Image description: A person reading a book in braille.
The 2021 judgment of the Indian Supreme Court in Vikash Kumar v Union Public Service Commission, which mandated that a disabled student be granted the support of a scribe for writing an examination, has been examined previously on this blog. Commentators have pointed out the judgment’s significant contributions to disability rights under the Constitution. In this post, I shall take a look at an argument that was raised by the State, and rejected by the Court: the argument of misuse.
The Union Public Service Commission argued that the “facility of a scribe may be used for nefarious purposes”, i.e., individuals who could write examinations without assistance would claim the facility in order to obtain an unfair advantage over their peers. In the context of Indian constitutional law, this is a familiar argument: the extension of a right to a group of institutionally vulnerable or marginalised people has often been resisted on the ground of abuse (this is particularly prevalent in the context of affirmative action policies, and forms the basis of the Supreme Court’s famous – or infamous – “creamy layer” test).
The Supreme Court rejects this argument for two principal reasons. First – and straightforwardly – the Court notes that no empirical evidence has been provided to demonstrate the extent – or even the existence – of misuse. In the absence of any such evidence, and having already held that disabled individuals are entitled to scribes under the principle of reasonable accommodation, the Court concludes that there is no good reason to displace the operation of that principle. This finding is important insofar as it reiterates the principle that if the State objects to according reasonable accommodation for whatever reason, then it bears the evidentiary burden of demonstrating the existence of the reasons for why it should not be held to its obligations.
More importantly, however, the Court notes that the argument of misuse replicates – and thereby entrenches – an invidious social stereotype about disabled people, namely, that “persons with disabilities, as a class … [are] incompetent and incapable of success absent access to untoward assistance.” The key word here is “untoward”: as the Court correctly recognises, the argument from “misuse” is premised upon a social view of the world that understands ableism to be not just the default way of things, but also the normative baseline, from which disability rights represent an exception, or a departure, that must therefore be contained. Importantly, the Court notes that “when competent persons with disabilities are unable to realize their full potential due to the barriers posed in their path, our society suffers, as much, if not more, as do the disabled people involved.” The use of the word “barriers” is particularly crucial here, as it signifies a recognition of active agency in denying disabled people full access to their rights, as opposed to viewing it as a natural – albeit unfortunate – state of affairs. In other words, the Court recognises that social institutions and structures are contingent, and society has a choice in deciding whether – and how – to design them so as to be equally accessible to all, regardless of ability or disability.
The Court burnishes this conclusion by noting that, therefore, if an instance of cheating, or the taking of undue advantage, is discovered, the consequences should simply be the same as in cases of able-bodied students found cheating; there is no warrant to carve out an entire state of exception for disabled students.
In sum, therefore, the Supreme Court’s analysis of the misuse argument is important for two reasons. First, for holding the State to a high standard of evidentiary proof if any exemption from meeting the reasonable accommodation principle is pleaded for; and secondly, correctly locating the argument within a structural and institutional analysis of disability in society, and the normative baseline that is – often unwittingly – invoked to defeat claims of equal rights and equal access.
This post is part of the blog series titled ‘The Development of Disability Rights in the Indian Supreme Court’.