VIKASH KUMAR v. UNION PUBLIC SERVICE COMMISSION & ORS.

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more than 40-50% visual/hearing impairment in India and abroad can discharge judicial duties after being provided the necessary accommodations, amongst other factors. In holding that the ceiling was reasonable on the application of the principle of reasonable accommodation, the ratio as expounded fails as “distinct exhortatory dimension that must always be kept in mind while determining whether an adjustment to assist a disabled person to overcome the disadvantage that 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.

56Copy pinpoint56. In light of the fact that the view of this court in Mohan was rendered in a case under the 1995 Act which has now been replaced by the RPwD Act 2016 and in light of the absence of a reasonable accommodation analysis by this Court, the Mohan judgment stands on a legally vulnerable footing. It would not be a binding precedent, after enforcement of the RPwD Act 2016.

57Copy pinpoint57. The ASG’s argument that a whole swath of facilities are provided to the disabled without enquiring into the percentage of their disability and that a percentage is only essential in cases such as the present is flawed for two reasons. First, the inarticulate premise underpinning this argument appears to be that the legally guaranteed entitlements of the disabled are privileges doled out by the state and bespeaks an incorrect understanding of the concept of reasonable accommodation. Since reasonable accommodation is a component of the duty not to discriminate against the disabled, as we have explained above, the state is bound to provide these facilities to its disabled citizens. A robust conception of reasonable accommodation needs to be adopted.

58Copy pinpoint58. Second, and relatedly, this being so, it can be no answer to tell F a disabled candidate whose disability genuinely necessitates access to a scribe that they are already being given all the above facilities. Providing those facilities does not absolve the state of the obligation to provide a disabled candidate access to a scribe, when this need is clearly established as being relatable to their disability. G

59Copy pinpoint59. The ASG referred to the difficulty caused to her by dint of having carpel tunnel syndrome as an example of the dangerous consequences that would flow from opening the door too widely when it comes to granting scribes. In the hearing, examples were also cited of 34 First Group Plc v. Paulley [2017] UKSC 4, para 117 [Lord Kerr - partly dissenting]. H

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A individuals having a small, everyday problem and expecting a scribe on that basis. While valid, such comparisons may end up creating a false equivalence between those with a legitimate disability-based reasonable accommodation 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 threshold of 40% but are nonetheless disabling enough to merit the grant of the reasonable accommodation of a scribe and extra time. As the CRPD Committee notes, it is wrong to expect a person with disability to be ‘disabled enough’ to claim the accommodations necessitated by their disability.36 Such an approach would not be in consonance with the progressive outlook of the RPwD Act 2016.

60Copy pinpoint60. The ASG’s argument that the appellant must be subjected to further medical examinations, even though his disability has been accepted, is emblematic of a key barrier that often comes in the way of the disabled being able to access reasonable accommodation in India. D As the CRPD Committee observes in its concluding observations on India, the competent authorities must ensure that “multiple assessments [as to existence of disability] do not create an undue burden for applicants.”37

61Copy pinpoint61. The party contending that a particular accommodation will E impose a disproportionate or undue burden has to prove the same.38 And such a justification has to be based on objective criteria.39 Further, the CRPD Committee has held that an assessment of reasonable accommodation must be made “in a thorough and objective manner, covering all the pertinent elements, before reaching a conclusion that the respective support and adaptation measures would constitute a F disproportionate or undue burden for a State party.”40 It is against this backdrop 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]. G 37 CRPD Committee, Concluding Observations on the Report of India, [“Concluding Observations”], 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. A similar view was also adopted by the Committee in the case of Michael Lockrey versus Australia, CRPD/C/15/D/13/2013, 30th May, 2016, para 8.5 [holding that a failure to H

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denying the reasonable accommodation of a scribe to the appellant and others similarly situated, namely that the facility of a scribe maybe misused for nefarious purposes. I. The argument of misuse

62Copy pinpoint62. Ms Madhavi Divan, learned Additional Solicitor General laid emphasis on the competitive nature of the CSE and of the need to preserve the purity of the examination. The difficulty in accepting the argument lies in the sequitur. There can be no doubt about the fact that the CSE is competitive in itself. There can similarly be no doubt about the need to preserve the purity of the examination. But the apprehension that the facility of a scribe should not be misused can furnish no valid ground to deprive the whole class of citizens – persons with disability who need a scribe – from the statutory entitlements which emanate from the provisions of the enactment, on the supposition that someone may misuse the provisions of the law. There are two further responses to this argument. First, Ms. Divan has not furnished any empirical data to substantiate the assertion that persons with disabilities are misusing the facility of scribes to obtain any undue advantage. As noted earlier, a justification to provide a reasonable accommodation must be based on objective criteria. The conjecture as to misuse does not meet this test.

