This article has been written by Naman Verma, pursuing a Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho, and has been edited by Shashwat Kaushik.
It has been published by Rachit Garg.
Table of Contents
Introduction
The Constitution of India guarantees certain rights that are essential for maintaining equilibrium in society at large. These basic rights are so intrinsic that a situation to the contrary could lead to the failure of the entire constitutional machinery. The right to equality, the right to life and liberty, and freedom of speech and expression are some of the rights that form part of such a classification. With time, the idea and scope of these rights have evolved, and rightly so, as an evolving society would need an equally evolved mechanism of laws to successfully preserve its tenets. However, sometimes certain concepts of these rights are so generalised and taken for granted that this fallacy leads to a misinterpretation, which with time takes the form of a stereotyped notion in interpreting the rationale behind the idea of these rights. One such instance where the Supreme Court of India has efficaciously burst the bubble of a stereotyped notion is the case of Vikash Kumar vs. Union Public Service Commission & Ors. (2021), where the Court has admirably discussed the facets of law in interpreting the rights reserved for persons with disabilities in the context of modern times. The court has shifted its perspective on viewing disability as an affliction and has considered giving it a human rights perspective.
Brief facts of the case
The appellant, Vikash Kumar, a civil services aspirant, suffered from a neurological condition called “Dysgraphia,” also known as ‘writer’s cramp’. Accordingly, while applying for the 2017 UPSC exam, he applied under the category of person with locomotor disability and was therefore provided with a scribe for the written test by the UPSC. In 2018, via a notification, the Department of Personnel and Training (DoPT) issued the CSE 2018 Rules, describing the manner of conducting the examination and providing that only the candidates who fall under the categories of: Blindness, Locomotor Disability, and Cerebral Palsy with a minimum of 40% impairment would be allowed the support of a scribe. While applying for the Civil Services Exam 2018, the appellant thereby declared himself a person with a disability of more than 40% and requested that UPSC provide a scribe for him during the examination. UPSC rejected his request, stating that he did not fulfil the criteria specified under the CSE Rules 2018. Moreover, the applicant was initially declined the disability certificate by the designated authority at Ram Manohar Lohia Hospital, Delhi, which also stated that the disability was less than 6%. After facing disappointment from the Central Administrative Tribunal, which rejected the contentions of the applicant and was upheld by the High Court, the appellant approached the Supreme Court seeking relief. Under the directions of the Supreme Court, a medical examination of the appellant was conducted by AIIMS, which concluded that the appellant did suffer from the said neurological condition; however, his disability did not fall under the category of “Benchmark Disability” as described under the Rights of Persons with Disability Act, 2016.
Contentions of the parties
Contentions of the appellant
The primary contentions of the appellant were that since the appellant has been granted a certificate stating that he suffers from Writer’s Cramp and since the disability is recognised under the Schedule of the RPwD Act, 2016, and now that the Ministry of Social Justice and Empowerment has also recognised the said disability in its notification dated January 14, 2018, the appellant has rights under the given statute. Moreover, it was his contention that the new rules promulgated by the DoPT are in violation of Section 20 of the RPwD Act, 2016, as they contravene the mandate of providing a reasonable accommodation to the disabled and are not restricted to those with benchmark disabilities only. The applicant also alleged violations of Article 14 and Article 16(1) on the ground that scribes support was provided only to a certain class of persons, i.e., those who suffer from Blindness, Locomotor disability, and Cerebral palsy, whereas the other benefits are given to all the disabled.
Contentions of UPSC
UPSC contended that the governing rules would be those issued by DoPT and that scribes could be provided only to persons falling under the category of “Benchmark Disability”.
Contentions of Union of India
The primary contention of the Union was that, as per the new rules, the appellant is not entitled to get the help of a scribe since the writer’s cramp is not specifically stated in the schedule and that it is also not a “Benchmark Disability”. However, since not all medical conditions have been recognised as disabilities, it is for the examination body to decide on a case-by-case basis whether help through scribe and compensatory time should be given to the concerned candidates and whether the requisite of having a disability up to a certain percentage is not mandatory to avail of certain facilities.
