VIKASH KUMAR versus UNION PUBLIC SERVICE COMMISSION & ORS.

[2021] 12 S.C.R. 311

VIKASH KUMAR

UNION PUBLIC SERVICE COMMISSION & ORS.

(Civil Appeal No. 273 of 2021)

FEBRUARY 11, 2021

[DR. DHANANJAYA Y CHANDRACHUD,

INDIRA BANERJEE AND SANJIV KHANNA, JJ.]

Rights of Persons with Disabilities Act, 2016 – ss. 2(r), 2(s),2(y), 3 and 56 – Civil Services Examination Rules, 2018 – Facilityof scribe in the Civil Services Examination – Entitlement to – Theappellant has disability in the form of dysgraphia, commonly knownas Writer’s Cramp – On 07.02.2018, UPSC issued notificationfor the CSE 2018 – The CSE Rules 2018 issued by DoPT providingfor the manner and conduct of the examination – The generalinstructions provided that all candidates must write their papers intheir own hand and will not be allowed the help of scribe –Exceptions 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 theperformance of function (minimum of 40% impairment)” –Candidates within the exception were allowed the help of scribe –Appellant in his online application for the CSE 2018 declared himselfto be person with benchmark disability of 40% or more andrequested the UPSC to provide him with scribe for the examination– Application was rejected by the UPSC – Aggrieved, appellantmoved to the Tribunal – Tribunal dismissed the application and itwas held that appellant did not fulfill the criteria – Appellant filedwrit petition – The High Court declined to interfere with the orderof the Tribunal on the ground that the appellant had not qualifiedat the Preliminary Examination for CSE 2018 and thus, the reliefseeking an amendment of the CSE Rules 2018 to provide scribes tocandidates with specific disabilities was rendered otiose – TheSupreme Court directed AIIMS to constitute medical board toevaluate the condition of the appellant – AIIMS, by its report opinedthat the appellant suffers from “chronic neurological condition”termed as bilateral Writer’s Cramp – However, the report opinesthat while he does not suffer from “benchmark disability”, the

Aappellant is ‘person with disability’ under the RPwD Act, 2016 –The extent of the disability is assessed at 6% – Held: The guidelinesof the Ministry of Social Justice and Empowerment dated 29.08.2018recognise the entitlement to scribe only for candidates withbenchmark disabilities – The guidelines which have been framedon 29.08.2018 can by no means be regarded as being exhaustiveBof the situations in which scribe can be availed of by personsother than those who suffer from benchmark disabilities – The rightswhich emanate from provisions such as s.3 extend to persons withdisability as broadly defined by s. 2(s) – To confine the facility of ascribe only to those who have benchmark disabilities would be toCdeprive class of persons of their statutorily recognized entitlements– To do so would be contrary to the plain terms as well as the objectof the statute – In the instant case, the condition of appellant wasrepeatedly affirmed by several medical authorities includingNIMHANS and AIIMS – The appellant has specified disabilityinasmuch as he has chronic neurological condition – This conditionDForms part of Entry IV of the Schedule to the RPwD Act 2016 – Thewriter’s cramp has been found successively to be condition whichthe appellant has, making it difficult for him to write conventionalexamination – To deny the facility of scribe in situation such asthe present would negate the valuable rights and entitlements whichEare recognised by the RPwD Act 2016 – Appellant entitled to thefacility of scribe – Thus, the impugned order and judgment of theHigh Court is set aside.Rights of Persons with Disabilities Act, 2016 – ss. 2(r), 2(s),2(y), 3 and 56 – Benchmark disability not precondition to obtainFa scribe – Held: The whole concept of benchmark disability withinthe meaning of s. 2(r) is primarily in the context of special provisionsincluding reservation that are embodied in Chapter VI of the RPwDAct 2016 – Conceivably, the Parliament while mandating thereservation of posts in government establishments and of seats ininstitutions of higher learning was of the view that this entitlementGshould be recognized for persons with benchmark disabilities – Asa matter of legislative policy, these provisions in Chapter VI havebeen made applicable to those with benchmark disabilities where ahigher threshold of disability is stipulated – Conflating the rightsand entitlements which inhere in persons with disabilities with theHnotion of benchmark disabilities does dis-service to the salutary

purpose underlying the enactment of the RPwD Act 2016 – To denythe rights and entitlements recognized for persons with disabilitieson the ground that they do not fulfill benchmark disability wouldbe plainly ultra vires the RPwD Act 2016.

Constitution of India – Arts.14, 19 and 21 – Rights of Personswith Disabilities Act, 2016 – Held: The golden triangle of Arts. 14,19 and 21 applies with full force and vigour to the disabled – S.3 isa statutory recognition of the constitutional rights embodied in Arts.14, 19 and 21 among other provisions of Part III of the Constitution– S. 3 casts an affirmative obligation on the government to ensurethat persons with disabilities enjoy (i) the right to equality; (ii) alife with dignity; and (iii) respect for their integrity equally withothers.

Principles/Doctrines – Principle of reasonable accomodation– Rights of Persons with Disabilities – Held: The principle ofreasonable accommodation captures the positive obligation of theState and private parties to provide additional support to personswith disabilities to facilitate their full and effective participation insociety – The concept of reasonable accommodation in s. 2(y) ofthe Rights of Persons with Disabilities Act, 2016 incorporates making“necessary and appropriate modification and adjustments” so longas they do not impose disproportionate or undue burden in aparticular case to ensure to persons with disability the enjoymentor exercise of rights equally with others” – Equality, non-discrimination and dignity are the essence of the protective ambitof the RPwD Act 2016.

Rights of Persons with Disabilities Act, 2016 – Formulationof new policy concerning access to scribes for persons withdisabilities – Held: Direction issued to the Union Government inthe Ministry of Social Justice and Empowerment to ensure theframing of proper guidelines which would regulate and facilitatethe grant of facility of scribe to persons with disability withinthe meaning of s. 2(s) where the nature of the disability operates toimpose barrier to the candidate writing an examination – It wasalso directed to consult persons with disabilities and involve themin the decision making process.

314SUPREME COURT REPORTS

AAllowing the appeal, the Court

HELD: 1. The legal framework

1.1 The important point to note is that the guidelines of theMinistry of Social Justice and Empowerment (MSJE) dated 29August 2018 recognise the entitlement to scribe only forBcandidates with benchmark disabilities. Among them, candidatesbelonging to three categories – the blind and those with locomotordisability or cerebral palsy - are to be given the facility if sodesired. In the case of candidates with other benchmarkdisabilities, such facility is to be extended upon certificate.C[Para 20][336-D-E]

2. Two Government Ministries: policy disconnect

2.1 Referring to the OM dated 29 August 2018 issued bythe MSJE, the affidavit of UPSC states that these guidelinesconfine the benefit of scribe only to persons with benchmarkDdisabilities. The request of the appellant is stated to have beenrejected on the ground that there is an absence of any provisionfor scribe to candidates falling in the category in which theappellant is placed. UPSC in fact states that it does not permit adeviation from the CSE Rules 2018. [Para 22][337-H; 338-A]E2.2 MSJE is the nodal ministry which is entrusted with

E2.2 MSJE is the nodal ministry which is entrusted withimplementing the provisions of the Rights of Persons withDisability Act, 2016. As the nodal ministry, it has formulatedguidelines on 29 August 2018. These guidelines, as noticed,confine access to scribe, reader or lab assistant to candidatesFhaving benchmark disabilities within the meaning of Section 2(r).Yet, as the nodal ministry, it recognizes that these guidelines arenot exhaustive of the circumstances or conditions in which scribecan be provided. On the contrary, the MSJE has recognized theprevalence of other medical conditions “not identified asdisabilities per se” but which may hamper the writing capabilityGof person. It specifically leaves it open to every examining bodyto consider such cases for the grant of scribe, extra time or otherfacilities in consultation with the Ministry of Health and FamilyWelfare against the production of medical certificate, in linewith those prescribed for candidates with benchmark disabilities.[Para 23][338-E-G]H

2.3 This view of the nodal ministry has evidently notpercolated to UPSC which, on the other hand, considers itself tobe strictly bound, without deviation, from the rules specified byDoPT for the conduct of the CSE. Notwithstanding the views ofthe MSJE, the UPSC does not recognize that the guidelines dated29 August 2018 vest it with the discretion to provideaccommodations on case-by-case basis, beyond those spelt outin the guidelines. The rules which hold the field are in terms ofthe guidelines dated 29 August 2018. UPSC has thereforespecifically stated before this Court that candidate who doesnot fulfill the description of person with benchmark disabilitieswould not be entitled to scribe. These divergent views of twoCentral Ministries before the Court are symptomatic of policydisconnect. [Para 24][339-A-C]

3. Benchmark disability not precondition to obtaining ascribe

3.1 The RPwD Act, 2016 embodies two distinct conceptswhen it speaks of (i) ‘persons with benchmark disabilities’ and(ii) persons with disability. In defining person with benchmarkdisability, Section 2(r) encompasses two categories: (i) personwith not less than 40 per cent of specified disability, where thespecified disability has not been defined in measurable terms and(ii) person with disability where the specified disability has beendefined in measurable terms, as certified by the certifyingauthority. In other words, Section 2(r) encompasses both asituation where specified disability has not been defined inmeasurable terms, in which event it means person with notless than 40 per cent of the specified disability but also where aspecified disability has been defined in measurable terms. Acertification by the certifying authority is contemplated in regardto whether the person concerned does in fact meet the specifiednorm as quantified. [Para 25][339-D-F]

3.2 The second concept which is embodied in Section 2(s)is that of person with disability. Section 2(s) unlike Section 2(r)is not tagged either with the notion of specified disability or abenchmark disability as defined in Section 2(r). Section 2(s) hasbeen phrased by Parliament in broad terms so as to mean person

Awith long term physical, mental, intellectual or sensoryimpairment which in interaction with various barriers hinders fulland effective participation in society equally with others.[Para 26][339-G-H]

3.3 The concept of benchmark disability under Section

B2(r) cannot be conflated with the notion of disability under Section2(s). The definition in Section 2(r) applies in the case of specifieddisability. The expression ‘specified disability’ is defined inSection 2(zc) to mean the disabilities as specified in the Schedule.[Para 29][340-E]

C3.4 Conflating the rights and entitlements which inhere inpersons with disabilities with the notion of benchmark disabilitiesdoes dis-service to the salutary purpose underlying the enactmentof the RPwD Act 2016. Worse still, to deny the rights andentitlements recognized for persons with disabilities on theground that they do not fulfill benchmark disability would beDplainly ultra vires the RPwD Act 2016. [Para 31][341-G-H]

4. Rights of Persons with Disabilities Act 2016: paradigm-

shift

4.1 The fundamental postulate upon which the RPwD ActE2016 is based is the principle of equality and non-discrimination.Section 3 casts an affirmative obligation on the government toensure that persons with disabilities enjoy (i) the right to equality;(ii) life with dignity; and (iii) respect for their integrity equallywith others. Section 3 is an affirmative declaration of the intent ofthe legislature that the fundamental postulate of equality and non-Fdiscrimination is made available to persons with disabilitieswithout constraining it with the notion of benchmark disability.Section 3 is statutory recognition of the constitutional rightsembodied in Articles 14, 19 and 21 among other provisions ofPart III of the Constitution. By recognizing statutory right andGentitlement on the part of persons who are disabled, Section 3seeks to implement and facilitate the fulfillment of theconstitutional rights of persons with disabilities. [Para 33][342-C-E]

4.2 The principle of reasonable accommodation capturesthe positive obligation of the State and private parties to provideH

additional support to persons with disabilities to facilitate theirfull and effective participation in society. [Para 35][343-D-E]