63Copy pinpoint63. Further, we are of the considered view that undue suspicion about the disabled engaging in wrongdoing is unwarranted. Such a view presumes persons with disabilities, as a class, as incompetent and incapable of success absent access to untoward assistance. The disabled confront stereotypes in several aspects of their day to day lives. One of them 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 ableist premise is inconsistent with the approach to disability enshrined in the UNCRPD and the RPwD Act 2016. To think that persons with disabilities who do not have a benchmark disability but nonetheless request access to a scribe, as a class, have the objective of gaming the system is to misunderstand their aspiration, to stamp them with a badge of cheaters and to deprive them of their lawful entitlements. The system may be vulnerable to being gamed by able-bodied persons, however, it is the provide a deaf juror access to a stenographer to conduct real-time steno-captioning violated the principle of reasonable accommodation]; and Gemma Beasley versus Australia, GE.16-08383 (E) 290716 290716, 29th April, 2013 para 8.5 [holding that a failure to provide a hearing impaired juror access to an Auslan interpreter violated the principle of reasonable accommodation. H

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A persons with disabilities who are being asked to bear the cost of maintaining the purity of the competitive examinations by giving up their legal entitlements on the presumption that there is a possibility of misuse.

64Copy pinpoint64. When competent persons with disabilities are unable to realize their full potential due to the barriers posed in their path, our society suffers, as much, if not more, as do the disabled people involved. In their blooming and blossoming, we all bloom and blossom. The most significant loser as a consequence of the UPSC’s rigid approach in this case (of refusing to provide scribes to those not having benchmark disabilities) is the UPSC itself. For it is denying to the nation the opportunity to be served by highly competent people who claim nothing but access to equal opportunity and a barrier-free environment.

65Copy pinpoint65. When an able-bodied student engages in cheating, the normal consequence is their disqualification or other suitable punitive action. The same consequence can flow from a candidate using their disability to game the system. If some incidents come to light of able-bodied candidates hiding chits in their dress code and misusing them to cheat in an exam, the normal consequence is suitable punitive action against such students. It is not to switch to a different dress code that is so uncomfortable that many competent students find it hard to sit in it for the entire duration of the exam and perform to the best of their ability. In E the same way, just because of the fault of some bad apples in the system, persons with disabilities whose disability necessitates access to a scribe cannot be disentitled from claiming the same.41

66Copy pinpoint66. Second, the examining body is entitled to prescribe procedures that ensure against a misuse and to deal with any instances which may F come to light. This is not a problem peculiar to India or that of an intractable nature. To illustrate, in March 2019, the US Federal Bureau of Investigation launched an investigation code-named Operation Varsity Blues which is popularly known as the ‘College Admissions Scandal’. G As part of the investigation, several individuals were arrested and charged on 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 and higher education” in Eds Surendrakumar and H. L. Vinod “Marginalised communities and higher education”, Sage Publication 2021, section Critical Analysis of Scribe H guidelines [forthcoming].

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disabilities, so as to acquire the requisite medical documentation. Once A the accommodation was approved, large-scale cheating and impersonation took place at test centres in Houston, Texas and Hollywood, California.42 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 B 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. J. The language of our discourse C

67Copy pinpoint67. The shift in the way we view disability – as a social construct rather than an individual pathology – must also translate into a linguistic shift in the way we refer to persons with disabilities. The language of our discourse must evince a clear desire to make the disabled feel empowered and included, not alienated and situated on a different footing from their able-bodied counterparts - whether on a pedestal or in a cage.43 D

68Copy pinpoint68. The Tribunal, in its judgment, couched the disability of the appellant in terms of ‘suffering’ and ‘disease’. Specifically, in its order dated 30 May 2018, the Tribunal, at para 5, noted: “The applicant is suffering with a disease called Writer’s Cramp.” In its order dated 7 August 2018, at para 7, the Tribunal refers to those “suffering” with disabilities. Even if the usage is unintentional, we cannot ignore its enduring impact in shaping the way the society views the disabled and the way they view themselves. Viewing disability as an affliction that causes suffering, or that views it as a God-given fate (whether a blessing or a curse) is rooted in the medical model of disability. Our discourse must be couched in terms that reflect the recognition of a human rights model to viewing disability. Insensitive language offends the human dignity of persons with disabilities.

