Court: Supreme court of India
3-Judge Bench: Justice DY Chandrachud, Indira Banerjee and Sanjiv Khanna
Appellant: Vikas Kumar
Respondent: UPSC & Ors.
Citation: 2021 SCC Online SC 84
FACTS
In this case, Vikas Kumar was appellant who is a civil services aspirant, suffered from a neurological condition as Dysgraphia which is also known as writer’s cramp. In August 2016, he has completed his MBBS degree from JIPMER, which stands for Jawaharlal Nehru Institute of Postgraduate Medical Education and Research. After graduated he decided to appear for the civil service examination. Accordingly, he applied for the UPSC examination in 2017, where he applied under the category of physical disability which hampers the motor movements of the hand and with the permission with a scribe for the written exam by the UPSC.
In 2018 as notification of UPSC, the Department of Personnel and Training issued CSE rules 2018. It specifies that a candidate is only allowed to use the help of a scribe during the exam if they are blind candidates, have a locomotor disability, have cerebral palsy, or have a physical disability that affects at least 40% of their body. In the case of the CSE 2018, the appellant’s request to use a scribe was denied by UPSC because their physical disability did not meet or exceed the 40% threshold. The disability of Appellant’s did not fulfill the benchmark criteria.
The appellant tried to take the Combined Medical Services Examination in 2017, which is overseen by the UPSC. However, he was not given a disability certificate by the medical board at Ram Manohar Lohia Hospital in Delhi. In response, the appellant took legal action with the Central Administrative Tribunal because he was not allowed to use a scribe for the exam. Initially, the Tribunal told the UPSC to let the appellant have a scribe, but they held back his exam results. Later, the Tribunal decided against the appellant, stating he didn’t meet the requirements for a scribe because he didn’t have the necessary disability certificate from the hospital. The Tribunal also didn’t accept a certificate from NIMHANS because it didn’t specify how severe the disability was. Furthermore, the Tribunal suggested that the appellant’s request was not something they could decide on because it involved policy issues, and so they chose not to get involved.
The Appellant filed a Writ petition to the Delhi High Court and presented a disability certificate from NIMHANS Bangalore to confirm his disability. However, the Delhi High Court agreed with the earlier decision made by the trial court, stating that the appellant had failed to pass the preliminary round of Civil Services Examination 2018, despite being given a scribe. Dissatisfied with this outcome, the appellant resolved to challenge the decision by appealing to the Supreme Court of India.
Scribe means: A person who writes down an answer of the candidate’s dictation words in the examination.
ISSUES
- If a physically disabled person is denied from using a scribe because he does not meet the criteria established by the defendant/respondent in 2018.
- Although the CSE Rules 2018 violates section 20(2) of the Rights of Persons with disabilities Act 2016, it allows for the reasonable accommodation for physically disabled persons.
CONTENTION OF THE PARTIES:
FROM THE APPELLANT’S SIDE:
The Appellant’s counsel stated that the appellant has received a medical report on 21 march 2015. And it was confirmed on August 27, 2018 that he was diagnosed with writers’ cramp, a condition that effects writing abilities has been certified as needing a scribe to assist him. This condition is recognized under section 2(s) of the Rights of persons Disabilities Act,2016 (RPwD Act,2016). It refers to a person who has a long-term physical, mental, intellectual or intellectual disability that can prevent someone from fully participating in society.
These certificates indicates that the appellant falls within the ambit of section 2(s) of the Act and is entitled to the protection of the Act.
Under section 2(a) of the RPwD Act,2016 includes writer’s cramp in its list of recognized disabilities, and the Ministry of Social Justice and Empowerment in India has also acknowledged dysgraphia, which includes writer’s cramp as a specific learning disability.
Furthermore, the appellant argues that the Civil Services Examination (CSE) rules and notification from 2018 do not comply with Section 20 of the RPwD Act, 2016.
The RPwD Act, 2016 mandates that individuals with disabilities must be provided with reasonable accommodations to ensure they can participate fully and effectively in society. Reasonable accommodations as defined under section 2(y) means, modifications and adjustments that are necessary to ensure that persons with disabilities have equal rights.
This includes providing scribes and extra time during exams for candidates with disabilities like the appellant.
Learned counsel for the appellant further submitted that the CSE Rules,2018 are in violation of Article 14 and Article 16(1) of the Constitution of India as the said rules provide scribes of physically disabled people. Counsel for the appellant submitted that other examination bodies like the institute Chartered Accountants of India (ICAI) and the University of Delhi recognized the writer’s disability as a physical disability and qualify disabled disability as scribes to students.
Medical certificated dated 21 March 2015 and 27 August 2018 show that the appellant is considered a “disabled person” under the law. Therefore, even if the applicant does not have a valid disability certificate, he or she must be able to use a scribe during the exam.
