Vikash Kumar v. Union Public Service Commission
Supreme Court of India · 11 February 2021 · 3 judges
A person with disability under Section 2(s) of the RPwD Act, 2016 who needs a scribe cannot be denied one for not having a 40% benchmark disability; the appellant was held entitled to a scribe in the Civil Services Examination.
Facts
The appellant, an MBBS graduate, has dysgraphia (writer's cramp). Under the Civil Services Examination Rules 2018, a scribe was allowed only to blind candidates and candidates with locomotor disability or cerebral palsy with at least 40% impairment. UPSC rejected his request for a scribe for CSE 2018 on that ground. The Central Administrative Tribunal, after allowing a scribe for the preliminary examination by an interim order, dismissed his application because he had no disability certificate meeting the criteria. The Delhi High Court declined to interfere since he had not qualified in the preliminary examination. During the appeal, an AIIMS medical board appointed by the Supreme Court reported that he has bilateral writer's cramp, a chronic neurological condition, and is a person with disability under the RPwD Act, 2016, though not with a benchmark disability (assessed at 6%).
Questions before the Court
- Whether a person with disability under Section 2(s) of the RPwD Act, 2016, who does not have a benchmark disability under Section 2(r), can be denied the facility of a scribe in the Civil Services Examination.
- Whether the apprehension that scribes may be misused justifies confining the facility to candidates with benchmark disabilities.
- Whether the appellant was entitled to a scribe.
What the Court held
- The RPwD Act, 2016 contains two distinct concepts: persons with benchmark disabilities under Section 2(r) and persons with disability under Section 2(s). The benchmark concept applies mainly to the special provisions, such as reservation, in Chapters VI and VII. Denying rights recognised for persons with disabilities because they lack a benchmark disability is ultra vires the Act.
- Reasonable accommodation is a component of the duty not to discriminate. A scribe is not a largesse or privilege but a statutory entitlement. The duty is individualised, and the party claiming that an accommodation imposes a disproportionate or undue burden must prove it on objective criteria.
- The possibility of misuse, unsupported by any data, cannot deprive persons with disabilities who need a scribe of their entitlement. The examining body may prescribe procedures against misuse and act on instances that come to light.
- V Surendra Mohan v. State of Tamil Nadu, decided under the 1995 Act without any reasonable accommodation analysis, stands on a legally vulnerable footing and would not be a binding precedent after the RPwD Act, 2016 came into force.
- The appellant, having a chronic neurological condition within Entry IV of the Schedule, was declared entitled to a scribe for the CSE and any other competitive selection under government authority. The Ministry of Social Justice and Empowerment was directed to frame scribe guidelines within three months, in consultation with persons with disabilities and their organisations.
Why it matters
The judgment separates disability under Section 2(s) from benchmark disability under Section 2(r) of the RPwD Act, 2016, and holds that facilities such as a scribe cannot be confined to those with a 40% benchmark disability. It explains reasonable accommodation as part of the guarantee of equality and non-discrimination, places the burden of proving undue burden on the party resisting accommodation, says V Surendra Mohan is not binding after the 2016 Act, and directs the Union to frame scribe guidelines.
In the Court's words
Copied from the official judgment; each passage links to its page.
“Conflating the rights and entitlements which inhere in persons with disabilities with the notion of benchmark disabilities does dis-service to the salutary purpose underlying the enactment of the RPwD Act 2016. Worse still, to deny the rights and entitlements recognized for persons with disabilities on the ground that they do not fulfill a benchmark disability would be plainly ultra vires the RPwD Act 2016.”
“When the government in recognition of its affirmative duties and obligations under the RPwD Act 2016 makes provisions for facilitating a scribe during the course of the Civil Services Examination, it cannot be construed to confer a largesse. Nor does it by allowing a scribe confer a privilege on a candidate. The provision for the facility of a scribe is in pursuance of the statutory mandate to ensure that persons with disabilities are able to live a life of equality and dignity based on respect in society for their bodily and mental integrity.”
“Suffice it to say that the possibility of misuse cannot be used to deprive equal access to persons with disability from seeking the facility of a scribe. Absent such a facility, persons such as the appellant who suffers from a chronic neurological condition would be deprived of a statutory right of equal opportunity in gaining an appointment to public services. To do so would negate both the constitutional right and its statutory recognition in the provisions of the RPwD Act, 2016.”
“To deny the facility of a scribe in a situation such as the present would negate the valuable rights and entitlements which are recognised by the RPwD Act 2016. We, therefore, hold and declare that the appellant would be entitled to the facility of a scribe for appearing at the Civil Services Examination and any other competitive selection conducted under the authority of the government.”
Provisions interpreted
Case and bench
- Parties
- Vikash Kumar v. Union Public Service Commission & Ors.
- Case
- Civil Appeal No. 273 of 2021 (arising out of Special Leave Petition (C) No. 1882 of 2021)
- Decided
- 11 February 2021
- Bench
- Dr Dhananjaya Y Chandrachud, Indira Banerjee, Sanjiv Khanna
- Opinions
- Unanimous. Judgment of the Court delivered by Dr Dhananjaya Y Chandrachud, J.
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