69Copy pinpoint69. In its concluding observations on India, the CRPD Committee notes with concern references to “normal life” as opposed to the lives of G 42 US Department of Justice, Arrests Made in Nationwide College Admissions Scam: Alleged Exam Cheating & Athletic Recruitment Scheme, 12 th March, 2019, available at https://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 a cage’, 12th February, 2018, available at https://www.youtube.com/watch/sJ9Got6C500 H

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A persons with disabilities and derogatory terminology such as “mentally ill” and “divyangjan”, which as it notes, remains controversial44. It is our earnest hope that the paradigm-shifting conversation about the rights and status of the disabled, that the CRPD Committee has generated, will find a resonance in the language we use to refer to them. B K. Realizing the transformative potential of the Rights of Persons with Disabilities Act 2016: From principle to practice

70Copy pinpoint70. In the hearing, one of us presciently noted that the imposition of the criterion of a benchmark disability to access a scribe – an arena in which it has no relevance as per the statutory framework – betrays a profound lack of awareness on the part of the authorities about the RPwD C Act 2016. The OM of 29 August 2018, in its preambular portion recites as follows: “The Act [Rights of Persons with Disabilities Act, 2016] provides for reservation in Government jobs for persons with benchmark disabilities as defined under section 2 (r) of the said Act.”

71Copy pinpoint71. As one commentator notes, “if the connection between reservation in government jobs for the disabled and guidelines for grant of scribes in all exams they may appear in appears strange, that is because it is.”45 Another notes that there exists no justification for this move.46 The facts of this case are a stark reminder of the need to generate E greater legal consciousness about the entitlements of the disabled set forth in the RPwD Act 2016. We would also like to take judicial notice of the fact that several instances have come to light of competent authorities fixing criteria for the grant of scribes that are in brazen disregard of the RPwD Act 2016 and the OM dated 29 August 2018. 47

F 44 CRPD Committee, Concluding Observations on India, para 6[b]. 45 Ibid. 46 Dr. Sanjay Jain, “ Right to education : An enabler” in “Marginalised communities and higher education” in Eds Surendrakumar and H. L. Vinod “Marginalised communities and higher education”, Sage Publication 2021 Critical Analysis of Scribe guidelines [forthcoming]. G 47 Live Law News Network, ‘BCI Creating Entry Barriers For Disabled Lawyers’: Says Blind AIBE Candidate; Seeks Proper Implementation Of 2018 PwD Guidelines, 7th January, 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 and Bench, available at https://www.barandbench.com/news/aibe-2021-is-bci-creating-entry- barriers-for-disabled-law-grads H

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72Copy pinpoint72. If the legal entitlements set forth in the RPwD Act 2016 are A to not remain mere parchment, reflected in our inability to overcome barriers against substantively unequal treatment, the nodal Ministry, in coordination with other relevant actors, must make a concerted effort to ensure 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 RPwD B Act 2016 captures the need for the State to conduct and promote awareness campaigns and sensitization programmes in Section 39. These must be conducted to recognize and advance knowledge of the skills and abilities of persons with disabilities and of their contributions to the workforce and foster respect for the decisions of persons with disabilities C in their family life. Sensitization programmes must be held at educational institutions and in professional spheres on the condition of disability and the rights of disabled persons and the like. The government must give effect to these provisions regularly to sensitize our society to the everyday challenges that may be imposed by the actions or inactions of the able- bodied on their disabled counterparts. D L. Case of the appellant

73Copy pinpoint73. Insofar as the case of the appellant is concerned, his condition has been repeatedly affirmed by several medical authorities including National Institute of Mental Health and Neuro Sciences (NIMHANS), Bangalore and AIIMS. The AIIMS report which was pursuant to the order of this Court is clear in opining that the appellant has a specified disability inasmuch as he has a chronic neurological condition. This condition Forms part of Entry IV of the Schedule to the RPwD Act

2016. The writer’s cramp has been found successively to be a condition which the appellant has, making it difficult for him to write a conventional examination. 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.

