2024 INSC 836 Page 1 of 45

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 12110 of 2024

(Arising out of Special Leave Petition (C) 21942 of 2024)

Om Rathod …Appellant

Versus

The Director General of Health Services & Ors. …Respondents

Page 2 of 45

J U D G M E N T

Dr Dhananjaya Y Chandrachud, CJI

Table of Contents

A. Background ................................................................................................... 3

B. Pillar to post: scaling the ramparts of courts and hospitals .................... 5

C. The maze to inclusion: RPWD Act and guidelines .................................. 15

D. Principle of fair assessment of competence: reasonable

accommodation and the functional competence model ................................ 19

E. Building bridges for the nation: principle to practice ............................. 31

F. Conclusions ................................................................................................ 42

PART A

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The Stage

We didn’t go up to the stage

no one asked us, actually

only by pointing fingers

they showed us our place

and we sat there;

‘great’, they exclaimed.

And they went up on the stage

started narrating us our own sorrows

but, ‘our sorrows remained ours

never became theirs…’

– Waharu Sonavane

1

A. Background

1. Legal principles and their application often stand at opposite banks of the river.

The distance between them is manifest before us. The appellant has undergone

a crash course in navigating the Indian legal system - from statutory

prescriptions, regulatory stipulations, High Court adjudication, regulatory and

court ordered disability assessments to the race to justice before this Court.

Four assessments later - the appellant’s fate now hangs in the balance and this

Court is asked to interfere to ensure that the balance does not tilt unfavourably

and fall into disarray. Vital foundational questions have been thrown open for

debate before this Court. What is expected of an Indian medical graduate? Can

a person with disability aspire to meet these expectations? O r is their only

option to resign their fate to a society that places a premium on disabled bodies

- every step of the way? Academic and practical rigour of the medical profession

notwithstanding, should the journey of an Indian to navigate their way into the

1

Poem translated from its original version in Marathi – written in the context of the tribal movement

being co- opted by persons who claim to speak on their behalf while simultaneously othering them.

PART A

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medical profession be this arduous? Is our collective obsession with disability

too strong to focus on a person’s ability ? Is our nation ready to benefit from the

talent and experiences of persons with disabilities ? Or should we continue to

sacrifice them at the altar of technicalities?

2. We answer these questions by rooting them in the web of Constitutional law

principles, statute, regulatory framework and guidelines which are germane for

this case. The bone of contention before us turns on the manner in which the

Disability Assessment Boards must function while certifying the eligibility of a

candidate for the MBBS course. The appellant has lower limb myopathy - a

locomotor disability. The appellant has been an academic success. He secured

an A1 grade in his matriculate (Class X) and intermediary (Class XII)

examination held by the Central Board of Secondary Education. He aspires,

now, to enter the medical profession. With this resolve, the appellant appeared

for the NEET UG Examination 2024 on 5 May 2024 under the unreserved/EWS-

PwD category and secured 601 marks (out of a total marks of 720). This placed

the appellant at an all India PwD rank of 84 and a State PwD rank of 4. Despite

having a Disability Certificate dated 24 January 2021 which was to be valid until

2025 – the appellant submitted himself to the mandatory assessment to get his

eligibility certified by a designated medical board at AIIMS, Nagpur. Appendix

"H-1" of the Guidelines regarding admission of students with ‘Specified

Disabilities’ under the Rights of Persons with Disabilities Act, 2016 with respect

to admission in MBBS Course prescribes that persons having over eighty

percent disability may be admitted to a medical course on a case by case basis

PART B

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after assessing their functional competence to navigate academic and practical

requirements.

3. The medical board at AIIMS, Nagpur comprised of an Associate Professor in

Physical Medicine and Rehabilitation; an Assistant Professor of Orthopaedics;

and a Professor who was the Chairman of the Disability Board at AIIMS,

Nagpur. The Board, by a NEET Disability Certificate dated 13 August 2024,

opined that the appellant is 88% disabled and is therefore ineligible to pursue

an MBBS/Dental course.

B. Pillar to post: scaling the ramparts of courts and hospitals

4. Aggrieved by this, the appellant filed a writ petition under Article 226 of the

Constitution before the Nagpur bench of the High Court of Judicature at

Bombay, challenging the NEET Disability Certificate issued by AIIMS, Nagpur.

The High Court by the impugned judgment dated 3 September 2024 dismissed

the writ petition and held that the certification of the degree of disability was in

accordance with prescribed procedures. The appellant challenged the

impugned judgment by a petition for special leave before this Court under

Article 136 of the Constitution.

5. On 3 October 2024, this Court directed the appellant to appear before a medical

board at AIIMS, Delhi to reassess him keeping in mind the circular issued by

the first respondent on 24 March 2022. The circular inter alia made mandatory

directions to include a doctor or health professional with disability in every

Disability Assessment Board. The appellant accordingly reported to AIIMS,

Delhi at 11 AM on 5 October 2024. The five member board submitted its report

PART B

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dated 9 October 2024 inter alia finding that there were no changes in most

disability components despite assistive devices. The report also stated that

there are no clear guidelines available to assess the disability with assistive

devices. The report states as follows:

“The candidate was re- assessed with the

assistive device (single hand crutch & motorised

scooty). There was minimal to no change in most

of the components for disability evaluation as per

the GOI gazette (March 2024) with these

assistive devices. The possibility of wheelchair

usage was also explored which might be required

for better efficiency in ambulation component in

near future. However, there are no clear

guidelines available to assess the disability with

assistive devices as per the Govt. of India gazette

guideline. Further it is to be noted that safety,

efficiency and agility of movements are needed to

independently use the devices and many times

some manual support is also required which may

not be available to the candidate at all times and

may affect the safety of the candidate and the

patients during the skills based training provided

in the various setups in the labs and hospitals

during the MBBS course training. The Board after

careful evaluations of all possibilities concurs with

the opinion of the previous medical board held at

AIIMS Nagpur dated 13.08.2024 that the

disability is above 80% even with consideration of

assistive devices and also both upper limbs have

significant involvement and hence the candidate

is ineligible to pursue MBBS course.”

6. The appellant in his affidavit countering the AIIMS, Delhi report has elucidated

his experience. He submits that he was made to wait for long hours on each

date when he was asked to appear. He was not given clear directions or

information about the steps to follow in his assessment. The first stage of the

examination was conducted by an able bodied doctor from the PMR department

who was unduly focused on the medical condition of the appellant. He

PART B

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underwent a large number of tests including climbing stairs and power

assessment. When the appellant informed the Board that he used (i) a

wheelchair, (ii) crutches, and (iii) an electric scooter for mobility, he was asked

why he did not bring his wheelchair. To this, the appellant stated that bringing

a wheelchair was not logistically possible given that he had travelled from his

place of residence at Washim in Maharashtra to Delhi by air, on short notice.

7. The Board did not ask him any questions which would allow the appellant to

counter the basis for the Board' s findings. He was only asked (i) if he would be

able to undertake his professional duties and (ii) if he could conduct his daily

activities. He responded positively to both and stated that he had already

completed his secondary education with the same disability and had managed

to navigate adequately thus far. Eventually, the AIIMS, Delhi report dated 9

October 2024 fell into the error of being a mere benchmark evaluation report.

The report adjudged the disability of the appellant to be 80% - down from 88%

which was reported by AIIMS, Nagpur on 13 August 2024. While the AIIMS,

Nagpur report did not evaluate the appellant with assistive devices to assess

his functional ability, the AIIMS Delhi report did use these devices but ultimately

opined that there were no government guidelines on the use of such devices.

8. By an order dated 18 October 2024, this Court noted the statement of AIIMS,

Delhi on the lack of clear guidelines and observed that the AIIMS report failed

to evaluate the (i) extent of functional disability of the appellant; and (ii) the

extent to which the use of assistive devices would have the potential to bring

the functional disability within the permissible limits in terms of the government

notification.

