In an important ruling delivered today, the Supreme Court ruled that writing can be provided for those with disabilities other than those with benchmark disabilities.
The bank, run by Justice DY Chandrachud, directed the government to establish appropriate guidelines that would regulate and facilitate the granting of a facility of a scribe for people with disabilities within the meaning of Section 2 (s) of the Disability Rights Act 2016 after consultation with the public, especially with people with disabilities and organizations that they represent.
The court allowed an appeal against Vikash Kumar, a UPSC candidate whose request to provide him with a scribe for the Civil Service Examination Rules 2018 was denied on the grounds that a scribe was only for blind candidates and candidates with disabilities or disabilities Brain problems could be provided with paralysis with an impairment of at least 40%. He had a disability in the form of a dysgraphy commonly known as Writer’s Cramp. The Central Administrative Tribunal and later the Delhi High Court dismissed his action against this denial.
On the basis of the complaint, the Bank took the view that the complainant was entitled to the option of a clerk to appear at the public service audit and any other selection of competitors carried out under government supervision.
On the appeal, the bank, which included Judges Indira Banerjee and Sanjiv Khanna, noted, referring to the scheme of the 2016 law, that restricting the establishment of a clerk only to those with benchmark disabilities would deprive a class of people their legally recognized claims. The bank found in paragraph 41 of the judgment that:
“If the government, in recognition of its positive duties and obligations under the RPwD Act 2016, introduces provisions to facilitate a clerk during the civil service examination, it cannot be construed as doing a great job. Nor can it allow That a writer is a privilege for a candidate. The provision for the establishment of a writer corresponds to the legal mandate to ensure that persons with disabilities can lead lives of equality and dignity based on society’s respect for their physical and mental integrity Fundamental error of UPSE / DoPT in assuming that a scribe facility is only available to people with benchmark disabilities, due to the MSJE’s failure to clarify its guidelines. The entire concept of a benchmark disability in the For the purposes of Section 2 (r) is in primarily related to specific provisions including reservations contained in Chapter VI of Section 1 e RPwD Act 2016. It is conceivable that Parliament, while mandating the reservation of posts in governmental institutions and of seats in colleges, would consider was that this right should be recognized for people with benchmark disabilities. For reasons of legislative policy, these provisions in Chapter VI have been applied to persons with benchmark disabilities who have a higher disability threshold. Except in the specific legal context in which the standard of benchmark disability has been applied, it would be clearly contrary to both the text and the intent of the decree to deny the rights and entitlements recognized as such by persons with disabilities over the threshold for a benchmark disability not achieve. A legal concept that has been used by Parliament in certain situations cannot be extended to others where the broader term “people with disabilities” is used in law. The guidelines, which were drawn up on August 29, 2018, can in no way be considered exhaustive of the situations in which a writer may be invoked by anyone other than those with benchmark disabilities. The MSJE does not treat these guidelines in its affidavit to the Court as exhaustive of the circumstances under which a scribe may be provided for individuals other than individuals with benchmark disabilities. This understanding of the MSJE is correct for the simple reason that the rights arising from provisions such as Section 3 extend to persons with disabilities as broadly defined in Section 2 (s). “
The possibility of abuse cannot be used to deny people with disabilities equal access to seek the facility of a clerk
The bank also found that the opportunity for abuse cannot be used to deny equal access to people with disabilities when seeking the facility of a clerk. It said:
“If an able-bodied student cheats, the normal consequence is disqualification or other appropriate punitive action. The same consequence can follow from a candidate using his or her disability to play the system. If some incidents of able-bodied candidates come to light.” Hiding chits in their dress code and misusing them to cheat on them on an exam is the normal consequence of appropriate punitive action against such students. It is not that they are switching to a different dress code that is so uncomfortable that many competent students find it difficult to sit in it for the entire duration of the exam and to the best of their ability. Likewise, people with disabilities whose disability requires access to a scribe cannot be excluded from eligibility just because some bad apples in the system are faulty the same. “
Establish appropriate guidelines that would regulate and facilitate the granting of a writing facility for people with disabilities
The court also proposed the formulation of a new scribe access policy for people with disabilities.
Before we conclude, we also intend to give the Union Government in the Department of Social Justice and Empowerment a broader brief to ensure that appropriate guidelines are established that would allow the granting of a facility of a scribe for people with disabilities as referred to in this Regulate and facilitate the meaning of Section 2 (s), where the nature of the disability hinders the candidate writing an exam. In formulating the procedures, the Department of Social Justice and Empowerment may set appropriate standards to ensure that the applicant’s condition is properly certified by a competent medical authority, which may be mandated to ensure that only real applicants need the facility Government should be aware that the duty to provide reasonable accommodation is an individual duty, as also noted by the CRPD Committee in the General Comment. In other words, a case-by-case approach must be chosen by the competent authorities responsible for making reasonable accommodation arrangements. This requires that the body concerned has a dialogue with the person with disabilities. When considering the financial costs of PART M 60 and the resources available to provide accommodation, it is important to consider total assets, not just the resources of the unit or department concerned within an organization. It should also be ensured that people with disabilities do not have to pay for accommodation.Consultation with people with disabilities and their participation in decisions on matters that affect their lives is necessary to make a meaningful change in the realization of their rights. Given the emergence of movements of people with disabilities and the philosophy of “nothing about us without us”, the CRPD Committee in its General Comment No. 7 also underlined the importance of such participatory decision-making involving people with disabilities and organizations of the people with disabilities.Case: Vikash Kumar v Union Public Service Commission [Civil Appeal No. 273 of 2021]
Coram: Judges DY Chandrachud, Indira Banerjee and Sanjiv Khanna
Lawyer: Adv Rajan Mani, Adv Naresh Kaushik, ASG Madhavi Divan, Adv Sanchita Ain
Quote: LL 2021 SC 76
Click here to read / download the verdict
Read the verdict