Open Access Research Article
CONSEQUENCES OF VIKASH KUMAR VS UNION PUBLIC SERVICE COMMISSION AND ARNAB ROY VERSUS CONSORTIUM OF NATIONAL LAW UNIVERSITIES & ANR. FOR THE DISABLED COMMUNITY.
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CONSEQUENCES OF VIKASH KUMAR VS UNION PUBLIC SERVICE COMMISSION AND
ARNAB ROY VERSUS CONSORTIUM OF NATIONAL LAW UNIVERSITIES & ANR. FOR THE
DISABLED COMMUNITY.
AUTHORED BY
- KANGAN CHAWLA
As
per the census of 2011 the disabled population of India is 2.68 crore which is
2.2% of the population of the country, yet the country does not recognize
disabled people as human beings with equal rights. Disabled people are seen as
problems that need to be cured rather than building a society that allows them
to live with the liberty they deserve. For centuries disabled people have been
told what they can and cannot do as if they don’t their own disability well
enough. This research paper will be talking about a landmark judgement passed
by the Supreme Court and a subsequent case that upheld the previous judgement
that gives hope to the disabled community that the legislation will eventually
shift from the medical model of disability to the social model. First let's
have a look at some provisions of the Rights of Persons with Disabilities Act
2016 (RPWD).
Section
2(s) of the Act defines “person with disability” as 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.
Section
2(r) of the Act on the other hand defines “person with benchmark disability” as
a person with not less than forty 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.
The
Act also imposes a duty on the government and on the educational institutions
to provide reasonable accommodation according to the individual's requirements.
The act also directs the government to make guidelines for providing the
facility of a scribe. In relation to this the
Ministry of Social Justice and Empowerment in the Department of
Empowerment of Persons with Disabilities issued guidelines for conducting
written examinations for persons with disabilities according to which the
facility of Scribe/Reader/Lab Assistant should be allowed to any person with
benchmark disability as defined under section 2(r) of the RPwD Act, 2016.
Now
what was the problem with these guidelines? People who have 40% disability are
not the only ones who require a scribe. Why should a set of people who have difficulty
in writing be denied the right to access a scribe just because they don't meet
the criteria of 40% disability. Providing a facility but putting restrictions
on it on the basis of the severity of the disability negates the advantage of
the facility for a large number of people. For e.g. in cases of reservation for
women are women from a well to do family not entitled to the same because she
comes from a privileged family. This problem
was addressed in the following cases.
Facts of the
case
In
Vikash Kumar vs Union Public Service Commission[1]
a person having a disability called Writers Camp was denied the facility
of a scribe during civil service examinations (CSE) because he did not meet the
criteria laid down by the CSE Rules scribe would only be provided to
people with locomotor disability, blindness, and cerebral palsy where there is
a minimum 40% impairment. The extent of the candidate’s disability was assessed
at 6% after orders from the court. Even though that did not meet the criteria for
the requirement for provision of scribes the court held that benchmark
disability should not be held to be a prerequisite to providing scribes.
In
Arnab Roy Versus Consortium of National Law Universities & Anr.[2]
a writ petition was filed against the consortium of national law universities
as they had imposed restrictions on provision of scribes to people without
benchmark disabilities.
The
question that comes to mind is why would the consortium impose such
restrictions when the Supreme Court had already passed a judgement stating that
scribes should not be restricted to only people with benchmark disability,
hence the court while citing the case of Vikash Kumar held that scribe should
be provided to disabled people who have difficulty in writing irrespective of
their percentage of disability.
This
was an essential decision as thousands of people sit for the CLAT examination
and several disabled people would have been either discouraged or unable to
participate and compete with the able bodied people because of the restrictions
imposed on them by the society.
Effect of the
cases on the disabled community.
These
2 cases have been landmark judgments for the disabled community. Why should 2
different disabled people be differentiated on the basis of the severity of
their disability even though their requirements and difficulties are the same.
The judgments give any and all disabled people that have difficulty in writing
the right to get a scribe. One of the important questions that these cases
create is the requirement or non-requirement of having different provisions for
people with benchmark disability. All disabled people should be treated
equally. The percentage of disability determines how much of a particular
disability a person has; it does not measure the difficulties that the
disability creates for the specific person. Even though the Vikash Kumar case
was a landmark judgement for the disabled community the fact that the
consortium had still imposed restrictions for the provision of scribe for people
with less than 40% disability questions the effective implementation of the
judgement passed by the Supreme Court. Disabled people should not have to fight
for their basic rights specially after they have already been given by the
highest court of the country.
Expanding the scope of the Rights of Persons with Disabilities Act
The definition in Section 2(r) applies in the case
of a specified disability. These specified disabilities, provided in the
schedule of the act are limited in nature and are restrictive. The
guidelines of the MSJE dated 29 August 2018 recognise the entitlement to a
scribe only for candidates with benchmark disabilities. Among them, candidates
belonging to three categories – the blind and those with locomotor disability
or cerebral palsy - are to be given the facility if so desired.
