Editor’s Note 2: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations (link) against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].
On the 11th of February, a three-judge bench of the Supreme Court handed down an important judgment in Vikash Kumar vs Union Public Services Commission. The Appellant was a civil services aspirant who suffered from writers’ cramp. However, his application for writing the Civil Services Examination with the assistant of a scribe was rejected by the UPSC, on the basis that he did not have a “benchmark disability”, as defined by the Persons With Disability Act, 2016 (in this case, limited to blindness, locomotor disability, or cerebral palsy, to the extent of 40%). On a perusal of the relevant rules and the Government Office Memorandum issued by the Ministry of Social Justice and Empowerment, the Court found that while individuals with a benchmark disability were entitled to a scribe, those individuals who did not fall within those categories could also be allowed to have one, in the event that they could produce a certificate to that effect from an approved government institution. Indeed, while the UPSC argued in Court that it was not permitted to deviate from the rule of benchmark disability in allowing for a scribe, the Ministry of Social Justice itself observed that there did exist non-benchmark disabilities that could significantly hamper writing ability. The Court then found that this was buttressed by the statutory policy as well: the PwD Act had a separate category for benchmark disability, that was limited to the issue of reservations; it was therefore unwarranted to deny other rights to the residual category of non-benchmark persons with disability. As Chandrachud J., writing for the Court, observed:
The second concept which is embodied in Section 2(s) is that of a person with disability. Section 2(s) unlike Section 2(r) is not tagged either with the notion of a specified disability or a benchmark disability as defined in Section 2(r). Section 2(s) has been phrased by Parliament in broad terms so as to mean a person with a long term physical, mental, intellectual or sensory impairment which in interaction with various barriers hinders full and effective participation in society equally with others. (paragraph 26)
Having established that the mere absence of a benchmark disability was not sufficient cause to deny the appellant the benefit of a scribe, the Court then went on to engage with the statutory purpose of the PwD Act. The Court noted that the purpose of the PwD Act was to deepen the social commitment to equality, and impose positive obligations – both upon the State and upon the private sector – to ensure that its objectives were fulfilled. For this reason, as an interpretive matter, limiting certain rights ipso facto to persons with a benchmark disability was clearly contrary to the statutory purpose:
Except in the specific statutory context where the norm of benchmark disability has been applied, it would be plainly contrary to both the text and intent of the enactment to deny the rights and entitlements which are recognized as inhering in persons with disabilities on the ground that they do not meet the threshold for a benchmark disability. (paragraph 41)
Next, the Court considered the concept of reasonable accommodation, at the heart of the PwD Act. The Court noted that, in accordance with the PwD Act, disability was primarily a social construct, in the sense that the barriers imposed upon disabled individuals were because of the way society constructed itself, with a certain concept of able-ness as the norm (a good example of this is the use of stairs – and not ramps – as default structures to connect levels within a building). Consequently:
The principle of reasonable accommodation acknowledges that if disability as a social construct has to be remedied, conditions have to be affirmatively created for facilitating the development of the disabled. Reasonable accommodation is founded in the norm of inclusion. Exclusion results in the negation of individual dignity and worth or they can choose the route of reasonable accommodation, where each individuals’ dignity and worth is respected. Under this route, the “powerful and the majority adapt their own rules and practices, within the limits of reason and short of undue hardship, to permit realization of these ends.” (paragraph 45)
Chandrachud J. made four important points about the principle of reasonable accommodation, as set out under the PwD Act: first, it was an individualised principle, which meant that the needs of individuals would have to be considered on a case-by-case basis; secondly, as the purpose of the PwD Act was to advance equality, the burden would lie upon the entity denying reasonable accommodation, rather than the one seeking it; and thirdly, the obligation was immediate in nature – i.e., the right to reasonable accommodation was directly enforceable, and not subject to gradual or incremental fulfilment; and fourthly, reasonable accommodation required meaningful dialogue – or engagement – with the affected individual to determine how best to overcome the barrier in question (paragraphs 44 – 46). Each of these is a crucial interpretive finding in the context of the PwD Act, and the consequences remain to be worked out in the fullness of time.
Importantly, the Court also noted that its 2019 judgment in V. Surendra Mohan v State of Tamil Nadu, which had been severely criticised for its refusal to allow a visually disabled person from becoming a judge, was no longer good law, as it failed to take into account the principle of reasonable accommodation. In particular, Chandrachud J. observed:
By definition, reasonable accommodation demands departure from the status quo and hence ‘avoidable complications’ are inevitable. The relevant question is whether such accommodations would give rise to a disproportionate or undue burden. (paragraph 54 )
Two important inferences follow from this. First, the kind of situation that was upheld as lawful in Mohan – where a blanket 50% visual impairment bar was imposed on qualification for judicial service – would be ipso facto unconstitutional, as it would make reasonable accommodation – in its individualised component – unenforceable; and secondly – other then the evidentiary burden lying upon the entity (State or private sector) denying reasonable accommodation, the legal standard to be met would be that of showing that reasonable accommodation would cause an “undue” or “disproportionate” burden. While this legal standard doesn’t entirely address the basic issue of a world where the norm is that of able-ness (because, by allowing denial of accommodation in “undue burden” cases, it retains able-ness as the norm), it goes some way towards doing so – and much will depend on how future judges interpret the term “undue burden.”
In conclusion – and in this specific case – the Court rejected the Union government’s arguments of potential misuse (using the striking analogy that the solution to copying in an exam using “chits” was not to impose a dress code that would make it impossible for some people to write the exam altogether), directed that the Appellant be allowed a scribe, and also directed the Ministry of Social Justice and Empowerment to frame guidelines on the issue of scribes, taking into account the individualised character of reasonable accommodation.
Vikash Kumar marks the Supreme Court’s first serious engagement with the concept of reasonable accommodation under the PwD Act, and sets out some important principles to help ensure that the Act can fulfil its role in advancing substantial equality under the Constitution. It lays a strong and durable foundation for future cases to build upon.