PART B

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9. Relying on the judgment of this Court in Omkar Ramchandra Gond v. Union

of India,

2

we requested Dr Satendra Singh of Infinity Ability to assist the Court

on whether notwithstanding the quantified disability, the appellant can pursue

the MBBS degree course. In arriving at his evaluation, Dr Satendra Singh was

requested to examine the appellant and to have due regard to such assistive

devises and their potential to assist the appellant to fulfil the requirements of

the degree course in medicine.

10. The appellant made himself available at the University College of Medical

Sciences and Guru Teg Bahadur Hospital, University of Delhi at 10 AM on 19

October 2024. He was made to undergo functional assessment and was asked

to demonstrate his competence at the Medical Simulation Centre at the

Physiology and Pathology central lab. Dr Satendra Singh gau ged the

accommodations necessary for the appellant by interacting with him to

understand his limitations and barriers. Accordingly, the following premises

were established in assessing the appellant :

“Disability: Limb Girdle Muscular Dystrophy (mobility-

related physical disability)

Potential Functional limitations: Inability to stand for

long hours; difficulty in standing suddenly from sitting

position

Potential Barriers to learning: Lack of accessible

spaces

What is being assessed: Cognitive, psychomotor and

affective skills and ability to arrive at a diagnosis using

patient history and examination in line with NMC’s five

roles of an Indian Medical Graduate in CBME

Appropriate and reasonable accommodation:

Given the tight space of clinical environments,

smaller/compact scooters are a good choice which Om

is already using. This will allow him to continue with the

pace and demands of a busy ward/OPD/OT

independently and is much superior than a manual

2

2024 SCC OnLine SC 2860.

PART B

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wheelchair which is often dependent on human

assistance.”

11. Dr Satendra Singh submitted his report on 20 October 2024. This Court duly

furnished the report to the second respondent, National Medical Council, on 21

October 2024 to enable them to formulate their response. The report by Dr

Satendra Singh outlined the functional disability of the appellant to be an

inability to stand independently which may prove limiting in clinical rotations in

surgical settings. The report suggested solutions to enable the appellant in such

cases. The report further suggested clinical accommodations for the appellant

to reduce the barriers he may encounter. The report determined the

accommodations necessary for the appellant to be reasonable and in

compliance with existing norms. The report formulated four questions and

answered them as follows:

“a) Would the proposed accommodation result in a

failure to meet the NMC CBME’s inherent

requirements? Not in my opinion

b) Would the accommodation legitimately jeopardize

patient safety? Not in my opinion

c) Would the proposed accommodation result in the

improper waiver of a core requirement of the CBME?

Not in my opinion

d) Would the proposed accommodation pose an undue

hardship on the medical college (budgets wise)? Not in

my opinion”

12. In stark contrast to the approach of the two AIIMS reports, when Dr Satendra

Singh assessed the appellant on the request of this Court, he carried out a

functional assessment. The process to determine the clinical accommodation

for the appellant involved having a frank conversation with him about the

barriers he faces - physical, educational and attitudinal. The approach adopted

was not whether the appellant would succeed in a medical college but was

PART B

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rather to ensure that the appellant has equal opportunity and can start at the

same level playing field as his classmates. After determining the

accommodations needed by the appellant through an interview process, some

questions were posed to him. These questions were as follows:

"i. How does muscular dystrophy impact you in daily

life?

ii. How have you mitigated this impact in an educational

setting (Class X,XII)?

iii. What, if anything, exacerbates or worsens your

disability?

iv. Do you anticipate needing to receive treatment such

that you may need to “step out” of the curriculum at

some point to attend to disability-related needs?

v. Have you ever seen a clinical setting, or do you

anticipate additional barriers during the clinical portion

of your MBBS? (prompted with example competencies)

vi. Have you reviewed the MBBS curriculum? If not, we

can do this together to identify any potential barriers.

vii. Have you ever used assistive technology to mitigate

the impact of your disability?

viii. Are you aware of adaptive equipment used to

navigate the clinical environment.

ix. What are your biggest concerns about entering the

MBBS program?

x. What is your understanding of reasonable

accommodation which you repeatedly mentioned in

your affidavit."

13. Based on the preliminary conversation, the report noted that the appellant is

concerned about the differential treatment which was meted out to him by

previous Disability Assessment Boards despite him having successfully

navigated with the disability for his entire life. The appellant was surprised that

he was being doubted and his accomplishments questioned without being

afforded an opportunity with simulation labs and reasonable accommodations.

14. The appellant was then made to undergo a functional assessment which

included being given various instruments which he would be required to use in

his course and profession. The nature of the tasks given to the appellant shows

PART B

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that they were done in progression, with basic instruments being given first,

followed by the use of assistive devices to examine his abilities and then being

tested in other, more complex tasks. The report states as follows:

"1.4 Functional assessment: Om was first shown how

to record blood pressure using a mercury

sphygmomanometer, how to elicit reflexes, and how to

use a tuning fork to check for deafness. He was then

asked to demonstrate these skills, which he

successfully did, showing his eagerness to learn after

just one demonstration. Next, he was given a foldable

crutch to test whether it could assist him in standing

from a seated position, but I observed that he has

developed his own coping mechanisms to navigate

physical barriers. This is often an innovative strategy

used by people with disabilities in environments that

are not fully accessible.

He was then taken to the laboratory and asked to reach

examination tables of three different heights. He was

able to access two of them, demonstrating that an

adjustable examination table would be a suitable

clinical accommodation for him.

Afterward, he was taken to our Medical Simulation

Centre, where he was shown how to perform

Cardiopulmonary Resuscitation (CPR) in a simulated

real-life scenario of a person lying on the floor after a

heart attack. After the demonstration, Om sat down on

the floor to perform CPR. Considering it was his first

experience in such a lab (h is previous two

assessments did not involve simulation), and to make

the situation less intimidating, he was first guided on a

baby mannequin, which he successfully managed. He

also succeeded in giving an intravenous and

intramuscular deltoid injection, as well as inserting a

cannula after a demonstration. Please find some

pictures below.

For Om, who uses a mobility scooter, the functional

limitation lies in his inability to stand independently.

This may pose a challenge during clinical rotations in

surgical settings, where he would need to be at

standing height to observe procedures. Potential

solutions could include using a standing or hydraulic

wheelchair, providing remote visual access to the

surgery via a monitor, or arranging for all parties to sit

during minor surgeries. These accommodations can

help mitigate barriers without imposing undue burden.

The disability access appointee or Coordinator of the

Enabling Unit or Equal Opportunity Cell (as mandated

by the UGC) at Om's future medical college should

interact with him to propose these accommodations on

PART B

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an individual basis before the preclinical, paraclinical,

and clinical rotations begin."

15. The report thereafter gave detailed (but not exhaustive) suggestions for clinical

accommodations for the appellant during his course - for each of the years of

his education and the mandatory internship. The report finally outlined the

overall assessment of the appellant and declared him to be suitable, with

appropriate clinical accommodations, to pursue MBBS. The section of the

report on overall assessment reads as follows:

"4. Overall assessment

4.1 Throughout the assessment, Om’s diagnosed

muscular dystrophy has not interfered with his learning

or self-care. He quickly adapted to new situations and

found interesting and unique ways to complete tasks in

unfamiliar settings. For example, while initially

unfamiliar with the full extent of the physical skills

required in the MBBS program during the simulation lab

experience, Om expressed confidence that these

barriers could be easily mitigated using his existing

compensatory skills and creative approaches to

procedures.

As an 18- year-old who flew on an airplane for the first

time while traveling for reassessment in Delhi, Om

showed remarkable zeal and passion for becoming a

doctor and is suitable with appropriate clinical

accommodations to pursue MBBS.

Om should be given opportunities to demonstrate how

he can successfully navigate clinical environments.

