Arnab Roy vs Consortium of National Law Universities and Another

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

Writ Petition (Civil) No 1109 of 2022

Arnab Roy … Petitioner

Versus

Consortium of National Law Universities & Anr … Respondents

WITH

Miscellaneous Application No of 2023 (Diary No 8493 of 2023)

JUDGMENT

Dr Dhananjaya Y Chandrachud, CJI

1 The petitioner who is a lawyer and disability rights activist moved these

proceedings under Article 32 of the Constitution of India for challenging certain

conditions which were imposed for the conduct of the Common Law Admission

Test 20231. CLAT was scheduled on 18 December 2022. The issue specifically

addressed by the petitioner relates to the facilities for candidates who intend to

avail of a scribe.

2 The petitioner avers that he was personally aware that at least 13 visually

impaired candidates would be denied the assistance of a scribe because of the

conditions belatedly imposed by the Consortium of National Law Universities 2 Signature Not Verified Digitally signed by NEETA SAPRA Date: 2023.04.25 11:23:45 IST 1 Reason: “CLAT” 2 “Consortium” 2

less than four weeks before the date of the examination.

3 The petitioner has highlighted certain specific concerns, based on the decision of

this Court in Vikash Kumar Vs Union Public Service Commission & Ors 3.

The first among these concerns is that the Consortium has denied the right to a

scribe to candidates who do not have a benchmark disability though they have a

genuine difficulty in writing. In this context, reliance has been placed on the

following principle which was laid down in the decision in Vikash Kumar, while

elaborating on the statutory entitlement of Persons with Disabilities 4 under the

Rights of Persons with Disabilities Act 2016 :

“To confine the facility of a scribe only to those who have benchmark disabilities would be to deprive a class of persons of their statutorily recognized entitlements. To do so would be contrary to the plain terms as well as the object of the statute.”

4 Apart from the above grievance, the petitioner submitted that the Ministry of

Social Justice and Empowerment of the Union of India had, in its guidelines of 29

August 2018, prescribed that in case a candidate is allowed to bring his own

scribe, the qualification should be one step below the qualification of the

candidate taking the examination. On the other hand, in the present case, the

Consortium had sought to prohibit scribes if they are (a) above the 11 th grade in

educational attainment; or (b) affiliated to any test-preparatory organisation or

examination coaching centre.

5 As a consequence of the above restriction, it was urged that a PwD candidate

cannot appoint a scribe who is currently enrolled in the 12 th grade. Moreover,

the exclusion of students enrolled in any examination coaching centre, it was 3 (2021) 5 SCC 370 4 “PwDs” 3

urged, would eliminate nearly every 10 th and 11th grade student since all

students are likely to be enrolled in coaching centres for preparation of

competitive entrance examinations.

6 The third and final grievance is that the Consortium has abdicated its positive

obligation to provide scribes for those candidates who are unable to engage or

find a scribe because of financial and other accessibility constraints.

7 Bearing in mind the fact that the CLAT is a nationwide examination and the

issues which were raised by the petitioner would affect PwD candidates in

general, this Court entertained the proceedings on 15 December 2022. At that

stage, the CLAT was scheduled two days thereafter, on 18 December 2022. In

response to a suggestion of the Court, requesting the Consortium to resolve the

issues which were raised before the Court, the following formulation was

submitted on its behalf before the Court :

“1 Pursuant to the judgment of the Hon’ble Supreme Court of India in Vikash Kumar v Union Public Service Commission and Others (2021) 5 SCC 370, the Consortium of National Law Universities (the “Consortium”) make the following reasonable accommodation for candidates appearing for the CLAT 2023 :

(i) with a specified disability covered under the definition in Section 2(s) of the Rights of Persons with Disabilities Act, 2016 (the “Act”) but not covered under the definition under Section 2(r) of the Act, i.e., persons having less than 40% specified disability, and

(ii) who have difficulty in writing.

2 Such candidates as aforesaid who have secured a government medical certificate/disability certificate indicating that they fall within the category described in para 1 above may be permitted the assistance of a scribe to write the CLAT 2023. Any such candidate may apply to the Coordinator having charge over their allotted Test Centre by 4

email.

3 Any scribes must meet the qualification criteria for scribes set out in the Consortium’s ‘Guidelines for Persons with Benchmark Disabilities (“PwDs”) / Specially Abled Persons (“SAPs”) dated November 24, 2022.

4 The Consortium shall also provide appropriate support to those candidates with benchmark disabilities and candidates described in para 1 above who request such facilities, on a case-by-case basis, in order to complete the CLAT 2023 successfully. In the event any such candidate requires any support in this regard, they may contact the Consortium at clat@consortiumofnlus.ac.in.

5 This statement shall be circulated to all candidates appearing for the CLAT 2023 at their registered email address with immediate effect.”

