the time period is to be decided by the
medical doctor who is evaluating the case for issuing
the PPI Certificate as per standard format of the
certificate.

(b) The upper extremity is divided into two component
parts; the arm component and the hand component.

15

PART D

(c) Measurement of the loss of function of arm
component consists of measuring the loss of range of
motion, muscle strength and co-ordinated activities

(d) Measurement of loss of function of hand component
consists of determining the prehension, sensation and
strength. For estimation of prehension opposition,
lateral pinch, cylindrical grasp, spherical grasp and
hook grasp have to be assessed.

(e) The impairment of the entire extremity depends on
the combination of the impairments of both
components.

(f)    Total disability% will not exceed 100%.
(g)    Disability is to be certified as whole number and not
       as a fraction.
(h)    Disability is to be certified in relation to that upper
       extremity.


1.2.1. ARM (UPPER EXTREMITY) COMPONENT


Total value of the arm component is 90%


1.2.2. Principles of evaluation of range of motion (ROM)
of joints

(a) The value of maximum ROM in the arm component is
90%

(b) Each of three joints i.e. shoulder, elbow and wrist
component was earlier weighed equally – 30%.

However, functional evaluation in clinical practice
indicates greater limitations imposed if hand is
involved. So, appropriate weightage is given to
involvement of different joints as mentioned below;

Shoulder= up to 20%, Elbow= up to 20%, Wrist= up to
10%, & Hands= up to 40%, dependent upon extent of
involvement (mild – less than 1/3, moderate – up to
2/3, or severe – almost total). If more than one joint of
the upper extremity is involved, the loss of percentage
in each joint is calculated separately as above and
then added together.

1.2.3. Principles of evaluation of strength of muscles:

16
PART D

(a) Strength of muscles can be tested by manual method
and graded from 0-5 as advocated by Medical
Research Council (MRC), London, UK depending
upon the strength of the muscles (Appendix -I).

             (b)    Loss of muscle power can be given percentages as
                    follows:
             (i)    The mean percentage of loss of muscle strength
                    around a joint is multiplied by 0.30.

(ii) If loss of muscle strength involves more than one joint
the mean loss of percentage in each joint is
calculated separately and then added together as has
been described for loss of motion.

1.2.4. Principles of evaluation of coordinated activities:


             (a)    The total value for coordinated activities is 90%
             (b)    Ten different coordinated activities should be tested
                    as given in the Form A. (Appendix II. assessment
                    proforma for upper extremity)
             (c)    Each activity has a value of 9%

( d) Average normal range of different joints for reference
is at Appendix Ill,”

17 Section E contains guidelines for evaluating locomotor disability due to

chronic neurological conditions. The medical authority for certification of

locomotor disability is to comprise of :

1. The Medical Superintendent or Chief Medical Officer or Civil Surgeon;

2. A Specialist in Physical Medicine and Rehabilitation or Specialist in

Orthopedics; and

3. One specialist nominated by the Chief Medical Officer in accordance

with the condition of the person with disability.

17

PART D

18 Besides locomotor disability, the guidelines cover visual impairment,

hearing impairment, speech and hearing disability, intellectual disability, disability

caused due to chronic neurological conditions, disability due to blood disorder

and multiple disabilities :

“25.2. The disability caused due to chronic neurological
conditions such as multiple sclerosis, parkinsons disease is
multi dimensional involving manifestation in muscular
skeleton system and also psycho social behaviour. The
disability in musculo-skeletal system on account of these
conditions shall be assessed in terms of Section E (para 10-

10.8 of Annexure II) of these guidelines relating to
assessment of locomotor disability due to chronic
neurological conditions and the psychosocial disability
(mental illness) shall be assessed by using the IDEAS as at
Appendix IV. Comprehensive disability on account of these
conditions shall then be calculated by using the formula a+ b
(90-a)
Where “a” will be the higher score and
And “b” will be the lower score. However, the maximum total
percentage of multiple disabilities shall not exceed 100%.”

Appendix-II of the guidelines provides a detailed assessment proforma in relation

to upper extremities.

19 On 29 August 2018, the MSJE in the Department of Empowerment of

Persons with Disabilities issued an Office Memorandum. The OM is titled:

“Guidelines for conducting written examination for persons with benchmark

disabilities”. The OM notes that the Department issued guidelines for conducting

written examinations for persons with disabilities defined under the erstwhile

legislation, namely the Persons with Disabilities (Equal Opportunities, Protection

18
PART D

of Rights and Full Participation) Act 1995 10. These guidelines were issued on 26

February 2013.

20 The guidelines were reviewed under the auspices of a committee which

was constituted on the basis of the issues which were raised by the UPSC,

among other bodies. In the meantime, the 1995 Act was superseded by the

enactment of the RPwD Act, 2016 which came into force on 19 April 2017. The

OM states that the RPwD Act, 2016 provides for reservations in government jobs

for persons with benchmark disabilities as defined in Section 2(r). Based on the

findings of the Committee, the Union government has through the OM laid down

revised guidelines “for conducting a written examination for persons with

benchmark disabilities” in supersession of the earlier guidelines dated 26

February 2013. The above guidelines which have been notified through the OM

dated 29 August 2018 inter alia contain the following stipulations in regard to the

provision of scribes to persons with benchmark disabilities:

“I. These guidelines may be called as ‘Guidelines for
conducting written examination for persons with benchmark
disabilities 2018.

II. There should be a uniform and comprehensive policy
across the country for persons with benchmark disabilities for
written examination taking into account improvement in
technology and new avenues opened to persons with
benchmark disabilities providing a level playing field. Policy
should also have flexibility to accommodate the specific
needs on case-to-case basis.

III There is no need for fixing separate criteria for regular
and competitive examinations.

10

“1995 Act”

19
PART D

IV. The facility of Scribe/Reader/Lab Assistant should be
allowed to any person with benchmark disability as defined
under section 2(r) of the RPwD Act, 2016 and has limitation in
writing including that of speed if so desired by him/her.

In case of persons with bench mark disabilities in the
category of blindness, locomotor disability (both arm affected-
BA) and cerebral palsy, the facility of scribe/reader/lab
assistant shall be given. If so desired by the person.

In case of other category of persons with benchmark
disabilities, the provision of scribe/reader/lab assistant can be
allowed on production of a certificate to the effect that the
person concerned has physical limitation to write, and scribe
is essential to write examination on his behalf, from the Chief
Medical Officer/Civil Surgeon/ Medical Superintendent of a
Government health care institution as per proforma at
Appendix-I.”

