Why The BCI Should Reconsider The Rules Governing The Provision Of A Scribe And ‘Extra Time’ For Pwd Applicants In AIBE-XVIII ?

With every subsequent edition of the exam, the BCI has been consistently fine-tuning the mode and method in which it is conducted. However, in certain instances, such proactiveness is not thought through and can end up doing more harm than good. Recent amendments made to the rules laid down in ‘Admit Card-Instructions’, which govern the provision of ‘extra time’^[1] and the provision of a scribe for applicants with disability are cases in point.

What exactly has been amended?

Broadly, ‘Admit Card-Instructions’ are rules of conduct for all applicants in general, while also having some specific provisions for applicants with disability. The amendments only affect the specific provisions of Clause 11 and 12.

1. Amendment to Clause 11: The recent amendment eases the condition for availing ‘extra time’ for writing the exam from “more than 50% disability” to now “40% or more disability”.
2. Amendment to Clause 12: Previously a scribe could be availed of “in case of any disability, which prevents a candidate from writing the exam himself”. The amendment has restricted it to case(s) of “any disability, which prevents a candidate from writing the exam himself (blindness, locomotor disability (both arm affected-BA) and cerebral palsy)”.

More applicants with disability can now seek ‘extra time’ post-amendment. But the provision of scribe has now been limited to only those whose disability fall within the three categories of ‘blindness, locomotor disability (both arm affected-BA) and cerebral palsy’

How does this change things?

If the intention of these amendments was to make the exam more accessible for the disabled - which the changes to Clause 11 intuitively seem to do to an extent - it is not reflected clearly in the actual changes made. The amendments instead manifest a lack of understanding of the needs of the disabled as well as the law of the land.

The experience of an individual who got in touch with us recently might shed some light on the actual impact of the changes made. This individual has 40% locomotor disability on the left side of his body including in his left (non-dominant) arm. Now, one is aware that writing the AIBE entails applicants carrying a large number of bare acts to the examination venue and spending time to sift and browse through these to find the right answers. Naturally, this process of carrying, sifting and browsing involves continuous movement of one’s hands. This is where the individual in question faces a challenge. Due to the nature of his disability, his left arm has severely restricted mobility and can only engage in a limited range of motions/movements. Sudden movements and sustained strain tends to tire the hand out, and further limits its mobility. Due to this, where an able-bodied applicant has the use of both his hands to tend to the tasks required for writing the exam, this individual has to make do with more or less one properly functioning hand.

Under the pre-amended Clause 12, this individual could have requested for a scribe by producing a medical certificate to the effect that his disability prevents him “from writing the exam himself”. Now, post-amendment, this choice is no longer open to him as his disability doesn’t fall under the category of “blindness, locomotor disability (both arm affected-BA) and cerebral palsy”.

What is the law?

For the Admit Card-Instructions to be legally valid, they have to be in line with the law made by the legislature which governs this aspect, which in this case is the Rights of Persons with Disabilities Act, 2016 (RPwD Act). The scope of this law is then delineated and its provision interpreted by our Hon’ble Courts.

After the coming into force of the RPwD Act, comprehensive guidelines were issued by the Ministry of Social Justice and Empowerment (MOSJE) on the conduct of written examinations for ‘persons with benchmark disabilities’ in August 2018. These guidelines restricted the provisions of a scribe and that of ‘extra time’ to ‘persons with benchmark disability’. Section 2(r) of the RPwD Act defines a ‘person with benchmark disability’ as someone who has been certified to have not less than 40% of a disability specified in the Schedule of the Act.

The 2018 guidelines, by virtue of the precondition of ‘benchmark disability’, only allow the provision of a scribe and that of ‘extra time’ to those who meet a certain threshold of disability (i.e. 40%) and have specific category of disability (i.e. those stipulated in the Schedule of the RPwD Act). In this, they are analogous to the Admit Card-Instructions, which, as mentioned above, also allow the provision of ‘extra time’ to only those who meet a certain threshold of disability (40%), and allow the provision of a scribe to only those who have a specific category of disability (i.e blindness, locomotor disability (both arm affected-BA) and cerebral palsy)

The Supreme Court in its judgment in ‘Vikas Kumar vs. Union Public Service Commission and Ors, went beyond these 2018 guidelines and did away with the precondition of ‘benchmark disability’ for availing a scribe or ‘extra time’. In effect, the Court said that one doesn’t need to meet a threshold level of disability or have any specific type(s) of disability to be allowed the provisions that are meant for ‘person(s) with disability’ in general, as defined by Section 2(s) of the RPwD Act.^[2] In this case, the Petitioner had a 6% ‘chronic neurological’ disability, also referred to as ‘writer’s cramp’ and had sought the provision of a scribe to write the Civil Services Examination (CSE). The State opposed the claim and argued that, as per the aforesaid 2018 guidelines as well as the then CSE Rules, the provision of a scribe is only allowed to a ‘person with benchmark disability’. The Court dismissed this argument and held that the 2018 guidelines “can by no means be regarded as being exhaustive of the situations in which a scribe can be availed of by persons other than those who suffer from benchmark disabilities”.

It further held that except for the chapters of the RPwD Act that are restricted to ‘persons with benchmark disability’, rights and entitlement coming out of any other provision of the Act are meant for persons with disabilities in general. These rights include that of ‘reasonable accommodation’ which the Court said is a key component of the principles underlying the RPwD Act and the Indian Constitution i.e. the principle of equality and non-discrimination. Giving a few example of how reasonable accommodation will look like on the ground, the Court said:

“47. For instance, for a visually impaired person, the reasonable accommodation she requires might consist of screen magnification software or a screen reader [which can speak out the content on a computer screen in a mechanical voice]. It might also consist of content being made available in Braille and a sighted assistant. In the same way, for someone with a hearing impairment, reasonable accommodation could consist of speech-to-text converters, access to sign language interpreters, sound amplification systems, rooms in which echo is eliminated and lip-reading is possible. Similarly, for a person with dyslexia, reasonable accommodation could consist of access to computer programmes suited to meet their needs and compensatory time.”

The right of reasonable accommodation was held to be inherent in every ‘person with disability’ and places an obligation on both the state as well as private parties “to create conditions in which the barrier posed by disability can be overcome”.

By restricting the provision of a scribe and that of ‘extra time’ to only those who meet a certain threshold of disability or have specific categories of disability, the AIBE Admit Card-Instructions are violative of the RPwD Act, the Indian Constitution and the principles of equality and non-discrimination underlying therein. These provisions, along with many others, are part of the rights and entitlements (including that of reasonable accommodation) which are inherent in every person with a disability.

What can AIBE do?

The Admit Card-Instructions should be amended to incorporate the principle of ‘reasonable accommodation’ by allowing anyone who is a ‘person with disability’ as defined by Section 2(s) of the RPwD Act the provisions necessary for writing the exam as per their needs and requirements including those of a scribe and that of ‘extra time’. Such need and requirement can be demonstrated by the applicant through a certificate to that effect issued by a registered health care institution. Unless the BCI makes room for the “flexibility in answering individual needs and requirements [which] is essential to reasonable accommodation”, the Admit Card-Instructions would be in contravention of the aforesaid judgment.

Henceforth, we hope that the BCI will exercise more due diligence and conduct public consultation with all stakeholders before introducing any changes in the guidelines. This will ensure that a specific class of applicants doesn’t end up bearing the brunt of such well-intentioned but short-sighted amendments.