To provide a scribe for competitive exams is not largesse, says SC; rebukes UPSC; holds Benchmark disability not a precondition to obtaining a scribe

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11 Feb 2021, 4:50 pm

The Supreme Court Thursday ruled that the facility of the scribe could be provided to persons with disabilities other than those having benchmark disabilities under the Rights of Persons with Disabilities Act (RPDA), 2016.

The Court was ruling on an appeal filed by a civil services aspirant, Vikash Kumar, whose request to provide him with a scribe as per the Civil Services Examination Rules 2018 was rejected on the ground that a scribe could be provided only to blind candidates and candidates with locomotor disability or cerebral palsy with impairment of at least 40%.

The Court said to confine the facility of a scribe only to those who have benchmark disabilities would be to deprive a class of persons of their statutorily recognized entitlements.

To do so would be contrary to the plain terms as well as the object of the statute, the Court held.

"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 Court held.

A bench led by Justice DY Chandrachud also directed the Central Government to ensure the framing of proper guidelines that would regulate and facilitate the grant of the facility of a scribe to persons with disability within the meaning of Section 2(s) of RPDA where the nature of the disability operates to impose a barrier to the candidate writing an examination.

(LtoR): Justice Indira Benerjee, Justice DY Chandrachud and Justice Sanjiv Khanna.

The bench, which also had Justices Indira Banerjee and Sanjiv Khanna, made it clear that the guidelines would have to be framed by the Ministry of Social Justice and Empowerment (MSJE) in consultation with the public, specifically with persons with disabilities and organisations representing them.

Kumar's request was rejected on the ground that there was an absence of any provision for a scribe to candidates falling in the category in which the appellant was placed. The Union Public Service Commission (UPSC) in fact states that it does not permit a deviation from the CSE Rules 2018.

Pursuant to the top court's order, the All India Institute of Medical Sciences gave its findings that Kumar had a specified disability inasmuch as he had 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", the Court observed.

It thus granted relief to Kumar and held he 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.

Divergent views of DoPT and MSJE

The UPSC/DoPT in its affidavit stated that it did not permit a deviation from Civil Services Examination(CSE) Rules 2018. It further stated a candidate who did not fulfill the description of a person with benchmark disabilities would not be entitled to a scribe. While the MSJE in its affidavit told the court that though the writer's cramp was not specifically included in the list of specified disabilities contained in the schedule to the RPwD Act, 2016, there were certain other medical conditions that were not identified as disabilities per se but which could have implications hampering the writing capability of a person without manifesting in any specified disability.

The MSJE, thus, submitted that it was the responsibility of the examining body to consider such cases for the purpose of granting a scribe, extra time and likewise in consultation with the Ministry of Health and Family Welfare on production of a medical certificate similar in line with that of other categories of persons with benchmark disabilities.

The court, thus, observed that the MSJE , the nodal ministry to implement the Disability Act, recognized that these guidelines were not exhaustive of the circumstances or conditions in which a scribe could be provided. On the contrary, the MSJE had recognized the prevalence of other medical conditions "not identified as disabilities per se" but which could hamper the writing capability of a person.

"These divergent views of two Central Ministries before the Court are symptomatic of a policy disconnect. We express our disquiet about the fact that, in a policy matter with profound consequences for India's disabled population, the left hand does not know what the right one is doing", the Court said.

The RPwD Act, 2016 defines three catogory of persons with disabilty. "Person with benchmark disability", "person with disability" and "person with disability having high support needs".

A "person with benchmark disability" means a person with not less than 40 per cent of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority;

A "person with disability" means 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;

A "person with disability having high support needs" means a person with benchmark disability certified under clause (a) of sub-section (2) of section 58 who needs high support.

The court also observed that the whole concept of a benchmark disability within the meaning of Section 2(r) was primarily in the context of special provisions, including reservations, that are embodied in Chapter VI of the RPwD Act 2016.