4.3 The general principle of reasonable accommodation didnot find place in the 1995 Act. The principle of reasonableaccommodation has found more expansive manifestation in theRPwD Act 2016. Section 3 of the RPwD Act 2016 goes beyond aformal guarantee of non-discrimination by casting affirmativeduties and obligations on government to protect the rightsrecognized in Section 3 by taking steps to utilize the capacity ofpersons with disabilities “by providing appropriate environment”.Among the obligations which are cast on the government is theduty to take necessary steps to ensure reasonable accommodationfor persons with disabilities. The concept of reasonableaccommodation in Section 2(y) incorporates making “necessaryand appropriate modification and adjustments” so long as theydo not impose disproportionate or undue burden in particularcase to ensure to persons with disability the enjoyment orexercise of rights equally with others.” Equality, non-discrimination and dignity are the essence of the protective ambitof the RPwD Act 2016. [Para 37][345-E-H; 346-A-B]4.4 When the government in recognition of its affirmativeduties and obligations under the RPwD Act 2016 makesprovisions for facilitating scribe during the course of the CivilServices Examination, it cannot be construed to confer largesse.Nor does it by allowing scribe confer privilege on candidate.The provision for the facility of scribe is in pursuance of thestatutory mandate to ensure that persons with disabilities areable to live life of equality and dignity based on respect in societyfor their bodily and mental integrity. There is fundamental fallacyon the part of the UPSE/DoPT in proceeding on the basis thatthe facility of scribe shall be made available only to personswith benchmark disabilities. This is occasioned by the failure ofthe MSJE to clarify their guidelines. The whole concept of abenchmark disability within the meaning of Section 2(r) isprimarily in the context of special provisions including reservationthat are embodied in Chapter VI of the RPwD Act 2016.Conceivably, the Parliament while mandating the reservation of

Aposts in government establishments and of seats in institutionsof higher learning was of the view that this entitlement should berecognized for persons with benchmark disabilities. As matterof legislative policy, these provisions in Chapter VI have beenmade applicable to those with benchmark disabilities where ahigher threshold of disability is stipulated. Except in the specificBstatutory context where the norm of benchmark disability hasbeen applied, it would be plainly contrary to both the text andintent of the enactment to deny the rights and entitlements whichare recognized as inhering in persons with disabilities on theground that they do not meet the threshold for benchmarkCdisability. statutory concept which has been applied byParliament in specific situations cannot be extended to otherswhere the broader expression, persons with disability, is usedstatutorily. The guidelines which have been framed on 29 August2018 can by no means be regarded as being exhaustive of thesituations in which scribe can be availed of by persons otherDthan those who suffer from benchmark disabilities. The MSJEdoes not in its counter affidavit before this Court treat thoseguidelines as exhaustive of the circumstances in which scribecan be provided for persons other than those having benchmarkdisabilities. This understanding of the MSJE is correct for theEsimple reason that the rights which emanate from provisions suchas Section 3 extend to persons with disability as broadly definedby Section 2(s). [Para 41][348-E-H; 349-A-D]

4.5 This Court is, therefore, of the view that DoPT andUPSC have fundamentally erred in the construction which hasFbeen placed on the provisions of the RPwD Act 2016. To confinethe facility of scribe only to those who have benchmarkdisabilities would be to deprive class of persons of theirstatutorily recognized entitlements. To do so would be contraryto the plain terms as well as the object of the statute.[Para 42][349-D-E]G

5. Reasonable accommodation

5.1 In the specific context of disability, the principle ofreasonable accommodation postulates that the conditions whichexclude the disabled from full and effective participation as equalHmembers of society have to give way to an accommodative society

& ORS.

which accepts difference, respects their needs and facilitates thecreation of an environment in which the societal barriers todisability are progressively answered. Accommodation implies apositive obligation to create conditions conducive to the growthand fulfilment of the disabled in every aspect of their existence –whether as students, members of the workplace, participants ingovernance or, on personal plane, in realizing the fulfillingprivacies of family life. The accommodation which the lawmandates is ‘reasonable’ because it has to be tailored to therequirements of each condition of disability. The expectationswhich every disabled person has are unique to the nature of thedisability and the character of the impediments which areencountered as its consequence. [Para 46][350-G; 351-A-B]

6. Case of the appellant

6.1 Insofar as the case of the appellant is concerned, hiscondition has been repeatedly affirmed by several medicalauthorities including National Institute of Mental Health andNeuro Sciences (NIMHANS), Bangalore and AIIMS. The AIIMSreport which was pursuant to the order of this Court is clear inopining that the appellant has specified disability inasmuch ashe has chronic neurological condition. This condition Formspart of Entry IV of the Schedule to the RPwD Act 2016. Thewriter’s cramp has been found successively to be condition whichthe appellant has, making it difficult for him to write conventionalexamination. To deny the facility of scribe in situation such asthe present would negate the valuable rights and entitlementswhich are recognised by the RPwD Act 2016. [Para 73][361-E-F]

6.2 This Court, therefore, hold and declare that the appellantwould be entitled to the facility of scribe for appearing at theCivil Services Examination and any other competitive selectionconducted under the authority of the government. [Para 74][361-G]

7. Formulation of new policy concerning access to scribesfor persons with disabilities

7.1 broader direction issued to the Union Government inthe Ministry of Social Justice and Empowerment to ensure the

ABC

Aframing of proper guidelines which would regulate and facilitatethe grant of facility of scribe to persons with disability withinthe meaning of Section 2(s) where the nature of the disabilityoperates to impose barrier to the candidate writing anexamination. In formulating the procedures, the Ministry of SocialJustice and Empowerment may lay down appropriate norms toBensure that the condition of the candidate is duly certified bysuch competent medical authority as may be prescribed so as toensure that only genuine candidates in need of the facility areable to avail of it. [Para 75][361-H; 362-A-C]

Jeeja Ghosh v. Union of India (2016) 7 SCC 761 :C[2016] 4 SCR 638; Justice Sunanda BhandareFoundation v. Union of India (2018) 2 SCC 397; Unionof India v. National Federation of the Blind (2013) 10SCC 772 : [2013] 9 SCR 1023; Syed Bashir-ud-dinQadri v. Nazir Ahmed Shah (2010) 3 SCC 603 : [2010]D3 SCR 250 – relied on.

V Surendra Mohan v. State of Tamil Nadu (“Mohan”)(2019) 4 SCC 237: [2019] 1 SCR 954 – referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 273 of2021.

From the Judgment and Order dated 25.09.2019 of the High Courtof Delhi at New Delhi in Writ Petition No. 9942 of 2018.G

Ms. Madhavi Divan, ASG, Rajan Mani, Ms. Ritu Kumar,Pukhrambam Ramesh Kumar, Ms. Anupama Ng., Karun Sharma, GopalJha, A.K. Kaul, Ms. Aakanksha Kaul, Ms. Nidhi Khanna, Raj BahadurYadav, Amrish Kumar, Naresh Kaushik, Mrs. Lalitha Kaushik, Ms.Sanchita Ain, Advs. for the appearing parties.H

DR. DHANANJAYA Y CHANDRACHUD, J.

A.Factual background

B.The course run: The Tribunal and High Court of Delhi

C.These proceedings

C.1 Arguments of the appellant

C.2 Arguments of the UPSC

C.3. Arguments of the Union of India

D.The legal framework

E.Two Government Ministries: policy disconnectF.Benchmark disability not precondition to obtaining ascribe

G.Rights of Persons with Disabilities Act 2016: paradigm-shift

G.1A statutory manifestation of constitutional commitment

G.2Scheme of the 2016 Act

H.Reasonable accommodation

I.The argument of misuse

J.The language of our discourse

K.Realizing the transformative potential of the Rights ofPersons with Disabilities Act, 2016: From principle topractice

L.Case of the appellant

M.Formulation of new policy concerning access to scribesfor persons with disabilities

N.In summation

A. Factual background

1. citizen who suffers from writer’s cramp has travelled tothis Court. The grievance is that he was denied scribe in the civil

EFG

Aservices’ examination[1]. The case has run its course through the judicialsystem as an individual grievance. But its contours present portents ofthe aspirations of whole class of persons whose daily engagementwith physical disability defines their continuing quest for dignity. Througha maze of statutes, rules, and regulations, the case raises core issuesabout the actual realization of equal opportunity and access to the disabled.BIt tests what the law professes with how its ideals are realized. Thelanguage of our discourse, as much as its outcome, should generateintrospection over the path which our society has traversed and the roadthat lies ahead in realizing the rights of the disabled. Voices such asthose of the appellant are constant reminder of the chasm between theClaw and reality. But they also provide platform for change and evolutiontowards better future.

2. Down to its bare bones, this appeal turns upon the interface ofthe Civil Services Examination Rules 2018[2] dated 7 February 2018 withthe Rights of Persons with Disabilities Act, 2016[3].

3. The appellant has disability in the form of dysgraphia,commonly known as Writer’s Cramp. In August 2016, he graduatedwith an MBBS degree from the Jawaharlal Nehru Institute of PostGraduate Medical Instruction and Research, popularly known by theacronym JIPMER. Intending to pursue career in the civil services, heEappeared in 2017 for the CSE. scribe was provided to him by theUnion Public Services Commission[4] to enable him to appear in the writtentest. In the online application form for CSE 2017, the appellant declaredhimself to be person with locomotor disability to avail the services of ascribe. On 7 February 2018, UPSC issued notification for the CSE2018[5]. The Department of Personnel and Training[6] issued the CSE RulesF2018 providing for the manner and conduct of the examination. Thegeneral instructions provided that all candidates must write their papersin their own hand and will not be allowed the help of scribe. Exceptionsto this rule were provided for blind candidates; candidates with locomotordisability and cerebral palsy where the “dominant (writing) is affected toGthe extent of slowing the performance of function (minimum of 40%

1 “CSE”

2 “CSE Rules 2018”

3 “RPwD Act, 2016”

4 “UPSC”

5 “CSE Notification 2018”

H6 “DoPT”

impairment)”. Candidates within the exception were allowed the help ofa scribe. An additional ‘compensatory time’ of twenty minutes per hourwas also to be granted to such candidates.

4. In his online application for the CSE 2018, the appellant declaredhimself to be person with benchmark disability of 40% or more. Byhis email dated 28 February 2018, the appellant requested the UPSC toprovide him with scribe for the examination. UPSC, by its letter dated15 March 2018, rejected the request on the ground that scribe could beprovided only to blind candidates and candidates with locomotor disabilityor cerebral palsy with an impairment of at least 40% and the appellantdid not meet this criterion.

5. The appellant also sought to appear for selection to the post ofMedical Officer pursuant to the Combined Medical Services Examination2017 conducted under the auspices of UPSC. In order to obtain disabilitycertificate, he approached the Medical Board of Ram Manohar LohiaHospital, Delhi. By communication dated 12 February 2018, the disabilitycertificate was denied to him. This led the appellant to preface challengebefore the Central Administrative Tribunal[7] where the case is still pendingadjudication.

B. The course run: The Tribunal and High Court of Delhi

6. Aggrieved by the denial of the services of scribe for the CSE2018, the appellant moved the Tribunal. By an interim order dated 30May 2018, the Tribunal directed the UPSC to provide him scribe toenable him to appear for the preliminary examination. The results werepublished on 14 July 2018, but the appellant’s result was withheld. By ajudgment dated 7 August 2018, the Tribunal dismissed the applicationfiled by the appellant on the ground that, since Ram Manohar LohiaHospital had refused to issue disability certificate, the appellant couldnot claim access to scribe as disabled candidate. The Tribunal alsonoted that the appellant did not claim the facility of scribe in the CSE2017 or during his MBBS graduation examinations. The Tribunal heldthat though in para 5 of the CSE Notification 2018, the UPSC recognizedthe right to scribe, it has been limited to blind candidates and candidateshaving locomotor disability and cerebral palsy, where minimum 40%impairment exists. The appellant was held not to fulfill the criteria. TheTribunal also rejected certificate dated 22 March 2015 issued by the

7 “Tribunal”

ANational Institute of Mental Health and Neuro Sciences, on the groundthat it failed to mention the extent of the disability. Finally, the Tribunalquestioned the maintainability of the prayer of the appellant for directionto the UPSC to amend the CSE Notification 2018. Since the relief wasin the realm of advising the executive on policy matters, the Tribunalrefrained from interfering in the matter.B

7. The appellant instituted writ petition before the High Court ofDelhi and challenged the legality of the CSE Rules 2018. Meanwhile, heobtained medical certificate dated 27 August 2018 from National Instituteof Mental Health and Neuro Sciences (NIMHANS), Bangalore,declaring that he has Writer’s Cramp and would require scribe duringChis examinations.

8. Division Bench of the High Court of Delhi by an order dated25 September 2018 declined to interfere with the order of the Tribunalon the ground that the appellant had not qualified at the PreliminaryExamination for CSE 2018 and thus, the relief seeking an amendment ofDthe CSE Rules 2018 to provide scribes to candidates with specificdisabilities was rendered otiose. The appellant was granted liberty to fileanother application before the Tribunal in the future. This order of theHigh Court of Delhi has been challenged in appeal.

