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'Reservation, Under PWD Act, Is Specific Advantage Accruing To Specific Individuals': Centre Tells SC On Lowering Of Threshold For 'Benchmark Disability'

Mehal Jain
27 Jan 2021 4:36 PM GMT
Reservation, Under PWD Act, Is Specific Advantage Accruing To Specific Individuals: Centre Tells SC On Lowering Of Threshold For Benchmark Disability
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The Supreme Court on Wednesday reserved its judgement on whether the extension of the facility of scribe in the examination to the All-India Services can be extended to persons, who though disabled, are not 'persons with benchmark disabilities'. Section 2(r) of the Rights of Persons with Disabilities Act, 2016 defines "person with benchmark disability" as a person with not less than...

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The Supreme Court on Wednesday reserved its judgement on whether the extension of the facility of scribe in the examination to the All-India Services can be extended to persons, who though disabled, are not 'persons with benchmark disabilities'. 

Section 2(r) of the Rights of Persons with Disabilities Act, 2016 defines "person with benchmark disability" as a person with not less than forty per cent of a specified disability. Section 34 of the Act provides that Every appropriate Government shall appoint in every Government establishment, not less than four per cent of the total number of vacancies in the cadre strength in each group of posts, meant to be filled with persons with benchmark disabilities.
The bench of Justices D. Y. Chandrachud, Indira Banerjee and Sanjiv Khanna was considering the plea of a candidate aggrieved by the UPSC notification extending the facility of scribes in terms of DoPT guidelines, to only persons with benchmark disability. The petitioner, as per an AIIMS report of February 2020, suffers from 'chronic neurological condition', which is a specified disability under the Schedule of the Act. The manifestation of the disability, as per the report, was in the form of 'Bilateral Writer's Cramp'. The issue was that, as per the report, the degree of disability was only 6%, thereby not meeting the threshold of benchmark disability.
"How to determine if candidates without benchmark disabilities need a scribe? How do we then also prevent misuse of such a provision?", wondered Justice Chandrachud.
"How do we decide on the threshold of disability to ascertain who needs to be given the benefit of a scribe- Whether it has to be 2% or 4% to 6%? Who will certify that a person is so disabled as to deserve the benefit of a scribe? There have to be some substantive norms for deciding, and also as to who will verify that a candidate fulfils the norms...", he continued.
"We cannot exclude candidates who do not meet the benchmark and who still need a scribe. This is a vast country-there may be candidates who may not need a scribe even though they meet the benchmark", he remarked.
"This is a very difficult case. If a blanket permission is granted for 1% to 2% or 6%, there will be consequences in the larger picture. This is a very competitive exam. We have to maintain the purity of the process. At the same time, the government needs to balance the need of a level-playing field. We have to ensure that the right people get their place. There may be many grades of 'writer's cramp'. How do we know if it is significant enough to be a handicap in writing the exam, so that we can conclude that this is a person with a specified disability and he needs a scribe, even though he does not meet the benchmark for the disability...", advanced ASG Madhavi Diwan for the Union Ministry of Social Justice and Empowerment.
"A benchmark disability was contemplated for the purpose of reservation. So that you are entitled to a quota in government posts. That is why a high benchmark is set. There might be someone who does not meet the 40% criteria but has a 10 or 20% disability and can still not write an exam. How do you decide on a case-to-case basis? There is a need to devise a procedure, there has to be certification by a government hospital that a scribe is needed to enable the person in question to participate in the exam on an equal footing, lest there will be discrimination... How do we make it work in practice? What if there is a 5% or a 7% disability? The guidelines state that only persons with benchmark disabilities can get a scribe. This is not the correct way...", observed Justice Chandrachud
"We will of course grapple with this problem. We will involve the Health Ministry", assured the ASG. In the meanwhile, she prayed that the bench require further investigation in the form of a comprehensive medical report from AIIMS, certifying that a 6% disability also precludes the petitioner from writing the exam
"The 2016 Act is a far more progressive Act than the 1995 Act. The number of Scheduled disabilities has been increased from 7 to 21. Reservation is contemplated...Even this list of 21 is not exhaustive. We say that if the examining authority feels that otherwise also a candidate is entitled to any benefits, they can go ahead...There is a whole sway of facilities which are available to persons with disabilities to ensure a more inclusive society – seats on public transport, ramp facilities, toilets, Even education is included in this– nobody asks the percentage of your disability there… ", urged the ASG.
"The Act has two kinds of provisions- The first are these general, across-the-board provisions of the Act. Then, there are some specific advantages which accrue to certain individuals, like reservation. This is a very, very competitive environment. People from all over the country take the exam. It is a very difficult examination. There are other deserving persons as well who meet the benchmark disability threshold.... We also know that the examination is susceptible to abuse-I myself am appearing in cases where the exam was cancelled on account of impersonation etc. We have to balance things- we have to ensure that the potential of abuse is eliminated and at the same time, see that merit also gets its due. We have to ensure a robust system with a level-playing field", she continued.
"For reservation, you need a benchmark. Otherwise all the seats will be filled up by persons with a lesser degree of disability and the more disabled will be excluded", noted Justice Banerjee.
"Recently, I also suffered from 'carpal tunnel syndrome' from using too many gadgets. I found it extremely difficult to write. I won't stand in the way of Your Lordships allowing a scribe to the petitioner. But just to understand if 6% is a significant problem, please call for a report from the AIIMS. Else we will have people saying that 'we have 2% disability or 4% or 8%'. If we leave the things at the district level, there will be too many certificates being issued. So we need a threshold...Unless someone can show that they are at a significant disadvantage without a scribe, 6% is neither here nor there. We can get this done either through the Health Ministry, or Your Lordships can ask AIIMS to give a comprehensive report", submitted the ASG.
"Otherwise, there will be a huge problem. There will be a whole flood of cases. They can even be simple cases where you break your arm on the eve of the exam...", she pressed.
"What about cases where, even though the disability is less than the benchmark, the person can still not appear in the exam?", asked Justice Chandrachud. "In such cases, we have given a freeplay to the examination authority to exercise its discretion and extend the benefit of scribe or extra time", replied the ASG
"So while the Ministry of Social Justice and Empowerment allows each individual case to be examined by the examination body in consultation with the Ministry of Health, the UPSC says that the DoPT guidelines require only persons with benchmark disability to be accorded a scribe?", clarified Justice Chandrachud.
"It will be dangerous for the court to lay down broad categories under Article 142. What if we ask the Ministry of Social Justice and Empowerment along with the Ministry of Health and the DoPT to take a relook? It is a matter of policy and it is best to leave it to the Union of India", noted Justice Chandrachud.
"We can indicate the old Act, the new Act, the UPSC guidelines, the MoSJE guidelines and the DoPT guidelines and say that there is a grey area regarding those who don't meet the threshold of the 'persons with benchmark disabilities'", said the judge.
"While this issue is necessary, we also don't want to open a Pandora's box... India is not just AIIMS– we know the kind of medical certificates which can be produced. This would militate against the equal access guarantee under the Act. But there also might be talented young people who do not meet the threshold of the persons with benchmark disability...We need to balance the right of access to the disabled with the purity of the exam", reflected Justice Chandrachud, reserving the judgment.

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