Students with disabilities should be “Welcomed and

Valued,” as demonstrated by the General Medical

Council UK's guidelines on reasonable

accommodation (GMC, UK). The NMC should consider

implementing similar regulations to guide faculty and

minimize attitudinal barriers rooted in the medical

model of disability. In the post -RPDA (Rights of

Persons with Disabilities Act) era, with the advent of

technology, we must welcome and recognize the

competence of students with disabilities.

4.2 Progressive Disability – Is It a Concern?

Such concerns fall into the realm of ableism. It is “a

system of assigning value to people’s bodies and

minds based on societally constructed ideas of

normalcy, productivity, desirability, intelligence,

excellence, and fitness. These constructed ideas are

PART B

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deeply rooted in eugenics, anti-Blackness, misogyny,

colonialism, imperialism, and capitalism. This systemic

oppression that leads to people and society

determining people’s value based on their culture, age,

language, appearance, religion, birth or living place,

“health/wellness”, and/or their ability to satisfactorily

re/produce, “excel” and “behave.” You do not have to

be disabled to experience ableism” (Lewis, 2022).

In Iyer Seetharaman Venugopalan vs. Union of India,

the Bombay High Court initially denied an MD in

Psychiatry to a blind doctor who had retinitis

pigmentosa and progressively lost his vision. However,

thanks to the intervention of the Supreme Court

under Hon’ble CJI, he was allowed to pursue

Psychiatry and is now in his final year, doing

successfully. Similarly, Dr. Sharad Philip, who also

experienced progressive vision loss, successfully

completed his MD in Psychiatry from NIMHANS

Bangalore and is now a faculty member at AIIMS

Guwahati.

Om can similarly choose to either remain a general MBBS doctor or pursue a specialty that is less

physically demanding. Only he is best placed to take

this decision after completing MBBS. We should not

restrict a bright student on the basis of

assumptions and ableist beliefs."

16. Accordingly, the appellant was assessed to be eligible for pursuing the MBBS

course with assistive devices. The second respondent has fairly accepted the

eligibility of the appellant and has only joined issue with the fact that the

assessment of candidate by a doctor must comply with the rules formulated

under the statutory framework. These rules require the assessing doctor to be

a domain expert in disabilities. In the present case this Court requested Dr

Satendra Singh to assess the appellant which shall not be a precedent. To that

extent the submission of the second respondent is accepted. We may note that

this Court was constrained to order a functional competency test due to the

failure of the previous two Boards to apply the legally permissible standard. The

appellant shall not be made to undergo any further assessments as part of his

admission to the MBBS course. On 25 October 2024 this Court granted leave

PART B

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and directed that the appellant be permitted to participate in the ongoing

counselling process arising out of NEET UG 2024.

17. Unfortunately, this run hardly obviates further labour. The appellant finds

himself re-entering the NEET counselling process after a lapse of valuable time.

He was allocated a seat at the Dr Shankarrao Chavan Government Medical

College, Nanded in the first and second rounds of All India Level counselling.

Now, stray vacancies for the category of persons with disabilities at the All India

Level are available in only nine colleges, none of which are in the home State

of the appellant – Maharashtra. The appellant submits that none of the nine

colleges are compliant with accessibility norms and adequate support systems

necessary for him to enjoy a level playing field. The appellant now prays that

this Court create a seat for him at the college which he was allocated in the

initial rounds of counselling or for that matter at any college in Maharashtra. The

run of the appellant from Washim to Nagpur and Delhi accompanied by several

assessments now stands the chance of being fruitless. The appellant prays that

this Court exercises its power to do complete justice under Article 142 of the

Constitution. Additionally, the appellant prays that this Court may issue

directives on the manner in which the grievances of exclusion of disabled

candidates is to be considered inter alia by courts.

PART C

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C. The maze to inclusion: RPWD Act and guidelines

18. Section 32

3

of the Rights of Persons with Disabilities Act 2016

4

stipulates that

all Government and Government aided institutions of higher learning shall

reserve not less than five percent of seats for persons with benchmark disability.

The enactment of the RPWD Act in 2016 marked a paradigm shift in disability

law in India from charity based to a rights based approach. Accordingly, the

erstwhile Medical Council of India

5

formulated guidelines on admission of

persons with specific disability in MBBS courses. The Government of India

approved the proposal of the committee on 28 January 2019 and issued a

notification in the gazette on 5 February 2019.

19. The report stipulated the guidelines in Appendix “H” which laid down six

categories of locomotor disabilities including muscular dystrophy. All persons

with a locomotor disability above eighty percent were rendered ineligible for

medical courses. Appendix “H” was substituted by Appendix “H-1” on 13 May

2019. The amendment allowed persons with more than eighty percent

locomotor disabilities to pursue medical courses on a case to case basis. The

new appendix states as follows:

“Persons with more than 80% disability may also be

allowed on case to case basis and their functional

competency will be determined with the aid of

assistive devices, if it is being used, to see if it is

brought below 80% and whether they possess

3

“32. Reservation in higher educational institutions.—(1) All Government institutions of higher

education and other higher education institutions receiving aid from the Government shall reserve not

less than five per cent. seats for persons with benchmark disabilities.

(2) The persons with benchmark disabilities shall be given an upper age relaxation of five years for

admission in institutions of higher education.”

4

"RPWD Act"

5

"MCI"

PART C

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sufficient motor ability as required to pursue and

complete the course satisfactorily.”

(emphasis supplied)

20. The amended guidelines brought about a welcome change by eschewing from

a purely benchmark model to a functional ability model. For candidates with

more than eighty percent locomotor disability, the guidelines allow their

functional competency to be determined using assistive devices to see if it can

be brought below 80%. The second respondent has submitted that a new

committee will be constituted to recommend new guidelines for admission of

persons with disabilities into medical courses.

21. The report of the MCI (the erstwhile version of the second respondent) which

was the basis of the existing guidelines evidently fou nd itself working in the

remnants of the pre-RPWD Act legal regime. Besides making archaic

observations requiring persons with disabilities to ‘introspect and assess

themselves whether they are likely to meet MCI standards and outcomes’ the

guidelines also noted the definition of reasonable accommodation in Section

2(y)

6

of the RPWD Act. The reference was only to further state that the standard

of competence cannot be lowered in the name of accommodation. The

observations, made without specific context on the standard or the

accommodation in question, states as follows:

“MCI is aware of this provision and respects it.

However, MCI cannot agree to enforce reasonable

accommodation that would alter or lower the standard

of competence – which exists to protect patients – that

is required. Such an accommodation, if granted would

be ‘unreasonable’, and not reasonable. Moreover, in

some cases, even with reasonable accommodation, it

6

“(y) “reasonable accommodation” means necessary and appropriate modification and adjustments,

without imposing a disproportionate or undue burden in a particular case, to ensure to persons with

disabilities the enjoyment or exercise of rights equally with others;”

PART C

Page 17 of 45

may not be possible for every disabled medical student

to successfully and safely undertake all stages of

medical education and training ”

22. From promoting self-rejection of disabled medical aspirants to assuming that

their accommodations would lower the standard of competence and would

regardless be fruitless – the guidelines have charted their way into disrepute.

Vitally, the resistance to alter the standard in a framework that has historically

effaced a marginalised group – namely disabled persons other than in the

capacity of a patient – is antithetical to any rights based approach to disability

law. Many other issues of critical importance arise from these guidelines which

are not germane to evaluate the case before us but may be open for an

appropriate proceeding.

7

The current guidelines allow persons with more than

eight percent locomotor disability to be admitted to MBBS course on a case by

case basis after a functional competency to see whether their disability can be

'brought below 80%.' Before proceeding to analyse this guideline, it is essential

that we clarify the phrase ‘brought below 80%’.

23. The intention of the guideline in using the term 'brought below 80%' is ostensibly

to mean that the functional assessment shall evaluate if the person with

disability can perform the tasks which they are expected to perform as a student

and a practitioner. The assumption in using the phrase 'below 80%' defeats the

purpose of the guideline which is to allow candidates into the MBBS course on

a case by case basis. Bodies are not biological parts put together – each to

serve a pre- determined role. They are alive – with thoughts, feelings, dreams

7

See Singh S, Medical Council of India’s new guidelines on admission of persons with specified

disabilities: Unfair, discriminatory and unlawful. Indian J Med Ethics. 2019 Jan- Mar; 4(1) NS: 29-34.

