No Badge Of Cheaters Please

https://www.livelaw.in/news-updates/kerala-high-court-public-service-commission-visually-impaired-woman-scribe-to-appear-for-online-exam-196257

just ahead of her examination, has recently been rendered busy not in her preparation but in fighting the system. Who should write her examination -- a scribe of her choice or anyone as assigned by the Kerala Public Service Commission (PSC) -- is the question that lies at the core of her struggle. Given the "peculiar nature" of her disability, she prayed before the Kerala High Court, that she be permitted or allotted suitable scribe of her choice, as contemplated in the guidelines on scribes issued by the Ministry of Social Justice and Empowerment in 2013.

For sure, the issue is not alone whether examination-conducting bodies can provide scribes to examinees and candidates with blindness, instead, the real issue is how these bodies understand the idea of scribe and what kind of scribes they provide when they undertake to do so.

I could recall I was taking entrance test for undergraduate degree in law conducted by Faculty of Law, University of Delhi. The scribe was provided by the faculty. In fact, I didn't have option to use my own scribe. It was stated in the prospectus that the scribe brought by the candidate shall not be permitted to write the test.

As scheduled, I reached the allotted centre. The scribe was assigned to me. It was some girl who had been pursuing some course from School of Open Learning, University of Delhi. The question paper came. I directed her to start reading it. To my dismay, she wasn't able to read it. Let alone English, her Hindi was not up to the mark. I told the invigilator about the issue. He professed his inability to be able to do anything about it at that time. My question paper was that day read in alphabets and letters.

During the test, I seethed -- when I ought to have been enjoying a certain degree of mental composure -- with considerable discomfort. The test time including what we called "extra time" at that time was over, but the major portion of the question paper still remained unattempted. The examination script was taken away.

The girl escorted me to cycle rickshaw outside the examination hall. I advised her while getting in the rickshaw – with trying to come to terms what happened to my test – not to recommend herself to write anyone's examination in the future. I admit straight away that I might have been quite off the mark when I advised her not to write anyone's exam. It wasn't her fault. She may not have known that she might have to read difficult English language coupled with Latin terminology related to legal realm.

But the Law Faculty had known all this. It must have been aware of its own past question papers. Due diligence was possible. The reading proficiency of the person being assigned could have been tested on past question papers at least, if nothing else.

Failure in due diligence often surely springs from lethargic approach to the disability concerns. But even more, the rampant narrative anchored in specter of cheating raised against blind examinees determines the idea of scribe of examining bodies.

As a matter of fact, the widespread narrative peddled by the movers of the system is that letting suitable and competent scribes write the exam of blind examinees will culminate in cheating and breaching the integrity of examination. They will use scribes senior to them to attempt their exams and tests. The scribes will help the examinees in the process of examination.

In Vikash Kumar vs.Union Public Service Commission, the latest landmark judgment of the Supreme Court on the facility of scribe, the learned Additional Solicitor General appearing for the Union of India, submitted that "the abuse of this facility cannot be ruled out". She stressed the urgency of preserving the "purity of the examination" particularly in a competitive environment. Hence, to begin with, the idea of someone writing exam for someone else is excessively seen and highlighted as fundamentally associated with the breach of the integrity of examination.

Pursuant to such understanding, the pre-2013 guidelines on scribes formulated by different examining bodies had a constrictive ring. Nearly in all guidelines, scribe had to be educationally and academically less qualified than the examinees with having only the ability to take dictation. In some others, she was mandated as having lower score in the last examination than the examinee. Even less than 60 percent score as an eligibility criterion to be able to serve as a scribe was fixed in some guidelines. The climax was reached when the Maharashtra Housing Area Development Authority prescribed even the criminal prosecution of scribes as well as of examinee in its guidelines in an effort to check the imagined mal practice in examination. The Bombay High Court fortunately struck down the guidelines as they were quite discouraging and threatening.

The statutory recognition to the provision of scribe or amanuensis for the first time was given in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Currently, however, after its repeal, the provision is contained in section 17 of The Rights of Persons with Disabilities Act, 2016, the India's new law on disability enacted in conformity with the United Nations Convention on the Rights of Persons with Disabilities, 2006.

However, despite this statutory recognition, it has been a recurring complaint of persons with blindness that scribes provided by examination conducting bodies remain of poor quality. For instance, Aman Gupta who appeared for Civil Service Examination in 2010 accused the Union Public Service Commission (UPSC) of not providing "sufficiently competent scribes" to write his test. Similarly, one of the blind civil servants Krishna Gopal Tivari, had to face considerable difficulties in respect of scribe while taking his attempts of civil service examination. According to him, "most of the answers needed to be substantiated through graphs and diagrams which were not friendly for the blind." The complaint lodged with the UPSC remained unattended. Eventually, Tivari head to use aluminum wire to explain the diagrams to his scribe.

What it makes clear is that people with blindness have varying needs with regard to scribes. Hence, the important question arises, what kind of scribe ought to be writing the exam? The simple answer is "suitable". And who is suitable? There is no fixed and static answer to it for all time and for all exams and tests. The criteria can not be cast in stone. Nevertheless, the person who is decided to write the exam should be decided bearing in mind the pattern of the exam and the nature of the contents of the question paper including the language or languages it contains.