8 This Court directed that the above statement would guide the conduct of the

ensuing examination. The first respondent was directed to ensure that no

disabled student is denied access to the ensuing examination and that all

necessary facilities by way of reasonable accommodation are provided, having

regard to the provisions of the Rights of Persons with Disabilities Act 2016 and

the judgment of this Court in Vikash Kumar (supra). The first respondent was

also directed to place an updated status report including the number of disabled

candidates who applied in the ensuing CLAT and the facilities which were

extended to them.

9 In pursuance of the above directions, an affidavit has been filed by the

Consortium. An affidavit has also been filed in these proceedings by the Union of

India in the Department of Empowerment of Persons with Disabilities 5 of the

Ministry of Social Justice and Empowerment6.

5 “DEPWD” 6 “MSJE” 5

10 Following the decision of this Court in Vikash Kumar (supra), by an Office

Memorandum dated 10 August 2022, guidelines have been formulated by the

MSJE. This was in pursuance of an expert committee which was constituted to

implement the decision in Vikash Kumar. Paragraph 3 of the Office

Memorandum is extracted below :

“3. The Committee accordingly recommended the following guidelines for conducting written examination for persons with specified disabilities covered under the definition of Section 2(s) of the RPwD Act, 2016 but not covered under the definition of Section 2(r) of the said Act, i.e. persons having less than 40% disability and having difficulty in writing:-

(a) These guidelines may be called as Guidelines for conducting written examination for persons with specified disabilities covered under the definition of Section 2(s) of the RpwD Act, 2016 but not covered under the definition of Section 2(r) of the said Act, i.e. persons having less than 40% disability and having difficulty in writing.

(b) The facility of scribe and/or compensatory time shall be granted solely to those having difficulty in writing subject to production of a certificate to the effect that person concerned has limitation to write and that scribe is essential to write examination on his/her behalf from the competent medical authority of a Government healthcare institution as per proforma at Appendix-I.

(c) The medical authority for the purpose of certification as mentioned in point (b) above should be a multi-member authority comprising the following:-

i. Chief Medical officer/Civil Surgeon/Chief District Medical Officer.....Chairperson ii. Orthopedic/PMR specialist iii. Neurologist, if available* iv. Clinical Psychologist/Rehabilitation Psychologist/ Psychiatrist/Special Educator v. Occupational therapist, if available* vi. Any other expert based on the condition of the candidate as may be nominated by the Chairperson.

(* the Chief Medical Officer/Civil Surgeon/Chief 6

District Medical Officer may make full efforts for inclusion of neurologists, occupational therapist from the nearest District or the Medical College/Institute, if the same is not available in the District)"

(d) The candidate should have the discretion of opting for his own scribe or request the Examination Body for the same. The examination body may also identify the scribe to make panels at the District/Division/State level as per the requirements of the examination. In later instances the candidates should be allowed to meet the scribe two days before the examination so that the candidates get a chance to check and verify whether the scribe is suitable or not.

(e) In case the examination body provides the scribe, it shall be ensured that qualification of the scribe should not be more than the minimum qualification criteria of the examination. However, the qualification of the scribe should always be matriculate or above. In case the candidate is allowed to bring his own scribe, the qualification of the scribe should be one step below the qualification of the candidate taking examination. The person opting for own scribe should submit details of the own scribe as per proforma at Appendix-II.

(f) There should also be flexibility in accommodating any change in scribe in case of emergency. The candidates should also be allowed to take different scribe for writing different papers especially for languages. However, there can be only one scribe per subject.

(g) The candidate should be allowed to use aids and assistive devices such as prosthetics & orthotics, hearing aid as mentioned in para 2 of the certificate issued by medical authority as per Appendix I.

(h) Compensatory time not less than 20 minutes per hour of the examination should be allowed for persons who are eligible for getting scribe. In case the duration of the 3 examination is less than an hour, then the duration of the compensatory time should be allowed on pro-rata basis. Compensatory time should not be less than 5 minutes and should be in the multiple of 5.

(i) The examination bodies shall modify their application forms to incorporate specific needs of this category of persons. In case, any incident has been reported after filling up the form, the examination bodies shall inform the candidates to obtain medical certificate as per these 7

guidelines for facilitating grant of scribe and/or compensatory time.

(j) As far as possible the examination for such persons may be held at ground floor. The examination centres should be accessible for persons with disabilities.

(k) These guidelines are applicable to written examinations conducted by central recruitment agencies as well as academic institutions. The States/UTs may adopt these guidelines or issue similar guidelines to maintain uniformity.

(l) These guidelines are independent of the Guidelines for conducting written examination for persons with benchmark disabilities issued by the Department of Empowerment of Persons with Disabilities on 29.08.2018.

