Court: Supreme Court of India
Bench: Justice Dr Dhananjaya Y Chandrachud; Justice Indira Banerjee and Justice Sanjiv Khanna
Case Number: Civil Appeal No. 273 of 2021 Special Leave Petition (C) No. 1882 of 2021
Case Title: Vikash Kumar v. Union Public Service Commission & Others.
Date of Judgement: 11 February 2021
Cited as: 2021 SCC OnLine SC 84
Cases refered/quoted:
- Jeeja Ghosh vs. Union of India (2016) 7 SCC 761;
- V Surendra Mohan vs. State of Tamil Nadu;
- Rajive Raturi v. Union of India and Ors., 2017 ;
- Disabled Right Group and Ors. v. Union of India and Ors., (2018) 2 SCC 397.
Case Brief:
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).
Case details:
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 embedded below in Civil Appeal No. 273 of 2021 Special Leave Petition (C) No. 1882 of 2021 titled as Vikash Kumar v. Union Public Service Commission & Others.
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