C. These proceedings

9. During the course of the proceedings, by an order dated 16January 2020, we directed the All India Institute of Medical Sciences[8] toconstitute medical board to evaluate the condition of the appellant andrender its opinion on (i) whether he suffers from benchmark disabilitywithin the meaning of Section 2(r) and Section 2(zc) of the RPwD Act,F2016; and (ii) whether he is ‘person with disability’ under Section 2(s)of the RPwD Act, 2016 and the extent of the disability. AIIMS, by itsreport dated 10 February 2020, opined that the appellant suffers from a“chronic neurological condition” termed as bilateral Writer’s Cramp.However, the report opines that while he does not suffer from a“benchmark disability”, the appellant is ‘person with disability’ underGthe RPwD Act, 2016. The extent of the disability is assessed at 6%.

C.1 Arguments of the appellant

10. Mr Rajan Mani, learned counsel appearing on behalf of theappellant, has made the following submissions:

H8 “AIIMS”

iThe appellant has been issued medical certificates dated21 March 2015 and 27 August 2018, which certify that hehas Writer’s Cramp and would require scribe. Accordingto Section 2(s) of the RPwD Act, 2016, person withdisability means person with long-term, physical, mental,intellectual and sensory impairment, which hinders their fulland effective participation in society. These certificatesprove that the appellant falls under Section 2(s) of the Actand is entitled to the protection of the Act;

iiWriter’s Cramp, or dysgraphia, is specific disability and islisted in entry 2(a) of the Schedule to the RPwD Act, 2016.The Ministry of Social Justice and Empowerment[9], by anotification dated 14 January 2018, has also recognized thespecific learning disability of dysgraphia;

iiiThe CSE Rules 2018 and the CSE Notification 2018 are inviolation of Section 20 of the RPwD Act, 2016. UnderSection 20, every government establishment is required toDprovide “reasonable accommodation” and conduciveenvironment to employees with disability. “Reasonableaccommodation” as defined in Section 2(y) meansnecessary and appropriate modifications and adjustmentsto ensure that persons with disabilities enjoy their rightsEequally with others. The provision of scribes andcompensatory time during the examination to candidatessuch as the appellant are reasonable accommodationsnecessary to be provided under the RPwD Act, 2016;

ivThe CSE Rules 2018 and the CSE Notification 2018 violateFArticle 14 and Article 16(1) of the Constitution and theRPwD Act, 2016 as they provide for scribes only forcandidates who are blind, those suffering from locomotordisability or cerebral palsy. In the CSE Rules 2018,applications are invited from all persons with disabilities andage relaxation is also provided to them, including for thoseGsuffering from learning disabilities. However, the provisionof scribes is limited to few candidates;

vThe CSE Rules 2018 fail to recognize that persons such asthe appellant with Writer’s Cramp have difficulty in writing

9 “MSJE”

in their own hand and thus, should be granted similarfacility of scribe;

viOther institutions in India, such as the Institute of CharteredAccountants of India and the University of Delhi, recognizeWriter’s Cramp as disability for which candidates haveBbeen provided with scribes;

viiThe medical certificates dated 21 March 2015 and 27 August2018 indicate that the appellant falls within the definition ofa “person with disability” under the Act. Thus, even withouta disability certificate, the appellant should be granted thefacility of scribe;

viiiThe RPwD Act, 2016 makes distinction between “personswith disability” and “persons with benchmark disability”,the latter being those who are certified by disabilitycertificate to have not less than 40% of the specifieddisabilities enumerated under the Schedule to the Act.DPersons with benchmark disability are eligible for specialprovisions of reservation in employment and highereducation. However, Section 20 of the Act applies to allpersons with disabilities and is not limited to persons withbenchmark disability. Thus, even without the disabilityEcertificate, the appellant would be entitled to measures ofreasonable accommodation such as the provision of scribefor professional examinations; and

ixThe extent of the disability of 6% as evaluated by themedical board of AIIMS pertains to the extent of hislocomotor disability due to chronic neurological conditionand the inability in moving himself or objects. The evaluationdoes not pertain to the writing ability of the petitioner. Further,the medical report corroborates the prior medical certificatesissued to the appellant and certifies that the appellant suffersfrom Writer’s Cramp which causes difficulty in writing.

GC.2 Arguments of the UPSC

11. Mr Naresh Kaushik, learned Counsel appearing on behalf ofthe UPSC, has submitted that :

iThe issue relating to the entitlement of the appellant for theHfacility of scribe for writing the CSE 2018 is governed by

the rules framed by the DoPT. According to the CSE Rules2018, persons with benchmark disabilities are provided withthe facility of scribe, if desired. In case of persons with abenchmark disability, the facility of scribe is provided onthe production of certificate issued by Chief MedicalOfficer of Government Healthcare Institution to the effectthat person concerned has physical limitation to write anda scribe is essential to write the examination on thecandidate’s behalf;

iiThe appellant had made an incorrect declaration in hisapplication for the CSE 2018 by declaring that he belongsto the category of persons with benchmark disability withoutpossessing the prescribed medical certificate; and

iiiThe appellant has failed to challenge the legality of the CSERules 2018 and has only made claims under Section 20 ofthe RPwD Act, 2016.

C.3. Arguments of the Union of India

12. Ms Madhavi Divan, learned Additional Solicitor General,appearing for the Union of India, made the following submissions:

iAccording to the MSJE, Writer’s Cramp is not disability,but person suffering from Writer’s Cramp has difficultyin writing. The MSJE had also issued comprehensiveguidelines dated 26 February 2013 on the conduct of writtenexaminations for persons with disabilities, which providethat the facility of scribe should only be allowed to personwith disability of 40% or more. These guidelines wererevised on 29 August 2018 which provide for the facility ofscribes in the category of candidates affected with blindness,locomotor disability and cerebral palsy; and for other personswith benchmark disability, medical certificate has to beproduced certifying that there is physical limitation to writeand scribe is essential to write the examination on thecandidate’s instructions;

iiWriter’s Cramp is not specifically included in the list ofspecified disabilities in the Schedule of the RPwD Act, 2016.Thus, the guidelines dated 29 August 2018 are not applicableto persons suffering from Writer’s Cramp. However, many

such medical conditions which may hamper writing abilityhave not been identified as disabilities. In these instances,the examining body has to consider the cases of suchcandidates and whether facilities of scribes andcompensatory time is to be granted;

BiiiThere is whole swathe of facilities which are available topersons with disabilities to ensure more inclusive society– seats on public transport, ramp facilities and toilets.Specific measures are undertaken in educational institutionsto facilitate the participation of persons with disabilities. Thepercentage of disability is not relevant in these contexts.CHowever, different considerations govern the provision offacilities for persons with disabilities in competitiveexaminations;

ivAs an extension of [iii] above, the CSE conducted by theUPSC is an extremely competitive examination. While thereDmay be candidates below the benchmark disability thresholddeserving of the facility of scribes to level the playing field,the abuse of this facility cannot be ruled out. In competitiveexamination of this nature, the purity of the examinationhas to be preserved; and

EvAs regards the case of the appellant, fresh medicalexamination should be conducted, to specifically determineif his disability is such as to necessitate scribe.

D. The legal framework

F13. Broadly speaking, there are two sets of regulatory provisionswhich hold the field. The first consists of the notifications issued by theDoPT in the Ministry of Personnel, Public Grievances and Pensions.

14. On 7 February 2018, notification was issued by the Ministryprescribing the Rules for the Conduct of the CSE to be held by theUPSC in 2018. The notification covers diverse aspects governing theGconduct of the examination. Among them is Section 1 of Appendix-Iwhich incorporates the ‘plan of examination’ and Section 2 which providesfor the ‘scheme, subjects for the preliminary and main examination’.This is followed by ‘general instructions’ for the conduct of the preliminaryand main examination for the civil services. Insofar as is material, theHgeneral instructions contain the following stipulations:

“General Instructions {Preliminary as well as MainExamination) :

(i) Candidates must write the papers in their own hand. In nocircumstances will they be allowed the help of scribe to writethe answers for them. However, blind candidates and candidateswith Locomotor Disability and Cerebral Palsy where dominant(writing) extremity is affected to the extent of slowing theperformance of function (minimum of 40% impairment) will beallowed to write the examination with the help of scribe in boththe Civil Services (Preliminary) as well as in the Civil Services(Main) Examination.

(ii) Compensatory time of twenty minutes per hour shall bepermitted for the Blind candidates and the candidates withlocomotor disability and cerebral palsy where dominant (writing)extremity is affected to the extent of slowing the performance off1,mction (minimum of 40% impairment) in both the Civil Services(Preliminary) as well as in the Civil Services (Main) Examination.”

These rules have since been amended in 2019. Apart from thenotification which has been issued by the UPSC, there are guidelineswhich have been prescribed by the MSJE in the Department ofEmpowerment of Persons with Disabilities. notification has been issuedon 4 January 2018 in exercise of the powers conferred by Section 56 ofthe RPwD Act, 2016. Section 56 is comprised in Chapter X of the RPwDAct, 2016 titled as “Certification of Specified Disabilities”. Section 56provides that:

“56.Guidelines for assessment of specified disabilities. –The Central Government shall notify guidelines for the purpose ofassessing the extent of specified disability in person.”

15. Thus, the guidelines which have been notified on 4 January2018 trace their origin to the statutory power conferred by Section 56 ofthe RPwD Act, 2016. In their prefatory recital, the guidelines recordthat the Department of Empowerment of Persons with Disabilitiesconstituted an expert committee to suggest these guidelines “for evaluationand procedure of certification by various specified disabilities”. The expertcommittee in turn constituted eight sub-committees for dealing with thefollowing categories:

A“(i)locomotor disability;

(ii)visual impairment;

(iii)hearing impairment;

(iv)chronic neurological conditions;

(v)persons affected with blood related disorders;

(vi)developmental disorders;

(vii)mental illness; and

(viii) multiple disabilities;”C

Following the deliberations of the expert committee, the guidelineswere notified in the form of S.O. 76(E). Insofar as is material, theguidelines stipulate that:

“Now, therefore, in exercise of powers conferred by Section 56of the Rights of Persons with Disabilities Act, 2016 (49 of 2016),Dthe Central Government hereby notifies the guidelines for thepurpose of assessing the extent of following specified disabilitiesin person after having considered the recommendations of theMinistry of Health and Family Welfare as provided at AnnexureII, namely:-

EI.locomotor disability including cerebral palsy, leprosy cured,dwarfism, acid attack victims and muscular dystrophy;

II.blindness and low-vision;

III.deaf and hard of hearing and speech and language disability;

IV.intellectual disability and specific learning disabilities;

V.mental illness;

VI.chronic neurological conditions;

VII.haemophilia, thalassemia and sickle cell disease; and

GVIII. multiple disabilities.

2. The said guidelines for the purpose of assessing disabilities atAnnexure II shall supersede the guidelines for evaluation of variousdisabilities and procedure for certification vide Government ofIndia, Ministry of Social Justice and Empowerment notification

number 16-18/97-NI I. dated the 1st June 2001 and the guidelinesfor evaluation and assessment of mental illness and procedure ofcertification vide Government of India, Ministry of Social Justiceand Empowerment notification number 16-18/97-NI dated the 18[th]February 2002, except as respects things done or omitted to bedone before such supersession.

Noteꞏ :- In terms of Section 57 of the Rights of the Persons withDisabilities Act, 2016 (49 of 2016), the State Governments or asthe case may be, Union Territory Administrators shall designatepersons, having requisite qualifications and experience, as certifyingauthorities, who shall be competent to issue the certificate ofdisability and also notify the jurisdiction within which and the termsand conditions subject to which, the certifying authority shallperform its certification functions.

Note: The Director General of Health Services, Ministry of Healthand Family Welfare, Government of India shall be the final authorityto decide upon cases where any controversy or doubt arises inmatters relating to interpretation of the definitions or classificationsor evaluation procedure regarding the said guidelines.”

16. The guidelines in Annexure-II to the notification cover variousheads of disability including locomotor disability. Some of the relevantprovisions under the above head are extracted below:

“1.1. Guidelines for Evaluation of Permanent Physical Impairment(PPI) of Upper Extremities

(a)The estimation and measurement shall be made when theclinical condition has reached the stage of maximumimprovement from the medical treatment. Normally the timeperiod is to be decided by the medical doctor who isevaluating the case for issuing the PPI Certificate as perstandard format of the certificate.

(b)The upper extremity is divided into two component parts;the arm component and the hand component.