20
PART D

The form of certificate which has been provided in Appendix-I is extracted below:

21
PART D

The above guidelines envisage the provision of a scribe to candidates with

benchmark disabilities in written examinations. The policy also recognises that

there should be a measure of flexibility to accommodate specific needs on a

case-to-case basis. Under the guidelines, the facility of a scribe is envisaged to

any person with a benchmark disability as defined under Section 2(r) and having

a limitation in writing, including of speed. Under the guidelines, candidates with

benchmark disabilities comprised within the categories of (i) blind candidates; (ii)

candidates suffering from locomotor disability (both arms affected); and (iii)

cerebral palsy are entitled at their choice to the facility of a scribe or, as the case

may be, a reader or lab assistant. In the case of persons falling within other

categories of benchmark disabilities a scribe, reader or lab assistant can be

allowed upon the production of a certificate that “the person concerned has

physical limitation to write and scribe is essential to write examination on his

behalf.” The certificate has to be issued by the CMO, Civil Surgeon or Medical

Superintendent of a government healthcare institution in the proforma appended

as Annexure-1.

The important point to note is that the guidelines of the MSJE dated 29 August

2018 recognise the entitlement to a scribe only for candidates with benchmark

disabilities. Among them, candidates belonging to three categories – the blind

and those with locomotor disability or cerebral palsy – are to be given the facility

if so desired. In the case of candidates with other benchmark disabilities, such a

facility is to be extended upon a certificate which is issued in terms as noted

above.

22
PART E

Following the notification which was issued on 29 August 2018, the rules for the

conduct of CSE were amended. The amended rules contemplate that:

“Candidates must write the papers in their own hand. In no
circumstances will they be allowed the help of a scribe to
·write the answers for them. The Persons with Benchmark
Disabilities in the categories of blindness, locomotor disability
(both arm affected – BA) and cerebral palsy will be provided
the facility of scribe, if desired by the person. In case of other
category of Persons with Benchmark Disabilities as defined
under section 2(r) of the RPWD Act, 2016, the facility of
scribe will be allowed to such candidates on production of a
certificate to the effect that the person concerned has
physical limitation to write, and scribe is essential to write
examination on behalf from the Chief Medical Officer/ Civil
Surgeon/ Medical Superintendent of a Government Health
Care institution as per proforma at Appendix – V. The Persons
with Benchmark Disabilities in the category of blindness,
locomotor disability (both arm affected – BA) and cerebral
palsy will be allowed Compensatory Time of twenty minutes
per hour of the examination In case of other categories of
Persons with Benchmark1disabilities, this facility will be
provided on production of a certificate to the effect that the
person concerned has physical limitation to write from the
Chief Medical Officer/Civil Surgeon/ Medical Superintendent
of a Government Health Care institution ·as per proforma at
Appendix-V.”

The above amendment is similar to the guidelines prescribed by the OM dated 29

August 2018.

Now it is in this background that it is necessary to advert briefly to the position

which has been adopted on affidavit by the two arms of the Central Government

– the MSJE on the one hand and the UPSC on the other hand.

E.    Two Government Ministries: A policy disconnect

21    UPSC in its counter affidavit filed through its Joint Secretary states that it

conducts the CSE “strictly in accordance with the rules framed and enacted by

the Government of India in the Department of Personnel and Training”. It also

23
PART E

notices that the provisions of the RPwD Act 2016 are administered by a nodal

ministry known as the Ministry of Social Justice and Empowerment which

finalises policies, instructions and guidelines with aid and assistance of experts in

the field, for the purpose of extending benefits under the enactment. According to

UPSC:

“…the Civil Services Examination Rules enacted by the DoPT
do not contain a provision for providing any benefit to a
candidate suffering from the disability known as writer’s cramp
or dysgraphia. In fact the rules enacted by the DoP&T provide
the benefit of facility of a scribe to the candidates suffering
from benchmark disabilities alone, and no benefit is
contemplated under the rules to the persons who do not suffer
from the bench mark disabilities but with some other kind of
disabilities.”

22 Referring to the OM dated 29 August 2018 issued by the MSJE, the

affidavit of UPSC states that these guidelines confine the benefit of a scribe only

to persons with benchmark disabilities. The request of the appellant is stated to

have been rejected on the ground that there is an absence of any provision for a

scribe to candidates falling in the category in which the appellant is

placed. UPSC in fact states that it does not permit a deviation from the CSE

Rules 2018.

Contrasted with the position which has been adopted on affidavit before this

Court by the UPSC, a more nuanced view has been suggested by the reply filed

on behalf of the MSJE. The Ministry, while reiterating the guidelines which have

been framed on 29 August 2018 states that writer’s cramp is not specifically

included in the list of specified disabilities contained in the schedule to the RPwD

Act, 2016 and “accordingly the guidelines stated above are not applicable to a

24
PART E

person suffering from writer’s cramp”. Having said this, the Ministry states:

“G. That it is noteworthy to mention that there are certain
other medical conditions which are not identified as
disabilities per se but which may have implications hampering
the writing capability of a person without manifesting into any
specified disability. Therefore, it is the responsibility of the
examining body to consider such cases for the purpose of
granting scribe, extra time and likewise in consultation with
the Ministry of Health and Family Welfare on production of
medical certificate similar in line with that of other categories
of persons with benchmark disabilities.”

23 MSJE is the nodal ministry which is entrusted with implementing the

provisions of the RPwD Act, 2016. As the nodal ministry, it has formulated

guidelines on 29 August 2018. These guidelines, as we have noticed earlier,

confine access to a scribe, reader or lab assistant to candidates having

benchmark disabilities within the meaning of Section 2(r). Yet, as the nodal

ministry, it recognizes that these guidelines are not exhaustive of the

circumstances or conditions in which a scribe can be provided. 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 in consultation with the

Ministry of Health and Family Welfare against the production of a medical

certificate, in line with those prescribed for candidates with benchmark

disabilities.

25

PART F

24 This view of the nodal ministry has evidently not percolated to UPSC

which, on the other hand, considers itself to be strictly bound, without deviation,

from the rules specified by DoPT for the conduct of the CSE. Notwithstanding the

views of the MSJE, the UPSC does not recognize that the guidelines dated 29

August 2018 vest it with the discretion to provide accommodations on a case-by-

case basis, beyond those spelt out in the guidelines. The rules which hold the

field are in terms of the guidelines dated 29 August 2018. UPSC has therefore

specifically stated before this Court that a candidate who does not fulfill the

description of a person with benchmark disabilities would not be entitled to a

scribe. These divergent views of two Central Ministries before the Court are

symptomatic of a policy disconnect. We express our disquiet about the fact that,

in a policy matter with profound consequences for India’s disabled population, the

left hand does not know what the right one is doing.

