On February 11, 2021, a three judge bench of the Supreme Court of India in Vikash Kumar vs Union of India held that an individual suffering from Writer’s cramp or dysgraphia is entitled to a scribe in India’s civil services Examination. This judgment was a huge landmark towards the inclusivity for the persons with special ability and ensuring the protection of their rights. In the present case covered in this article, it was situation of wrongful denial of a compensatory time to appellant who suffered from Dysgraphia. The condition is a specified disability listed in Entry 2(a) of the Schedule to the Rights of Persons with Disability Act, 2016 (RPwD). Dysgraphia is a childhood learning disorder that causes impaired handwriting and demonstrates inconsistent handwriting, poor spelling and spacing, transcription difficulties and difficulties in coherence.
The appellant before court was diagnosed with a 40 per cent permanent disability, falling within the statutory definition of a ‘person with benchmark disability‘ (‘RPwbd’) under Section 2(r) of the RPwD Act 2016. The appellant claims that as a person with disability, she is entitled to reasonable accommodation and certain relaxations. Among them is the benefit of “inclusive education” by a suitable modification to the examination system, as mandated by Section 17(i) of the RPwD Act, 2016.
The appellant appeared for the NEET in the year 2021. Given her PwD status, she claimed a relaxation in terms of an additional hour of compensatory time, as against the total time of three hours prescribed for regular candidates. She was allotted the Thakur College of Engineering and Technology, Kandivali [East], Mumbai as her centre for undertaking the NEET. The grievance averred before court was that the second respondent was ignorant of the grant of special facilities that had to be provided to PwD candidates.
The grievance of the appellant is that initially she was assured that facilities for PwD, if prescribed in the rules, would be provided to her. However, towards the end of the scheduled duration of three hours, her answer sheet was “forcibly” collected together with the category of regular students appearing for the examination depriving her of compensatory time. She moved writ petition under Article 226 of the Constitution before the High Court of Judicature at Bombay. Among other alternative reliefs, she sought a direction to the first respondent to hold a fresh examination for the appellant while accommodating her with all relaxations and benefits to which she was entitled under the rules and regulations.
The Ministry of Social Justice and Empowerment has issued guidelines for conducting “Written Examination for Persons with Benchmark Disabilities” on 29 August 2018. These guidelines govern the examinations of all students covered by the RPwD Act, 2016. They are to be followed by all examining authorities and educational institutions conducting regular or competitive examinations. The National Testing Agency is responsible for conducting the National Eligibility cum Entrance Test for admission to under-graduate medical courses. The appellant urges that the Guidelines on Written Examinations are referenced in clauses 5.3 and 5.4 of the Information Bulletin of the National Eligibility cum Entrance Test (UG)-2021 issued by the first respondent, and are hence binding upon them.
In the decision in Vikash Kumar v. Union Public Service Commission, the Supreme Court categorically observed that the concept of benchmark disability is applicable in the context of the provisions contained in Chapter VI of the RPwD Act 2016, which is titled ‘Special Provisions Persons with Benchmark Disabilities’. These provisions include:
(i) Section 31- free education for children with benchmark disabilities;
(ii) Section 32- reservation in higher educational institutions;
(iii) Section 33- identification of posts for reservation;
(iv) Section 34- reservation;
(v) Section 35- incentives to employers in the private sector;
(vi) Section 36- special employment exchange; and(vii) Section 37- special schemes and development programmes.
The expression ‘person with benchmark disability’ is defined in Section 2(r) as follows:
“Section 2 (r) “person with benchmark disability” means 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 concept of benchmark disabilities is thus specifically with reference to the provisions of Chapter VI of the RPwD Act 2016. In contrast with the definition in Section 2(r), the expression ‘person with disability’ is defined in Section 2(s) as follows:
“Section 2(s) “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;”
The relief sought by the appellant for holding a re-examination for the NEET (UG) is denied. However, as she was wrongfully deprived of compensatory time of one hour while appearing for the NEET without any fault of her own, despite her entitlements as a PwD and a PwBD. Accordingly, the the Hon’ble Court has directed to consider what steps could be taken to rectify the injustice within a period of one week.
The judgment has also directions that in the future, the authorities shall ensure that provisions which are made at the NEET in terms of the rights and entitlements available under the RPwD Act 2016 are clarified in the NEET Bulletin by removing ambiguity, as noticed in the present case. Having due regard to the decision of this Court in Vikash Kumar (supra) and the statutory provisions contained in the RPwD Act 2016, facilities which are provided by the law to PwD shall not be constricted by reading in the higher threshold prescribed for PwBD;
By way of abundant caution, it is clarified that for the purpose of availing of the reservation under Section 32 of the RPwD Act 2016 or an upper age relaxation as contemplated in the provisions, the concept of benchmark disability continues to apply; and
Since in this particular case, it was brought to the court notice that the authorities was ignorant about the facilities to which the appellant was entitled. There was an evident confusion. The persons working for the first respondent and exam centres like that of the second respondent should be sensitised and trained, on a regular basis, to deal with requirements of reasonable accommodation raised by PwDs.
Final Remarks
Education is one of the most important aspects of human resource development. With the Right To Education, Act coming into force it mandates free and compulsory education to all children of India in the 6-14 years age group, this addresses unique learning needs of children with special ability, who comprise 5-15% of the school-going population. The judgement of Hon’ble Supreme Court Vikas Kumar and Avni Prakash goes a long way in protecting and reinforcing the rights of persons with special abilities to contribute towards inclusive growth of the society.
Photo by Amaury Gutierrez on Unsplash