Primary observations of the Supreme Court
The principle of inclusive equality vis a vis reasonable accommodation
The Supreme Court emphasised the legislative intent behind mentioning persons with disabilities and persons with benchmark disabilities in Sections 2(s) and 2(r) of the RPwD Act, 2016. It stated that though persons with benchmark disabilities are entitled to a more comprehensive set of benefits, the definition under Section 2(s) could not be met with the same restriction of having a measurable quantification of disability as under Section 2(r). It further emphasised that the statutory definition implies that
“Disability is not only a function of physical or mental impairment but its interaction with barriers resulting in a social milieu which prevents the realisation of full, effective and equal participation in society”.
Moreover, the court emphasised that the principle of providing reasonable accommodation to persons with disabilities is at the core of upholding the principle of inclusive equality. It stated that since the disabled face social barriers to participating in society, it is the obligation of the state to take positive actions to remove those barriers. It would be arbitrary to make a distinction between persons with benchmark disabilities and persons with disabilities in providing a conducive environment to enable them to participate in society at a similar level to that of a normal person. In order to protect the individual dignity and autonomy of the disabled, affirmative action must go beyond the general concept of non-discrimination in order to live up to the spirit of Article 14 of the Indian Constitution.
The court pointed out that disability is to be seen in the broader sense, i.e., as something more than a medical condition. It is to be understood that it is the societal barriers and not just the disability itself that exclude the disabled and limit their participation in society. The already existing restraint in the form of disability, along with these societal barriers, poses an unfair disadvantage to the disabled, thereby making them more vulnerable to societal norms. It is only by giving certain rights to the disabled, which cast obligations on society, that this shortcoming can be done away with.
To make it clear what reasonable accommodation means, it stated:
“In the specific context of disability, the principle of reasonable accommodation postulates that the conditions which exclude the disabled from full and effective participation as equal members of society have to give way to an accommodative society which accepts difference, respects their needs and facilitates the creation of an environment in which the societal barriers to disability are progressively answered.”
The Supreme Court overruled its previous judgement in V. Surendra Mohan vs. State of Tamil Nadu (2019), and said that the previous view was in the light of the old RPwD Act of 1995, which lacked the perspective of the principle of reasonable accommodation, where a limit on the disability was imposed in order to be given a benefit, which was upheld by this court on the ground that it was a reasonable restriction. In the present case, it has been stated that the denial of reasonable accommodation would be considered disability based discrimination under Section 3 of the RPwD Act, 2016.
The policy disconnect between the two ministries
The Supreme Court observed a policy disconnect between the Department of Personnel and Training and the Ministry of Social Justice and Empowerment. UPSC followed the guidelines provided by DoPT, which provide that the facility of scribe is provided to people with benchmark disabilities only. The Ministry of Social Justice and Empowerment, on the other hand, contends that though the appellant’s disability is not covered under the Schedule of the RPwD Act 2016, there are many such medical conditions that are not covered, and it is up to the examination body to decide on a case to case basis if and whether a scribe facility should be provided to a candidate or not, in consultation with the Ministry of Health and Welfare. Thus, there is a disconnect in the principles of the policy in question between the two ministries.
Changing the linguistic discourse
The court has specified that certain derogatory words like mentally ill and divyangjan are to be refrained from being used. The use of such language is merely a reflection of the state of the disabled and the fact that they are far from being treated as normal human beings. The language used should be one where the disabled are empowered and thereby treated as equals.
Decision of the Court
In the present case, the Supreme Court held that the fact that the appellant suffers from a disability is quite evident, as it has been made clear through certificates about the existence of such a disability and the examination of the appellant by AIIMS under the direction of the Court. Moreover, denying the appellant the benefits he has under the RPwD Act 2016 would be discriminatory. It stated that the appellant was entitled to receive the facility of a scribe while writing his competitive examinations.