Particularly, this notion is needed to be jettisoned that the scribe is supposed to take dictation only. This is flawed understanding. She is supposed to read the question papers with difficult technical language as well as myriad other elements and variations depending upon disciplines. She is supposed to read content related to mathematics, reasoning, economics and different languages. Exams take place bound in time constraints. Hence, what is needed is that the person being considered is required to be able to read the question paper with necessary coherence, proficiency and clarity. Her handwriting should be fast and legible with having reasonable grip over orthography.

For addressing such issues, in 2013, The Ministry of Social Justice and Empowerment following the recommendation of the Chief Commissioner of Persons with Disabilities issued certain guidelines regarding scribes for people with disabilities. They were pretty progressive and commodious. Some of the salient features and elements contained in them may be summarized as under:

1. Introduction of uniform and comprehensive policy on scribes overriding different guidelines formulated by different examining bodies.

2. The criteria such as educational qualification, marks scored and age restrictions for scribe were done away with;

3. The distinction made between regular and competitive exams was done away with.

4. Guidelines were made flexible to accommodate the specific needs on case-to-case basis;

5. Invigilation mechanism was to be strengthened to curb the malpractice in examination.

These guidelines were quite breathtaking for persons with blindness as the guidelines considerably lessened their unwarranted hardship faced in arranging scribes for themselves. The base of potential scribes grew in size with restrictions of qualifications gone. The policy contained in the guidelines had the capacity to accommodate individual needs on case to case basis. The multilingual character of the question paper was taken in their sweep. Most importantly, the idea of making scribe the excessive locus or obsession of curbing cheating or malpractice in examinations was given the go-by. The invigilation, which is practiced in relation to other examinees was asserted as a right and proper mechanism to check the malpractice in relation to blind examinees too.

However, the examining bodies felt rattled by them as they maintained that such guidelines would open Pandora box of malpractice imperiling the integrity of examination. The UPSC in particular along with others was in forefront opposing the guidelines. Hence, the new guidelines in 2018 superseding the 2013 ones followed. The guidelines revived the restrictions anchored in academic qualifications. Their operation so far remain hobbled following the order in Adyta Narayan Tiwari V. Union of India as examining bodies express their inability to form panels of suitable scribes mandated in those guidelines.

To be specific, currently both sets of guidelines are in effect -- 2013 and 2018. Where panels of scribes are available, the examining bodies are entitled to invoke 2018 guidelines and where they are still to be formed, the examining bodies will have to adhere to the 2013 guidelines. This confusion seems to have been the source of the hardship of the woman in Kerala.

Prior to 2013, the prioritized narrative on part of examining bodies in relation to scribes was that blind students/candidates should arrange their scribes on their own. With 2013 guidelines still in place, the examining bodies often appear quite frantic to undertake the responsibility of providing scribes. Essentially and in reality, rather than through invigilation, these bodies still seek to check cheating through managing and controlling scribes. Even more, persons with blindness are being seen and treated as cheaters.

The Supreme Court in the Vikash Kumar case (supra) addressing the concerns of cheating made classic observations. It said speaking through justice Chandrachud: "We are of the considered view that undue suspicion about the disabled engaging in wrongdoing is unwarranted. Such a view presumes persons with disabilities, as a class, as incompetent and incapable of success absent access to untoward assistance."

According to the top Court, The union government did not "furnished any empirical data to substantiate the assertion that persons with disabilities are misusing the facility of scribes to obtain any undue advantage." It further added: "A justification to provide a reasonable accommodation must be based on objective criteria. The conjecture as to misuse does not meet this test."

It is unfair to stamp persons with disability "with a badge of cheaters" in an effort to "deprive them of their lawful entitlements." According to the top court, "the system may be vulnerable to being gamed by able-bodied persons, however, it is the persons with disabilities who are being asked to bear the cost of maintaining the purity of the competitive examinations."

I did a little Google search to know the extent of cheating in examination in India. The internet is awash with the reports of incidents of cheating. To my surprise, I could hardly find any story reporting incident involving person with blindness.

At the core of ethical enquiry lies the question: what is good life -- life coerced and hobbled in constraints or allowed in flourishing and freedom? The top court giving articulation to the moral side of the issue commented in an outstanding manner: "In their (persons with disability) blooming and blossoming, we all bloom and blossom." That ought to be the guiding motto of scheme of things.

The author is an Advocate practicing at New Delhi and views are personal

Bibliography

Aditya Narayan Tiwari & Anr Vs Union of India & Anr. (Delhi High Court, November 15, 2018).

Aman Gupta vs Union Public Service Commission. (Central Administrative Tribunal, April 17, 2013).

Anjitha C.P VS. KERALA PUBLIC SERVICE COMMISSION. (Kerala High Court, April 7, 2022).

Basheer, Shamnad, Sai Vinod, Vatsala Sahay, Sahana Manjesh, and Akshay Sharma. "Research Note on Scribes for the Visually Impaired."

"Guidelines for conducting written examination for Persons with Benchmark Disabilities." New Delhi: Ministry of Social Justice and Empowerment, Department of Disability Affairs, October 2018.

"Guidelines for conducting written examination for Persons with Disabilities." New Delhi: Ministry of Social Justice & Empowerment, Department of Disability Affairs, 26 February 2013.

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Vikash Kumar vs Union Public Service Commission. (Supreme Court of India, February 11, 2021).