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Dr Dhananjaya Y Chandrachud, J A. Factual background B. The course run: The Tribunal and High Court of Delhi C. These proceedings C.1 Arguments of the appellant C.2 Arguments of the UPSC C.3. Arguments of the Union of India D. The legal framework Date: 2021.02.11 16:44:25 IST Reason:

E. Two Government Ministries: A policy disconnect F. Benchmark disability not a precondition to obtaining a scribe G. Rights of Persons with Disabilities Act 2016: A paradigm-shift G.1 A statutory manifestation of a constitutional commitment G.2 Scheme of the 2016 Act H. Reasonable accommodation I. The argument of misuse J. The language of our discourse K. Realizing the transformative potential of the Rights of Persons with Disabilities Act, 2016: From principle to practice L. Case of the appellant M. Formulation of new policy concerning access to scribes for persons with disabilities N. In summation  PART A A. Factual background 1 A citizen who suffers from a writer’s cramp has travelled to this Court. The grievance is that he was denied a scribe in the civil services’ examination 1. The case has run its course through the judicial system as an individual grievance. But its contours present portents of the aspirations of a whole class of persons whose daily engagement with physical disability defines their continuing quest for dignity. Through a maze of statutes, rules, and regulations, the case raises core issues about the actual realization of equal opportunity and access to the disabled. It tests what the law professes with how its ideals are realized. The language of our discourse, as much as its outcome, should generate introspection over the path which our society has traversed and the road that lies ahead in realizing the rights of the disabled. Voices such as those of the appellant are a constant reminder of the chasm between the law and reality. But they also provide a platform for change and evolution towards a better future. 2 Down to its bare bones, this appeal turns upon the interface of the Civil Services Examination Rules 2018 2 dated 7 February 2018 with the Rights of Persons with Disabilities Act, 2016 3.

31 Conflating the rights and entitlements which inhere in persons with disabilities with the notion of benchmark disabilities does dis-service to the salutary purpose underlying the enactment of the RPwD Act 2016. Worse still, to deny the rights and entitlements recognized for persons with disabilities on the ground that they do not fulfill a benchmark disability would be plainly ultra vires the RPwD Act 2016.

G. Rights of Persons with Disabilities Act 2016: A paradigm-shift G.1 A statutory manifestation of a constitutional commitment 32 Part III of our Constitution does not explicitly include persons with disabilities within its protective fold. However, much like their able-bodied counterparts, the golden triangle of Articles 14, 19 and 21 applies with full force and vigour to the disabled. The RPwD Act 2016 seeks to operationalize and give concrete shape to the promise of full and equal citizenship held out by the Constitution to the disabled and to execute its ethos of inclusion and acceptance. 33 The fundamental postulate upon which the RPwD Act 2016 is based is the principle of equality and non-discrimination. Section 3 casts an affirmative obligation on the government to ensure that persons with disabilities enjoy (i) the right to equality; (ii) a life with dignity; and (iii) respect for their integrity equally  PART G with others. Section 3 is an affirmative declaration of the intent of the legislature that the fundamental postulate of equality and non-discrimination is made available to persons with disabilities without constraining it with the notion of a benchmark disability. Section 3 is a statutory recognition of the constitutional rights embodied in Articles 14, 19 and 21 among other provisions of Part III of the Constitution. By recognizing a statutory right and entitlement on the part of persons who are disabled, Section 3 seeks to implement and facilitate the fulfillment of the constitutional rights of persons with disabilities. 34 There is a critical qualitative difference between the barriers faced by persons with disabilities and other marginalized groups. In order to enable persons with disabilities to lead a life of equal dignity and worth, it is not enough to mandate that discrimination against them is impermissible. That is necessary, but not sufficient. We must equally ensure, as a society, that we provide them the additional support and facilities that are necessary for them to offset the impact of their disability. This Court in its judgment in Jeeja Ghosh v. Union of India 11, noted that a key component of equality is the principle of reasonable differentiation and specific measures must be undertaken, recognizing the different needs of persons with disabilities, to pave the way for substantive equality. Justice A K Sikri stated in the above judgement:

“The Act [Rights of Persons with Disabilities Act, 2016] provides for reservation in Government jobs for persons with benchmark disabilities as defined under section 2 (r) of the said Act.”

71 As one commentator notes, “if the connection between reservation in government jobs for the disabled and guidelines for grant of scribes in all exams they may appear in appears strange, that is because it is.”45 Another notes that there exists no justification for this move. 46 The facts of this case are a stark reminder of the need to generate greater legal consciousness about the entitlements of the disabled set forth in the RPwD Act 2016. We would also like to take judicial notice of the fact that several instances have come to light of competent authorities fixing criteria for the grant of scribes that are in brazen disregard of the RPwD Act 2016 and the OM dated 29 August 2018.47 Ibid.

Disabilities Act, he noted that, by dint of the passage of the law, “every man, woman, and child [and we would like to add practitioners of alternative sexuality here] with a disability can now pass through once-closed doors into a bright new era of equality, independence, and freedom.” 50 80 In the three decades that have elapsed since then, a generation of Americans with disabilities has emerged, calling themselves the ADA Generation. These disabled people rightfully regard the ADA’s guarantees as a birthright and, due to accessible infrastructure, a strict prohibition on disability discrimination and changed public attitudes, are able to participate in American life on equal terms with their able-bodied counterparts.51 81 Cases such as the present offer us an opportunity to make a meaningful contribution in the project of creating the RPwD generation in India. A generation of disabled people in India which regards as its birthright access to the full panoply of constitutional entitlements, robust statutory rights geared to meet their unique needs and conducive societal conditions needed for them to flourish and to truly become co-equal participants in all facets of life. ADA.Gov, Remarks of President George H. W. Bush at the Signing of the Americans with Disabilities Act, 26th July, 1990, available at https://www.ada.gov/ghw_bush_ada_remarks.html 51 th Joseph Shapiro, Disability Pride: The High Expectations of a New Generation, 17 July, 2020, The New York Times, available at https://www.nytimes.com/2020/07/17/style/americans-with-disabilities-act.html.  PART N 82 We accordingly allow the appeal and set aside the impugned judgment and order of the High Court of Delhi dated 25 September 2018. There shall be no order as to costs.