DOI: 10.20529/IJME.2018.064.

PART C

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and aspirations. All bodies – abled and disabled – are guaranteed dignity under

the Constitution. A person with disability has to navigate the rigours of a society

which was modelled on the premise of their absence. The disability of a person

is a reflection on the inaccessibility of the society and not a comment upon the

individual. A person does not overcome disability but learns to navigate life with

it. Disability is not a thing to be overcome or brought down, but an attribute to

be acknowledged and accommodated. The use of the term ‘brought below

80%,’ as well intentioned as it may be, fails at this foundational premise. One

cannot assume that all persons with more than 80% locomotor disability are

incompetent to pursue medicine when their functional abilities have not been

assessed. The medical model of disability apparent in the phrase must give way

to a social model of disability which takes into account the variety of

experiences and outcomes which persons with disabilities have when they

interact with different kinds of societies and accommodations.

24. In Nipun Malhotra v. Sony Pictures,

8

this Court opined that words cultivate

institutional discrimination and that the language of our discourse ought to be

inclusive rather than alienating. When it comes to rights – language matters.

Words may not always adequately reflect the intention of the drafter. Some

words may be used unwittingly, without knowledge of their harmful

consequences. Nevertheless, these words influence the thinking of others who

hear them. Words are the tools one deploys to formulate thoughts. An

expansive vocabulary allows people to think and articulate their thoughts better.

When we use appropriate and sensitive language, we aspire for the quality of

8

2024 INSC 465, para 74.

PART D

Page 19 of 45

our thought to be broadened and evolve towards being emancipatory and

inclusive.

D. Principle of fair assessment of competence: reasonable

accommodation and the functional competence model

25. The guidelines (Appendix “H-1”) stipulate that the functional competence of an

aspirant with a locomotor disability above eighty percent may be assessed with

the help of assistive devices. A purposive interpretation of this guideline requires

us to interpret it in light of the legislative intent of the governing statute, namely,

the RPWD Act. The RPWD Act is a watershed legislation for disability rights in

India. It honours India’s commitment at the international level under the

Convention on Rights of Persons with Disability. The preambl e to the RPWD Act

states that:

“…AND WHEREAS the aforesaid Convention lays

down the following principles for the empowerment of

persons with disabilities,–

(a) respect for inherent dignity, individual autonomy

including the freedom to make one’s own choices,

and independence of persons;

(b) non-discrimination;

(c) full and effective participation and inclusion in

society;

(d) respect for difference and acceptance of persons

with disabilities as part of human diversity and

humanity;

(e) equality of opportunity;

(f) accessibility;

(g) equality between men and women;

(h) respect for the evolving capacities of children with

disabilities and respect for the right of children with

disabilities to preserve their identities;..."

PART D

Page 20 of 45

26. The Act harmonises the Constitutional promise of full citizenship with action -

by creating a framework in which persons with disabilities may translate their

rights into remedies. To establish a bed of rights, Section 2 of the Act defines

and acknowledges barriers,

9

discrimination,

10

inclusive education

11

and

reasonable accommodation.

12

Section 3 of the Act affords the right to equality

and non- discrimination for persons with disabilities . The requirement of

assessing the functional competence of a medical aspirant with over eighty

percent locomotor disability recognises that assessment must be done on a

case to case basis. The method of assessment by designated D isability

Assessment Boards must therefore reflect the approach and intent of the legal

framework within which the Boards operate. An assessment for functional

competency entails an analysis of the skill set which a person with disability

must learn in order to compete and pursue the medical course. This is a marked

difference from requiring a specific manner which a candidate must use to

achieve the outcome. For example, a functional competency model would

require a candidate to effectively communicate with patients but would not

require them to have speech or intact hands. By focusing on the end points, the

9

"(c) “barrier” means any factor including communicational, cultural, economic, environmental,

institutional, political, social, attitudinal or structural factors which hampers the full and effective

participation of persons with disabilities in society;"

10

"(h) “discrimination” in relation to disability, means any distinction, exclusion, restriction on the basis

of disability which is the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise

on an equal basis with others of all human rights and fundamental freedoms in the political, economic,

social, cultural, civil or any other field and includes all forms of discrimination and denial of reasonable

accommodation;"

11

"(m) “inclusive education” means a system of education wherein students with and without disability

learn together and the system of teaching and learning is suitably adapted to meet the learning needs

of different types of students with disabilities;"

12

"(y) “reasonable accommodation” means necessary and appropriate modification and adjustments,

without imposing a disproportionate or undue burden in a particular case, to ensure to persons with

disabilities the enjoyment or exercise of rights equally with others;"

PART D

Page 21 of 45

approach avoids any ableism to seep into the assessment and avoids reifying

that there is one and only one manner to achieve desired outcomes.

27. A failure to create a conducive environment is a failure to provide reasonable

accommodation.

13

Section 2(h) of the RPWD Act defines discrimination in the

context of disability as "any distinction, exclusion, restriction on the basis of

disability which has the purpose or effect of impairing or nullifying the

recognition, enjoyment or exercise on an equal basis with others of all human

rights and fundamental freedoms in the political, economic, social, cultural, civil

or any other field and includes all forms of discrimination and denial of

reasonable accommodation. " The denial of reasonable accommodation is

expressly recognised as discrimination under the RPWD Act. For the proper

realisation of reasonable accommodation, a person with disability must be

identified using correct parameters and thereafter the accommodations

necessary have to be determined on a case by case basis.

28. Justice KV Viswanathan speaking for this Court in Omkar Gond (supra) has

applied a purposive interpretation to the guidelines (Appendix "H -1") in the

context of a medical aspirant with dialectic incapacity. This Court held that the

principle of reasonable accommodation in Section 2(y) of the RPWD Act read

with Article 41 of the Constitution necessarily means that (i) a person cannot be

disqualified merely on the basis of a benchmark quantification. Such a criteria

would be unconstitutional for being overbroad; (ii) the Disability Assessment

Board must not act as monotonous automations looking at the quantified

disability and disqualifying candidates. The Board must examine if the

13

Ravinder Kumar Dhariwal v. Union of India, (2023) 2 SCC 209.

PART D

Page 22 of 45

candidate can pursue the course with their disability; and (iii) in doing so, the

Board is not merely obliged to provide assistive devices and other substances

which will help the candidate. The true role of the Board is to assess the

competence of a candidate.

29. The principle of reasonable accommodation is not only statutorily prescribed

but also rooted in the fundamental rights guaranteed to persons with disabilities

under Part III of the Constitution. Reasonable accommodation is a fundamental

right. It is a gateway right for persons with disabilities to enjoy all the other rights

enshrined in the Constitution and the law. Without the gateway right of

reasonable accommodation, a person with disability is forced to navigate in a

world which excludes them by design. It strikes a fatal blow to their ability to

make life choices and pursue opportunities. From mundane tasks of daily life to

actions undertaken to realise personal and professional aspirations - all are

throttled when reasonable accommodations are denied. Reasonable

accommodation is a facet of substantive equality and its failure constitutes

discrimination. In Vikash Kumar v. UPSC,

14

this Court adjudicated on whether

a person with a writer's cramp is entitled to a scribe for writing the examination.

Allowing the use of a scribe, this Court held that the benchmark standard can

only be applied where expressly stipulated. Section 2(s) of the RPWD Act

defines a person with disability as a person with long term physical, mental,

intellectual or sensory impairment which, in interaction with barriers, hinders

their full and effective participation in society equally with others. Therefore, a

person - to be considered as a person with disability - does not have to qualify

14

(2021) 5 SCC 370.