In the case of Vikash Kumar the court even went out
of their way to provide a broader aspect to the Rights of Persons with
disability by giving the right to a scribe to a person with writer’s cramp,
even if it is not explicitly mentioned in the act that a person with that
disability can get a scribe. The court said -:
“….However, many such medical conditions which may
hamper writing ability have not been identified as disabilities. In these
instances, the examining body has to consider the cases of such candidates and
whether facilities of scribes and compensatory time is to be granted”
Laying down certain disabilities and restricting
the rights only to them in a way defeats the purpose of the act itself. These
case laws by going away from the specified list of disabilities shows that not
only do people with these specified disabilities deserve equal opportunities
but every person with a disability deserves equal opportunities.
The main effect of these cases have been removing
the precondition of having 40% disability to access the right to have a scribe.
No two people having even the same disability are the same. One might require
assistance with writing and the other might not. There cannot be a rigid set of
guidelines to be followed when providing disabled people the right to a scribe.
In these cases it is best to trust the disabled people as they are the ones who
know their body the best.
Shift from
medical model to social model of disability
Disability is a word which has a negative
connotation to it and why is that so? Language evolves and people eventually
start using words for what they perceive it to mean. “Disabled” is
considered to be a bad word as when people think of that they don’t think of
disabled people as normal human beings but something so different from there
that it scares them. Use of words like, like specially abled, special needs
persons or differently able etc. clearly show the thinking of the able bodied
community. Although special needs may seem nicer to say than disabled it
is often condescending and suggests that disabled people are a burden. And to
come to think of it who is it nicer for, to call a disabled person differently
abled rather than just calling them disabled. Is it the disabled community that
is uncomfortable with that word? No. It’s the able bodied people who actually
feel uncomfortable calling a disabled person for who they are, disabled.
Calling them disabled encroaches upon this world they have created that being
disabled is bad, that having needs different from others is bad. Disabled
people are often seen as a sorry case. Its either that or they are seen as an
inspiration for the smallest of things (inspiration porn), things that are
pretty normal for them but a big deal for the able bodied people because they
never imagine a disabled person being independent or achieving success or even
just living their life on their own terms.
This shows the medical model of disability, which believes that there is
something wrong with disabled people and they need to be “fixed”. The medical
model also lends itself to considering disabilities “personal tragedy which
suggest that a disability is some terrible chance event that occurs at random
to unfortunate individuals”.[3]
On the other hand the social model of disability is based on the understanding
that society has always been designed by and for abled people which create
barriers that stop disabled people from functioning to the best of their
ability. In other words, our society's structures create disabilities when,
really, there is nothing deficient or wrong with an individual with a
disability. [4]
It’s no denying that disabilities and chronic illnesses can make life hard but
what makes it harder is the society. The society’s inability to understand that
disabled people just want to live their life, the society’s ableism and even
people’s internal ableism can make life hard for the disabled people. There are
disabled people who can be an inspiration for a large number of people, not
because they are living their lives with their disabilities but because they
are making something out of their lives, achieving their dreams and their
goals.
These
judgments help in taking a step towards the social model of disability moving
away from the medical model of disability. The Vikash Kumar case even talks
about the way certain words are used that are degrading to the disabled
community and are rooted in the social model of disability. Even though they
talk very little about the need to change the language that people use for
disabled people. [5] The
case against the consortium doesn't really talk about this but enforcing the
previous decision passed by the Supreme Court recognizes the existence of
disabled students who are interested in law. This helps humanise disabled
people, they can be seen as people with their own desires and aspirations,
people at par with the able bodied people if they are given the required
accommodations. The implementation of accommodations for all people who require
it irrespective of them being a person with benchmark disability helps focus on
the social barrier that the society creates instead of what’s “wrong” with
disabled people. In order to ensure equality it’s important to remove these
barriers, however cases like the case of Arnab Roy also show that we have a
long way to go to provide disabled people an equal footing with able bodied
people. The need for this particular case shouldn’t have arisen itself
especially after the judgement of the Vikash Kumar case, as it was settled
point of law that benchmark disability is not to be considered as a prerequisite
for providing a scribe. Instead of proving disabled people with opportunities
that the constitution itself endows upon them providing further restrictions as
was done in the case of Arnab Roy is unacceptable.
Interpretation
of the term “Reasonable Accommodation”
“The Union Government should keep in mind that the
need to make a reasonable accommodation is one that must be met on an
individual basis. In other words, the appropriate authority tasked with the
duty of making reasonable accommodations must take a case-by-case
approach.” [6]
Every disabled person is
different, has different needs and different requirements. Even two people with
the same disability can present with very different symptoms hence creating the
need for personalised requirements. If reasonable accommodation is seen as a
rigid structure the act will be providing accommodation only on paper and would
not meet the unique needs of different people. The cases discussed uphold the
vastness of reasonable accommodation and allow changes in the accommodation
provided according to the needs of the person. But this creates the question as
to what extent will accommodation provided be considered as “reasonable”
accommodation. Will courts uphold the provision of reasonable accommodation
only till it does not affect the able bodied people? These cases are even
though a right step towards seeing disabled people as equal citizens of the
country they are still seen as people inferior to able bodied people. Even the
most basic accommodations like accessibility to areas like restaurants, schools
and colleges is provided in name by installing ramps. These questions will only
be answered once these cases come up before the courts but there has been a
positive result too regarding the principle of reasonable accommodation because
of these judgements.
