Image description: The picture of a ramp outside a building as a form of reasonable accommodation.
Before finalising the General Comment on Equality and Non Discrimination, the UN Treaty Body on the Rights of Persons with Discrimination had organised a Day of General Discussion where I was asked to speak on Reasonable Accommodation. The central argument of my presentation was that, since the Convention on the Rights of Persons with Disabilities was adopted to ensure the inclusion of persons with disabilities, any accommodation which resulted in inclusion was reasonable. Further, the concept of reasonable accommodation, unlike the concept of universal design, was aimed at enabling individual inclusion; hence every person with disability should be treated as a class of their own while determining claims for reasonable accommodation. I mention my argument as the Supreme Court of India in Vikash Kumar v UPSC has veered very close to this position.
The Supreme Court of India in Vikash Kumar expounded on how to approach the entitlement of reasonable accommodation. Firstly, and most importantly, the Court clarified that to seek reasonable accommodation a person with disability does not need to be a person with benchmark disability. The entitlement is not linked to the severity of the impairment but to the fact of difference which is causing the individual to be excluded. Reasonable accommodation thus becomes a measure to promote equality and prevent discrimination. The delinking of reasonable accommodation from benchmark disability has not just expanded the breadth of the entitlement but also enabled persons with disabilities to live as themselves. They need to neither play up nor play down their variation from the ‘dominant normal ‘.
Since persons with disabilities have been perceived as a part of human diversity, the court is impatient with the regulatory obsession to prevent abuse. Such obsession, the Court points out, is discriminatory since misuse of a right is not unique to persons with disabilities. Yet instead of addressing the fact of misuse, regulators move to withdrawing or limiting the right. Ironically, this compulsive need to prevent misuse subsists even as it is understood that disability results not from impairment alone but impairments compounded by physical, social and attitudinal barriers. This administrative need to prevent misuse of equalising entitlements thus becomes one more barrier that confronts persons with impairments. These barriers, the Court notes, are more commonly erected by people and departments who have limited or no interaction with persons with disabilities. It is here that a comparison between the rules on providing scribes formulated by the Department of Personnel and Training are contrasted to the guidelines issued by the Ministry of Social Justice and Empowerment. For the DOPT the demands of inclusion are easily subordinated to the dictate of preventing unfair advantage. Since the provision of a scribe to a person who does not need one may result in such advantage, the rules are geared to prevent that from happening. That such prevention could deny a level playing field to persons in need of support is a matter which stands ignored and overlooked. The order asking the Ministry of Social Justice and Empowerment to formulate apposite guidelines for determining who is entitled to avail the facility of a scribe is aimed at ensuring that the rule making power inheres in the ministry that is presumed to possess the requisite expertise. This expertise should also be informed by the lived experience of persons with disabilities.
Whilst deciding on the appellant’s plea for a scribe because he had writer’s cramp, the Court makes the following propositions on reasonable accommodation:
- Reasonable Accommodation is an individual right guaranteed to all persons with disabilities.
- The nature of the accommodation cannot be predetermined
- And a decision on the nature of the accommodation needs to be taken on a case to case basis.
If these propositions are examined in letter and spirit along with the recognition accorded to the expertise of experience possessed by persons with disabilities, the logical conclusion would have been to let the matter of seeking a scribe or not be left to the person with disability, especially as appearing in an exam with a scribe is a far from an unmixed blessing. Yet, contrary to the expansive reading of the Disability Act and several disability affirming rhetorical flourishes, when it comes to issuing directions to the Ministry of Social Justice and Empowerment “to frame proper guidelines which would regulate and facilitate the facility of a scribe”, the Court falls back on the same suspicion ridden medical expertise driven model. It thus asks the Ministry to “ lay down appropriate norms to ensure that the condition of the candidate is duly certified by such competent medical authority as may be prescribed so as to ensure that only genuine candidates in need of the facility are able to avail of it” ( Emphasis Supplied).
This sentence is at odds with the entire exposition on equality of opportunity made by the Court whereby reasonable accommodation needs to be a porous flexible system which has to be all the time customised to the requirements of the individual person with disability. It is hoped that in times to come, it is rights driven discourse, and not this stingy sentence, which will dictate the right to a scribe and the jurisprudence of reasonable accommodation.
This post is part of the blog series titled ‘The Development of Disability Rights in the Indian Supreme Court’.