PART D

Page 23 of 45

any benchmark. The principle that the rights and entitlements cannot be

constricted by adopting a benchmark as a condition precedent was also upheld

by this Court in Avni Prakash v. NTA.

15

30. Section 3 of the RPWD Act affords persons with disabilities a right to equality

and non- discrimination. In Vikash Kumar (supra) this Court held that Section

3 casts an affirmative obligation on the Government and private entities to take

steps to ensure reasonable accommodation and utilize the capacity of persons

with disabilities by providing an appropriate environment. There is a positive

obligation to realise the inclusive premise in the concept of reasonable

accommodation. This includes the duty to create an environment conducive for

the development of persons with disabilities. This Court has held that:

"... The accommodation which the law mandates is

‘reasonable’ because it has to be tailored to the

requirements of each condition of disability. The

expectations which every disabled person has are

unique to the nature of the disability and the character

of the impediments which are encountered as its

consequence.

...

48. Failure to meet the individual needs of every

disabled person will breach the norm of reasonable

accommodation. Flexibility in answering individual

needs and requirements is essential to reasonable

accommodation. The principle of reasonable

accommodation must also account for the fact that

disability based discrimination is intersectional in

nature. The intersectional features arise in particular

contexts due to the presence of multiple disabilities and

multiple consequences arising from disability. Disability

therefore cannot be truly understood by regarding it as

unidimensional."

(emphasis supplied)

15

(2023) 2 SCC 286.

PART D

Page 24 of 45

31. In Ravinder Kumar Dhariwal v. Union of India,

16

while dealing with a case of

a CRPF officer with a mental health condition, this Court had the opportunity to

opine that disability is a social construct. Its manifestation is contingent on the

manner in which it interacts with inter alia social, economic and historical

factors. A one- size-fits-all approach cannot be adopted in assessing disability.

Disability is not a universal but an individualistic conception based on the

impairments that a person has along with the barriers they face. Since the

barriers that every person faces are personal to their interpersonal and

structural surroundings - a general observation of permissible behaviour cannot

be made.

32. Central to the principles of reasonable accommodation and the individualized

experience of disability is the right to access legal protections without undue

mental hardship. If persons with disabilities must repeatedly turn to the courts

to correct the missteps of authorities, then the rights recognized by this Court

and the RPWD Act risk becoming hollow assurances. For every person who

has the awareness or ability to move this Court there are numerous others who

suffer in silence. In the present case, the appellant was subjected to protracted

and mentally exhausting assessments that failed to apply the correct standards,

leading to a declaration of ineligibility. His first journey by air was not for leisure

or education but to undergo a medical assessment in Delhi by an order of this

Court. In this process, valuable time was lost, and the appellant faced intrusive

and irrelevant questioning. Persons with disabilities often confront systemic

failures that engender a deep sense of disappointment - a disappointment that

16

(2023) 2 SCC 209.

PART D

Page 25 of 45

reflects the frequency and predictability with which the system fails them. Those

with disabilities who aspire to succeed must not only plan meticulously but also

brace themselves for the barriers they will inevitably face due to their

disabilities.

33. For many persons with disabilities, the stress of medical visits - the frequent

trips to hospitals, the constant readiness to attend appointments, the long waits,

the uncertainty of a doctor's availability, and the anxiety over the results - forms

part of their lived reality. At the very least, they deserve a process and an

outcome that is fair and reasoned. The mental toll which processes before a

medical board has on people is recognised by this Court. In A (Mother of X) v.

State of Maharashtra,

17

this Court had the opportunity to opine on the shifting

stances of medical boards which are often observed in cases relating to medical

termination of pregnancy. This Court held that the lack of application of proper

standards, simpliciter recantation of statutory provision and changes in opinions

cause undue mental trauma to the pregnant person. In the backdrop of the fear

of prosecution which many registered medical practitioners (RMP) have, this

Court emphasised on the role of medical experts to ensure that the fundamental

rights of persons before them is not compromised. The Court held as follows:

"...The opinion of the RMP is decisive in matters of

termination of pregnancy under the MTP Act. The

purpose of the opinion of the RMP borrows from the

legislative intent of the MTP Act which is to protect the

health of a pregnant person and facilitate safe,

hygienic, and legal abortion. The right to abortion is a

concomitant right of dignity, autonomy and

reproductive choice. This right is guaranteed under

Article 21 of the Constitution. The decision to terminate

pregnancy is deeply personal for any person. The

choice exercised by a pregnant person is not merely

17

2024 INSC 371.

PART D

Page 26 of 45

about their reproductive freedom but also about their

agency as recognised by this court in X v. State (NCT

of Delhi). It is therefore imperative that the

fundamental right of a pregnant person is not

compromised for reasons other than to protect the

physical and mental health of the pregnant person.

...

23. The opinion of the RMP or the medical board, as

the case may be, is indispensable under the scheme of

the MTP Act. This inadvertently gives the power to

the RMP or the medical board to stand in the way

of a pregnant person exercising their choice to

terminate the pregnancy. When there is fear or

apprehension in the mind of the RMP or the medical

board it directly jeopardises the fundamental freedoms

of pregnant persons guaranteed under the

Constitution...."

(emphasis supplied)

34. Therefore, this Court has in the past opined on the pattern of conduct in medical

boards and sought to align it with legal and Constitutional guarantees so as not

to render the fundamental rights of persons before these boards nugatory. In

Bambhaniya Sagar Vashrambhai v. Union of India,

18

this Court has held that

Disability Assessment Boards must not adopt the approach of a recluse by

confining themselves to only quantifying the disability of a candidate. In that

case, the medical board had reported an unreasoned opinion that the candidate

was ineligible to continue his MBBS course on account of being more than 80%

disabled. Like in A (Mother of X) (supra), the Court in Bambhaniya (supra)

also emphasised the need for elaborate reasons by the medical board while

reporting their opinions.

35. In Purswani Ashutosh v. Union of India,

19

this Court was deciding if a medical

aspirant who had appeared for the NEET UG Exam 2018 was eligible for the

18

WP (C) 856 of 2023.

19

(2019) 14 SCC 422.

PART D

Page 27 of 45

reservation earmarked for persons with disabilities . Despite having low vision

impairment - the Medical Board had opined that the petitioner in that case was

ineligible for reservation. While rejecting the opinion of the committee, this Court

held that a medical board cannot be allowed to override the statutory mandate

of providing reservation to persons with disabilities . No committee has primacy

over the law. We must emphasize that the opinions of medical boards and

committees are not only required to adhere to legal standards but must also

embody core principles of the rule of law within their processes. This Court,

following a consistent line of precedent, has underscored the need for reasoned

and transparent decisions by such boards, given the profound impact these

opinions have on the life trajectory of individuals before them.

36. At its core, the rule of law demands predictable rules, equitable application,

unbiased adjudication and fair, transparent treatment of individuals. In cases of

assessment, this entails informing individuals about the procedures, standards,

tools, and all pertinent aspects of the assessment in advance. Such

transparency is essential to avoid any arbitrary uncertainty arising from obscure

or inconsistent procedures. The procedures must be inherently fair and bear a

rational and cogent nexus with the purpose which is sought to be achieved. A

committee’s role goes beyond mere quantification of disability; disability is a

factual condition. The key question for a Disability Assessment Board is

whether an individual with a disability, aided by modern scientific tools and

devices, can enter the MBBS program. Put differently, the board must assess

whether it is infeasible for the candidate to pursue a medical career with their

disability.

PART D

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37. Appendix "H-1" stipulates that assessments, particularly for individuals with

locomotor disabilities exceeding 80%, should focus on evaluating functional

competence. This functional competency test serves two critical purposes.

First, it emphasizes the abilities of the person with a disability, assessing their

capability rather than their limitations. Second, it mandates an evaluation rooted

in practical relevance, aligning the candidate’s abilities with the functional

requirements of the MBBS curriculum. Mere quantification of disability is

insufficient and fails to address the necessary criteria, a position this Court has

consistently upheld as unsatisfactory in such cases.