F. Benchmark disability not a precondition to obtaining a scribe

25 It is in this backdrop that the Court must resolve the issue, bearing as it

does on the rights of similarly situated candidates. The RPwD Act, 2016

embodies two distinct concepts when it speaks of (i) ‘persons with benchmark

disabilities’ and (ii) persons with disability. In defining a person with benchmark

disability, Section 2(r) encompasses two categories: (i) a person with not less

than 40 per cent of a specified disability, where the specified disability has not

been defined in measurable terms and (ii) a person with disability where the

specified disability has been defined in measurable terms, as certified by the

certifying authority. In other words, Section 2(r) encompasses both a situation

26
PART F

where a specified disability has not been defined in measurable terms, in which

event it means a person with not less than 40 per cent 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 in fact meet the specified norm as quantified.

26 The second concept which is embodied in Section 2(s) is that of a person

with 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 by Parliament in broad terms so as 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.

27 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. On the first aspect namely the nature of the

impairment, Section 2(s) requires that the impairment should be long term –

physical, mental, intellectual or sensory. The statutory definition has evidently

recognized that it is the nature of the impairment in its interaction with barriers

that results in the full and effective participation of the person in society equally

with others being hampered. Section 2(s) is, in other words, a far-reaching

recognition by the legislature of disability as not only a function of a physical or

mental impairment but of its interaction with barriers resulting in a social

27
PART F

milieu which prevents the realization of full, effective and equal participation in

society.

28 Both as a matter of textual construction and bearing in mind the purpose

and object underlying the term, it is necessary to emphasise that the definition in

Section 2(s) cannot be constricted by the measurable quantifications tagged with

the definition under Section 2(r).

29 The concept of a benchmark disability under Section 2(r) cannot be

conflated with the notion of disability under Section 2(s). The definition in Section

2(r) applies in the case of a specified disability. The expression ‘specified

disability’ is defined in Section 2(zc) to mean the disabilities as specified in the

Schedule. The Schedule to the Act incorporates five specified disabilities:

1.    Physical disabilities comprised of

      (a)    Locomotor disability including

             (i) leprosy cured persons

             (ii) cerebral palsy

             (iii) dwarfism

             (iv) muscular dystrophy

              (v) acid attack victims;

      (b)    Visual impairment encompassing

              (i) blindness

              (ii) low-vision



                                           28
                                                                              PART F


       (c)    Hearing impairment

       (d)    Speech and language disability

2.     Intellectual disability including

       (a) specific learning disabilities

       (b) autism spectrum disorder

3.     Mental behavior

4.     Disability caused due to

       (a) Chronic neurological conditions, such as

              (i) multiple sclerosis

              (ii) parkinson’s disease

       (b) Blood disorder

5. Multiple disabilities (more than one of the above specified disabilities).

The Central government has been empowered to notify any other category as a

specified disability.

30 The concept of benchmark disabilities under the RPwD Act, 2016 has

specifically been adopted in relation with the provisions of Chapter VI and

Chapter VII. Chapter VI contains special provisions for persons with benchmark

disabilities. Among those provisions is Section 31 (free education for children with

benchmark disability), Section 32 (reservation in higher educational institutions),

Section 33 (identification of posts for reservation), Section 34 (reservation),

Section 36 (Special Employment Exchange) and Section 37 (Special Schemes

and Development Programmes). Chapter VII contains special provisions for

29
PART G

persons with benchmark disabilities in need of high support. Thus, the concept of

benchmark disabilities has been adopted by the legislation bearing in mind

specific provisions which are contained in the law for persons meeting this

description.

31 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 RPwD Act 2016. Worse still, to

deny the rights and entitlements recognized for persons with disabilities on the

ground that they do not fulfill a benchmark disability would be plainly ultra vires

the RPwD Act 2016.

G. Rights of Persons with Disabilities Act 2016: A paradigm-shift

G.1 A statutory manifestation of a constitutional commitment

32 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.

33 The fundamental postulate upon which the RPwD Act 2016 is based is the

principle of equality and non-discrimination. 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

30
PART G

with others. 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

fulfillment of the constitutional rights of persons with disabilities.

34 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. This Court in its judgment in Jeeja Ghosh v. Union of India 11,

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. Justice A K Sikri stated in the above judgement:

“40. In international human rights law, equality is founded
upon two complementary principles: non-discrimination and
reasonable differentiation. The principle of non-discrimination
seeks to ensure that all persons can equally enjoy and
exercise all their rights and freedoms. Discrimination occurs
due to arbitrary denial of opportunities for equal participation.

For example, when public facilities and services are set on

11
(2016) 7 SCC 761

31
PART G

standards out of the reach of persons with disabilities, it leads
to exclusion and denial of rights. Equality not only implies
preventing discrimination (example, the protection of
individuals against unfavourable treatment by
introducing anti-discrimination laws), 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.”
(emphasis supplied)

35 The principle of reasonable accommodation captures the positive

obligation of the State and private parties to provide additional support to persons

with disabilities to facilitate their full and effective participation in society. The

concept of reasonable accommodation is developed in section (H) below. For the

present, suffice it to say that, for a person with disability, the constitutionally

guaranteed fundamental rights to equality, the six freedoms and the 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. Reasonable

accommodation is the instrumentality – are an obligation as a society – to enable

the disabled to enjoy the constitutional guarantee of equality and non-

discrimination. In this context, it would be apposite to remember Justice R M

Lodha’s (as he then was) observation in Justice Sunanda Bhandare

Foundation v. Union of India 12, where he stated:

“9…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…”

12
(2018) 2 SCC 397

32
PART G

G.2 Scheme of the 2016 Act

36 The RPwD Act 2016 was a landmark legislation which repealed the 1995

Act and brought Indian legislation on disability in line with the United Nations

Convention on the Rights of Persons with Disabilities 13. Under the old regime,

disability was simply characterized as a medical condition devoid of any

understanding of how disability is produced by social structures that cater to able-

bodied persons and hamper and deny equal participation of persons with

disabilities in the society. Section 2 (t) of the 1995 Act defined a “person with

disability” in the following terms:

“(t) “person with disability” means a person suffering from not
less than forty per cent of any disability as certified by a
medical authority”

The RPwD Act 2016 has a more inclusive definition of “persons with disability”

evidencing a shift from a stigmatizing medical model of disability under the 1995

Act to a social model of disability which recognizes that it is the societal and

physical constraint that are at the heart of exclusion of persons with disabilities

from full and effective participation in society. Section 2(s) of the RPwD Act 2016

[which we have analyzed in paras 26-28 above] provides:

