Tuesday, July 26, 2022

Degree of disability no ground to deny reasonable accommodation : Supreme Court of India [Judgement Included]

 On February 11, 2021, a three-judge bench of the Supreme Court of India in Vikash Kumar v. Union Public Service Commission (Vikash Kumar) held that that an individual suffering from Writer’s Cramp or dysgraphia which is neither an identified disability in the Act nor has been certified as benchmark disability, is entitled to a scribe in India’s Civil Services’ Examination (CSE). The judgement is a significant step towards ensuring inclusivity for persons with disabilities as it emphatically affirms their position as rights bearers. It represents a move from a medical model of disability wherein disability is viewed as an affliction to a human rights model in consonance with the mandate of the UN Convention on the Rights of Persons with Disabilities (UNCPRD).

In a landmark 62-page judgment, the Supreme Court of India has said that the principle of reasonable accommodation, spelt out in the 2016 Rights of Persons with Disabilities (RPwD) Act, 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 Court further said that “…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.”

The case concerned a person with a chronic neurological condition resulting in Writer’s Cramp, or extreme difficulty in writing. He was denied a scribe for the Civil Services Exam by the UPSC, on the ground that he did not come within the definition of person with benchmark disability (40% or more of a specified disability).  The Court, in rejecting this stand, held that the petitioner was a person with disability and that provision of scribe to him came within the scope of reasonable accommodation.  The Court said ” … 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…”

In a detailed analysis of Indian and International disability law, the Court said that disability is a long-term condition which due to barriers in the environment hinders full and effective participation in society. Reasonable accommodation implies looking at the specific disabling condition and providing amenities in accordance. Examples: Blind persons need screen reading software to work on the computer, hearing impaired need sign language interpreters. Reasonable accommodation extends to all persons with disabilities, not just those with benchmark disabilities.

The Union Public Service Commission (UPSC) argued that as per the CSE Rules 2018 a scribe could only be provided to blind candidates and candidates with locomotor disability and cerebral palsy which resulted in an impairment of function by at least 40%. The Supreme Court observed that the UPSC’s response was contrary to the reply filed by the nodal ministry in India for implementing the provisions of the Right of Persons with Disabilities Act, 2016 (RPwD Act). The law had been enacted after India became a party to the UNCRPD in 2007.

The reply of the ministry recognised that there may be certain medical conditions not identified as disability per se but which have a detrimental impact on the writing capability of a person. Therefore, the onus was on the examining body, in consultation with India’s health ministry, to consider such cases for grant of scribe, extra time or other facilities, on production of a medical certificate. 

In this context, the Supreme Court noted that a ‘person with disability’ under the RPwD Act includes individuals 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’. The RPwD separately defines persons with ‘benchmark disability’ as those who are certified to have not less than 40% of the disabilities specified in the Schedule of the RPwD Act.

The Supreme Court opined that the higher threshold of benchmark disability could not be imposed to deny equal access to persons with disabilities contrary to the ethos of non-discrimination enshrined in the fundamental rights chapter of the Indian Constitution

The judgement clarified that the scheme of the RPwD Act imposed a benchmark disability as a precondition only for access to specific entitlements such as affirmative action as under Sections 32 and 34 of Chapter VI. In other words, the absence of benchmark disability could not be used to deny other forms of reasonable accommodation to persons with disabilities. 

The bench relied upon the landmark precedent of Jeeja Ghosh v. Union of India wherein it was held that equality is not only limited to preventing discrimination but also embraces a wide ambit of positive rights including reasonable accommodation. The principle of reasonable accommodation, the Court observed in Vikash Kumar, is a facet of substantive equality set out in General Comment 6 of the Committee on the Rights of Persons with Disabilities.

The Court also held that the denial of reasonable accommodation constitutes disability-based discrimination under Section 3 of the RPwD Act. The object of the provision is to ensure that persons with disabilities can overcome insidious barriers of exclusion without the imposition of a disproportionate burden. In this context, the state has an obligation to develop an appropriate environment guaranteeing equality of opportunity to persons with disabilities. Reasonable accommodation, such as the facility of a scribe, is therefore an enabling instrument for securing substantive equality.

