Vikash Kumar v. Union Public Service Commission & Others, [2021] 11 S.C.R. 281

Person suffering from Writer’s Cramp entitled to scribe for giving Civil Service exam: Supreme Court

Introduction:-

This case Vikash Kumar V. UPSC is related towards affirming the position of persons with disabilities as right bearers. Here, Vikash Kumar holding that an individual Suffering from dysgraphia or writer’s cramp is entitled to a scribe in the Civil Services Examination (CSE) is a significant step towards affirming the position of persons with disabilities as right bearers.Holding that writer’s cramp can be considered as a disability, the Supreme Court on 11^th February,2021 comprising of a bench of Justices DY Chandrachud, Indira Banerjee and Sanjeev Khanna ruled that those suffering from it were entitled to take scribe to write competitive examinations, including Civil Services Examination.

The Bench asked the Centre to frame guidelines In three months to protect the rights of disabled students and enable them to write all competitive examinations with help of a scribe in tune with the Rights of Persons with Disabilities Act 2016.

Facts of the case:

The Appellant had a disability known as Writers Cramp.The appellant, after obtaining an MBBS degree, intended to pursue a career in the civil services.  He was a UPSC CSE aspirant. The Respondent-Commission issued notification for the CSE.The Department of Personnel and Training 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. The candidates withlocomotor disability and cerebral palsy where the dominant (writing) was impacted to the extent of slowing the performance of function (40 % minimum impairment).Candidates within the exception were allowed the help of a scribe. In his online application for the CSE 2018, the Appellant declared himself to be an individual with a benchmark disability of 40% or more. By his email, the Appellant requested the Commission to produce him with a scribe for the examination.·The Respondent-Commissioner rejected the request on the turf that a scribe might be provided only to candidates with locomotor or blind category.

Tribunal’s decision:-

Aggrieved by the rejection order the appellant filed  a case at the Central tribunal against the rejection order . The appellant also applied for a disability certificate from Ram Manohar Lohia hospital .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.

Delhi High Court’s decision:-

The appellant filed a writ petition before a High court of Delhi. 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. Aggrieved by the order ,the appellant decided to file an appeal to the supreme court of India.

Issue involved:-

Would a person suffering from physical incapability be denied from using a scribe for not qualifying the benchmark percentage set by the defendant in 2018???

Does the civil service examination rule of 2018 violate the right of personal with disability act 2016  (RpWD act ,2016) which allow reasonable accommodation for people with physical disabilities????

Contention of the appellant :-

The appellant council argued that appellant falls under Section 2(s) of RpWDAct 2016 which describes the meaning of a person with a disability, which is a person who has a long-term physical, mental, intellectual, or sensory impairment that, when combined with barriers, prevents him from fully and effectively participating in society alongside other people.

• The Appellant’s learned counsel argued that the CSE Rules of 2018 are violative of Section 20 of the RPWD Act, 2016 because it failed to provide “Reasonable accommodation” to the physically disabled candidates. Only blind, Locomotion disabled, cerebral palsy, and candidates suffering from physical disability of more than 40% are allowed for scribes. This fails to provide accommodation for those who are physically disabled but still are excluded from the exceptions mentioned by the CSE 2018 rules.

• The Learned counsel of the Appellant also argued that the CSE Rules 2018 are violating Article 14 and Article 16(1) of the Indian Constitution as the rules provide scribes for only a limited number of physically disabled people.

• The Learned counsel of the Appellant argued that other examination institutions like the Institute of Chartered Accountants of India (ICAI) and the University of Delhi recognised Writer’s Cramp as a physical disability and provided students suffering from such a disability with scribes. The medical board of AIIMS determined that he had a disability of 6% because of a chronic neurological condition that affected his locomotion and prevented him from moving either himself or objects. The petitioner’s writing ability is not the subject of the evaluation. In addition, the medical report confirms that the appellant has Writer’s Cramp, a condition that makes it difficult for the appellant to write, and backs up previous medical certificates that the appellant has received.