“(s) “person with disability” means a person with long term
physical, mental, intellectual or sensory impairment which, in
interaction with barriers, hinders his full and effective
participation in society equally with others”

13
“UNCRPD”

33
PART G

A barrier is defined under Section 2(c) of the RPwD Act 2016 in the following

terms:

“(c) “barrier” means any factor including communicational,
cultural, economic, environmental, institutional, political,
social, attitudinal or structural factors which hampers the full
and effective participation of persons with disabilities in
society;”

Under the 1995 Act, only seven kinds of disabilities were recognized. Section 2(i)

listed the following disabilities:

“(i) “disability” means–

(i) blindness;

(ii) low vision;

(iii) leprosy-cured;

(iv) hearing impairment;

(v) locomotor disability;

(vi) mental retardation;

(vii) mental illness”

The RPwD Act, 2016 now recognizes 21 “specified disabilities” and enables the

Central Government to add further categories of disability. The 2016 Act also

makes special provisions for persons with benchmark disability under Chapter VI

and VII of the Act. A person with benchmark disability is defined under Section

2(r) of the 2016 Act [analyzed in para 25 above] as:

“(r) “person with benchmark disability” means a person with
not less than forty per cent. of a specified disability where
specified disability has not been defined in measurable terms
and includes a person with disability where specified disability
has been defined in measurable terms, as certified by the
certifying authority.”

34
PART G

It is clear from 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.

37 The general principle of reasonable accommodation did not find a place in

the 1995 Act. The provision for taking aid of a scribe was limited to blind students

or students with low vision in educational institutions. Section 31 of the 1995 Act

provided:

“All educational institutions shall provide or cause to be
provided amanuensis to blind students and students with or
low vision.”

The principle of reasonable accommodation has found a more expansive

manifestation in the RPwD Act 2016. Section 3 of the RPwD Act 2016 goes

beyond a formal guarantee of non-discrimination by casting affirmative duties

and obligations on government to protect the rights recognized in Section 3 by

taking steps to utilize the capacity of persons with disabilities “by providing

appropriate environment”. Among the obligations which are cast on the

government is the duty to take necessary steps to ensure reasonable

accommodation for persons with disabilities. The concept of reasonable

accommodation in Section 2(y) incorporates making “necessary and appropriate

modification and adjustments” so long as they do not impose a disproportionate

or undue burden in a particular case to ensure to persons with disability the

35
PART G

enjoyment or exercise of rights equally with others.” Equality, non-discrimination

and dignity are the essence of the protective ambit of the RPwD Act 2016.

38 While most of the obligations under the RPwD 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 role of the private sector in

the market has increased manifold since the advent of liberalisation in India. The

RPwD Act 2016 recognizes that with the burgeoning role of the private sector in

generating employment in India, an active responsibility has to be cast upon

private employers to create an inclusive workforce by providing persons with

disabilities equal opportunities in the job market. However, the guarantee of equal

opportunity must be accompanied by the provision of reasonable

accommodation. The Rules framed under the RPwD Act2016 stipulate that

private establishments shall not discriminate against persons with disability on

the ground of disability. 14 It is to be noted that the definition of discrimination

under Section 2(h) of the RPwD Act, 2016 includes denial of reasonable

accommodation. Private employers are mandated to frame an equal opportunity

policy 15. Equal opportunity policies for establishments having more than 20

employees are required to include provisions relating to (i) appointment of liaison

officers in establishments to look after the recruitment of persons with disabilities

and provisions of facilities and amenities for such employees 16; (ii) identification

of posts/vacancies for disabled persons 17; (iii) provision of additional facilities and

benefits such as training facilities, assistive devices, barrier free accessibility,
14
Rule 3 (1) of the Rights of Persons with Disabilities Rules, 2017
15
Section 21 of the RPwD Act, 2016 read with Rule 8 of the Rights of Persons with Disabilities Rules, 2017
16
Rule 8(3) (e) of the Rights of Persons with Disabilities Rules, 2017
17
Rule 8(3) (b) of the Rights of Persons with Disabilities Rules, 2017

36
PART G

preference in transfer and promotion, allotment of residential accommodation and

special leave 18. The RPwD Act 2016 further provides that private establishments

have to conform with accessibility norms stipulated by the government with

respect to building plans 19. The RPwD Act 2016 also provides that 5 % of the

workforce of establishments receiving incentives from the appropriate

government would be comprised of persons having benchmark disability20. This

Court in Union of India v. National Federation of the Blind 21 has recognized

that employment opportunities play an instrumental role in empowering persons

with disabilities. Justice P. Sathasivam (as he then was) observed:

“50. Employment is a key factor in the empowerment and
inclusion of people with disabilities. It is an alarming reality
that the disabled people are out of job not because their
disability comes in the way of their functioning rather it is
social and practical barriers that prevent them from joining the
workforce. As a result, many disabled people live in poverty
and in deplorable conditions. They are denied the right to
make a useful contribution to their own lives and to the lives
of their families and community.”

It is imperative that not only the government but also the private sector takes

proactive steps for the implementation of the RPwD Act 2016.

39 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

18
Rule 8 (3) sub-clauses (c) and (d) of the Rights of Persons with Disabilities Rules, 2017
19
Section 44 of the RPwD Act, 2016
20
Section 35 of RPwD Act, 2016
21
(2013) 10 SCC 772

37
PART G

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 is based on the simple

idea with profound implications that each of us has: “unique powers to share with

the world and make it interesting and richer.” 22 By opening doors for them and

attenuating the barriers thwarting the realization of their full potential, it seeks to

ensure that they are no longer treated as second class citizens.

40 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. The other provisions of Chapter II

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. Chapter III of the RPwD Act,

2016 recognises specific duties on the part of educational institutions. Section 17

speaks of specific measures to promote and facilitate inclusive education. Among

them, Clause (g) contemplates the provision of books, learning materials and

assistive devices for students with benchmark disabilities free of cost up to the

age of eighteen. Section 17(i) requires suitable modifications in the curriculum

and examination system to meet the needs of students with disabilities such as (i)

extra time for completion of examination (ii) the facility of scribe or amanuensis

(iii) exemption from second and third language courses. The guarantee under

Section 17 (i) is not confined to persons with benchmark disabilities but extends

to students with disabilities. It is thus evident that the legislature has made a clear

22
Sonia Sotomayor,, Just Ask!: Be Different, be Brave, be You [2019, Penguin] letter to the reader.

38
PART G

distinction between disability and benchmark disability. Section 20 provides a

mandate of non-discrimination in employment. Under Section 21, every

establishment is under a mandate to notify equal opportunity policies setting out

the measures which will be adopted in pursuance of the provisions of Chapter IV.

