Rights Conferred Upon Persons With Disabilities Cannot Be Constricted By Adopting The Definition Of Benchmark Disability As A Condition Precedent: Supreme Court

The Supreme Court on Tuesday clarified that the rights and entitlements under the Rights of Persons With Disabilities Act, 2016, including the right of 'persons with disabilities' to inclusive education by way of reasonable accommodation, shall not be constricted by reading in the higher threshold prescribed for 'persons with benchmark disabilities'"In terms of the provisions of RPwD Act 2016, there is a clear distinction between the rights available to a candidate at the stage of the examination (in terms of the provisions of Section 17(i) falling under Chapter III) and the rights applicable at the stage of admission (under Section 32 falling under Chapter VI) of the RPwD Act 2016...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", the Court has said.The bench of Justices DY Chandrachud and AS Bopanna was pronouncing its decision on the plea by a female NEET-2021 candidate suffering from dysgraphia whose grievance was that she was refused an additional one hour's time for attempting the paper by the examination centre. Her prayers were that either she may be allowed a re-examination, or be appropriately compensated by way of grace marks or no negative marking or otherwise."The appellant 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 NTA is directed to consider what steps could be taken to rectify the injustice within a period of one week. Further, it shall take necessary consequential measures under intimation to the DGHS...The steps taken by the first respondent in furtherance of direction (ii) above in Paragraph 57 must be communicated to the Registry of this Court by filing a status report within a period of two weeks from the date of this judgment", directed the bench."It was brought to our notice that the examination centre was ignorant about the facilities to which the appellant was entitled. There was an evident confusion between the authorities working at the first respondent as well. 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", the bench has further ordered.FactsThe Supreme Court records that the appellant suffers from Dysgraphia, which is a specified disability listed in Entry 2(a) of the Schedule to the Rights of Persons with Disability Act 2016. The appellant has been diagnosed with a 40 per cent permanent disability, falling within the statutory definition of a 'person with benchmark disability' 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 Ministry of Social Justice and Empowerment has issued guidelines for conducting "Written Examination for Persons with Benchmark Disabilities" on 29 August 20184. 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 – the first respondent, 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)-20216 issued by the first respondent, and are hence binding on them.The appellant appeared for the NEET on 12 September 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. The appellant was allotted the second respondent (Thakur College of Engineering and Technology, Kandivali [East], Mumbai) as her centre for undertaking the NEET. The appellant averred 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 the second respondent had initially assured her 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.On 23 September 2021, the appellant moved a writ petition under Article 226 of the...

Rights Conferred Upon Persons With Disabilities Cannot Be Constricted By Adopting The Definition Of Benchmark Disability As A Condition Precedent: Supreme Court

Mehal Jain

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