In the Vikash Kumar case the Supreme Court held
that “the principle of reasonable accommodation postulates that the conditions
which exclude the disabled from full and effective participation as equal
members of society have to give way to an accommodative society which accepts
difference, respects their needs and facilitates the creation of an environment
in which the societal barriers to disability are progressively answered.”[7]
What this means is that the interpretation of the
term “reasonable accommodation” is going to be different and based on the
circumstances and the needs of the disabled people. Able bodied people cannot
understand what it is to be disabled and since they are the ones making
laws for the disabled people the least they can do is provide disabled people
with accommodations according to their personal needs.
Even
previously in Justice Sunanda Bhandare Foundation v. Union of India[8] it
was said that:
In the
matters of providing relief to those who are differently abled, the approach
and attitude of the executive must be liberal and relief oriented and not obstructive
or lethargic…”
With a more liberal interpretation of this term the
disabled people are going to get the rights that they deserve and need to
overcome the social barriers.
Recent Developments
A recent case had been filed in the Karnataka High
Court, Karnataka State Law University Vs. Krishna[9]
respondent was unable to write by hand as such for the semester exam petitioner
utilized the facility of scribe. He was however informed by the college that
unless permission was granted by the University, it cannot permit the
respondent to take the help of the scribe for examination in future.
Accordingly, respondent made a representation to the appellant-University
requesting for providing objective questions instead of descriptive questions
and to utilize the help of scribe in view of his disability. However no action
was taken by the university which made the appellant file the writ petition.
With respect to this an appeal was filed by the university and the division
bench said,
“The overall object of the guidelines needs to be
appreciated which is providing opportunity for all to participate in the
mainstream education system. There cannot be any strict and stringent
distinction on the basis of the nature of ailment. The purpose is to facilitate
the specially abled persons to participate in the examination within the limits
provided under the guidelines subject to required compliance in the nature of
obtaining certificates from the competent authorities"
Conclusion
No matter how much these cases are affirmative
towards the disabled community they will be of no use until they are
implemented. Scribes are an essential need for people who have difficulty in
writing. Further with the liberal interpretation of the term reasonable
accommodation what is needed is accessibility for disabled people whether it be
by installing disabled washrooms in every building or ramps for access to any
institution. The disabled community is disadvantaged not because of their disability
but because of the societal barriers hence instead of feeling sorry for them
what is needed is removing the barriers and helping them live the fulfilling
life they deserve. These judgements have been an important and much needed step
towards accessibility however there are still a lot of ordeals that disabled
people have to go through to get access to a scribe. One of the main challenges
faced is the lack of awareness. People or even universities are unaware of
their responsibility to provide reasonable accommodation to disabled people and
disabled people often have to advocate for their rights. Furthermore the
process of getting evaluated for a scribe itself is a long and cumbersome
procedure which unless its modified to become simpler and easily accessible
accessibility in its real sense will not be provided to disabled people.
[1] Vikash Kumar vs
Union Public Service Commission 2020 SCC OnLine SC 1119
[2] Arnab
Roy Versus Consortium of National Law Universities & Anr 2023 SCC OnLine SC 484
[3] Angelica
Guevara, The Need to Reimagine Disability Rights Law Because the Medical Model
of Disability Fails Us All, 2021 Wis. L. REV. 269 (2021).
[4] Tom Shakspeare,
DISABILITY RIGHTS AND WRONGS REVISITED 106 (2d ed. 2014) ("What
divides disabled from non-disabled people, in [the social model] formulation,
is the imposition of social oppression and social exclusion.").
[5]
Some of the phrases that the Supreme Court condemns the use of are
“suffering” when referring to someone's disability and “normal life” when
referring to an able bodied person’s life.
[6] 3.1 JCLJ (2022) 1327 Principle of Reasonable Accommodation: A Solution for Communal Disharmony
[7] Vikash
Kumar vs Union Public Service Commission 2020 SCC OnLine SC 1119
[9] Karnataka State Law University
Vs. Krishna Writ Appeal No. 722 OF 2023
Article Information
CONSEQUENCES OF VIKASH KUMAR VS UNION PUBLIC SERVICE COMMISSION AND ARNAB ROY VERSUS CONSORTIUM OF NATIONAL LAW UNIVERSITIES & ANR. FOR THE DISABLED COMMUNITY.
Authors: KANGAN CHAWLA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/03/01
- Issue 7
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International Journal for Legal Research and Analysis
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