(c)Measurement of the loss of function of arm componentconsists of measuring the loss of range of motion, musclestrength and co-ordinated activities

(d)Measurement of loss of function of hand component consistsof determining the prehension, sensation and strength. Forestimation of prehension opposition, lateral pinch, cylindricalgrasp, spherical grasp and hook grasp have to be assessed.

(e)The impairment of the entire extremity depends on theBcombination of the impairments of both components.

(f)Total disability% will not exceed 100%.

(g)Disability is to be certified as whole number and not as afraction.

(h)Disability is to be certified in relation to that upper extremity.

1.2.1. ARM (UPPER EXTREMITY) COMPONENT

Total value of the arm component is 90%

1.2.2. Principles of evaluation of range of motion (ROM) ofjoints

(a)The value of maximum ROM in the arm component is 90%

(b)Each of three joints i.e. shoulder, elbow and wrist componentwas earlier weighed equally - 30%. However, functionalevaluation in clinical practice indicates greater limitationsimposed if hand is involved. So, appropriate weightage isEgiven to involvement of different joints as mentioned below;

Shoulder= up to 20%, Elbow= up to 20%, Wrist= up to 10%,& Hands= up to 40%, dependent upon extent of involvement(mild - less than 1/3, moderate - up to 2/3, or severe - almosttotal). If more than one joint of the upper extremity isFinvolved, the loss of percentage in each joint is calculatedseparately as above and then added together.

1.2.3. Principles of evaluation of strength of muscles:

(a)Strength of muscles can be tested by manual method andgraded from 0-5 as advocated by Medical Research CouncilG(MRC), London, UK depending upon the strength of themuscles (Appendix -I).

(b)Loss of muscle power can be given percentages as follows:

(i)The mean percentage of loss of muscle strength around ajoint is multiplied by 0.30.H

(ii)If loss of muscle strength involves more than one joint themean loss of percentage in each joint is calculated separatelyand then added together as has been described for loss ofmotion.

1.2.4. Principles of evaluation of coordinated activities:

(a)The total value for coordinated activities is 90%

(b)Ten different coordinated activities should be tested as givenin the Form A. (Appendix II. assessment proforma for upperextremity)

(c)Each activity has value of 9%

( d)Average normal range of different joints for reference is atAppendix Ill,”

17. Section contains guidelines for evaluating locomotor disabilitydue to chronic neurological conditions. The medical authority forcertification of locomotor disability is to comprise of :

1.The Medical Superintendent or Chief Medical Officer orCivil Surgeon;

2.A Specialist in Physical Medicine and Rehabilitation orSpecialist in Orthopedics; and

3.One specialist nominated by the Chief Medical Officer inaccordance with the condition of the person with disability.

18. Besides locomotor disability, the guidelines cover visualimpairment, hearing impairment, speech and hearing disability, intellectualdisability, disability caused due to chronic neurological conditions, disabilitydue to blood disorder and multiple disabilities :

“25.2. The disability caused due to chronic neurological conditionssuch as multiple sclerosis, parkinsons disease is multi dimensionalinvolving manifestation in muscular skeleton system and alsopsycho social behaviour. The disability in musculo-skeletal systemon account of these conditions shall be assessed in terms of SectionE (para 10-10.8 of Annexure II) of these guidelines relating toassessment of locomotor disability due to chronic neurologicalconditions and the psychosocial disability (mental illness) shall beassessed by using the IDEAS as at Appendix IV. Comprehensive

334SUPREME COURT REPORTS

[2021] 12 S.C.R.

Adisability on account of these conditions shall then be calculatedby using the formula a+ (90-a)

Where “a” will be the higher score and

And “b” will be the lower score. However, the maximum totalpercentage of multiple disabilities shall not exceed 100%.”BAppendix-II of the guidelines provides detailed assessmentproforma in relation to upper extremities.

19. On 29 August 2018, the MSJE in the Department ofEmpowerment of Persons with Disabilities issued an OfficeCMemorandum. The OM is titled: “Guidelines for conducting writtenexamination for persons with benchmark disabilities”. The OM notesthat the Department issued guidelines for conducting written examinationsfor persons with disabilities defined under the erstwhile legislation, namelythe Persons with Disabilities (Equal Opportunities, Protection of Rightsand Full Participation) Act 1995[10]. These guidelines were issued on 26DFebruary 2013.

20. The guidelines were reviewed under the auspices of acommittee which was constituted on the basis of the issues which wereraised by the UPSC, among other bodies. In the meantime, the 1995Act was superseded by the enactment of the RPwD Act, 2016 whichEcame into force on 19 April 2017. The OM states that the RPwD Act,2016 provides for reservations in government jobs for persons withbenchmark disabilities as defined in Section 2(r). Based on the findingsof the Committee, the Union government has through the OM laid downrevised guidelines “for conducting written examination for personsFwith benchmark disabilities” in supersession of the earlier guidelinesdated 26 February 2013. The above guidelines which have been notifiedthrough the OM dated 29 August 2018 inter alia contain the followingstipulations in regard to the provision of scribes to persons with benchmarkdisabilities:

“I. These guidelines may be called as ‘Guidelines for conductingGwritten examination for persons with benchmark disabilities 2018.

II. There should be uniform and comprehensive policy acrossthe country for persons with benchmark disabilities for writtenexamination taking into account improvement in technology and

new avenues opened to persons with benchmark disabilitiesproviding level playing field. Policy should also have flexibility toaccommodate the specific needs on case-to-case basis.

III. There is no need for fixing separate criteria for regular andcompetitive examinations.

IV. The facility of Scribe/Reader/Lab Assistant should be allowedto any person with benchmark disability as defined under section2(r) of the RPwD Act, 2016 and has limitation in writing includingthat of speed if so desired by him/her.

In case of persons with bench mark disabilities in the category ofblindness, locomotor disability (both arm affected-BA) and cerebralpalsy, the facility of scribe/reader/lab assistant shall be given. Ifso desired by the person.

In case of other category of persons with benchmark disabilities,the provision of scribe/reader/lab assistant can be allowed onproduction of certificate to the effect that the person concernedhas physical limitation to write, and scribe is essential to writeexamination on his behalf, from the Chief Medical Officer/CivilSurgeon/ Medical Superintendent of Government health careinstitution as per proforma at Appendix-I.”

The form of certificate which has been provided in Appendix-Iis extracted below:

AThe above guidelines envisage the provision of scribe to candidateswith benchmark disabilities in written examinations. The policy alsorecognises that there should be measure of flexibility to accommodatespecific needs on case-to-case basis. Under the guidelines, the facilityof scribe is envisaged to any person with benchmark disability asdefined under Section 2(r) and having limitation in writing, including ofBspeed. Under the guidelines, candidates with benchmark disabilitiescomprised within the categories of (i) blind candidates; (ii) candidatessuffering from locomotor disability (both arms affected); and (iii) cerebralpalsy are entitled at their choice to the facility of scribe or, as the casemay be, reader or lab assistant. In the case of persons falling withinCother categories of benchmark disabilities scribe, reader or lab assistantcan be allowed upon the production of certificate that “the personconcerned has physical limitation to write and scribe is essential to writeexamination on his behalf.” The certificate has to be issued by the CMO,Civil Surgeon or Medical Superintendent of government healthcareinstitution in the proforma appended as Annexure-1.D

The important point to note is that the guidelines of the MSJEdated 29 August 2018 recognise the entitlement to scribe only forcandidates with benchmark disabilities. Among them, candidatesbelonging to three categories – the blind and those with locomotor disabilityor cerebral palsy - are to be given the facility if so desired. In the case ofEcandidates with other benchmark disabilities, such facility is to beextended upon certificate which is issued in terms as noted above.

Following the notification which was issued on 29 August 2018,the rules for the conduct of CSE were amended. The amended rulescontemplate that:F

“Candidates must write the papers in their own hand. In nocircumstances will they be allowed the help of scribe to ꞏwritethe answers for them. The Persons with Benchmark Disabilitiesin the categories of blindness, locomotor disability (both armaffected - BA) and cerebral palsy will be provided the facility ofGscribe, if desired by the person. In case of other category ofPersons with Benchmark Disabilities as defined under section2(r) of the RPWD Act, 2016, the facility of scribe will be allowedto such candidates on production of certificate to the effect thatthe person concerned has physical limitation to write, and scribeis essential to write examination on behalf from the Chief Medical

Officer/ Civil Surgeon/ Medical Superintendent of GovernmentHealth Care institution as per proforma at Appendix - V. ThePersons with Benchmark Disabilities in the category of blindness,locomotor disability (both arm affected - BA) and cerebral palsywill be allowed Compensatory Time of twenty minutes per hourof the examination In case of other categories of Persons withBenchmark1disabilities, this facility will be provided on productionof certificate to the effect that the person concerned has physicallimitation to write from the Chief Medical Officer/Civil Surgeon/Medical Superintendent of Government Health Care institutionꞏas per proforma at Appendix-V.”

The above amendment is similar to the guidelines prescribed bythe OM dated 29 August 2018.

Now it is in this background that it is necessary to advert brieflyto the position which has been adopted on affidavit by the two arms ofthe Central Government – the MSJE on the one hand and the UPSC onthe other hand.

E. Two Government Ministries: policy disconnect

21. UPSC in its counter affidavit filed through its Joint Secretarystates that it conducts the CSE “strictly in accordance with the rulesframed and enacted by the Government of India in the Department ofPersonnel and Training”. It also notices that the provisions of the RPwDAct 2016 are administered by nodal ministry known as the Ministry ofSocial Justice and Empowerment which finalises policies, instructionsand guidelines with aid and assistance of experts in the field, for thepurpose of extending benefits under the enactment. According to UPSC:

“...the Civil Services Examination Rules enacted by the DoPT donot contain provision for providing any benefit to candidatesuffering from the disability known as writer’s cramp or dysgraphia.In fact the rules enacted by the DoP&T provide the benefit offacility of scribe to the candidates suffering from benchmarkdisabilities alone, and no benefit is contemplated under the rulesto the persons who do not suffer from the bench mark disabilitiesbut with some other kind of disabilities.”

22. Referring to the OM dated 29 August 2018 issued by theMSJE, the affidavit of UPSC states that these guidelines confine thebenefit of scribe only to persons with benchmark disabilities. The

Arequest of the appellant is stated to have been rejected on the groundthat there is an absence of any provision for scribe to candidates fallingin the category in which the appellant is placed. UPSC in fact states thatit does not permit deviation from the CSE Rules 2018.

Contrasted with the position which has been adopted on affidavitBbefore this Court by the UPSC, more nuanced view has been suggestedby the reply filed on behalf of the MSJE. The Ministry, while reiteratingthe guidelines which have been framed on 29 August 2018 states thatwriter’s cramp is not specifically included in the list of specified disabilitiescontained in the schedule to the RPwD Act, 2016 and “accordingly theguidelines stated above are not applicable to person suffering fromCwriter’s cramp”. Having said this, the Ministry states:

“G. That it is noteworthy to mention that there are certain othermedical conditions which are not identified as disabilities per sebut which may have implications hampering the writing capabilityof person without manifesting into any specified disability.DTherefore, it is the responsibility of the examining body to considersuch cases for the purpose of granting scribe, extra time andlikewise in consultation with the Ministry of Health and FamilyWelfare on production of medical certificate similar in line withthat of other categories of persons with benchmark disabilities.”E23. MSJE is the nodal ministry which is entrusted with implementingthe provisions of the RPwD Act, 2016. As the nodal ministry, it hasformulated guidelines on 29 August 2018. These guidelines, as we havenoticed earlier, confine access to scribe, reader or lab assistant tocandidates having benchmark disabilities within the meaning of SectionF2(r). Yet, as the nodal ministry, it recognizes that these guidelines are notexhaustive of the circumstances or conditions in which scribe can beprovided. On the contrary, the MSJE has recognized the prevalence ofother medical conditions “not identified as disabilities per se” but whichmay hamper the writing capability of person. It specifically leaves itopen to every examining body to consider such cases for the grant ofGscribe, extra time or other facilities in consultation with the Ministry ofHealth and Family Welfare against the production of medical certificate,in line with those prescribed for candidates with benchmark disabilities.

24. This view of the nodal ministry has evidently not percolated toUPSC which, on the other hand, considers itself to be strictly bound,H

without deviation, from the rules specified by DoPT for the conduct ofthe CSE. Notwithstanding the views of the MSJE, the UPSC does notrecognize that the guidelines dated 29 August 2018 vest it with thediscretion to provide accommodations on case-by-case basis, beyondthose spelt out in the guidelines. The rules which hold the field are interms of the guidelines dated 29 August 2018. UPSC has thereforespecifically stated before this Court that candidate who does not fulfillthe description of person with benchmark disabilities would not beentitled to scribe. These divergent views of two Central Ministriesbefore the Court are symptomatic of policy disconnect. We expressour disquiet about the fact that, in policy matter with profoundconsequences for India’s disabled population, the left hand does not knowwhat the right one is doing.

