Updated: April 11, 2021 11:15:03 am
Written by Kshitij Goyal and Yash Dodani
The Supreme Court judgment in Vikash Kumar v. UPSC (“Vikash Kumar”) holding that an individual suffering from dysgraphia or writer’s cramp is entitled to a scribe in the Civil Services Examination (CSE) is a significant step towards affirming the position of persons with disabilities as rights bearers. The Court said that the government needs to shed its “fundamental fallacy” that only persons with a specific disability of 40 per cent or more should be provided with a scribe while taking examinations such as the Civil Services Examination. The bench led by Justice D Y Chandrachud held that this arbitrary prerequisite clearly violates the plain terms and object of the Rights of Persons with Disabilities Act (RPwD) Act, 2016.
This case arose from the denial of services of a scribe to the petitioner, Vikash Kumar. Kumar has a disability commonly known as writer’s cramp. After having graduated with an MBBS degree from the Jawaharlal Nehru Institute of Post Graduate Medical Instruction and Research, he aspired to crack the UPSC exams.
While deciding the case, the bench opined that a scribe’s service is as per the statutory mandate to enable persons with disabilities to live a life of dignity and equality, based upon respect in society for their mental and bodily integrity. This will ensure that they are no longer treated as second-class citizens. The Court opined that the higher threshold as a benchmark for disability could not be levied to deny equal access to persons with disabilities. The Court cited Jeeja Ghosh v. Union of India, wherein it was held that equality is not just limited to prevention of discrimination but also extends to a wide variety of positive rights, including “reasonable accommodation”. In this context, the state has an obligation to provide persons with disabilities reasonable accommodation such as the facility of a scribe, compensatory time, etc., to secure substantive equality.
The Court endeavoured to translate “human dignity” enshrined in the Preamble into the legal regime for recognition and enforcement of rights of persons with disabilities when it said: “Part III of our Constitution does not explicitly include persons with disabilities within its protective fold. However, much like their able-bodied counterparts, the golden triangle of Articles 14, 19 and 21 applies with full force and vigour to the disabled.”
This judgment gave a befitting reply to the case of V Surendra Mohan v. State of Tamil Nadu (“Surendra Mohan”), in which the Supreme Court upheld the state’s policy of restricting the eligibility of blind and deaf candidates and refused to allow a visually disabled person from becoming a judge. The apex court also directed the Centre to come up with norms and guidelines within three months to protect the rights of persons with disabilities to appear in the examinations with the help of scribes for the progressive realisation of the rights of disabled people, in tune with the RPwD Act of 2016.
The judgment in Vikash Kumar is progressive. It recognises that persons with disabilities could discharge their duties if reasonable accommodation is being provided to them by overruling the judgment of Surendra Mohan. There have been many examples from different countries in the world where judges with disabilities are effectively discharging their duties. Justice Chandrachud himself said in a session organised by the Nyaya Forum of NALSAR University of Law that modern technology has enabled disabled persons so much so that there exists almost no difference today between them and the general population. He also said that we must have in due course the first judge of the Supreme Court who would be visually impaired.
In the judgment, Justice Chandrachud cautioned against perpetuating the negative imagery around disability: “When competent persons with disabilities are unable to realise 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.”
Kshitij Goyal is a second-year BA LLB student at National Law School of India University (NLSIU), Bengaluru. Yash Dodani is a second-year student at NALSAR University of Law, Hyderabad
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