ARGUMENTS OF THE DEFENDANT:

1. The Learned counsel of the Defendant stated that a person with physical disabilities above the prescribed benchmark has to prove it by producing a medical certificate from a Chief Medical Officer (CMO) of a Government Healthcare Institution. The Medical certificate must also expressly mention the disability of the candidate and suggest a need for a scribe. The Appellant, in this case, declared himself as a benchmark candidate, without submitting the aforementioned certificate.

• The Learned counsel of the Defendant mentioned that the Ministry of Social Justice and Empowerment(MSJE) opined that the Writer’s Cramp or Dysgraphia is not a disability. However, it indeed creates difficulties in writing. In these cases, the examining body has decided to provide compensatory time to create a level playing field.
• The Learned counsel of the Defendant argued that Writer’s cramp is not included in the Schedule of the RPWD act..
• The Learned counsel of the Defendant states that the Civil Service Examination is the most competitive examination in the country, and the Board must provide a level playing field for every  candidate. If rules on the allowance of scribes were made less strict, then a candidate who doesn’t need a scribe shall have an unfair advantage over the other.

JUDGEMENT:-

The Court was also faced with the argument of whether the provision of a scribe / writer is within the scope of reasonable accommodation as defined in Section 2(y) of the 2016 Act, and therefore whether respondents are legally obliged to provide a scribe / writer to the Petitioner.

The Supreme Court of India allowed the appeal and set aside the impugned order of the High court of Delhi. The Apex court opined that a person suffering from a disability cannot be denied the service of a scribe based on not clearing the benchmark disability. The court also stated that the reason for the incorporation of the RPWD Act, 2016 was to create a level playing field for all the candidates in every sector, regardless of their natural disabilities. The concept of “Reasonable Accommodation” was to satisfy the disability of naturally unlucky individuals and bring them on par with non-disabled candidates. Overruling the judgement of Surender Mohan’s case, the two-judge bench decided to provide reasonable accommodation to the disabled candidate even though he did not clear the benchmark disability.

Courts Observation:-

The Supreme Court held 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. The Court determined that equality included not just the prohibition of discrimination but also a wide range of positive rights, such as “reasonable accommodation.” .In this context, the state owes it to persons with disabilities to provide reasonable accommodations, such as the use of a scribe, compensatory time, and so on, in order to ensure substantive equality

While explaining his stance on Reasonable accommodation the bench said:

“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.”

The Supreme Court In its order noted, “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.”

He further remarked, “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 facilities 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.

“…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 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 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.”

 At last ,The appellant was allowed to take the Civil Services Examination or any other government-sponsored competitive selection exam with the assistance of a scribe. Within three months of receiving the certified copy of this judgment, the Ministry of Social Justice and Empowerment was instructed to ensure proper guidelines were drafted to regulate and facilitate scribe facilities for people with disabilities.

INFERENCES :-

The Learned judges of the Supreme Court decided this case on the “Reasonable accommodation” concept. The Apex court reasoned that reasonable accommodation must be given by looking into the disability of each candidate. A person in a wheelchair doesn’t need a scribe but a person with a broken finger does. I believe that the judgement given by the learned judges on the bench was a fair one and made sure that the concept of equality is maintained in this country. As the above-mentioned quote says, a society is judged by the way it treated its ill minority and this judgement proves that India is a society that can be placed at a higher scale. The judge’s decision to allow the appeal enforces the government’s willingness to protect the equity characteristic of the nation.

The principle of equality and nondiscrimination Is at the heart of the Rights of Persons with Disabilities Act of 2016. An affirmative declaration of this intention of equality and non-discrimination for people with disabilities without a benchmark disability is provided in Section 3 of the Act. In order to guarantee disabled people’s fundamental rights, all other provisions of the act adhere to this fundamental principle .

This article is written by Aditya Kumar of ICFAI University, an intern under Legal Vidhiya