Chapter V provides guarantees for social security, health, rehabilitation and

recreation to persons with disabilities.

41 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. There

is a fundamental fallacy on the part of the UPSE/DoPT in proceeding on the basis

that the facility of a scribe shall be made available only to persons with

benchmark disabilities. This is occasioned by the failure of the MSJE to clarify

their guidelines. The whole concept of a benchmark disability within the meaning

of Section 2(r) is primarily in the context of special provisions including

reservation that are embodied in Chapter VI of the RPwD Act 2016. Conceivably,

the Parliament while mandating the reservation of posts in government

establishments and of seats in institutions of higher learning was of the view that

this entitlement should be recognized for persons with benchmark disabilities. As

a matter of legislative policy, these provisions in Chapter VI have been made

applicable to those with benchmark disabilities where a higher threshold of
39
PART G

disability is stipulated. Except in the specific statutory context where the norm of

benchmark disability has been applied, it would be plainly 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. A statutory concept which has

been applied by Parliament in specific situations cannot be extended to others

where the broader expression, persons with disability, is used statutorily. The

guidelines which have been framed on 29 August 2018 can by no means be

regarded as being exhaustive of the situations in which a scribe can be availed of

by persons other than those who suffer from benchmark disabilities. The MSJE

does not in its counter affidavit before this Court treat those guidelines as

exhaustive of the circumstances in which a scribe can be provided for persons

other than those having benchmark disabilities. This understanding of the MSJE

is correct for the simple reason that the rights which emanate from provisions

such as Section 3 extend to persons with disability as broadly defined by Section

2(s).

42 We are, therefore, of the view that DoPT and UPSC have fundamentally

erred in the construction which has been placed on the provisions of the RPwD

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.




                                        40
                                                                           PART H


H.    Reasonable accommodation

43     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. 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 seeking to project these

values as inalienable rights of the disabled, the RPwD Act, 2016 travels beyond

being merely a charter of non-discrimination. It travels beyond imposing restraints

on discrimination against the disabled. The law does this by imposing a positive

obligation on the State to secure the realization of rights. It does so by mandating

that the State must create conditions in which the barriers posed by disability can

be overcome. The creation of an appropriate environment in which the disabled

can pursue the full range of entitlements which are encompassed within human

liberty is enforceable at law. 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.

44 As a social construct, disability encompasses features broader and more

comprehensive than a medical condition. The RPwD Act, 2016 recognizes that

disability results in inequality of access to a range of public and private

entitlements. The handicaps which the disabled encounter emerge out of

disability’s engagement with the barriers created by prejudice, discrimination and

societal indifference. Operating as restraining factors, these barriers have origins

41
PART H

which can be traced to physical, social, economic and psychological conditions in

society. Operating on the pre-existing restraints posed by disability, these barriers

to development produce outcomes in which the disabled bear an unequal share

of societal burdens. The legislation has recognized that remedies for the barriers

encountered by the disabled are to be found in the social environment in which

they live, work and co-habit with others. The barriers encountered by every

disabled person can be remedied by recognizing comprehensive rights as

inhering in them; rights which impose duties and obligations on others.

45 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. Reasonable

accommodation is founded in the norm of inclusion. Exclusion results in the

negation of individual dignity and worth or they can choose the route of

reasonable accommodation, where each individuals’ dignity and worth is

respected. Under this route, the “powerful and the majority adapt their own rules

and practices, within the limits of reason and short of undue hardship, to permit

realization of these ends.” 23

46 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
23
Reasonable Accommodation In A Multicultural Society, Address to the Canadian Bar Association Continuing
Legal Education Committee and the National Constitutional and Human Rights Law Section, April 7, 1995,
Calgary, Alberta at 1.

42
PART H

facilitates the creation of an environment in which the societal barriers to disability

are progressively answered. Accommodation implies a positive obligation to

create conditions conducive to the growth and fulfilment of the disabled in every

aspect of their existence – whether as students, members of the workplace,

participants in governance or, on a personal plane, in realizing the fulfilling

privacies of family life. The accommodation which the law mandates is

‘reasonable’ because it has to be tailored to the requirements of each condition of

disability. The expectations which every disabled person has are unique to the

nature of the disability and the character of the impediments which are

encountered as its consequence.

47 For instance, for a visually impaired person, the reasonable

accommodation she requires might consist of screen magnification software or a

screen reader [which can speak out the content on a computer screen in a

mechanical voice]. It might also consist of content being made available in Braille

and a sighted assistant. In the same way, for someone with a hearing

impairment, reasonable accommodation could consist of speech-to-text

converters, access to sign language interpreters, sound amplification systems,

rooms in which echo is eliminated and lip-reading is possible. Similarly, for a

person with dyslexia, reasonable accommodation could consist of access to

computer programmes suited to meet their needs and compensatory time.

48 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

43
PART H

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.24 While

assessing the reasonableness of an accommodation, regard must also be had to

the benefit that the accommodation can have, not just for the disabled person

concerned, but also for other disabled people similarly placed in future.

49 As the Committee on the Rights of Persons with Disabilities 25 noted in

General Comment 6, reasonable accommodation is a component of the principle
26
of inclusive equality. It is a substantive equality facilitator. The establishment of

this linkage between reasonable accommodation and non-discrimination thus

24
Amita Dhanda, Prof. of Law, NALSAR, “In a class of my own: Reasonable accommodation from a disability
perspective” [ppt presentation].

25

“CRPD Committee”
26
CRPD Committee, General Comment 6 on Equality and Non-discrimination (2018) [GC 6], CRPD/C/GC/6, 26th
April, 2018, para 11.

44
PART H

creates an obligation of immediate effect. 27 Under this rights-based and disabled-

centric conceptualization of reasonable accommodation, a failure to provide

reasonable accommodation constitutes discrimination. Reasonable

accommodation determinations must be made on a case-by-case basis, in

consultation with the disabled person concerned. 28 Instead of making

assumptions about how the relevant barriers can be tackled, the principle of

reasonable accommodation requires dialogue with the individual concerned to

determine how to tackle the barrier.29

50 The concept of reasonable accommodation as a component of the

equality guarantee has been recognized in a consistent line of precedents of this

Court. 30 Illustratively, in Syed Bashir-ud-din Qadri v. Nazir Ahmed Shah 31, this

Court, speaking through Justice Altamas Kabir, held that a person having

cerebral palsy should be given access to an external electronic aid as a

reasonable accommodation to offset the impact of his inability to write on the

blackboard. The Court held as follows:

“31. …while a person suffering from cerebral palsy may not be
able to write on a blackboard, an electronic external aid could
be provided which could eliminate the need for drawing a
diagram and the same could be substituted by a picture on a
screen, which could be projected with minimum effort.”