(m) The examining bodies shall ensure strict vigilance to check misuse of facility of scribe.”

11 Paragraph 4 of the Office Memorandum stipulates that all recruitment agencies,

academic/examination bodies under the administrative control of each

Ministry/Department may be advised appropriately to ensure compliance of the

guidelines.

12 In pursuance of the interim directions of this Court, the Consortium extended

necessary facilities to PwD candidates in terms of the statement which was

tendered before this Court.

13 The issue which now survives is with regard to the modalities which would be

followed for future examinations to be conducted by CLAT.

14 The first aspect which has been drawn to the attention of the Court is that the

CLAT advertisement was issued on 28 August 2022 and the registration closed

on 18 November 2022. The Consortium issued its set of guidelines on 24 8

November 2022 and the entrance test was conducted on 18 December 2022.

15 Mr Nikhil Nayyar, senior counsel appearing on behalf of the petitioner, submits

that the above sequence of events would indicate that the guidelines were

issued over three months after the initial advertisement notifying CLAT. There is

no reason, it was urged, why the guidelines could not be issued together with the

advertisement so as to ensure that PwD candidates are not reduced to a state of

uncertainty in regard to the facilities which should be made available to them

during the course of the entrance test.

16 There is a considerable degree of merit in the above submission. As a matter of

fact, we may also note that Mr Siddharth Aggarwal, senior counsel appearing on

behalf of the Consortium has also fairly submitted that the guidelines could have

been notified much earlier so as to provide certainty to the students appearing

for the entrance test.

17. We accept the submission which has been urged on behalf of the petitioner and

direct that in future, the guidelines which shall be applicable for the facilities

which should be extended to PwD candidates are to be notified sufficiently in

advance and, in any event, together with the advertisement by which the

schedule for the CLAT is placed in the public domain. This would ensure that

candidates are not left in a state of uncertainty and know precisely the nature of

the facilities and reasonable accommodation which has been made available to

them consistent with the provisions of the Rights of Persons with Disabilities Act

2016.

18 During the course of hearing, Mr Nikhil Nayyar, senior counsel has placed certain 9

suggestions on the record. Mr Nayyar states that some of these suggestions

have already been incorporated in the interim directions of this Court dated 15

December 2022 as well as in the guidelines of the Ministry of Social Justice and

Empowerment dated 10 August 2022.

19 We direct that CLAT shall, in the future, formulate the modalities in a manner

consistent with its formulation which was placed on the record before this Court

so as to obviate any inconvenience to PwD candidates. The consortium shall also

take due steps to ensure that its guidelines are consistent with the Office

Memorandum dated 10 August 2022 issued by the Ministry of Social Justice and

Empowerment, Department of Persons with Disabilities. This Court has been

apprised of the fact that the consortium also makes arrangements to provide a

scribe to any candidate with disabilities who is unable to secure a scribe on his

own so as to ensure that no candidate would unable to appear in the entrance

test.

20 The guidelines which have been prescribed by the Consortium stipulate that the

scribe who is engaged by a candidate should not (a) qualified above the 11 th

standard or (b) affiliated to any test-preparatory organization or examination

coaching centre. The above guideline is sought to be challenged on the ground

that the Office Memorandum dated 10 August 2022 issued by the Ministry of

Social Justice and Empowerment stipulates only that if the examination body

provides a scribe, it shall be ensured that qualification of the scribe is not more

than the minimum qualification criteria of the examination. However, the Office

Memorandum provides that the qualification of the scribe should always be

matriculate or above. The Office Memorandum also states that in case the 10

candidates are allowed to bring their own scribe, the qualification of the scribe

should be one step below the qualification of the candidate taking the

examination.

21 Mr. Nikhil Nayyar, senior counsel submitted that the restriction which has been

imposed by the Consortium to the effect that the scribe should not be above the

11th standard or be affiliated to any test-preparatory organisation or coaching

centre is irrational.

22 On the other hand, Mr. Siddharth Aggarwal, senior counsel appearing on behalf

of the consortium, emphasised the circumstances in which such a restriction has

been imposed. Senior counsel submitted that the entire examination consists of

Multiple Choice Questions (MCQs).

In this backdrop, it is necessary, in order to maintain the integrity and sanctity of

the examination, that the scribe does not provide independent answers to the

MCQs based on their own knowledge or experience and hence the twofold

restriction has been imposed. Moreover, it has been submitted that in any event,

if a candidate has any difficult in engaging a scribe, the Consortium is ready and

willing to provide a scribe so that the candidate is not prevented from appearing

for the entrance test.

