India Together: Inclusion is more than a benchmark, says SC

Apex court rules that both public and private sector are obliged to make ‘reasonable accommodation’ to facilitate the full participation of disabled persons in society. In doing so, the judges overturned an earlier decision of the SC itself.

05 April 2021

The recent judgment of the Supreme Court in Vikash Kumar v UPSC is a very important one, especially looking at issues of disability and equality, as well as the question of ‘reasonable accommodation’ to be made to include disabled persons fully in society. With this judgment, the apex court has put inclusion front and center as the main goal of society’s response to disability.

Vikash Kumar needed a scribe for writing the UPSC (civil services) examination. He had writer’s cramp, a disorder caused by cramps or spasms of some muscles of the hand and forearm, which interfere with fine motor tasks such as writing. But he was not allowed to have a scribe, because he initially wasn’t able to get a disability certificate for his condition, nor he did not come under the definition of a person with ‘benchmark’ disability. 

This reference to benchmarks is from the Rights of Persons with Disabilities Act, 2016. This is a new legislation enacted in India, which replaced an older 1995 law. And in this legislation, there are two separate definitions of a person with disability. There is one broad definition of persons with disability, in section 2(s), which refers to 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. 

This borrows language from the Convention on the Rights of Persons with Disabilities, a global human rights treaty. This definition is from the social model of disability, and is not a medical model. It gives a broad and open-ended definition of who a person with disability would be.

But there is also a more medical approach, articulated in section 2(r) of the Act, which refers to a person with benchmark disability – someone with not less than 40 per cent of a specified disability. Under the new law, support for those with benchmark disability was also limited to a few things, which refer to reservation in public employment and a few other provisions. 

After going to the Central Administrative Tribunal and the Delhi High Court, Vikash Kumar ultimately went up to the Supreme Court. And with this background of facts and legal provisions, the court then went into the decision making process.

First, the court directed a medical examination of the petitioner to be carried out, and this examination found that he did indeed have writer’s cramp, but also that this would not come within the definition of benchmark disability. The petitioner’s disability was assessed at only six per cent, well below the 40 per cent benchmark.

But even a higher degree of disability may not have been enough for him to get a scribe, because the government guidelines of 2018, which are used to determine when scribes can be provided for persons with disabilities, only allow scribes under specific conditions. The disabled person must not only have a benchmark level of disability, but even within those disabilities, only persons with blindness, locomotor disability, or cerebral palsy. For all other conditions, a person required special permission. 

In its judgment, the court more or less did away with this way of thinking. It held that allowing a scribe only to a person with benchmark disability would violate the overall framework of the law. In the court’s view, there was no reason to limit the provision of a scribe only to persons with benchmark disabilities. Instead, this should be allowed to all persons with disabilities, whether or not their condition, which in this case was a writer’s cramp, would fall within the framework of benchmark disability. The court therefore held that Vikash Kumar should be allowed to use a scribe. 

But the more important impact of the judgment is on the issue of equality for persons with disabilities at a larger level. The Court referred to ‘reasonable accommodation’ as a key component of equality and non-discrimination. The verdict highlights that reasonable accommodation is really the obligation of positive duties to provide additional support to persons with disabilities to facilitate their full participation in society.

The court reiterated that denial of reasonable accommodation would amount to discrimination, and that these obligations of reasonable accommodations are not only applicable to the public sector, but to the private sector as well. Finally, and most importantly, the judgment makes the link between equality and dignity. The court held that equality includes recognizing the equal worth of every individual, irrespective of their disability. The principle of reasonable accommodation, thus, is a means of recognizing the equal worth and dignity of all by removing the barriers to full participation, and therefore reasonable accommodation would be an integral component of equality.

The judgment has also overturned a previous decision of the Supreme court. V Surendra Mohan v. State of Tamil Nadu was quite a problematic decision, where the court held that persons who had visual or hearing impairment would not be qualified to be judges, and this was quite a criticized judgment. In this case, the court held that since in that decision, the two-judge bench did not take into account the principle of reasonable accommodation. That judgment, therefore, would not be a binding precedent in future cases. 

Jayna Kothari is the Executive Director of the Centre for Law and Policy Research, based in Bengaluru. An audio version of this article is available on Soundcloud; click here to listen.

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