27
Lord, J. E., & Brown, R. (2010). The role of reasonable accommodation in securing substantive equality for
persons with disabilities: The UN Convention on the Rights of Persons with Disabilities. In Critical perspectives
on human rights and disability law (pp. 273-307). Brill Nijhoff, at p. 279.

28

CRPD Committee, GC 6 at para 25[c].

29

Anna Lawson, ‘Reasonable Accommodation in the Convention on the Rights of Persons with Disabilities and
Non-Discrimination in Employment: Rising to the Challenges?’, in Charles O’Mahony and Gerard Quinn (eds.),
Disability Law and Policy: An Analysis of the UN Convention (Dublin: Clarus Press, 2017), pp. 359–74, at 362.
30
Rajive Raturi v. Union of India and Ors., 2017 (14) SCALE 412, Jeeja Ghosh and Anr. v. Union of India and
Ors
. (2016) 7 SCC 761 and Disabled Rights Group and Ors. v. Union of India and Ors., (2018) 2 SCC 397.
31
(2010) 3 SCC 603.

45
PART H

51 A discordant note struck by this Court having a direct bearing on the

principle of reasonable accommodation finds expression in a two judge Bench

decision of this Court in the case of V Surendra Mohan v. State of Tamil Nadu 32

(“Mohan”). The proceedings before this Court arose from a judgment of the

Madras High Court. At issue was the decision of the Tamil Nadu Public Service

Commission 33 to impose a ceiling of 40-50% visual/hearing impairment to be

eligible to be appointed as a Civil Judge (Junior Division). Differently stated, a

person whose visual/hearing impairment exceeded 50% was disqualified from

being eligible for the said post. In the said case, the appellant’s disability was

70%. The appellant’s name was not included in the list of registered numbers

who were provisionally admitted to the oral test. He challenged this in the Madras

High Court. By its judgment dated 5 June 2015, the Madras High Court held that,

as per the decision of the Government dated 8 August 2014 and notification

issued by the TNPC dated 26 August 2014, those partially blind with 40%-50%

disability were only eligible and the appellant having 70% disability was not

eligible to participate in the selection.

52 A two judge Bench of this Court held that a judicial officer in a State has

to possess reasonable limit of the faculties of hearing, sight and speech in order

to hear cases and write judgments and, therefore, stipulating a limit of 50%

disability in hearing impairment or visual impairment as a condition to be eligible

for the post is a legitimate restriction. This court affirmed the submission of the

Madras High Court that seeking to address the socially constructed barriers faced

32
(2019) 4 SCC 237.

33

“TNPC”

46
PART H

by a visually or hearing impaired judge, whose disability exceeds 50%, would

create ‘avoidable complications’. As a result, the impugned ceiling was found to

be valid. The relevant portion of the judgment is excerpted below:

“40… The High Court in its additional statement has
incapsulated the functions and duties of Civil Judge in
following words:-

“7….

Impaired vision can only make it extremely difficult, even
impossible, to perform any of these functions at all. Therefore,
creating any reservation in appointment for those with
disabilities beyond the 50% level is far from advisable as it
may create practical and seemingly other avoidable
complications.

Moreover, given the need to prepare judgments based on the
case papers and other material records in a confidential
manner, the assistance of a scribe or the like completely takes
away the secrecy and discreetness that come with the
demands of the post.”

53 This judgment was delivered by this Court after India became a party to

the UNCRPD and the RPwD Act 2016, came into force. The aforesaid view

espoused by this Court is innocent of the principle of reasonable accommodation.

This Court did not consider whether the failure of the TNPC to provide

reasonable accommodation to a judge with a disability above the impugned

ceiling was statutorily or constitutionally tenable. There is no reference in this

Court’s judgment to whether the appellant would have been able to discharge the

duties of a Civil Judge (Junior Division), after being provided the reasonable

accommodations necessitated by his disability.

54 The analysis by this Court in the portion excerpted above begs the

question. Specifically, the relevant question, under the reasonable

accommodation analysis, is not whether complications will be caused by the
47
PART H

grant of a reasonable accommodation. By definition, reasonable accommodation

demands departure from the status quo and hence ‘avoidable complications’ are

inevitable. The relevant question is whether such accommodations would give

rise to a disproportionate or undue burden. The two tests are entirely different.

55 As we have noted previously, the cornerstone of the reasonable

accommodation principle is making adjustments that enable a disabled person to

effectively counter the barriers posed by their disability. Conspicuous by its

absence is any reasonable accommodation analysis whatsoever by this Court in

Mohan. Such an analysis would have required a consideration of the specific

accommodations needed, the cost of providing them, reference to the efficacy

with which other judges with more than 40-50% visual/hearing impairment in

India and abroad can discharge judicial duties after being provided the necessary

accommodations, amongst other factors. In holding that the ceiling was

reasonable on the application of the principle of reasonable accommodation, the

ratio as expounded fails as “distinct exhortatory dimension that must always be

kept in mind while determining whether an adjustment to assist a disabled person

to overcome the disadvantage that she or he has in comparison to an able-
34
bodied person is reasonable.” It is persons with disabilities who have been the

victim of this lapse.

56 In light of the fact that the view of this court in Mohan was rendered in a

case under the 1995 Act which has now been replaced by the RPwD Act 2016

and in light of the absence of a reasonable accommodation analysis by this

34
First Group Plc v. Paulley [2017] UKSC 4, para 117 [Lord Kerr – partly dissenting].

48
PART H

Court, the Mohan judgment stands on a legally vulnerable footing. It would not be

a binding precedent, after enforcement of the RPwD Act 2016.

57 The ASG’s argument that a whole swath of facilities are provided to the

disabled without enquiring into the percentage of their disability and that a

percentage is only essential in cases such as the present is flawed for two

reasons. First, the inarticulate premise underpinning this argument appears to be

that the legally guaranteed entitlements of the disabled are privileges doled out

by the state and bespeaks an incorrect understanding of the concept of

reasonable accommodation. Since reasonable accommodation is a component of

the duty not to discriminate against the disabled, as we have explained above,

the state is bound to provide these facilities to its disabled citizens. A robust

conception of reasonable accommodation needs to be adopted.

58 Second, and relatedly, this being so, it can be no answer to tell a disabled

candidate whose disability genuinely necessitates access to a scribe that they

are already being given all the above facilities. Providing those facilities does not

absolve the state of the obligation to provide a disabled candidate access to a

scribe, when this need is clearly established as being relatable to their disability.