F. Benchmark disability not precondition to obtaining ascribe

25. It is in this backdrop that the Court must resolve the issue,bearing as it does on the rights of similarly situated candidates. TheRPwD Act, 2016 embodies two distinct concepts when it speaks of (i)‘persons with benchmark disabilities’ and (ii) persons with disability. Indefining person with benchmark disability, Section 2(r) encompassestwo categories: (i) person with not less than 40 per cent of specifieddisability, where the specified disability has not been defined in measurableterms and (ii) person with disability where the specified disability hasbeen defined in measurable terms, as certified by the certifying authority.In other words, Section 2(r) encompasses both situation where aspecified disability has not been defined in measurable terms, in whichevent it means person with not less than 40 per cent of the specifieddisability but also where specified disability has been defined inmeasurable terms. certification by the certifying authority iscontemplated in regard to whether the person concerned does in factmeet the specified norm as quantified.

26. The second concept which is embodied in Section 2(s) is thatof person with disability. Section 2(s) unlike Section 2(r) is not taggedeither with the notion of specified disability or benchmark disabilityas defined in Section 2(r). Section 2(s) has been phrased by Parliamentin broad terms so as to mean person with long term physical, mental,intellectual or sensory impairment which in interaction with various barriershinders full and effective participation in society equally with others.

A27. Section 2(s) is significant because it recognizes firstly, thenature of the impairment, secondly, the interconnection of the impairmentwith various barriers and thirdly, the impact of the impairment in hinderingfull and effective participation on footing of equality. On the first aspectnamely the nature of the impairment, Section 2(s) requires that theimpairment should be long term - physical, mental, intellectual or sensory. BThe statutory definition has evidently recognized that it is the nature ofthe impairment in its interaction with barriers that results in the full andeffective participation of the person in society equally with others beinghampered. Section 2(s) is, in other words, far-reaching recognition bythe legislature of disability as not only function of physical or mentalCimpairment but of its interaction with barriers resulting in socialmilieu which prevents the realization of full, effective and equalparticipation in society.

28. Both as matter of textual construction and bearing in mindthe purpose and object underlying the term, it is necessary to emphasiseDthat the definition in Section 2(s) cannot be constricted by the measurable

quantifications tagged with the definition under Section 2(r).

29. The concept of benchmark disability under Section 2(r)cannot be conflated with the notion of disability under Section 2(s). Thedefinition in Section 2(r) applies in the case of specified disability. TheEexpression ‘specified disability’ is defined in Section 2(zc) to mean thedisabilities as specified in the Schedule. The Schedule to the Actincorporates five specified disabilities:

1. Physical disabilities comprised of

(a) Locomotor disability including

(i) leprosy cured persons

(ii) cerebral palsy

(iii) dwarfism

(iv) muscular dystrophy

(v) acid attack victims;

(b) Visual impairment encompassing

(i) blindness

(ii) low-vision

(c) Hearing impairment

(d) Speech and language disability

2. Intellectual disability including

(a) specific learning disabilities

(b) autism spectrum disorder

3. Mental behavior

4. Disability caused due to

(a) Chronic neurological conditions, such as

(i) multiple sclerosis

(ii) parkinson’s disease

(b) Blood disorder

5. Multiple disabilities (more than one of the above specifieddisabilities).

The Central government has been empowered to notify any othercategory as specified disability.

30. The concept of benchmark disabilities under the RPwD Act,2016 has specifically been adopted in relation with the provisions ofChapter VI and Chapter VII. Chapter VI contains special provisions forpersons with benchmark disabilities. Among those provisions is Section31 (free education for children with benchmark disability), Section 32(reservation in higher educational institutions), Section 33 (identificationof posts for reservation), Section 34 (reservation), Section 36 (SpecialEmployment Exchange) and Section 37 (Special Schemes andDevelopment Programmes). Chapter VII contains special provisions forpersons with benchmark disabilities in need of high support. Thus, theconcept of benchmark disabilities has been adopted by the legislationbearing in mind specific provisions which are contained in the law forpersons meeting this description.

31. Conflating the rights and entitlements which inhere in personswith disabilities with the notion of benchmark disabilities does dis-serviceto the salutary purpose underlying the enactment of the RPwD Act 2016.Worse still, to deny the rights and entitlements recognized for personswith disabilities on the ground that they do not fulfill benchmark disabilitywould be plainly ultra vires the RPwD Act 2016.

AG. Rights of Persons with Disabilities Act 2016: paradigm-shift

G.1 statutory manifestation of constitutional commitment

32. Part III of our Constitution does not explicitly include personswith disabilities within its protective fold. However, much like their able-Bbodied counterparts, the golden triangle of Articles 14, 19 and 21 applieswith full force and vigour to the disabled. The RPwD Act 2016 seeks tooperationalize and give concrete shape to the promise of full and equalcitizenship held out by the Constitution to the disabled and to execute itsethos of inclusion and acceptance.

33. The fundamental postulate upon which the RPwD Act 2016is based is the principle of equality and non-discrimination. Section 3casts an affirmative obligation on the government to ensure that personswith disabilities enjoy (i) the right to equality; (ii) life with dignity; and(iii) respect for their integrity equally with others. Section 3 is anDaffirmative declaration of the intent of the legislature that the fundamentalpostulate of equality and non-discrimination is made available to personswith disabilities without constraining it with the notion of benchmarkdisability. Section 3 is statutory recognition of the constitutional rightsembodied in Articles 14, 19 and 21 among other provisions of Part III ofthe Constitution. By recognizing statutory right and entitlement on theEpart of persons who are disabled, Section 3 seeks to implement andfacilitate the fulfillment of the constitutional rights of persons withdisabilities.

34. There is critical qualitative difference between the barriersfaced by persons with disabilities and other marginalized groups. In orderFto enable persons with disabilities to lead life of equal dignity and worth,it is not enough to mandate that discrimination against them isimpermissible. That is necessary, but not sufficient. We must equallyensure, as society, that we provide them the additional support andfacilities that are necessary for them to offset the impact of their disability.GThis Court in its judgment in Jeeja Ghosh v. Union of India[11], notedthat key component of equality is the principle of reasonabledifferentiation and specific measures must be undertaken, recognizingthe different needs of persons with disabilities, to pave the way forsubstantive equality. Justice K Sikri stated in the above judgement:

H11 (2016) 7 SCC 761

“40. In international human rights law, equality is founded upontwo complementary principles: non-discrimination and reasonabledifferentiation. The principle of non-discrimination seeks to ensurethat all persons can equally enjoy and exercise all their rights andfreedoms. Discrimination occurs due to arbitrary denial ofopportunities for equal participation. For example, when publicfacilities and services are set on standards out of the reach ofpersons with disabilities, it leads to exclusion and denial of rights.Equality not only implies preventing discrimination(example, the protection of individuals against unfavourabletreatment by introducing anti-discrimination laws), but goesbeyond in remedying discrimination against groupssuffering systematic discrimination in society. In concreteterms, it means embracing the notion of positive rights,affirmative action and reasonable accommodation.”

(emphasis supplied)

35. The principle of reasonable accommodation captures thepositive obligation of the State and private parties to provide additionalsupport to persons with disabilities to facilitate their full and effectiveparticipation in society. The concept of reasonable accommodation isdeveloped in section (H) below. For the present, suffice it to say that, fora person with disability, the constitutionally guaranteed fundamental rightsto equality, the six freedoms and the right to life under Article 21 will ringhollow if they are not given this additional support that helps make theserights real and meaningful for them. Reasonable accommodation is theinstrumentality – are an obligation as society – to enable the disabledto enjoy the constitutional guarantee of equality and non-discrimination.In this context, it would be apposite to remember Justice R M Lodha’s(as he then was) observation in Justice Sunanda BhandareFoundation v. Union of India[12], where he stated:

“9…In the matters of providing relief to those who are differentlyabled, the approach and attitude of the executive must be liberaland relief oriented and not obstructive or lethargic…”

G.2 Scheme of the 2016 Act

36. The RPwD Act 2016 was landmark legislation whichrepealed the 1995 Act and brought Indian legislation on disability in line

Awith the United Nations Convention on the Rights of Persons withDisabilities[13]. Under the old regime, disability was simply characterizedas medical condition devoid of any understanding of how disability isproduced by social structures that cater to able- bodied persons andhamper and deny equal participation of persons with disabilities in thesociety. Section 2 (t) of the 1995 Act defined “person with disability”Bin the following terms:

“(t) “person with disability” means person suffering from notless than forty per cent of any disability as certified by medicalauthority”

CThe RPwD Act 2016 has more inclusive definition of “personswith disability” evidencing shift from stigmatizing medical model ofdisability under the 1995 Act to social model of disability whichrecognizes that it is the societal and physical constraint that are at theheart of exclusion of persons with disabilities from full and effectiveparticipation in society. Section 2(s) of the RPwD Act 2016 [which weDhave analyzed in paras 26-28 above] provides:

“(s) “person with disability” means person with long termphysical, mental, intellectual or sensory impairment which, ininteraction with barriers, hinders his full and effective participationin society equally with others”EA barrier is defined under Section 2(c) of the RPwD Act 2016 inthe following terms:

“(c) “barrier” means any factor including communicational, cultural,economic, environmental, institutional, political, social, attitudinalFor structural factors which hampers the full and effectiveparticipation of persons with disabilities in society;”

Under the 1995 Act, only seven kinds of disabilities wererecognized. Section 2(i) listed the following disabilities:

“(i) “disability” means—

G(i) blindness;

(ii) low vision;

(iii) leprosy-cured;

(iv) hearing impairment;

(v) locomotor disability;

(vi) mental retardation;

(vii) mental illness”

The RPwD Act, 2016 now recognizes 21 “specified disabilities”and enables the Central Government to add further categories of disability.The 2016 Act also makes special provisions for persons with benchmarkdisability under Chapter VI and VII of the Act. person with benchmarkdisability is defined under Section 2(r) of the 2016 Act [analyzed in para25 above] as:

“(r) “person with benchmark disability” means person with notless than forty per cent. of specified disability where specifieddisability has not been defined in measurable terms and includes aperson with disability where specified disability has been definedin measurable terms, as certified by the certifying authority.”

It is clear from the scheme of the RPwD Act, 2016 that “personwith disability” and “person with benchmark disability” are treated asseparate categories of individuals having different rights and protections.A third category of individuals “persons with disability having high supportneeds” has also been defined under the RPwD Act 2016.

37. The general principle of reasonable accommodation did notfind place in the 1995 Act. The provision for taking aid of scribe waslimited to blind students or students with low vision in educationalinstitutions. Section 31 of the 1995 Act provided:

“All educational institutions shall provide or cause to be providedamanuensis to blind students and students with or low vision.”

The principle of reasonable accommodation has found moreexpansive manifestation in the RPwD Act 2016. Section 3 of the RPwDAct 2016 goes beyond formal guarantee of non-discrimination by castingaffirmative duties and obligations on government to protect the rightsrecognized in Section 3 by taking steps to utilize the capacity of personswith disabilities “by providing appropriate environment”. Among theobligations which are cast on the government is the duty to take necessarysteps to ensure reasonable accommodation for persons with disabilities.The concept of reasonable accommodation in Section 2(y) incorporates

Amaking “necessary and appropriate modification and adjustments” solong as they do not impose disproportionate or undue burden in aparticular case to ensure to persons with disability the enjoyment orexercise of rights equally with others.” Equality, non-discrimination anddignity are the essence of the protective ambit of the RPwD Act 2016.

