SC: Benchmark Disability Not A Precondition To Obtain A Scribe
Education News | EduLegaL
13.02.2021| www.edulegal.org | email@example.com
11th February 2021 the Supreme Court passed a landmark judgment in Vikash Kumar v. Union Public Service Commission and Ors. wherein the appellant had filed an appeal when his request for being provided with a scribe to write his Civil Services Examination was rejected.
The bench comprising of Justice Indira Banerjee and Justice Sanjeev Khanna and presided by Justice D Y Chandrachud, opined:
“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.”
The appellant-student Vikash Kumar had approached the Union Public Service Commission requesting for a scribe since he suffered from a writer’s cramp. Medically, the condition that the student suffered is a disability variant of dysgraphia.
The student completed MBBS degree in 2016 from JIPMER. In 2017, he appeared for Civil Services Examination wherein his request for a scribe was permitted. The appellant while filling up the examination form for the CSE 2017 had mentioned himself as a person with locomotor disability, to avail the help of a scribe, which was granted to him.
However, in 2018, the Department of Personnel and Training through the UPSC issued a notice wherein certain rules pertaining to the conduct of the examination were laid down. The rules for all the aspiring candidates prescribed mandatory writing of their own papers and that the services of a scribe would not be provided to them. But a certain category of candidates were exempt from such rules, provided they were blind, or had a loco-motor disability or had cerebral palsy. The base of determining this exception was cases where “dominant (writing) is affected to the extent of slowing down the performance of function (minimum of 40% impairment)”. Only such candidates with the fulfilling the disability criteria could avail the help of a scribe, in addition to 20 extra minutes to complete the exam than the regular allotted time.
Nevertheless, when the appellant filed his form for CSE 2018, and again mentioned himself as a person with a loco-motor disability to request for a scribe, the same was denied to him by the UPSC in March 2018. The reason for this rejection was cited as the appellant not meeting the criteria of a disabled person with a minimum impairment percentage of 40% in blindness or loco-motor disability or cerebral palsy.
The appellant had also wished to appear for the Combined Medical Services Examination in 2017 for the post of a Medical Officer, which also comes under the canopy of the UPSC. For this, he needed a disability certificate and he approached the Medical Board of the Ram Manohar Lohiya Hospital for the same. The Board too rejected his application for the certificate, which thus led to the appellant challenging this rejection before the Central Administrative Tribunal.
The appellant had moved the Tribunal challenging the rejection of his request for a scribe in 2018, following which the Tribunal had directed the UPSC to provide him with a scribe to help with his preliminary examination. When the results for the examination were declared in July 2018, the appellant’s results were withheld. The application of the appellant was then dismissed on the grounds of having no disability certificate from the Medical Board and not needing the help of a scribe to write his CSE in 2017 nor his MBBS graduation examinations.
A writ petition was then filed before the High Court of Delhi which challenged the CSE Rules 2018. But the ruling division bench of the Delhi HC refused to interfere with the Tribunal’s Order since the appellant had not qualified for the CSE 2018. This order of the High Court was challenged in appeal before the Supreme Court.
The Supreme Court considered the questions:
- Whether the Appellant suffers from a benchmark disability within the meaning of Section 2(r) and Section 2(zc) of the RPwD Act, 2016; and
- Whether he is a ‘person with disability’ under Section 2(s) of the RPwD Act, 2016 and the extent of the disability.
To this, the All India Institute of Medical Sciences (AIIMS) investigated the health of the appellant and concluded in a report that – his Writer’s Cramp was a ‘chronic neurological condition’ and that although he does not have any benchmark disability, he did, in fact, fall into the category of a Person with Disability under the RPwD Act, 2016, with a disability percentage of 60%
The contentions raised on behalf of the appellant condemned the CSE Rules, 2018 as they “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.”
Referring to this, the SC bench said:
“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 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.”
The court further went on to emphasize the grave violation of the rights of a disabled person declaring:
“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 fulfil a benchmark disability would be plainly ultra vires the RPwD Act 2016.”
Commenting on the legality of the CSE Rules 2018, the court added:
“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).”
The court thus allowed the appeal of the appellant and set aside the earlier order of September 2018 of the Delhi High Court.
Recognizing the thought there have been various instances of the violation of rights of disabled persons even with the RPwD Act, 2016 in place and that justice has been long-delayed and denied to such persons due to the various rules and regulations the court said:
“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.”
Justice D Y Chandrachud, on behalf of the bench further added:
“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.”