59 The ASG referred to the difficulty caused to her by dint of having carpel

tunnel syndrome as an example of the dangerous consequences that would flow

from opening the door too widely when it comes to granting scribes. In the

hearing, examples were also cited of individuals having a small, everyday

problem and expecting a scribe on that basis. While valid, such comparisons may

49
PART H

end up creating a false equivalence between those with a legitimate disability-

based reasonable accommodation need and others with everyday ‘life
35
problems’. Therefore, it has to be ensured that we do not make light of, or

trivialize, the needs of those whose disability may not meet the quantitative

threshold of 40% but are nonetheless disabling enough to merit the grant of the

reasonable accommodation of a scribe and extra time. As the CRPD Committee

notes, it is wrong to expect a person with disability to be ‘disabled enough’ to

claim the accommodations necessitated by their disability. 36 Such an approach

would not be in consonance with the progressive outlook of the RPwD Act 2016.

60 The ASG’s argument that the appellant must be subjected to further

medical examinations, even though his disability has been accepted, is

emblematic of a key barrier that often comes in the way of the disabled being

able to access reasonable accommodation in India. As the CRPD Committee

observes in its concluding observations on India, the competent authorities must

ensure that “multiple assessments [as to existence of disability] do not create an

undue burden for applicants.” 37

35
IDAP Interview Series: Interview XV with Judge Ronald M. Gould, response to q. 13, available at

36
CRPD Committee, GC 6, para 73[b].

37

CRPD Committee, Concluding Observations on the Report of India, [“Concluding Observations”], GE. 19-
18639[E], 24th September, 2019, para 7[b].

50
PART I

61 The party contending that a particular accommodation will impose a

disproportionate or undue burden has to prove the same.38 And such a

justification has to be based on objective criteria. 39 Further, the CRPD Committee

has held that an assessment of reasonable accommodation must be made “in a

thorough and objective manner, covering all the pertinent elements, before

reaching a conclusion that the respective support and adaptation measures

would constitute a disproportionate or undue burden for a State party.”40 It is

against this backdrop that we will now consider the ASG’s principal justification

for denying the reasonable accommodation of a scribe to the appellant and

others similarly situated, namely that the facility of a scribe maybe misused for

nefarious purposes.

I.       The argument of misuse

62       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

38
CRPD Committee, GC 6, para 26[g].

39

Id at para 27.

40

CRPD Committee, Ms JH v Australia, GE.18-22328(E), 31.08.2018, para 7.4. A similar view was also adopted
by the Committee in the case of Michael Lockrey versus Australia, CRPD/C/15/D/13/2013, 30th May, 2016, para
8.5 [holding that a failure to provide a deaf juror access to a stenographer to conduct real-time steno-captioning
violated the principle of reasonable accommodation]; and Gemma Beasley versus Australia, GE.16-08383 (E)
290716 290716, 29th April, 2013 para 8.5 [holding that a failure to provide a hearing impaired juror access to an
Auslan interpreter violated the principle of reasonable accommodation.

51
PART I

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.

63 Further, we are of the considered view that 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. 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.

52

PART I

64 When competent persons with disabilities are unable to realize their full

potential due to the barriers posed in their path, our society suffers, as much, if

not more, as do the disabled people involved. In their blooming and blossoming,

we all bloom and blossom. The most significant loser as a consequence of the

UPSC’s rigid approach in this case (of refusing to provide scribes to those not

having benchmark disabilities) is the UPSC itself. For it is denying to the nation

the opportunity to be served by highly competent people who claim nothing but

access to equal opportunity and a barrier-free environment.

65 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.

If some incidents come to light of able-bodied candidates hiding chits in their

dress code and misusing them to cheat in an exam, the normal consequence is

suitable punitive action against such students. It is not to switch to a different

dress code that is so uncomfortable that many competent students find it hard to

sit in it for the entire duration of the exam and perform to the best of their ability.

In the same way, just because of the fault of some bad apples in the system,

persons with disabilities whose disability necessitates access to a scribe cannot

be disentitled from claiming the same. 41

66 Second, the examining body is entitled to prescribe procedures that

ensure against a misuse and to deal with any instances which may come to light.
41
Dr. Sanjay Jain, ” Right to education : An enabler”, in “Marginalised communities and higher education” in Eds
Surendrakumar and H. L. Vinod “Marginalised communities and higher education”, Sage Publication 2021,
section Critical Analysis of Scribe guidelines [forthcoming].

53
PART J

This is not a problem peculiar to India or that of an intractable nature. To

illustrate, in March 2019, the US Federal Bureau of Investigation launched an

investigation code-named Operation Varsity Blues which is popularly known as

the ‘College Admissions Scandal’. As part of the investigation, several individuals

were arrested and charged on the allegation of seeking extended time on college

entrance exams, by falsely making it appear that the concerned students had

learning disabilities, so as to acquire the requisite medical documentation. Once

the accommodation was approved, large-scale cheating and impersonation took

place at test centres in Houston, Texas and Hollywood, California. 42 Suffice it to

say that the possibility of misuse cannot be used to deprive equal access to

persons with disability from seeking the facility of a scribe. Absent such a facility,

persons such as the appellant who suffers from a chronic neurological condition

would be deprived of a statutory right of equal opportunity in gaining an

appointment to public services. To do so would negate both the constitutional

right and its statutory recognition in the provisions of the RPwD Act, 2016.

J.      The language of our discourse

67       The shift in the way we view disability – as a social construct rather than

an individual pathology – must also translate into a linguistic shift in the way we

refer to persons with disabilities. The language of our discourse must evince a

clear desire to make the disabled feel empowered and included, not alienated

42
US Department of Justice, Arrests Made in Nationwide College Admissions Scam: Alleged Exam Cheating &
th
Athletic Recruitment Scheme, 12 March, 2019, available at https://www.justice.gov/usao-ma/pr/arrests-made-
nationwide-college-admissions-scam-alleged-exam-cheating-athletic

54
PART J

and situated on a different footing from their able-bodied counterparts – whether

on a pedestal or in a cage. 43

68 The Tribunal, in its judgment, couched the disability of the appellant in

terms of ‘suffering’ and ‘disease’. Specifically, in its order dated 30 May 2018, the

Tribunal, at para 5, noted: “The applicant is suffering with a disease called

Writer’s Cramp.” In its order dated 7 August 2018, at para 7, the Tribunal refers to

those “suffering” with disabilities. Even if the usage is unintentional, we cannot

ignore its enduring impact in shaping the way the society views the disabled and

the way they view themselves. Viewing disability as an affliction that causes

suffering, or that views it as a God-given fate (whether a blessing or a curse) is

rooted in the medical model of disability. 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.