B38. While most of the obligations under the RPwD Act 2016 arecast upon the government or local authorities, the Act and rules madeunder it have also imposed certain obligations on the private sector. Therole of the private sector in the market has increased manifold since theadvent of liberalisation in India. The RPwD Act 2016 recognizes thatwith the burgeoning role of the private sector in generating employmentCin India, an active responsibility has to be cast upon private employers tocreate an inclusive workforce by providing persons with disabilities equalopportunities in the job market. However, the guarantee of equalopportunity must be accompanied by the provision of reasonableaccommodation. The Rules framed under the RPwD Act 2016 stipulateDthat private establishments shall not discriminate against persons withdisability on the ground of disability.[14] It is to be noted that the definitionof discrimination under Section 2(h) of the RPwD Act, 2016 includesdenial of reasonable accommodation. Private employers are mandatedto frame an equal opportunity policy[15]. Equal opportunity policies forestablishments having more than 20 employees are required to includeEprovisions relating to (i) appointment of liaison officers in establishmentsto look after the recruitment of persons with disabilities and provisionsof facilities and amenities for such employees[16]; (ii) identification of posts/vacancies for disabled persons[17]; (iii) provision of additional facilitiesand benefits such as training facilities, assistive devices, barrier free

Faccessibility, preference in transfer and promotion, allotment of residentialaccommodation and special leave[18]. The RPwD Act 2016 furtherprovides that private establishments have to conform with accessibilitynorms stipulated by the government with respect to building plans[19]. TheRPwD Act 2016 also provides that 5 % of the workforce of establishments

14 Rule 3 (1) of the Rights of Persons with Disabilities Rules, 2017G15 Section 21 of the RPwD Act, 2016 read with Rule 8 of the Rights of Persons withDisabilities Rules, 2017

16 Rule 8(3) (e) of the Rights of Persons with Disabilities Rules, 2017

17 Rule 8(3) (b) of the Rights of Persons with Disabilities Rules, 2017

18 Rule 8 (3) sub-clauses (c) and (d) of the Rights of Persons with Disabilities Rules,2017H19 Section 44 of the RPwD Act, 2016

receiving incentives from the appropriate government would be comprisedof persons having benchmark disability[20].This Court in Union of Indiav. National Federation of the Blind[21] has recognized that employmentopportunities play an instrumental role in empowering persons withdisabilities. Justice P. Sathasivam (as he then was) observed:

“50. Employment is key factor in the empowerment and inclusionof people with disabilities. It is an alarming reality that the disabledpeople are out of job not because their disability comes in the wayof their functioning rather it is social and practical barriers thatprevent them from joining the workforce. As result, manydisabled people live in poverty and in deplorable conditions. Theyare denied the right to make useful contribution to their ownlives and to the lives of their families and community.”

It is imperative that not only the government but also the privatesector takes proactive steps for the implementation of the RPwD Act2016.

39. The RPwD Act 2016 is fundamentally premised on therecognition that there are many ways to be, none more ‘normal’ or ‘better’than the other. It seeks to provide the disabled sense of comfort andempowerment in their difference. Recognizing the state of affairs createdby centuries of sequestering and discrimination that this discrete andinsular minority has faced for no fault on its part, the RPwD Act 2016aims to provide them an even platform to thrive, to flourish and offertheir unique contribution to the world. It is based on the simple idea withprofound implications that each of us has: “unique powers to share withthe world and make it interesting and richer.”[22] By opening doors forthem and attenuating the barriers thwarting the realization of their fullpotential, it seeks to ensure that they are no longer treated as secondclass citizens.

40. It gives powerful voice to the disabled people who, by dintof the way their impairment interacts with society, hitherto felt mutedand silenced. The Act tells them that they belong, that they matter, thatthey are assets, not liabilities and that they make us stronger, not weaker.The other provisions of Chapter II follow upon the basic postulates

20 Section 35 of RPwD Act, 2016

21 (2013) 10 SCC 772

22 Sonia Sotomayor,, Just Ask!: Be Different, be Brave, be You [2019, Penguin] letter tothe reader.

Aembodied in Section 3 by applying them in specific contexts to ensurerights in various milieus such as community life, reproduction, access tojustice and guardianship. Chapter III of the RPwD Act, 2016 recognisesspecific duties on the part of educational institutions. Section 17 speaksof specific measures to promote and facilitate inclusive education. Amongthem, Clause (g) contemplates the provision of books, learning materialsBand assistive devices for students with benchmark disabilities free ofcost up to the age of eighteen. Section 17(i) requires suitable modificationsin the curriculum and examination system to meet the needs of studentswith disabilities such as (i) extra time for completion of examination (ii)the facility of scribe or amanuensis (iii) exemption from second and thirdClanguage courses. The guarantee under Section 17 (i) is not confined topersons with benchmark disabilities but extends to students withdisabilities. It is thus evident that the legislature has made cleardistinction between disability and benchmark disability. Section 20provides mandate of non-discrimination in employment. Under Section21, every establishment is under mandate to notify equal opportunityDpolicies setting out the measures which will be adopted in pursuance ofthe provisions of Chapter IV. Chapter V provides guarantees for socialsecurity, health, rehabilitation and recreation to persons with disabilities.

41. When the government in recognition of its affirmative dutiesand obligations under the RPwD Act 2016 makes provisions for facilitatingEa scribe during the course of the Civil Services Examination, it cannot beconstrued to confer largesse. Nor does it by allowing scribe confer aprivilege on candidate. The provision for the facility of scribe is inpursuance of the statutory mandate to ensure that persons with disabilitiesare able to live life of equality and dignity based on respect in societyFfor their bodily and mental integrity. There is fundamental fallacy onthe part of the UPSE/DoPT in proceeding on the basis that the facilityof scribe shall be made available only to persons with benchmarkdisabilities. This is occasioned by the failure of the MSJE to clarify theirguidelines. The whole concept of benchmark disability within the

meaning of Section 2(r) is primarily in the context of special provisionsGincluding reservation that are embodied in Chapter VI of the RPwD Act2016. Conceivably, the Parliament while mandating the reservation ofposts in government establishments and of seats in institutions of higherlearning was of the view that this entitlement should be recognized forpersons with benchmark disabilities. As matter of legislative policy,Hthese provisions in Chapter VI have been made applicable to those with

benchmark disabilities where higher threshold of disability is stipulated.Except in the specific statutory context where the norm of benchmarkdisability has been applied, it would be plainly contrary to both the textand intent of the enactment to deny the rights and entitlements whichare recognized as inhering in persons with disabilities on the ground thatthey do not meet the threshold for benchmark disability. statutoryconcept which has been applied by Parliament in specific situationscannot be extended to others where the broader expression, personswith disability, is used statutorily. The guidelines which have been framedon 29 August 2018 can by no means be regarded as being exhaustive ofthe situations in which scribe can be availed of by persons other thanthose who suffer from benchmark disabilities. The MSJE does not in itscounter affidavit before this Court treat those guidelines as exhaustiveof the circumstances in which scribe can be provided for personsother than those having benchmark disabilities. This understanding ofthe MSJE is correct for the simple reason that the rights which emanatefrom provisions such as Section 3 extend to persons with disability asbroadly defined by Section 2(s).

42. We are, therefore, of the view that DoPT and UPSC havefundamentally erred in the construction which has been placed on theprovisions of the RPwD Act 2016. To confine the facility of scribeonly to those who have benchmark disabilities would be to deprive aclass of persons of their statutorily recognized entitlements. To do sowould be contrary to the plain terms as well as the object of the statute.

H. Reasonable accommodation

43. At the heart of this case lies the principle of reasonableaccommodation. Individual dignity undergirds the RPwD Act, 2016 .Intrinsic to its realization is recognizing the worth of every person as anequal member of society. Respect for the dignity of others and fosteringconditions in which every individual can evolve according to theircapacities are key elements of legal order which protects, respectsand facilitates individual autonomy. In seeking to project these values asinalienable rights of the disabled, the RPwD Act, 2016 travels beyondbeing merely charter of non-discrimination. It travels beyond imposingrestraints on discrimination against the disabled. The law does this byimposing positive obligation on the State to secure the realization ofrights. It does so by mandating that the State must create conditions inwhich the barriers posed by disability can be overcome. The creation of

ABC

Aan appropriate environment in which the disabled can pursue the fullrange of entitlements which are encompassed within human liberty isenforceable at law. In its emphasis on substantive equality, the enactmentof the legislation is watershed event in providing legal foundation forequality of opportunity to the disabled.

B44. As social construct, disability encompasses features broaderand more comprehensive than medical condition. The RPwD Act,2016 recognizes that disability results in inequality of access to rangeof public and private entitlements. The handicaps which the disabledencounter emerge out of disability’s engagement with the barriers createdby prejudice, discrimination and societal indifference. Operating asCrestraining factors, these barriers have origins which can be traced tophysical, social, economic and psychological conditions in society.Operating on the pre-existing restraints posed by disability, these barriersto development produce outcomes in which the disabled bear an unequalshare of societal burdens. The legislation has recognized that remediesDfor the barriers encountered by the disabled are to be found in the socialenvironment in which they live, work and co-habit with others. Thebarriers encountered by every disabled person can be remedied byrecognizing comprehensive rights as inhering in them; rights which imposeduties and obligations on others.

E45. The principle of reasonable accommodation acknowledgesthat if disability as social construct has to be remedied, conditions haveto be affirmatively created for facilitating the development of the disabled.Reasonable accommodation is founded in the norm of inclusion. Exclusionresults in the negation of individual dignity and worth or they can choosethe route of reasonable accommodation, where each individuals’ dignityFand worth is respected. Under this route, the “powerful and the majorityadapt their own rules and practices, within the limits of reason and shortof undue hardship, to permit realization of these ends.”[23]

46. In the specific context of disability, the principle of reasonableaccommodation postulates that the conditions which exclude the disabledGfrom full and effective participation as equal members of society haveto give way to an accommodative society which accepts difference,respects their needs and facilitates the creation of an environment in

23 Reasonable Accommodation In Multicultural Society, Address to the Canadian BarAssociation Continuing Legal Education Committee and the National ConstitutionalHand Human Rights Law Section, April 7, 1995, Calgary, Alberta at 1.

which the societal barriers to disability are progressively answered.Accommodation implies positive obligation to create conditionsconducive to the growth and fulfilment of the disabled in every aspect oftheir existence – whether as students, members of the workplace,participants in governance or, on personal plane, in realizing the fulfillingprivacies of family life. The accommodation which the law mandates is‘reasonable’ because it has to be tailored to the requirements of eachcondition of disability. The expectations which every disabled personhas are unique to the nature of the disability and the character of theimpediments which are encountered as its consequence.

47. For instance, for visually impaired person, the reasonableaccommodation she requires might consist of screen magnificationsoftware or screen reader [which can speak out the content on acomputer screen in mechanical voice]. It might also consist of contentbeing made available in Braille and sighted assistant. In the same way,for someone with hearing impairment, reasonable accommodation couldconsist of speech-to-text converters, access to sign language interpreters,sound amplification systems, rooms in which echo is eliminated and lip-reading is possible. Similarly, for person with dyslexia, reasonableaccommodation could consist of access to computer programmes suitedto meet their needs and compensatory time.48. Failure to meet the individual needs of every disabled personwill breach the norm of reasonable accommodation. Flexibility inanswering individual needs and requirements is essential to reasonableaccommodation. The principle contains an aspiration to meet the needsof the class of persons facing particular disability. Going beyond theneeds of the class, the specific requirement of individuals who belong tothe class must also be accommodated. The principle of reasonableaccommodation must also account for the fact that disability baseddiscrimination is intersectional in nature. The intersectional features arisein particular contexts due to the presence of multiple disabilities andmultiple consequences arising from disability. Disability therefore cannotbe truly understood by regarding it as unidimensional. Reasonableaccommodation requires the policy makers to comprehend disability inall its dimensions and to design measures which are proportionate toneeds, inclusive in their reach and respecting of differences andaspirations. Reasonable accommodation cannot be construed in waythat denies to each disabled person the customization she seeks. Even if

Ashe is in class of her own, her needs must be met.[24] While assessingthe reasonableness of an accommodation, regard must also be had tothe benefit that the accommodation can have, not just for the disabledperson concerned, but also for other disabled people similarly placed infuture.