20

38. At this point, it is imperative to deal with the holding of this Court in Vidhi

Himmat Katariya v. Union of India.

21

In that case, persons with disabilities

who had appeared for the NEET UG Exam 2019 had moved this Court against

their disqualification by the Medical Board. Appendix "H" had been issued

midway through the process for admitting candidates from the NEET UG 2019.

The primary contention of the petitioners was that since the new guidelines

were issued in the middle of the admission process, they must not apply to the

ongoing process. The petitioners prayed to be tested against the rules as they

existed at the time of the application process for the examination, namely, the

MCI guidelines of 2017. On this count, the Court ruled against the petitioners.

The demurrer argument of the petitioners was that they have not been tested

on relevant parameters. This Court while rejecting the argument noted that the

petitioners were disqualified for not meeting the eligibility criteria of having "both

20

Omkar Gond v. Union of India, (2024) SCC OnLine SC 2401; Vikash Kumar v. UPSC, (2021) 5 SCC

370; Bambhaniya Sagar Vasharambhai v. Union of India, WP (C) 856 of 2023.

21

(2019) 10 SCC 20.

PART D

Page 29 of 45

hands intact, with intact sensation, sufficient strength and range of motion."

Accordingly, the Court refused to sit in appeal over the expert body's opinion.

The judgment of the Court in Vidhi Himmat Katariya (supra) was specific to

the facts of that case and did not involve any question of interpretation or

Constitutional analysis. The Court was not examining any criteria and did not

scrutinise the guidelines to inspect their validity. The Court did not have the

benefit of looking at the firm roots which reasonable accommodation has grown

within the fold of the Constitution. Further, the judgments of this Court in Vikash

Kumar (supra), Avni Prakash (supra), Ravinder Dhariwal (supra) and Omkar

Gond (supra) were not available to the Court while dealing with the case of

Vidhi Himmat Katariya (supra). Therefore, the opinion in Vidhi Himmat

Katariya (supra) is inapplicable.

39. Courts are not expert bodies in matters of medicine. The competent authority

to adjudge the eligibility of a person to pursue a medical course is the Disability

Assessment Board. However, courts have the jurisdiction to ensure that the

manner in which the Board proceeds and functions is in compliance with

established principles of law. Ultimately, the Court will have to rely on the

opinion of the Board to adjudicate the legal remedies of a person with disability.

The interference of Courts is not to supplant its opinion for that of the experts

but to ensure that a holistic evaluation of competence is conducted and that no

person’s career is set at naught with the stroke of a pen.

40. The Courts cannot be stupefied into inaction by the lack of adequate framework

or expertise when questions of fundamental rights emerge. No person forfeits

their claim to education or other pursuits of life on account of their disability. The

PART D

Page 30 of 45

flurry of cases concerning medical aspirants with disability which has come

before this Court shows that the overarching issue is a sense of over

medicalization of disabled bodies by the Assessment Boards. The approach

often taken, due to inertia or unwittingly, is to assume that a person with

disability may not be eligible for pursuing the course and then to put the

candidates under tests to prove the assumption. The approach focuses more

on the disability of a person than their ability. This turns the pri nciple of

reasonable accommodation on its head. The question instead that the Board

ought to ask itself is this - what measures can be taken to ensure that the

candidate with disability can start their MBBS course on an equal footing with

their prospective classmates? The change in question brings a change in

perspective. The only negative answer to the question would be that - in line

with contemporary scientific advancements, no devices or accommodations

can enable the person with disability before them to compete at a level playing

field. Courts must ensure that the sanctity of the principles in the RPWD Act

and in the Constitution are not violated by the conduct or the outcome of the

assessment.

PART E

Page 31 of 45

E. Building bridges for the nation: principle to practice

“But it taught me, at a very early age, that most things are possible when you

assume problems can be solved.”

― Judith Heumann

22

(regarded as the mother of the disability rights movement)

41. We started by noting that the principle and application of law have stood at

opposite banks of the river. The true mandate of the law is to be an agent of

inclusion and an abettor and executor of justice. Law reflects the outlook of its

wielder. A parochial legal system will create laws which result in maldistribution

of life chances and opportunities. In India, we have adopted an emancipatory

Constitution premised on the fundamental virtues of equal dignity and access.

The wielder of the law, therefore, is rooted in a progressive grundnorm which

seeks to eschew from societal prejudices and biases.

42. The window to these progressive virtues is envisioned in the preamble to the

Constitution. The preamble, along with justice, liberty and equality, seeks to

secure to all citizens - "FRATERNITY assuring the dignity of the individual and

the unity and integrity of the Nation." The fundamental postulate of dignity which

inheres in all people is intrinsic to the idea of fraternity and national integration.

Fraternity, far from being mere collegiality among citizens, imagines a holistic

sharing of goals and aspirations. It recognizes that to progress together we

must join forces in our mutual advancement and emancipation. The framing of

22

Judith Heumann & Kristen Joiner (2020). Being Heumann: An Unrepentant Memoir of a Disability

Rights Activist. Beacon Press : Boston, Massachusetts.

PART E

Page 32 of 45

the preambular virtue of fraternity identifies the dignity of all individuals as a pre-

condition. Dignity of the individual is assured when they are given equal

opportunity and the freedom to contribute to the society - shoulder to shoulder

with fellow citizens.

43. No nation can truly progress until all her people realize a stake in their collective

outcome. In one sense discrimination excludes the aggrieved from the

collective imagination of the nation. In another sense the nation is deprived of

the expertise and brilliance of those who are discriminated. We aspire to have

institutions and systems which reflect the rich diversity of our country. The

aspiration is one rooted in our commitment to the nation. D iverse institutions

are vital to ensure the governance of a diverse nation. When persons with

disabilities are discriminated against, it not only affects their individual

aspirations and dignity - it strikes a blow to the entire nation and the collective

goal of integration and fraternity.

44. Justice PB Sawant concurring with the decision of the nine- Judge bench of this

Court in Indra Sawhney v. Union of India,

23

has opined that inequality ill-

favours fraternity. Without equality of opportunity there can be no fraternity.

Justice Sawant has articulated his holding as follows:

"411. The aim of any civilised society should be to

secure dignity to every individual. There cannot be

dignity without equality of status and opportunity.

The absence of equal opportunities in any walk of

social life is a denial of equal status and equal

participation in the affairs of the society and, therefore,

of its equal membership. The dignity of the individual is

dented in direct proportion to his deprivation of the

equal access to social means. The democratic

foundations are missing when equal opportunity to

grow, govern, and give one's best to the society is

23

1992 Supp (3) SCC 217.

PART E

Page 33 of 45

denied to a sizeable section of the society. The

deprivation of the opportunities may be direct or indirect

as when the wherewithals to avail of them are denied.

Nevertheless, the consequences are as potent.

412. Inequality ill- favours fraternity, and unity

remains a dream without fraternity. The goal

enumerated in the Preamble of the Constitution, of

fraternity assuring the dignity of the individual and

the unity and integrity of the nation must, therefore,

remain unattainable so long as the equality of

opportunity is not ensured to all.

413. Likewise, the social and political justice pledged

by the Preamble of the Constitution to be secured to all

citizens, will remain a myth unless first economic justice

is guaranteed to all. The liberty of thought and

expression also will remain on paper in the face of

economic deprivations. A remunerative occupation

is a means not only of economic upliftment but also

of instilling in the individual self-assurance, self-

esteem and self-worthiness. It also accords him a

status and a dignity as an independent and useful

member of the society. It enables him to participate

in the affairs of the society without dependence on,

or domination by, others, and on an equal plane

depending upon the nature, security and

remuneration of the occupation. Employment is an

important and by far the dominant remunerative

occupation, and when it is with the Government, semi-

Government or Government-controlled organisation, it

has an added edge. It is coupled with power and

prestige of varying degrees and nature, depending

upon the establishment and the post. The employment

under the State, by itself, may, many times help

achieve the triple goal of social, economic and political

justice.

