Vikash Kumar has dysgraphia, commonly known as ‘writer’s cramp’ which impedes writing. He had applied for the Civil Services Examination in 2018 and requested for a scribe. The Union Public Service Commission (‘UPSC’) which conducts the Civil Services Examination denied his request noting that scribes are only permitted for persons with ‘benchmark disabilities’. According to the UPSC, Kumar’s disability did not meet this standard, as he only had 6% of a disability. He then brought a case against the UPSC: first at the Central Administrative Tribunal, then appeals before the Delhi High Court and the Supreme Court. Justice Chandrachud delivered the Supreme Court’s judgment on behalf of the three-judge bench with Justices Indira Banerjee and Sanjiv Khanna.
Under S. 2 (r) of the Rights of Persons with Disabilities Act, 2016 (‘the Act’), a benchmark disability is when a person has ‘not less than 40%’ of a specified disability. J. Chandrachud noted that this concept of ‘benchmark disabilities’ is only relevant to a set of special provisions such as reservations and other benefits under Chapters VI and VII of the Act. However, the general definition of persons with disability, under S. 2 (s), is broader than the definition of benchmark disability. Therefore, there is no requirement of proving a certain percentage of disability.
The Act recognises long-term impairments that hinder full and effective participation in society. It also recognises the concept of ‘barriers’ to such effective participation. The judgment reiterates that the Act’s approach to disability is not medical. Instead, the Act recognises disability as a social ill from a human rights perspective. Further, the judgment highlights the positive obligations of the Act, particularly its provision for ‘reasonable accommodation’. This obligation requires all establishments, the State and private organisations, to actively change policy to allow people with disabilities to effectively enjoy their life with dignity. The only bar to this is when there is a ‘disproportionate’ or ‘unfair’ burden on the accommodating establishment.
The judgment highlighted how the Act was grounded in and is meant to be guided by, the constitutional principles of equality and dignity. Positive obligations under the Act further the vision of substantive equality for people with disabilities. The Court also debunked arguments regarding ‘misuse’ of such an accommodation. Such concerns could not be dealt with by a blanket denial to people with disabilities.
Consequently, the Court ordered that even though the appellant had only 6% of a disability due to the writer’s cramp, the UPSC was obliged to make reasonable accommodations such as providing a scribe and compensatory time. The Ministry of Social Justice and Empowerment was also directed to amend its “Guidelines for Conducting Written Examination for Persons with Benchmark Disabilities” to give force to this judgment.
Jayna Kothari on the Judgment
Jayna Kothari is a Senior Advocate who practices at the Supreme Court and various High Courts in India. She is also the Executive Director of the Centre for Law and Policy Research. Her book, “The Future of Disability Law in India” was published in 2012 by the Oxford University Press.
In this audio clip, Kothari critically examines the Vikash Kumar judgment and how it shapes the future of disability rights in India.
The recent judgment of the Supreme Court in Vikash Kumar v UPSC is a very important judgment, especially looking at issues of disability and equality and reasonable accommodation. And in the next few minutes, I'll try and just cover some of the most important points, of this judgment and what my views on it are.
This was a case where a person with writer's cramp needed a scribe for writing the UPC examination. And he was unable to get this facility of a scribe, because he initially wasn't able to get a disability certificate and he did not come under the definition of a person with benchmark disability.
And therefore this case ultimately went up to the Supreme Court. When the case went up to the Supreme Court, the Court directed a medical examination of the petitioner and this examination found that he did indeed have writer's cramp, but that this would not come within the definition of benchmark disability.
And the disability was assessed at only 6%. Further, the legal issues arose because the government guidelines of 2018, which mandated how scribes could be provided for persons with disabilities only allowed for scribes for persons first of all with benchmark disabilities and even within those disabilities, only persons with blindness locomotor disability, or cerebral palsy. And for all other conditions, a person had to get special permission.
So now, with this background of facts, the court then went into the decision making process. The first issue that the court, laid down is that, the court went into, the provisions of the rights of persons with disabilities act 2016. This is a new legislation enacted in India, had replaced the old 1995 act. And in this legislation, there are two separate definitions of a person with disability. There is a definition which is a broad definition of person with disability under section 2 (s) which is defined as a person with long-term physical, mental, intellectual, or sensory impairment, which in interaction with barriers hinders his full and effective participation in society equally with others.
This borrows from the CRPD definition and is from the social model of disability and not a medical model, it gives a broad and open-ended definition of what a person with disability would be. Then there is another definition under section 2 (r) which refers to a person with benchmark disability.
And this benchmark disabilities only refers to a person with not less than 40% of a specified disability. Now. Benchmark disability is limited to certain provisions of the legislation, which referred to reservation in public employment and a few other provisions of the law. So what the court held importantly is that by limiting the access of a scribe to only a person who falls under 2 (r), which is a person with benchmark disability, it would violate the overall framework of the law. Because there are only a few limited sections of the legislation, which refer to section 2 (r) there was no requirement that even the provision of a scribe, uh, which would facilitate access to writing and examination should be limited only to persons with benchmark disabilities. And this should be allowed to all persons with disabilities, whether or not his condition, which is a writer's cramp would fall within the framework of benchmark disability or not. And the court therefore held that this person should be given the provision of a scribe. But more importantly though the real impact of the judgment is on the issue of equality for persons with disabilities at a larger level.
The Court refers to reasonable accommodation as a key component of equality and non-discrimination it highlights that reasonable accommodation is really the obligation of providing positive duties and obligations on the state and private parties to provide additional support to persons with disabilities to facilitate their full participation.
The court reiterated that denial of reasonable accommodation would amount to discrimination and that these obligations of reasonable accommodations are not only there on the public sector, but on private sector as well. Finally, most importantly, the judgment makes the link between equality and dignity. The court holds that equality means recognizing the equal worth of every individual, irrespective of their disability. And this would mean that the individual dignity of all has to be respected. The principle of reasonable accommodation is a means of recognizing the equal worth and dignity of all by removing the barriers of our full participation and therefore reasonable accommodation would be an integral component of equality.
On a side note, what the judgment also does is that it held that a previous decision of the Supreme court, which was quite a problematic decision where the Supreme court held that persons who had visual or hearing impairment would not be qualified to be judges and this was quite a criticized judgment.
In this case, the court held that since in that decision, the two-judge bench did not take into account the principle of reasonable accommodation. That judgment would not be a binding precedent. So with some of these, observations, I think, this judgment takes forward the debates on equality, especially the principles of reasonable accommodation, positive obligations and the link of equality and dignity.
[The audio clip was first published by the Oxford Human Rights Hub here.]