74Copy pinpoint74. 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. M. Formulation of new policy concerning access to scribes for persons with disabilities

75Copy pinpoint75. Before concluding, we also intend to issue a broader direction to the Union Government in the Ministry of Social Justice and H

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A Empowerment to ensure the framing of proper guidelines which would regulate and facilitate the grant of a facility of a scribe to persons with disability within the meaning of Section 2(s) where the nature of the disability operates to impose a barrier to the candidate writing an examination. In formulating the procedures, the Ministry of Social Justice and Empowerment may lay down appropriate norms to ensure that the condition of the candidate is duly certified by such competent medical authority as may be prescribed so as to ensure that only genuine candidates in need of the facility are able to avail of it. This exercise shall be completed within a period of three months of the receipt of a certified copy of this judgment and a copy of the guidelines shall be transmitted to the Registrar (Judicial) of this Court. Upon receipt of the guidelines the Registrar (Judicial) shall place it on the record upon which the proceeding shall be listed under the caption of directions.

76Copy pinpoint76. While framing the guidelines, we reiterate at the risk of repetition, that the Union Government should be mindful that the duty to provide reasonable accommodation is an individualized duty as has also been noted by the CRPD Committee in General Comment 6. In other words, a case-by-case approach must be adopted by the relevant body charged with the obligation of providing reasonable accommodation. This requires the relevant body to engage in a dialogue with the individual with disability. While considering the financial cost and resources available for the provision of accommodation, the overall assets rather than just the resources of the concerned unit or department within an organization must be taken into account. It should also be ensured that persons with disability are not required to bear the costs of the accommodation.

77Copy pinpoint77. We find it apposite to mention here that consultation with persons with disabilities and their involvement in decision making about matters affecting their lives is necessary to bring about any meaningful change in the realization of their rights. Taking note of the emergence of movements of persons with disabilities and the philosophy of “nothing about us without us”, the CRPD Committee in its General Comment No. 7 has also underscored the importance of such participative decision making by involving persons with disabilities and organizations of the persons with disabilities.48 48 CRPD Committee, General comment No. 7 (2018) on the participation of persons with disabilities, including children with disabilities, through their representative organizations, in the implementation and monitoring of the Convention, CRPD/C/GC/ H 7, 9 November 2018, para 5.

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78Copy pinpoint78. In India, as reflected by the policy disconnect in this case, there is often a lack of involvement of the disabled in such decision making processes, leading to their voice not being heard and their grievances remaining unaddressed. This has also been listed as an area of concern by the CRPD Committee in its concluding observations on India.49 Taking into account our constitutional and international obligations, we direct the MSJE to frame the abovementioned guidelines in consultation with the public, specifically with persons with disabilities and organisations representing them . N. In summation

79Copy pinpoint79. When President George HW Bush signed into law the C Americans with Disabilities Act, he noted that, by dint of the passage of the law, “every man, woman, and child [and we would like to add practitioners of alternative sexuality here] with a disability can now pass through once-closed doors into a bright new era of equality, independence, and freedom.”50 D

80Copy pinpoint80. In the three decades that have elapsed since then, a generation of Americans with disabilities has emerged, calling themselves the ADA Generation. These disabled people rightfully regard the ADA’s guarantees as a birthright and, due to accessible infrastructure, a strict prohibition on disability discrimination and changed public attitudes, are able to participate in American life on equal terms with their able-bodied counterparts.51

81Copy pinpoint81. Cases such as the present offer us an opportunity to make a meaningful contribution in the project of creating the RPwD generation in India. A generation of disabled people in India which regards as its birthright access to the full panoply of constitutional entitlements, robust statutory rights geared to meet their unique needs and conducive societal conditions needed for them to flourish and to truly become co-equal participants 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 Americans G with Disabilities Act, 26th July, 1990, availab le at https://www.ada.gov/ ghw_bush_ada_remarks.html 51 Joseph Shapiro, Disability Pride: The High Expectations of a New Generation, 17 th July, 2020, The New York Times, available at https://www.nytimes.com/2020/07/17/ style/americans-with-disabilities-act.html . H

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82Copy pinpoint82. We accordingly allow the appeal and set aside the impugned judgment and order of the High Court of Delhi dated 25 September

2018. There shall be no order as to costs.

83Copy pinpoint83. Pending application(s), if any, stand disposed of. Ms Sanchita Ain, learned Counsel has also assisted the Court. B Ms Ain has provided valuable inputs to the Court during the course of the hearing. Before concluding we record our appreciation of the assistance which has been rendered by Mr Rajan Mani, learned Counsel, Ms Madhavi Divan, learned Additional Solicitor General and Mr Naresh Kaushik, learned Counsel. C Ankit Gyan Appeal allowed.