(emphasis supplied)

45. Dr Martin Luther King Jr has famously remarked that "injustice anywhere is a

threat to justice everywhere." When we allow injustice to occur, we normalize

the idea that fundamental rights and freedoms are violable. The inviolability of

our collective commitment is weakened. Discrimination cracks open a wedge in

the fabric of the society - it violates the Constitution and erodes the humanity of

the person discriminated against. The discrimination can manifest directly or

indirectly. Its manifestation eats into our commitment to each other and of the

PART E

Page 34 of 45

State to the people. In Prathvi Raj Chauhan v. Union of India,

24

a three- Judge

Bench of this Court while dealing with the validity of the Scheduled Castes and

the Scheduled Tribes (Prevention of Atrocities) Act 1989 has opined that the

Constitution is also a pact between the people of India. It is a promise of

oneness and equality. The Court opined as follows:

"15. The Constitution of India is … a pact between

people, about the relationships that they guarantee to

each other (apart from the guarantee of liberties vis-à-

vis the State) in what was a society riven along caste

and sectarian divisions. That is why the preambular

assurance that the republic would be one which

guarantees to its people liberties, dignity, equality

of status and opportunity and fraternity.

16. It is this idea of India, — a promise of oneness of

and for, all people, regardless of caste, gender, place

of birth, religion and other divisions that Part III

articulates in four salient provisions : Article 15, Article

17, Article 23 and Article 24. The idea of fraternity

occupying as crucial a place in the scheme of our

nation's consciousness and polity, is one of the lesser

explored areas in the constitutional discourse of this

Court. The fraternity assured by the Preamble is not

merely a declaration of a ritual handshake or cordiality

between communities that are diverse and have

occupied different spaces : it is far more. …"

46. What the movement for disability justice shares with other social justice

movements - such as the anti-caste movement, feminism and queer and trans

justice - is that they call into question the fundamental arrangement of a society

which has created prejudicial structures. Inaccessibility and non- inclusion are

taken as suspect categories to question the prevalent social order. In doing so

these movements invite us to contribute to the national goal of fraternity and

integration. Far from being interruptive in the national journey - calls for equal

access and equal justice postulate a disruption in the order of discrimination

24

(2020) 4 SCC 727.

PART E

Page 35 of 45

and prejudices so that we may carry on the journey of national progress. They

do not only champion the group interest of a certain class of citizens but instead

advocate for a larger vision of a justice oriented society. A society where

discrimination and exclusion are addressed and eliminated will create a just and

equitable system for all persons regardless of their identities. To be

intersectional is to see the common goals across vectors of identities by

eliminating systems of discrimination. It is a call to eschew from simplistic

identity reductionism and to imagine meaningful remedies for marginalised

groups and persons. It calls for a world with equity and justice where our

uniqueness forms part of benign differences among people and lends vibrance

to our diversity. The Constitution enables this project of fraternity by

guaranteeing rights to life, dignity, freedom, equality and non- discrimination

inter alia under Articles 21, 19, 14, and 15.

47. When reasonable accommodation is denied to a person with disability, it

amounts to discrimination and violates the fundamental rights of the aggrieved

person and the preambular virtue of fraternity along with justice, liberty and

equality. Persons with disability are not objects of pity or charity but an integral

part of our society and nation. The advancement of rights for persons with

disabilities is a national project along with eradication of all forms of

discrimination. A component of this project is the inclusion of persons with

disabilities in all pursuits of life.

48. In Vikash Kumar (supra) this Court opined that the most significant loser of a

rigid inaccessible system is the system itself. The Court resonated the idea of

PART E

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a generation of persons with disabilities who take it as their birthright to access

the full panoply of entitlements. This Court has held as follows:

"81. When competent persons with disabilities are

unable to realise their full potential due to the barriers

posed in their path, our society suffers, as much, if not

more, as do the disabled people involved. In their

blooming and blossoming, we all bloom and blossom.

The most significant loser as a consequence of UPSC's

rigid approach in this case (of refusing to provide

scribes to those not having benchmark disabilities) is

UPSC itself. For it is denying to the nation the

opportunity to be served by highly competent people

who claim nothing but access to equal opportunity and

a barrier-free environment.

...

98. 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."

49. When we create avenues for inclusion, we work towards improving systems

and institutions. In the context of healthcare, the inclusion of persons with

disabilities is a vital component of quality healthcare. T he guidelines and

recommendations which express concern about "lowering the standard of

medical practice" on account of persons with disabilities miss the fact that these

standards may not be adequate to begin with. The quality of a system is

informed by its ability to empathise with and relate to the recipients. A system

without adequate number of practitioners who have lived experiences will not

be able to fully imagine the obstacles and grievances faced by a diverse

population. Diversity of workforce is crucial for a diverse society, so that

PART E

Page 37 of 45

everyone may have a stake in the system and the system can effectively

discharge its duties toward everyone.

50. Section 25

25

of the RPWD Act outlines the positive obligation of Government

and local authorities to provide healthcare to persons with disabilities. An

affirmative obligation is placed to ensure that persons with disabilities receive a

barrier free access to all public and private healthcare institutions. Removal of

barriers can only be achieved if persons with disabilities feel comfortable while

accessing healthcare. The barriers faced by a person may be physical,

psychological and attitudinal. The inclusion of persons with disabilities within

medical practice is vital to ensure that the approach of the medical community

and of hospitals and other healthcare institutes is humane, sensitive and

informed by lived experiences. It strengthens our fraternity. Therefore, the

process through which medical aspirants with disability enter the profession

25

"25. Healthcare.—(1) The appropriate Government and the local authorities shall take necessary

measures for the persons with disabilities to provide,—

(a) free healthcare in the vicinity specially in rural area subject to such family income as may be

notified;

(b) barrier-free access in all parts of Government and private hospitals and other healthcare

institutions and centres;

(c) priority in attendance and treatment.

(2) The appropriate Government and the local authorities shall take measures and make schemes or

programmes to promote healthcare and prevent the occurrence of disabilities and for the said purpose

shall—

(a) undertake or cause to be undertaken surveys, investigations and research concerning the cause

of occurrence of disabilities;

(b) promote various methods for preventing disabilities;

(c) screen all the children at least once in a year for the purpose of identifying “at-risk” cases;

(d) provide facilities for training to the staff at the primary health centres;

(e) sponsor or cause to be sponsored awareness campaigns and disseminate or cause to be

disseminated information for general hygiene, health and sanitation;

(f) take measures for pre- natal, perinatal and post-natal care of mother and child;

(g) educate the public through the pre- schools, schools, primary health centres, village level workers

and anganwadi workers;

(h) create awareness amongst the masses through television, radio and other mass media on the

causes of disabilities and the preventive measures to be adopted;

(i) healthcare during the time of natural disasters and other situations of risk;

(j) essential medical facilities for life saving emergency treatment and procedures; and

(k) sexual and reproductive healthcare especially for women with disability."

PART E

Page 38 of 45

must be compatible with constitutional and statutory entitlements and

guarantees.

51. The United Nations Committee on the Rights of Persons with Disabilities in its

concluding observations on the initial report of India

26

has inter alia identified

the medical model of disability as a prominent concern. It has stated as follows:

"(a) The prevalence of the medical model of disability

in legislation, public policies and attitudes concerning

persons with disabilities, particularly in the multiple

assessments and certification of disability and the

requirement for different assessments to access

services in the community, and in the

misunderstanding of disability, including leprosy, as

solely a biological condition requiring prevention and

rehabilitation;"

(emphasis supplied)

52. The committee has recommended that the concern be remedied with inter alia

reforming guidelines assessing persons with disabilities by adopting a human

rights model. The recommendation has also opined against the multiplicity of

assessments which we have echoed above. The recommendation states as

follows:

"(b) Reform the guidelines for assessing and certifying

disability to bring them into line with the human rights

model of disability, ensuring that organizations of

persons with disabilities are involved in the reform,

that multiple assessments do not create an undue

burden for applicants, and that policies and

programmes shift from care, treatment and

protection towards the removal of environmental

and attitudinal barriers, which prevent equality and

inclusion;"

(emphasis supplied)

26

UN. Committee on the Rights of Persons with Disabilities (22nd sess). CRPD/C/IND/CO/1.