23 The affidavit which has been filed on behalf of the Consortium indicates that at

the CLAT which was conducted on 18 December 2022, 292 candidates belonged

to the PwD category. Of these candidates 211 appeared for the under graduate-

CLAT while 81 candidates appeared for the post graduate-CLAT. 49 candidates

brought their own scribe. There were 33 requests for providing additional

accommodation including 16 requests for the provision of a scribe. The 11

Consortium provided a scribe in 15 instances whereas one candidate withdrew

the request for a scribe.

24 In a situation such as the present, the Court must have due regard, undoubtedly

to the need for reasonable accommodation consistent with the provisions of the

Rights of Persons with Disabilities Act, as interpreted in the decision in Vikash

Kumar (supra). Equally, it would not be appropriate to ignore the genuine

concerns which have been set up on behalf of the Consortium bearing on the

need to maintain the integrity of the entrance test.

25 It is from this perspective that the consortium has, in its guidelines required that

the candidate should not be above the 11 th standard and in addition should not

be affiliated with any test-preparatory or examination coaching centre. At the

highest, a candidate could have a grievance if no such scribe meeting the said

description is available. But as already noted above, the Consortium has taken

upon itself the obligation to provide a scribe who meets with the stipulations

which are contained in the Guidelines.

26 In other words, candidates appearing for the CLAT can either bring their own

scribe or if it is not possible to do so, request the Consortium to provide a scribe

who is then made available to the candidate. During the course of the hearing, it

has been agreed that where the Consortium provides a scribe, at least two days’

time should be provided so as to enable the candidate to interact with the scribe.

We are of the view that this is fair and proper. The scribe is required in the case

of a visually challenged candidate to read out and write the responses to the

MCQs. In order to familiarise the scribe and the aspirant candidate, it is but

proper that sufficient time for interaction of two days should be provided. The 12

guidelines also make a similar stipulation.

27 We, therefore, allow the request of the Consortium to the extent of its assertion

that the scribe who is selected should not be qualified above the 11 th standard

and should not be associated with any test-preparatory organisation or

examination coaching centre.

28 The nature and contents of the Guidelines cannot be frozen for the future. The

Consortium would be at liberty to modify the Guidelines bearing in mind the

exigencies of the situation and the constantly evolving nature of the knowledge

and experience gained in conducting CLAT particularly in the context of the

rights of PwD candidates. In the event that any further difficulties are

encountered by PwD candidates, those may be brought to the notice of the

Consortium well in advance so that suitable remedial measures can be taken

consistent with their statutory entitlements.

29 The Writ Petition and the Miscellaneous Application are accordingly disposed of.

30 Pending applications, if any, stand disposed of.

…...…...….......………………....…CJI.

[Dr Dhananjaya Y Chandrachud]

…...…...….......………………....…..J. [Pamidighantam Sri Narasimha]

…...…...….......………………....…..J. [J B Pardiwala] New Delhi;

March 17, 2023 GKA 13

ITEM NO.10 COURT NO.1 SECTION PIL-W

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Writ Petition(s)(Civil) No(s). 1109/2022

ARNAB ROY Petitioner(s)

VERSUS

CONSORTIUM OF NATIONAL LAW UNIVERSITIES & ANR. Respondent(s)

(FOR ADMISSION and IA No.194884/2022-EX-PARTE STAY)

WITH

Diary No(s). 8493/2023 (XIV-A)

Date : 17-03-2023 These matters were called on for hearing today.

CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE PAMIDIGHANTAM SRI NARASIMHA HON'BLE MR. JUSTICE J.B. PARDIWALA

For Petitioner(s) Mr. Nikhil Nayyar, Sr. Adv.

Mr. N. Sai Vinod, AOR Mr. Abhinav, Adv.

By Courts Motion, AOR

For Respondent(s) Mr. Siddharth Aggarwal, Sr. Adv.

Mr. Arun Sri Kumar, Adv.

Ms. Pritha Srikumar, AOR Mr. Anirudh G., Adv.

Ms. Arshiya Ghose, Adv.

Mrs. Lalita Kaushik, AOR

Mrs. Aishwarya Bhati, A.S.G. Mr. Aman Sharma, Adv.

Mr. Yashraj Singh Bundela, Adv.

Mr. Manvinder Singh Rathore, Adv.

Mr. Manvendra Singh Rathore, Adv.

Mr. Shashwat Parihar, Adv.

Mr. Shaswat Parihar, Adv.

14

Mr. Amrish Kumar, AOR

Mr. Raj Bahadur Yadav, AOR

UPON hearing the counsel the Court made the following O R D E R

1 The Writ Petition and the Miscellaneous Application are disposed of in terms of

the signed reportable judgment.

2 Pending applications, if any, stand disposed of.

(GULSHAN KUMAR ARORA) (SAROJ KUMARI GAUR) AR-CUM-PS ASSISTANT REGISTRAR

(Signed reportable judgment is placed on the file)