69 In its concluding observations on India, the CRPD Committee notes with

concern references to “normal life” as opposed to the lives of persons with

disabilities and derogatory terminology such as “mentally ill” and “divyangjan”,

which as it notes, remains controversial 44. It is our earnest hope that the

paradigm-shifting conversation about the rights and status of the disabled, that

the CRPD Committee has generated, will find a resonance in the language we

use to refer to them.

43
Paraphrased from – CNN, ‘Ginsburg: ‘The pedestal you put women on is a cage’, 12th February, 2018,
available at https://www.youtube.com/watch/sJ9Got6C500
44
CRPD Committee, Concluding Observations on India, para 6[b].

55
PART K

K. Realizing the transformative potential of the Rights of Persons with
Disabilities Act 2016: From principle to practice

70 In the hearing, one of us presciently noted that the imposition of the

criterion of a benchmark disability to access a scribe – an arena in which it has

no relevance as per the statutory framework – betrays a profound lack of

awareness on the part of the authorities about the RPwD Act 2016. The OM of 29

August 2018, in its preambular portion recites as follows:

“The Act [Rights of Persons with Disabilities Act, 2016]
provides for reservation in Government jobs for persons with
benchmark disabilities as defined under section 2 (r) of the
said Act.”

71 As one commentator notes, “if the connection between reservation in

government jobs for the disabled and guidelines for grant of scribes in all exams

they may appear in appears strange, that is because it is.”45 Another notes that

there exists no justification for this move. 46 The facts of this case are a stark

reminder of the need to generate greater legal consciousness about the

entitlements of the disabled set forth in the RPwD Act 2016. We would also like to

take judicial notice of the fact that several instances have come to light of

competent authorities fixing criteria for the grant of scribes that are in brazen

disregard of the RPwD Act 2016 and the OM dated 29 August 2018.47

45
Ibid.

46

Dr. Sanjay Jain, ” Right to education : An enabler” in “Marginalised communities and higher education” in Eds
Surendrakumar and H. L. Vinod “Marginalised communities and higher education”, Sage Publication 2021
Critical Analysis of Scribe guidelines [forthcoming].
47
Live Law News Network, ‘BCI Creating Entry Barriers For Disabled Lawyers’: Says Blind AIBE Candidate;
Seeks Proper Implementation Of 2018 PwD Guidelines, 7th January, 2021, available at
https://www.livelaw.in/top-stories/bar-council-of-india-aibe-persons-with-disability-blind-law-student-168124; Rintu
Mariam Biju, AIBE 2021: Is BCI creating entry barriers for disabled law grads? 23rd January, 2021, Bar and
Bench, available at https://www.barandbench.com/news/aibe-2021-is-bci-creating-entry-barriers-for-disabled-law-
grads

56
PART K

72 If the legal entitlements set forth in the RPwD Act 2016 are to not remain

mere parchment, reflected in our inability to overcome barriers against

substantively unequal treatment, 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.

Based on Article 8, the RPwD Act 2016 captures the need for the State to

conduct and promote awareness campaigns and sensitization programmes in

Section 39. 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.




                                          57
                                                                           PART L


L.    Case of the appellant

73    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.

74 We, therefore, hold and declare that the appellant would 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.

58
PART M

M. Formulation of new policy concerning access to scribes for persons
with disabilities

75 Before concluding, we also intend to issue a broader direction to the 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 of the receipt of a certified copy of this judgment and a copy of the

guidelines shall be transmitted to the Registrar (Judicial) of this Court. Upon

receipt of the guidelines the Registrar (Judicial) shall place it on the record upon

which the proceeding shall be listed under the caption of directions.

76 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

59
PART M

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.

77 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. 48

78 In India, as reflected by the policy disconnect in this case, there is often a

lack of involvement of the disabled in such decision making processes, leading to

their voice not being heard and their grievances remaining unaddressed. This

has also been listed as an area of concern by the CRPD Committee in its

concluding observations on India.49 Taking into account our constitutional and

international obligations, we direct the MSJE to frame the abovementioned

guidelines in consultation with the public, specifically with persons with disabilities

and organisations representing them .

48
CRPD Committee, General comment No. 7 (2018) on the participation of persons with disabilities, including
children with disabilities, through their representative organizations, in the implementation and monitoring of the
Convention, CRPD/C/GC/7, 9 November 2018, para 5.

49

CRPD Committee, Concluding observations on India, para 10, 11.

                                                           60
                                                                                                   PART N


N.      In summation



79      When President George HW Bush signed into law the Americans with

Disabilities Act, he noted that, by dint of the passage of the law, “every man,

woman, and child [and we would like to add practitioners of alternative sexuality

here] with a disability can now pass through once-closed doors into a bright new

era of equality, independence, and freedom.” 50

80 In the three decades that have elapsed since then, a generation of

Americans with disabilities has emerged, calling themselves the ADA Generation.

These disabled people rightfully regard the ADA’s guarantees as a birthright and,

due to accessible infrastructure, a strict prohibition on disability discrimination and

changed public attitudes, are able to participate in American life on equal terms

with their able-bodied counterparts.51

81 Cases such as the present offer us an opportunity to make a meaningful

contribution in the project of creating the RPwD generation in India. A generation

of disabled people in India which regards as its birthright access to the 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.

50
ADA.Gov, Remarks of President George H. W. Bush at the Signing of the Americans with Disabilities Act, 26th
July, 1990, available at https://www.ada.gov/ghw_bush_ada_remarks.html
51 th
Joseph Shapiro, Disability Pride: The High Expectations of a New Generation, 17 July, 2020, The New York
Times, available at https://www.nytimes.com/2020/07/17/style/americans-with-disabilities-act.html.

61
PART N

82 We accordingly allow the appeal and set aside the impugned judgment

and order of the High Court of Delhi dated 25 September 2018. There shall be no

order as to costs.

83 Pending application(s), if any, stand disposed of.

Ms Sanchita Ain, learned Counsel has also assisted the Court. Ms Ain has

provided valuable inputs to the Court during the course of the hearing. Before

concluding we record our appreciation of the assistance which has been

rendered by Mr Rajan Mani, learned Counsel, Ms Madhavi Divan, learned

Additional Solicitor General and Mr Naresh Kaushik, learned Counsel.

…….………….…………………………………………J.

[Dr Dhananjaya Y Chandrachud]

…….…………………………………………………….J.
[Indira Banerjee]

…….…………………………………………………….J.
[Sanjiv Khanna]

New Delhi;

February 11, 2021.

62



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