Notice sent to the Centre and State requesting the extension of facilities to every disabled individual in need of special assistance, regardless of the degree of their condition by the Kerala High Court in the case of Blessen Baby v. Union of India (WP(C) No. 25081 of 2022) through Division Bench of S. Manikumar CJ., and Shaji P. Chaly, J.
FACTS OF THE CASE
The petitioner, a person with a 25% learning disability, had come before the court with the claim that the State Government has not created any regulations for students with disabilities as required by the High Court in Blessen Baby v. State of Kerala, 2020, and that the disability criteria for students needing special assistance in State Government schools for the SSLC (Secondary School Leaving Certificate) and Higher Secondary Examinations is still 40% or above.
Notably, when the petitioner was a student in Class X, the authorities denied his request for a scribe under Sections 4(2) and 17(i) of the Right of Persons with Disabilities Act, 2016, for the public examination on the grounds that the disability needed to be at least 40% severe in order to qualify for assistance from a scribe for the SSLC exam in 2020.
The petitioner passed his Xth and XIIth standard exams with the help of a scribe in accordance with the Court’s instructions.
Regarding the State’s claim that it had already published guidelines on the subject of granting accommodations to candidates with special needs who had a 40% or greater disability, the petitioner argued that regardless of the degree of disability, the advantages of the Court’s earlier judgement could be extended to all students who needed extra help in SSLC as well as the first and second years of Higher Secondary exams.
The Supreme Court noted in Avni Prakash v. National Testing Agency (NTA), 2021 that despite the legal position being clarified in Vikash Kumar v. Union Public Service Commission, the law is still being broken and NTA has continued to limit the grant of facilities to just those with Benchmark Disability (PwBD). The Supreme Court gave certain instructions to address the difficulties experienced by people with disabilities. The Court said that PwBD are eligible for the reservation option under Section 32 of the Rights of Persons with Disabilities (RPwD) Act, 2016.
The Court also said that Other facilities for PwD that are included in the RPwD Act, 2016, cannot be restricted in this way by an administrative order since that would be against the law. Individual injustices stemming from an illegal denial of legal rights and entitlements cannot be erased on the pretext that they are a necessary result of a competitive test. To be extremely cautious, it is made clear that the idea of benchmark disability still applies in order to be eligible for the reservation under Section 32 of the RPwD Act, 2016 or an upper age relaxation as anticipated by the provisions.
When the petitioner was being heard, the court in the Blessen Baby case had instructed the state government to review the current guidelines issued by the Kerala government and to issue new guidelines after taking note of the guidelines issued or to be issued by the Ministry of Social Justice and Empowerment, Union government in accordance with the directives issued by the Supreme Court in Vikash Kumar v. Union Public Service Commission. Thus, the Court had given the Union Government and the State of Kerala notice in light of the aforementioned.
Therefore, the Court sent notice to the Union Government and the State of Kerala in a PIL asking for the provision of services to every person with a disability in need of special help regardless of the percentage of disability.
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JUDGEMENT REVIEWED BY NISHTHA GARHWAL