B49. As the Committee on the Rights of Persons with Disabilities[25]noted in General Comment 6, reasonable accommodation is componentof the principle of inclusive equality. [26] It is substantive equality facilitator.The establishment of this linkage between reasonable accommodationand non-discrimination thus creates an obligation of immediate effect.[27]Under this rights-based and disabled-centric conceptualization ofCreasonable accommodation, failure to provide reasonableaccommodation constitutes discrimination. Reasonable accommodationdeterminations must be made on case-by-case basis, in consultationwith the disabled person concerned.[28] Instead of making assumptionsabout how the relevant barriers can be tackled, the principle of reasonable

Daccommodation requires dialogue with the individual concerned todetermine how to tackle the barrier.[29]

50. The concept of reasonable accommodation as componentof the equality guarantee has been recognized in consistent line ofprecedents of this Court.[30] Illustratively, in Syed Bashir-ud-din Qadriv.ENazir Ahmed Shah[31], this Court, speaking through Justice Altamas Kabir,

24 Amita Dhanda, Prof. of Law, NALSAR, “In class of my own: Reasonableaccommodation from disability perspective” [ppt presentation].25 “CRPD Committee”

26 CRPD Committee, General Comment 6 on Equality and Non-discrimination (2018)[GC 6], CRPD/C/GC/6, 26th April, 2018, para 11.F27 Lord, J. E., & Brown, R. (2010). The role of reasonable accommodation in securingsubstantive equality for persons with disabilities: The UN Convention on the Rights ofPersons with Disabilities. In Critical perspectives on human rights and disability law(pp. 273-307). Brill Nijhoff, at p. 279.

28 CRPD Committee, GC 6 at para 25[c].

29 Anna Lawson, ‘Reasonable Accommodation in the Convention on the Rights ofPersons with Disabilities and Non-Discrimination in Employment: Rising to theGChallenges?’, in Charles O’Mahony and Gerard Quinn (eds.), Disability Law andPolicy: An Analysis of the UN Convention (Dublin: Clarus Press, 2017), pp. 359–74,at 362.

30 Rajive Raturi v. Union of India and Ors., 2017 (14) SCALE 412, Jeeja Ghosh and Anr.v. Union of India and Ors. (2016) 7 SCC 761 and Disabled Rights Group and Ors. v.Union of India and Ors., (2018) 2 SCC 397.31 (2010) 3 SCC 603.H

held that person having cerebral palsy should be given access to anexternal electronic aid as reasonable accommodation to offset theimpact of his inability to write on the blackboard. The Court held asfollows:

“31. …while person suffering from cerebral palsy may not beable to write on blackboard, an electronic external aid could beprovided which could eliminate the need for drawing diagramand the same could be substituted by picture on screen, whichcould be projected with minimum effort.”

51. discordant note struck by this Court having direct bearingon the principle of reasonable accommodation finds expression in twojudge Bench decision of this Court in the case of V Surendra Mohanv. State of Tamil Nadu[32] (“Mohan”). The proceedings before this Courtarose from judgment of the Madras High Court. At issue was thedecision of the Tamil Nadu Public Service Commission[33] to impose aceiling of 40-50% visual/hearing impairment to be eligible to be appointedas Civil Judge (Junior Division). Differently stated, person whosevisual/hearing impairment exceeded 50% was disqualified from beingeligible for the said post. In the said case, the appellant’s disability was70%. The appellant’s name was not included in the list of registerednumbers who were provisionally admitted to the oral test. He challengedthis in the Madras High Court. By its judgment dated 5 June 2015, theMadras High Court held that, as per the decision of the Governmentdated 8 August 2014 and notification issued by the TNPC dated 26 August2014, those partially blind with 40%-50% disability were only eligibleand the appellant having 70% disability was not eligible to participate inthe selection.

52. two judge Bench of this Court held that judicial officer ina State has to possess reasonable limit of the faculties of hearing, sightand speech in order to hear cases and write judgments and, therefore,stipulating limit of 50% disability in hearing impairment or visualimpairment as condition to be eligible for the post is legitimaterestriction. This court affirmed the submission of the Madras High Courtthat seeking to address the socially constructed barriers faced by visuallyor hearing impaired judge, whose disability exceeds 50%, would create‘avoidable complications’. As result, the impugned ceiling was foundto be valid. The relevant portion of the judgment is excerpted below:32 (2019) 4 SCC 237.33 “TNPC”

A“40... The High Court in its additional statement has incapsulatedthe functions and duties of Civil Judge in following words:-

Impaired vision can only make it extremely difficult, evenimpossible, to perform any of these functions at all. Therefore,Bcreating any reservation in appointment for those with disabilitiesbeyond the 50% level is far from advisable as it may createpractical and seemingly other avoidable complications.

Moreover, given the need to prepare judgments based on the casepapers and other material records in confidential manner, theCassistance of scribe or the like completely takes away the secrecyand discreetness that come with the demands of the post.”

53. This judgment was delivered by this Court after India becamea party to the UNCRPD and the RPwD Act 2016, came into force. Theaforesaid view espoused by this Court is innocent of the principle ofDreasonable accommodation. This Court did not consider whether thefailure of the TNPC to provide reasonable accommodation to judgewith disability above the impugned ceiling was statutorily orconstitutionally tenable. There is no reference in this Court’s judgmentto whether the appellant would have been able to discharge the duties ofEa Civil Judge (Junior Division), after being provided the reasonableaccommodations necessitated by his disability.54. The analysis by this Court in the portion excerpted abovebegs the question. Specifically, the relevant question, under the reasonableaccommodation analysis, is not whether complications will be caused byFthe grant of reasonable accommodation. By definition, reasonableaccommodation demands departure from the status quo and hence‘avoidable complications’ are inevitable. The relevant question is whethersuch accommodations would give rise to disproportionate or undueburden. The two tests are entirely different.

55. As we have noted previously, the cornerstone of the reasonableGaccommodation principle is making adjustments that enable disabledperson to effectively counter the barriers posed by their disability.Conspicuous by its absence is any reasonable accommodation analysiswhatsoever by this Court in Mohan. Such an analysis would have requireda consideration of the specific accommodations needed, the cost ofHproviding them, reference to the efficacy with which other judges with

more than 40-50% visual/hearing impairment in India and abroad candischarge judicial duties after being provided the necessaryaccommodations, amongst other factors. In holding that the ceiling wasreasonable on the application of the principle of reasonableaccommodation, the ratio as expounded fails as “distinct exhortatorydimension that must always be kept in mind while determining whetheran adjustment to assist disabled person to overcome the disadvantagethat she or he has in comparison to an able-bodied person is reasonable.”34 It is persons with disabilities who have been the victim of this lapse.

56. In light of the fact that the view of this court in Mohan wasrendered in case under the 1995 Act which has now been replaced bythe RPwD Act 2016 and in light of the absence of reasonableaccommodation analysis by this Court, the Mohan judgment stands ona legally vulnerable footing. It would not be binding precedent, afterenforcement of the RPwD Act 2016.

57. The ASG’s argument that whole swath of facilities areprovided to the disabled without enquiring into the percentage of theirdisability and that percentage is only essential in cases such as thepresent is flawed for two reasons. First, the inarticulate premiseunderpinning this argument appears to be that the legally guaranteedentitlements of the disabled are privileges doled out by the state andbespeaks an incorrect understanding of the concept of reasonableaccommodation. Since reasonable accommodation is component ofthe duty not to discriminate against the disabled, as we have explainedabove, the state is bound to provide these facilities to its disabled citizens.A robust conception of reasonable accommodation needs to be adopted.

58. Second, and relatedly, this being so, it can be no answer to tella disabled candidate whose disability genuinely necessitates access to ascribe that they are already being given all the above facilities. Providingthose facilities does not absolve the state of the obligation to provide adisabled candidate access to scribe, when this need is clearly establishedas being relatable to their disability.

59. The ASG referred to the difficulty caused to her by dint ofhaving carpel tunnel syndrome as an example of the dangerousconsequences that would flow from opening the door too widely when itcomes to granting scribes. In the hearing, examples were also cited of

Aindividuals having small, everyday problem and expecting scribe onthat basis. While valid, such comparisons may end up creating falseequivalence between those with legitimate disability-based reasonableaccommodation need and others with everyday ‘life problems’.[35]Therefore, it has to be ensured that we do not make light of, or trivialize,the needs of those whose disability may not meet the quantitative thresholdBof 40% but are nonetheless disabling enough to merit the grant of thereasonable accommodation of scribe and extra time. As the CRPDCommittee notes, it is wrong to expect person with disability to be‘disabled enough’ to claim the accommodations necessitated by theirdisability.[36] Such an approach would not be in consonance with theCprogressive outlook of the RPwD Act 2016.60. The ASG’s argument that the appellant must be subjected tofurther medical examinations, even though his disability has beenaccepted, is emblematic of key barrier that often comes in the way ofthe disabled being able to access reasonable accommodation in India.DAs the CRPD Committee observes in its concluding observations onIndia, the competent authorities must ensure that “multiple assessments[as to existence of disability] do not create an undue burden forapplicants.”[37]

61. The party contending that particular accommodation willEimpose disproportionate or undue burden has to prove the same.[38] Andsuch justification has to be based on objective criteria.[39] Further, theCRPD Committee has held that an assessment of reasonableaccommodation must be made “in thorough and objective manner,covering all the pertinent elements, before reaching conclusion thatthe respective support and adaptation measures would constitute aFdisproportionate or undue burden for State party.”[40] It is against thisbackdrop that we will now consider the ASG’s principal justification for

35 IDAP Interview Series: Interview XV with Judge Ronald M. Gould, response to q.13, available at https://www.idialaw.org/blog/idap-interview-series-interview-xv-with-judge-ronald-m-gould/

36 CRPD Committee, GC 6, para 73[b].G37 CRPD Committee, Concluding Observations on the Report of India, [“ConcludingObservations”], GE. 19- 18639[E], 24th September, 2019, para 7[b].

38 CRPD Committee, GC 6, para 26[g].

39 Id at para 27.

40 CRPD Committee, Ms JH v Australia, GE.18-22328(E), 31.08.2018, para 7.4. Asimilar view was also adopted by the Committee in the case of Michael Lockrey versusAustralia, CRPD/C/15/D/13/2013, 30th May, 2016, para 8.5 [holding that failure toH

denying the reasonable accommodation of scribe to the appellant andothers similarly situated, namely that the facility of scribe maybe misusedfor nefarious purposes.

I. The argument of misuse

62. Ms Madhavi Divan, learned Additional Solicitor General laidemphasis on the competitive nature of the CSE and of the need topreserve the purity of the examination. The difficulty in accepting theargument lies in the sequitur. There can be no doubt about the fact thatthe CSE is competitive in itself. There can similarly be no doubt aboutthe need to preserve the purity of the examination. But the apprehensionthat the facility of scribe should not be misused can furnish no validground to deprive the whole class of citizens – persons with disabilitywho need scribe – from the statutory entitlements which emanatefrom the provisions of the enactment, on the supposition that someonemay misuse the provisions of the law. There are two further responsesto this argument. First, Ms. Divan has not furnished any empirical datato substantiate the assertion that persons with disabilities are misusingthe facility of scribes to obtain any undue advantage. As noted earlier, ajustification to provide reasonable accommodation must be based onobjective criteria. The conjecture as to misuse does not meet this test.

63. Further, we are of the considered view that undue suspicionabout the disabled engaging in wrongdoing is unwarranted. Such viewpresumes persons with disabilities, as class, as incompetent andincapable of success absent access to untoward assistance. The disabledconfront stereotypes in several aspects of their day to day lives. One ofthem is that they do not perform as well as others. Like other stereotypes,this one is also totally flawed and contrary to reality. Such an ableistpremise is inconsistent with the approach to disability enshrined in theUNCRPD and the RPwD Act 2016. To think that persons with disabilitieswho do not have benchmark disability but nonetheless request accessto scribe, as class, have the objective of gaming the system is tomisunderstand their aspiration, to stamp them with badge of cheatersand to deprive them of their lawful entitlements. The system may bevulnerable to being gamed by able-bodied persons, however, it is theprovide deaf juror access to stenographer to conduct real-time steno-captioningviolated the principle of reasonable accommodation]; and Gemma Beasley versusAustralia, GE.16-08383 (E) 290716 290716, 29th April, 2013 para 8.5 [holding that afailure to provide hearing impaired juror access to an Auslan interpreter violated theprinciple of reasonable accommodation.

Apersons with disabilities who are being asked to bear the cost ofmaintaining the purity of the competitive examinations by giving up theirlegal entitlements on the presumption that there is possibility of misuse.