Analysis of the judgement
In this case, the Supreme Court has attempted to uphold the values given to the rights enshrined under Part III of the Constitution, primarily Articles 14 and 21, and has interpreted the provisions of the RPwD Act, 2016 in view of the same. The Court has strived to adhere to the new concept of Equality as discussed and propounded in the landmark judgement of E.P. Royappa vs. State of Tamil Nadu & Anr. (1974). The basic principle revolves around the concept of Equal protection of laws, a principle forming the basic pillar of Article 14 of the Indian Constitution. The idea inherent in the principle is that it is not that every law has to be applied equally to all; rather, it advocates the notion that the laws would be applicable in a like manner to persons situated in the same situation and in an alike manner to persons situated differently. There is no concept of universal application of the law. In the E.P. Royapppa judgement, the scope has been further broadened and stated as follows:
“Equality is a dynamic concept with many aspects and dimensions, and it cannot be cribbed, cabined, and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness.”
In this light, the Supreme Court has stated the importance of the test of reasonableness under Article 21 of the Indian Constitution, where the law must be reasonable and not arbitrary and oppressive. Keeping in mind the above-stated principles, the Supreme Court has interpreted the provisions of the RPwD Act, 2016, primarily Section 3 of the Act, where equality and non-discrimination are said to be the foundation of the said Act, and it is in this context that the Court has emphasised the distinction between “persons with disabilities” and “persons with benchmark disabilities” and has specified the significance of the term “reasonable accommodation.”
Since equality as a principle goes beyond non-discrimination and calls for positive action in order to give the disabled equal treatment, the concept of reasonable accommodation is deemed to work under the same umbrella. The Court, while laying importance on this concept, has stated that while providing a scribe to a disabled person for his written examination, one cannot argue that because he is less disabled, it would be a privilege for him to have a scribe. It is an obligation of the state to provide benefits to disabled persons as given under the statute. Even if one person is disabled and needs support to come to an equal footing with others, and even if he is a class in himself, it would be a reasonable classification under Article 14.
The court stated that except in those circumstances where the eligibility criteria of benchmark disabilities specifically apply, it would be discrimination if a disabled person was denied the rights guaranteed under the Act, and it would be constitutionally and in the context of the concerned statute, invalid. The court thus specifically called out UPSC’s norm to provide benefits only to persons with benchmark disabilities as flawed and an incorrect application of the statute.
This judgement thus lays out the significance of altering our approach to treating the disabled the way we do. By emphasising the reasonable accommodation principle under the RPwD Act, 2016, along with the fundamental constitutional principles, it has shown us the need for substantive equality as a standard measure.
Conclusion
In this case, the Supreme Court has tried to maintain that the concept of equality as derived from Article 14 of the Indian Constitution is something more than non-discrimination. The court has illustrated through instances and observations that equality for the disabled would only exist if certain affirmative actions were taken in order to remove social barriers and enable them to effectively participate in society. Merely following the rule of non-discrimination would not entitle the disabled to dignity and would deprive them of an equal footing with others. The court has clarified that Section 3 of the RPwD Act, 2016, has inherent in it the principles enshrined under Articles 14, 19, and 21 of the Indian Constitution. The emphasis has been laid down on the principle of reasonable accommodation, which now forms the basis of distinction between the two categories, i.e., person with disability and person with benchmark disability. It has, by upholding the right of the appellant to seek the help of a scribe because of his disability, paved the way for the institutions and other government entities to abide by the principle of inclusive equality, which will unquestionably be a resilient touchstone in upholding equality for the citizens, especially the disabled.
References
- Vikash Kumar vs Union Public Service Commission on 11 February, 2021 (indiankanoon.org)
- India Code: Rights of Persons with Disabilities Act, 2016.
- SCO Explains: Vikash Kumar v UPSC – Supreme Court Observer (scobserver.in)
- USPs of the Supreme Court’s judgment in Vikash Kumar: Some reflections (barandbench.com)
- V. Surendra Mohan vs State Of Tamil Nadu . on 22 January, 2019 (indiankanoon.org)
- 46.-MANAV.pdf (jlrjs.com)
- Vikash Kumar v UPSC: An Important Judgment on Disability and Reasonable Accommodation – Indian Constitutional Law and Philosophy (wordpress.com)
- Disability Rights Through Courts: Supreme Court of India- Degree of disability no ground to deny reasonable accommodation [Judgement Included] (disabilityrightsindia.com)
- The New Concept of Equality – A Discussion (lawctopus.com)
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