Rights of Persons with Disabilities Act, 2016 – ss. 2(r), 2(s), 2(y), 3 and 56 – Civil Services Examination Rules, 2018 – Facility of a scribe in the Civil Services Examination – Entitlement to – The appellant has a disability in the form of dysgraphia, commonly known as a Writer’s Cramp – On 07.02.2018, UPSC issued a notification for the CSE 2018 – The CSE Rules 2018 issued by DoPT 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 – Appellant in his online application for the CSE 2018 declared himself to be a person with a benchmark disability of 40% or more and requested the UPSC to provide him with a scribe for the examination – Application was rejected by the UPSC – Aggrieved, appellant moved to the Tribunal – Tribunal dismissed the application and it was held that appellant did not fulfill the criteria – Appellant filed writ petition – The High Court 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 Supreme Court directed AIIMS to constitute a medical board to evaluate the condition of the appellant – AIIMS, by its report 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% – Held: The guidelines of the Ministry of Social Justice and Empowerment dated 29.08.2018 recognise the entitlement to a scribe only for candidates with benchmark disabilities – The guidelines which have been framed on 29.08.2018 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 rights which emanate from provisions such as s.3 extend to persons with disability as broadly defined by s. 2(s) – 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 – In the instant case, the condition of appellant was repeatedly affirmed by several medical authorities including NIMHANS and AIIMS – 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 – Appellant entitled to the facility of a scribe – Thus, the impugned order and judgment of the High Court is set aside.
Rights of Persons with Disabilities Act, 2016 – ss. 2(r), 2(s), 2(y), 3 and 56 – Benchmark disability not a precondition to obtain a scribe – Held: The whole concept of a benchmark disability within the meaning of s. 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 disability is stipulated – Conflating the rights and entitlements which inhere in persons with disabilities with the notion of benchmark disabilities does dis-service to the salutary & ORS.
purpose underlying the enactment of the RPwD Act 2016 – 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.
Constitution of India – Arts.14, 19 and 21 – Rights of Persons with Disabilities Act, 2016 – Held: The golden triangle of Arts. 14,
19 and 21 applies with full force and vigour to the disabled – S.3 is a statutory recognition of the constitutional rights embodied in Arts. 14, 19 and 21 among other provisions of Part III of the Constitution – S. 3 casts an affirmative obligation on the government to ensure that persons with disabilities enjoy (i) the right to equality; (ii) a life with dignity; and (iii) respect for their integrity equally with others.
Principles/Doctrines – Principle of reasonable accomodation – Rights of Persons with Disabilities – Held: 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 in s. 2(y) of the Rights of Persons with Disabilities Act, 2016 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 enjoyment or exercise of rights equally with others” – Equality, nondiscrimination and dignity are the essence of the protective ambit of the RPwD Act 2016.
Rights of Persons with Disabilities Act, 2016 – Formulation of new policy concerning access to scribes for persons with disabilities – Held: Direction issued 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 s. 2(s) where the nature of the disability operates to impose a barrier to the candidate writing an examination – It was also directed to consult persons with disabilities and involve them in the decision making process.
Allowing the appeal, the Court
HELD: 1. The legal framework
1.1 The important point to note is that the guidelines of the Ministry of Social Justice and Empowerment (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. [Para 20][336-D-E]
2. Two Government Ministries: A policy disconnect
2.1 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. [Para 22][337-H; 338-A]
2.2 MSJE is the nodal ministry which is entrusted with implementing the provisions of the Rights of Persons with Disability Act, 2016. As the nodal ministry, it has formulated guidelines on 29 August 2018. These guidelines, as noticed, 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. [Para 23][338-E-G]
& ORS.
2.3 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. [Para 24][339-A-C]
3. Benchmark disability not a precondition to obtaining a scribe
3.1 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 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. [Para 25][339-D-F]
3.2 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. [Para 26][339-G-H]
3.3 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. [Para 29][340-E]
3.4 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. [Para 31][341-G-H]
4. Rights of Persons with Disabilities Act 2016: A paradigmshift
4.1 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 with others. Section 3 is an affirmative declaration of the intent of the legislature that the fundamental postulate of equality and nondiscrimination 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. [Para 33] [342-C-E]
4.2 The principle of reasonable accommodation captures the positive obligation of the State and private parties to provide & ORS.
additional support to persons with disabilities to facilitate their full and effective participation in society. [Para 35][343-D-E]
4.3 The general principle of reasonable accommodation did not find a place in the 1995 Act. 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 enjoyment or exercise of rights equally with others.” Equality, nondiscrimination and dignity are the essence of the protective ambit of the RPwD Act 2016. [Para 37][345-E-H; 346-A-B]
4.4 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 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). [Para 41][348-E-H; 349-A-D]
4.5 This Court is, 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. [Para 42][349-D-E]
5. Reasonable accommodation
5.1 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 & ORS.
which accepts difference, respects their needs and 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. [Para 46][350-G; 351-A-B]
6. Case of the appellant
6.1 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. [Para 73][361-E-F]
6.2 This Court, 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. [Para 74] [361-G]
7. Formulation of new policy concerning access to scribes for persons with disabilities
7.1 A broader direction issued 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. [Para 75][361-H; 362-A-C] Jeeja Ghosh v. Union of India (2016) 7 SCC 761 : [2016] 4 SCR 638; Justice Sunanda Bhandare
Foundation v. Union of India (2018) 2 SCC 397; Union of India v. National Federation of the Blind (2013) 10 SCC 772 : [2013] 9 SCR 1023; Syed Bashir-ud-din Qadri v. Nazir Ahmed Shah (2010) 3 SCC 603 : [2010]
3 SCR 250 – relied on.
V Surendra Mohan v. State of Tamil Nadu (“Mohan”) (2019) 4 SCC 237: [2019] 1 SCR 954 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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