Concluding observations on the initial report of India : Committee on the Rights of Persons with

Disabilities. Geneva : UN, 29 Oct. 2019.

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Page 39 of 45

53. We have noted above that Disability Assessment Boards must comply with rule

of law principles by injecting transparency, fairness and consistency in their

approach. The Boards must further elaborate on the reasons for the outcome

of their assessment, in particular when they opine that the candidate is

ineligible. The Disability Assessment Boards must focus on the functional

competence of persons with disabilities and not merely quantify the disability.

The quantification of disability is a task in need of a purpose within the human

rights based model of disability. The functional competency approach to

assessment for a medical course is globally recognised. To enable members of

the Assessment Boards in effectively applying the functional competency test,

they must be adequately trained by professionals and persons with disabilities

or persons who have worked on disability justice. These trainings must be with

a view to enhance the understanding of the Board members in assessing

persons with disabilities and must not pathologize or problematize them.

54. The disability of a person is quant ified at the time of availing a Unique Disability

ID Card.

27

The quantification of disability is moot at the point of admission to

educational courses since the eligibility for a person to benefit from reservation

may be evaluated using the quantification in the UDID Card. If a person with

disability wants to have themself re- assessed so as to verify whether their

disability falls within the prescribed parameters for reservation - they may

choose to do so by updating their UDID Cards. The role of the Disability

Assessment Boards must be tailored (with a functional competency approach)

only for the course which the candidate seeks to pursue.

27

"UDID Card"

PART E

Page 40 of 45

55. Further, the journey of a person with disability to apply for the NEET

Examination and thereafter pursue medicine at the college must also comply

with accessibility norms. The application portal for NEET Examination must

outline the accessibility compliances of different colleges to enable prospective

students with disabilities in making an informed decision. Once admitted, the

Enabling Units established under the directions of the University Grants

Commission must act as a point of contact for persons with disabilities to access

clinical accommodations. Students must be informed about the Enabling Units

and Equal Opportunity Cells through the information booklet circulated for new

MBBS students, the college website and the Equal Opportunity Policy under

Section 21 of RPWD Act. The second respondent must make appropriate

directions in this regard.

56. In the UK, the General Medical Council, which regulates medical education, has

issued an advisory guidance titled Welcome and valued. The guidance outlines

how institutions can comply with their duties to afford reasonable

accommodation to disabled medical students. The guidance inter alia lists the

steps for supporting medical students. After addressing student requirements

and agreeing on a support action plan, the guidance outlines the following

steps, which are indicative and may not be appropriate for all:

a. Forming a support group or a lead to deal with support arrangements of

incoming students with disabilities;

b. Identifying key persons of contact with students with disabilities and for each

of the services involved in exploring the support arrangements;

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c. Informing students on how their information will be used in compliance with

confidentiality. Colleges are further recommended to:

i. Keep a clear audit trail of decision making for supporting disabled

learners as this is likely to help schools make sure they have taken

appropriate steps to provide reasonable adjustments;

ii. Keep a record of all conversations between the support group and

student. Agree on the method of recording such conversations and

allow the student to see a draft record of any discussions;

iii. Create a separate file with different access arrangements for

confidential information related to health outside of the general

student record.

d. The lead must thereafter organise a meeting between the student and the

support group. The group may also arrange meetings to evaluate cases and

discuss progress; and

e. Lastly, a decision may be made on whether the student with disability can be

provided adequate support to enable them in meeting the outcomes

desirable in a medical graduate.

57. The provision of an audit trail to assess whether a given accommodation

required by a student with disability places an undue burden on the institution

is a vital safeguard for transparency and fairness. Dr Satendra Singh in his

report dated 20 October 2024 has made suggestions to (i) rename the Disability

Assessment Boards as Ability Assessment Boards to align them better with

their intended purpose; (ii) include a doctor with disability or who is well

conversant with disability rights in such Boards; (iii) use a human rights model

PART F

Page 42 of 45

of disability for assessment; (iv) issue guidance on clinical accommodations; (v)

train the Boards in carrying out the disability competency assessment; and (vi)

use the Enabling Units to serve as a contact point for clinical accommodations.

As far as the inclusion of doctors with disabilities in the Disability Assessment

Boards is concerned - the first respondent has issued a circular on 24 March

2022 mandating such inclusion. This direction shall be complied with by all

Boards.

58. The second respondent has submitted that in light of the judgment of this Court

in Omkar Gond (supra), it will be constituting a new committee of domain

experts to comply with the directions in that judgment. We note the assurance

of the second respondent and direct that this committee shall include persons

with disability or one or more experts who are well conversant with disability

rights. The committee shall recommend fresh guidelines to replace the existing

guidelines. The above suggestions shall be duly considered by the government

on its own merits. The recommendations so formulated shall comply with this

judgment.

F. Conclusions

59. Our conclusions in light of this case are formulated in the following terms:

a. The impugned judgment of the Nagpur bench of the High Court of Judicature

at Bombay is set aside and the report of the Disability Assessment Board of

AIIMS, Nagpur dated 13 August 2024 is quashed for failing to apply the

statutory and regulatory standards applicable to the assessment of a person

with disability;

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b. A supernumerary seat shall be created at the AIIMS, Nagpur and the seat

shall be allocated to the appellant, provided that he has not already secured

a seat at a college of his choosing;

c. The college shall be given the report dated 20 October 2024 which makes

suggestions as to the accommodations which may be extended to the

appellant to successfully pursue the MBBS course;

d. The appellant shall be protected from victimisation;

e. The judgement shall apply in rem .

60. We further conclude as follows:

a. The second respondent shall issue fresh guidelines for admitting persons

with disabilities into medical courses. The committee formulating the

guidelines must include experts with disability or persons who have worked

on disability justice. The guidelines shall comply with the judgments of this

Court and contemporary advancements in disability justice;

b. The Disability Assessment Boards shall eschew from a benchmark model to

test the functional competence of medical aspirants with disability. The

second respondent shall issue appropriate guidelines in this regard;

a. The Disability Assessment Boards shall include a doctor or health

professional with disability as per the directions of the first respondent dated

24 March 2022;

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b. The conduct of the Disability Assessment Boards shall be fair, transparent

and in compliance with principles of the rule of law. Attention must be paid to

ensure that candidates appearing before the Board do not feel uncomfortable

on account of physical or attitudinal barriers;

c. Reasonable accommodation is a gateway right to avail all other fundamental,

human and legal rights for persons with disabilities. Non-availability of

reasonable accommodation amounts to discrimination and violates

substantive equality of persons with disabilities;

d. The inclusion of persons with disability in the medical profession would

enhance the quality of healthcare and meet the preambular virtue of fraternity

and the guarantees in Articles 21, 19, 14 and 15 of the Constitution;

e. Applicants to the NEET examination must be informed about the compliance

of accessibility norms and provisions of reasonable accommodation

available at colleges. The respondents shall issue appropriate directions to

create a database with relevant information on accessibility and reasonable

accommodation; and

f. Enabling Units at medical colleges shall act as points of contact for persons

with disability desirous of accessing clinical accommodations.

61. A copy of this Judgment will be transmitted to the Secretaries of all concerned

Ministries of the Government of India.

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62. The appeal is allowed in the above terms.

63. Pending applications, if any, shall stand disposed of.

..………..…....…........……………….…........CJI.

[Dr Dhananjaya Y Chandrachud]

……….…..…....…........……………….…........J.

[J B Pardiwala]

……….…..…....…........……………….…........J.

[ Manoj Misra]

New Delhi;

October 25, 2024