The Rights of Persons with Disabilities Act 2016 (RPwD Act, 2016) distinguishes between “persons with disabilities” and “persons with benchmark disabilities”. “The second one refers to people who are at least 40% disability as defined in the act and have certificates showing this. These individuals are entitled to certain benefits, such as job retention and educational opportunities.
However, Section 20 of the Act covers all disabled people, not just limited disabled people. This means that the appellant must be able to obtain reasonable accommodations, such as having a scribe for a professional exam, even if he or she does not have a disability certificate. Finally, the 6% disability rate reported by medical students at AIIMS relates to the appellant’s motor disability, which affects his behavior and not specifically his ability to write. However, a medical report confirms the earlier statement that the appellant suffered from writer’s cramp, making it difficult to write.
FROM THE RESPONDENT SIDE (UPSC)
The learned counsel of the Respondent stated on the adherence to specific legal and procedural requirements for candidates with disabilities to qualify for certain accommodations during examinations, such as the Civil Service Examination in India.
The respondent counsel asserts that a candidate claiming to have a disability that meets or exceeds the prescribed benchmark must support his application with a medical certificate issued by a Chief Medical Officer (CMO) from a recognized government healthcare institution. This certificate must explicitly state the nature of the disability and whether there is a necessity for a scribe—a person who writes the exam on behalf of the candidate.
The appellant in this case described himself as a person with a benchmark disability but has failed to provide the required medical certificate. The appellant counsel further notes that the Ministry of Social Justice and Empowerment (MSJE) does not recognize Writer’s Cramp or Dysgraphia as a disability under the Rights of Persons with Disabilities (RPwD) Act. However, the examination institution decided to offer additional time to such candidates, rather than the provision of a scribe, in an effort to ensure fairness in the examination process.
The respondent counsel contends that including Writer’s Cramp in the list of conditions eligible for scribe assistance would level the playing field for all potentially candidates. This is because it might lead to candidates who do not genuinely require a scribe taking advantage of the system, thereby gaining an unfair advantage over others.
In short, the respondent counsel’s position is that strict rules regarding the use of scribes are necessary to maintain the integrity and competitiveness of the Civil Service Examination, ensuring that only candidates with legitimate, recognized disabilities receive the appropriate accommodations.
RATIONALE
The rationale behind the Vikash Kumar vs UPSC case is based on the rights of persons with disabilities to have equal opportunities, especially in the context of the Civil Services Examination in India. The appellant, Vikash Kumar, who has a disability in the form of dysgraphia (writer’s cramp/problem), took help from a scribe to write the exam. Although he passed in the previous attempt, he could not score the same in the next examination after the rule change made by UPSC.
This case challenged the gap between the Civil Services Examination Rules 2018 and the Rights of Persons with Disabilities Act, 2016. It examined whether the refusal of a scribe to the appellant was in violation of the Act, which mandates reasonable accommodation to ensure equal participation for persons with disabilities.
The Supreme Court’s decision in this case underlines the importance of reasonable accommodation as a means to realize the principles of equality, dignity, and participation enshrined in Indian law and international conventions. This case is an important step in recognizing and enforcing the rights of individuals with disabilities to access public services and employment.
DEFECT OF LAW
In the case of Vikash Kumar vs Union Public Service Commission, the main issue was the rejection of a scribe to the appellant, who suffered from dysgraphia (writer’s cramp), in the civil services examination.
The defect of law identified was the potential gap between the Civil Services Examination Rules 2018 and the Rights of Persons with Disabilities Act, 2016. The appellant argued that the provision of the Act conflicted with the Act’s requirement for reasonable accommodation for persons with disabilities. Ultimately, the Supreme Court sided with the appellant in 2016, holding that a serious/benchmark disability should not be a requirement for a person to obtain a scribe, emphasizing the need for reasonable accommodation based on the ability of disabled people to exercise their rights.
INFERENCE/JUDGEMENT
The Supreme Court of India has ruled that under the Rights of Persons with Disabilities Act (RPwD Act), a ‘person with disability’ is a person suffering from long term physical, mental, intellectual, or sensory impairment that makes it difficult for them to participate fully and effectively in society on an equal basis with others. The Act also defines ‘benchmark disability’ as a condition in which a person has at least 40% of a specified disability.
The Court held that just because a person has a disability of less than the 40% does not mean that the person should be denied reasonable accommodations or equal opportunities. This is in line with the principle of non-discrimination enshrined in the Constitution of India. The Court explained that the requirement only applies to certain benefits, such as positive discrimination as provided for in certain sections of the RPwD Act. Therefore, failure to meet the disability criteria should not prevent people with disabilities from receiving other types of support they may need.
Name- Tasmiya Ali
Institute of Study- Al Ameen Law College, Bangalore