Further, the state had raised a concern that the provision of a scribe could offer an undue advantage to persons with disabilities. In response, the Court pointed to  the absence of empirical data to hold that this argument of misuse was unsubstantiated. The unfounded suspicion, the Court also remarked, in fact perpetuated the stereotype that persons with disabilities have to resort to state largesse due to their inability to compete on a level-playing field.

Finally, the Court emphasised that it expected the government to consult persons with disabilities in a bid to democratise policy making. It remains to be seen whether such an endeavour results in lasting impact.

Read the judgement below in ivil Appeal No. 273 of 2021 Special Leave Petition (C) No. 1882 of 2021 titled as Vikash Kumar v. Union Public Service Commission & Others.

Centre Govt. informs SC that it notified the standards of pupil-teacher ratio for special schools and separate norms for special teachers who alone can impart education and training to Child with Special Needs (CwSN) in general schools

Govt. of India has confirmed before a Supreme Court bench comprising Justices A M Khanwilkar, A S Oka, and J B Pardiwala on 21 July 2022 that it has accepted the  norms and standards of pupil-teacher ratio for special schools and also separate norms for special educators, who alone can impart education and training to children with special needs in general schools, as recommended by the Rehabilitation Council of India (RCI). In its compliance affidavit filed before the Hon'ble Supreme Court, the Ministry of Education referred to the norms and standards as per which the recommended pupil-teacher (special education teacher) ratio for regular (inclusive) school is 10:1 for the primary level and 15:1 for the upper primary, secondary and higher secondary level.

The letter also clarifies that the parity of pay and service conditions should be adhered to for special education teachers as done for general education teachers at national and state levels", it is related to respective State Governments/ UT Administrations as Education being in the concurrent list of subjects.

With this, a long pending issues have been settled and implemented regarding status of special education teachers  (under RCI) at par with the B Ed. teachers (under NCTE) and also that children with disabilities would be taught only by teachers trained under RCI and the educational insstitutions will also ensure that the teacher pupil ratio as prescribed by the RCI is maintrained to ensure quality of education and to comply with the provisons of the Rights of Persons with Disabilities Act. 

The department of school education and literacy, Ministry of Education, had issued a letter on June 10, 2022 to the education secretaries of all the states and Union Territories (UTs), the commissioners of 'Kendriya Vidyalaya Sangathan' and 'Jawahar Navodaya Vidyalaya Samiti' wherein the norms and standards of pupil-teacher ratio (PTR) have been circulated with a request to take further necessary action in the light of the apex court judgement and furnish an action taken report to the department.

"Since this department has finalised the norms and standards i.e PTR for special teachers/special educators who alone can impart education and training to CwSN (children with special needs) in the general schools, it is humbly submitted that this department is in the process of issuing notification by amending the 'schedule' of the RTE Act, 2009, in compliance of para 34 of the judgement dated October 28, 2021, passed by this court. It is further submitted that this process is likely to take 4 to 6 weeks," the affidavit said.

Supreme Court was hearing the complinace of its judgement passed on 28 Oct 2021 in Writ Petition (Civil) No. 132/2016 titled Rajneesh Kumar Pandey & Ors versus Union of India & Ors, wherein the Court had said that the Centre must forthwith notify the standards of pupil-teacher ratio for special schools as also separate norms for special teachers who alone can impart education and training to Child with Special Needs (CwSN) in general schools across the country.

The bench, however, posted the matter for further hearing on August 17, 2022 asking the concerned states and UTs to submit the compliance report to the Secretary of the Ministry.

The affidavit said the committee, as formed by RCI to formulate the norms of special educators in special schools, was also requested to formulate the norms, guidelines, standards on ratio, roles, responsibilities, etc of special teachers/special educators in general schools in view of the apex court directions. It said the draft norms were submitted to the ministry by the RCI.

 RCI has also recommended and redefined the "role of special teachers", while being a catalyst to empower children with disabilities, they will undertake certain responsibilities for facilitating inclusive education. It included providing tips for making an inclusive school climate, culture, and ethos where all systems from admission to assessments, teaching, and evaluation are disabled-friendly. The letter also referred to the "outreach activities" for special teachers which include, undertaking home visits and support home training programs. The "suggested activities" for special teachers, will also include developing an annual/monthly calendar of activities for inclusion.

Here is the judgemment of the Hon'ble Supreme Court: 

Writ Petition (Civil) No. 132/2016 Rajneesh Kumar Pandey& Others VERSUS Union of India & Others.