64. When competent persons with disabilities are unable to realizetheir full potential due to the barriers posed in their path, our societyBsuffers, as much, if not more, as do the disabled people involved. In theirblooming and blossoming, we all bloom and blossom. The most significantloser as consequence of the UPSC’s rigid approach in this case (ofrefusing to provide scribes to those not having benchmark disabilities) isthe UPSC itself. For it is denying to the nation the opportunity to beserved by highly competent people who claim nothing but access toCequal opportunity and barrier-free environment.65. When an able-bodied student engages in cheating, the normalconsequence is their disqualification or other suitable punitive action.The same consequence can flow from candidate using their disabilityto game the system. If some incidents come to light of able-bodiedDcandidates hiding chits in their dress code and misusing them to cheat inan exam, the normal consequence is suitable punitive action against suchstudents. It is not to switch to different dress code that is souncomfortable that many competent students find it hard to sit in it forthe entire duration of the exam and perform to the best of their ability. InEthe same way, just because of the fault of some bad apples in the system,persons with disabilities whose disability necessitates access to scribecannot be disentitled from claiming the same.[41]

66. Second, the examining body is entitled to prescribe proceduresthat ensure against misuse and to deal with any instances which mayFcome to light.

This is not problem peculiar to India or that of an intractablenature. To illustrate, in March 2019, the US Federal Bureau ofInvestigation launched an investigation code-named Operation VarsityBlues which is popularly known as the ‘College Admissions Scandal’.GAs part of the investigation, several individuals were arrested and chargedon the allegation of seeking extended time on college entrance exams,by falsely making it appear that the concerned students had learning

41 Dr. Sanjay Jain, “ Right to education : An enabler”, in “Marginalised communities andhigher education” in Eds Surendrakumar and H. L. Vinod “Marginalised communitiesand higher education”, Sage Publication 2021, section Critical Analysis of ScribeHguidelines [forthcoming].

disabilities, so as to acquire the requisite medical documentation. Oncethe accommodation was approved, large-scale cheating andimpersonation took place at test centres in Houston, Texas and Hollywood,California.[42 ]Suffice it to say that the possibility of misuse cannot beused to deprive equal access to persons with disability from seeking thefacility of scribe. Absent such facility, persons such as the appellantwho suffers from chronic neurological condition would be deprived ofa statutory right of equal opportunity in gaining an appointment to publicservices. To do so would negate both the constitutional right and itsstatutory recognition in the provisions of the RPwD Act, 2016.

J. The language of our discourse

67. The shift in the way we view disability – as social constructrather than an individual pathology – must also translate into linguisticshift in the way we refer to persons with disabilities. The language ofour discourse must evince clear desire to make the disabled feelempowered and included, not alienated and situated on different footingfrom their able-bodied counterparts - whether on pedestal or in cage.[43]

68. The Tribunal, in its judgment, couched the disability of theappellant in terms of ‘suffering’ and ‘disease’. Specifically, in its orderdated 30 May 2018, the Tribunal, at para 5, noted: “The applicant issuffering with disease called Writer’s Cramp.” In its order dated 7August 2018, at para 7, the Tribunal refers to those “suffering” withdisabilities. Even if the usage is unintentional, we cannot ignore its enduringimpact in shaping the way the society views the disabled and the waythey view themselves. Viewing disability as an affliction that causessuffering, or that views it as God-given fate (whether blessing or acurse) is rooted in the medical model of disability. Our discourse must becouched in terms that reflect the recognition of human rights model toviewing disability. Insensitive language offends the human dignity ofpersons with disabilities.

69. In its concluding observations on India, the CRPD Committeenotes with concern references to “normal life” as opposed to the lives of

42 US Department of Justice, Arrests Made in Nationwide College Admissions Scam:Alleged Exam Cheating & Athletic Recruitment Scheme, 12[th ]March, 2019, available athttps://www.justice.gov/usao-ma/pr/arrests-made-nationwide-college-admissions-scam-alleged-exam-cheating-athletic

43 Paraphrased from - CNN, ‘Ginsburg: ‘The pedestal you put women on is cage’,12th February, 2018, available at https://www.youtube.com/watch/sJ9Got6C500

Apersons with disabilities and derogatory terminology such as “mentallyill” and “divyangjan”, which as it notes, remains controversial[44]. It is ourearnest hope that the paradigm-shifting conversation about the rightsand status of the disabled, that the CRPD Committee has generated,will find resonance in the language we use to refer to them.

BK. Realizing the transformative potential of the Rights ofPersons with Disabilities Act 2016: From principle to practice

70. In the hearing, one of us presciently noted that the impositionof the criterion of benchmark disability to access scribe – an arena inwhich it has no relevance as per the statutory framework – betrays aprofound lack of awareness on the part of the authorities about the RPwDCAct 2016. The OM of 29 August 2018, in its preambular portion recites

as follows:

“The Act [Rights of Persons with Disabilities Act, 2016] providesfor reservation in Government jobs for persons with benchmarkdisabilities as defined under section 2 (r) of the said Act.”D

71. As one commentator notes, “if the connection betweenreservation in government jobs for the disabled and guidelines for grantof scribes in all exams they may appear in appears strange, that is becauseit is.”[45] Another notes that there exists no justification for this move.[46]The facts of this case are stark reminder of the need to generateEgreater legal consciousness about the entitlements of the disabled setforth in the RPwD Act 2016. We would also like to take judicial noticeof the fact that several instances have come to light of competentauthorities fixing criteria for the grant of scribes that are in brazendisregard of the RPwD Act 2016 and the OM dated 29 August 2018.[47]F44 CRPD Committee, Concluding Observations on India, para 6[b].45 Ibid.

46 Dr. Sanjay Jain, “ Right to education : An enabler” in “Marginalised communities andhigher education” in Eds Surendrakumar and H. L. Vinod “Marginalised communitiesand higher education”, Sage Publication 2021 Critical Analysis of Scribe guidelines[forthcoming].G47 Live Law News Network, ‘BCI Creating Entry Barriers For Disabled Lawyers’: SaysBlind AIBE Candidate; Seeks Proper Implementation Of 2018 PwD Guidelines, 7thJanuary, 2021, available at https://www.livelaw.in/top-stories/bar-council-of-india-aibe-persons-with-disability-blind-law-student-168124; Rintu Mariam Biju, AIBE 2021:Is BCI creating entry barriers for disabled law grads? 23rd January, 2021, Bar andBench, available at https://www.barandbench.com/news/aibe-2021-is-bci-creating-entry-barriers-for-disabled-law-gradsH72. If the legal entitlements set forth in the RPwD Act 2016 areto not remain mere parchment, reflected in our inability to overcomebarriers against substantively unequal treatment, the nodal Ministry, incoordination with other relevant actors, must make concerted effort toensure that the fruits of the Act actually reach the intended beneficiaries.In this regard, Article 8(2) of the UNCRPD outlines the awareness-raising measures that must be undertaken. Based on Article 8, the RPwDAct 2016 captures the need for the State to conduct and promoteawareness campaigns and sensitization programmes in Section 39. Thesemust be conducted to recognize and advance knowledge of the skillsand abilities of persons with disabilities and of their contributions to theworkforce and foster respect for the decisions of persons with disabilitiesin their family life. Sensitization programmes must be held at educationalinstitutions and in professional spheres on the condition of disability andthe rights of disabled persons and the like. The government must giveeffect to these provisions regularly to sensitize our society to the everydaychallenges that may be imposed by the actions or inactions of the able-bodied on their disabled counterparts.

L. Case of the appellant

73. Insofar as the case of the appellant is concerned, his conditionhas been repeatedly affirmed by several medical authorities includingNational Institute of Mental Health and Neuro Sciences (NIMHANS),Bangalore and AIIMS. The AIIMS report which was pursuant to theorder of this Court is clear in opining that the appellant has specifieddisability inasmuch as he has chronic neurological condition. Thiscondition Forms part of Entry IV of the Schedule to the RPwD Act2016. The writer’s cramp has been found successively to be conditionwhich the appellant has, making it difficult for him to write conventionalexamination. To deny the facility of scribe in situation such as thepresent would negate the valuable rights and entitlements which arerecognised by the RPwD Act 2016.

74. We, therefore, hold and declare that the appellant would beentitled to the facility of scribe for appearing at the Civil ServicesExamination and any other competitive selection conducted under theauthority of the government.

M. Formulation of new policy concerning access to scribesfor persons with disabilities

75. Before concluding, we also intend to issue broader directionto the Union Government in the Ministry of Social Justice and

AEmpowerment to ensure the framing of proper guidelines which wouldregulate and facilitate the grant of facility of scribe to persons withdisability within the meaning of Section 2(s) where the nature of thedisability operates to impose barrier to the candidate writing anexamination. In formulating the procedures, the Ministry of Social Justiceand Empowerment may lay down appropriate norms to ensure that theBcondition of the candidate is duly certified by such competent medicalauthority as may be prescribed so as to ensure that only genuinecandidates in need of the facility are able to avail of it. This exerciseshall be completed within period of three months of the receipt of acertified copy of this judgment and copy of the guidelines shall beCtransmitted to the Registrar (Judicial) of this Court. Upon receipt of theguidelines the Registrar (Judicial) shall place it on the record upon whichthe proceeding shall be listed under the caption of directions.

76. While framing the guidelines, we reiterate at the risk ofrepetition, that the Union Government should be mindful that the duty to

Dprovide reasonable accommodation is an individualized duty as has alsobeen noted by the CRPD Committee in General Comment 6. In otherwords, case-by-case approach must be adopted by the relevant bodycharged with the obligation of providing reasonable accommodation. Thisrequires the relevant body to engage in dialogue with the individualwith disability. While considering the financial cost and resources availableEfor the provision of accommodation, the overall assets rather than justthe resources of the concerned unit or department within an organizationmust be taken into account. It should also be ensured that persons withdisability are not required to bear the costs of the accommodation.

77. We find it apposite to mention here that consultation withFpersons with disabilities and their involvement in decision making aboutmatters affecting their lives is necessary to bring about any meaningfulchange in the realization of their rights. Taking note of the emergence ofmovements of persons with disabilities and the philosophy of “nothingabout us without us”, the CRPD Committee in its General Comment

No. 7 has also underscored the importance of such participative decisionGmaking by involving persons with disabilities and organizations of thepersons with disabilities.[48]

48 CRPD Committee, General comment No. 7 (2018) on the participation of personswith disabilities, including children with disabilities, through their representativeorganizations, in the implementation and monitoring of the Convention, CRPD/C/GC/H7, 9 November 2018, para 5.

78. In India, as reflected by the policy disconnect in this case,there is often lack of involvement of the disabled in such decisionmaking processes, leading to their voice not being heard and theirgrievances remaining unaddressed. This has also been listed as an areaof concern by the CRPD Committee in its concluding observations onIndia.[49] Taking into account our constitutional and international obligations,we direct the MSJE to frame the abovementioned guidelines inconsultation with the public, specifically with persons with disabilitiesand organisations representing them.

N. In summation

79. When President George HW Bush signed into law theAmericans with Disabilities Act, he noted that, by dint of the passage ofthe law, “every man, woman, and child [and we would like to addpractitioners of alternative sexuality here] with disability can now passthrough once-closed doors into bright new era of equality, independence,and freedom.”[50]

80. In the three decades that have elapsed since then, generationof Americans with disabilities has emerged, calling themselves the ADAGeneration. These disabled people rightfully regard the ADA’s guaranteesas birthright and, due to accessible infrastructure, strict prohibitionon disability discrimination and changed public attitudes, are able toparticipate in American life on equal terms with their able-bodiedcounterparts.[51]

81. Cases such as the present offer us an opportunity to make ameaningful contribution in the project of creating the RPwD generationin India. generation of disabled people in India which regards as itsbirthright access to the full panoply of constitutional entitlements, robuststatutory rights geared to meet their unique needs and conducive societalconditions needed for them to flourish and to truly become co-equalparticipants in all facets of life.

49 CRPD Committee, Concluding observations on India, para 10, 11.

50 ADA.Gov, Remarks of President George H. W. Bush at the Signing of the Americanswith Disabilities Act, 26th July, 1990, available at https://www.ada.gov/ghw_bush_ada_remarks.html

51 Joseph Shapiro, Disability Pride: The High Expectations of New Generation, 17thJuly, 2020, The New York Times, available at https://www.nytimes.com/2020/07/17/style/americans-with-disabilities-act.html.

364SUPREME COURT REPORTS

A82. We accordingly allow the appeal and set aside the impugnedjudgment and order of the High Court of Delhi dated 25 September2018. There shall be no order as to costs.

83. Pending application(s), if any, stand disposed of.

Ms Sanchita Ain, learned Counsel has also assisted the Court.BMs Ain has provided valuable inputs to the Court during the course ofthe hearing. Before concluding we record our appreciation of theassistance which has been rendered by Mr Rajan Mani, learned Counsel,Ms Madhavi Divan, learned Additional Solicitor General and Mr NareshKaushik, learned Counsel.

Ankit Gyan

Appeal allowed.