“The principle of reasonable accommodation 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,” said Justice D.Y. Chandrachud.
The Supreme Court has directed the Centre to ensure the framing of proper guidelines which would regulate and facilitate the grant of a facility of a scribe to “persons with disability” within the meaning of Section 2(s) RPwD Act, where the nature of the disability operates to impose a barrier to the candidate writing an examination.
A three-judge bench of Justice Dr Dhananjaya Y. Chandrachud, Justice Indira Banerjee and Justice Sanjiv Khanna has allowed a Civil Services aspirant, who is also a “person with disability”, to avail the facility of a “scribe” for appearing in the Civil Services Examination and for any other competitive selection conduct under the authority of the Government.
In the instant matter (Vikash Kumar versus Union Public Service Commission & Ors.), the appellant is found having a specified disability inasmuch as he has a chronic neurological condition, according to the AIIMS report, filed pursuant to the Courts order. The Court noted that the said condition Forms part of Entry IV of the Schedule to the RPwD Act 2016. “The Writer’s Cramp has been found successively to be a condition which the appellant has, making it difficult for him to write a conventional examination. To deny the facility of a scribe in a situation such as the present would negate the valuable rights and entitlements which are recognised by the RPwD Act 2016,” said the Court in its Order.
The Apex Court pronounced its decision on an appeal filed challenging the High Court order which had upheld the order of Central Administrative Tribunal, which had denied the facility of “scribe” to the aspirant as per notification issued by the Department of Personnel and Training (DoPT).
The Department of Personnel and Training had issued the CSE Rules 2018 providing for the manner and the 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 scribe. Exception to this rule were provided for blind candidates; candidates with locomotor disability and cerebral palsy where the “dominant (writing) is affected to the extent of slowing the performance of function (minimum of 40% impairment)”. Candidates within the exception were allowed the help of a scribe. The petitioner in the present case does not fall under the category of disability mentioned in the DoPT order.
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.
While explaining his stance on Reasonable accommodation Justice Chandrachud 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 noted in its order,
“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 General Comment 6. 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.”
Read the full judgment here;Vikash