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 Universities2
2 “Consortium”
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 & Ors3.
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 Disabilities4 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 12th grade. Moreover,
the exclusion of students enrolled in any examination coaching centre, it was
3 (2021) 5 SCC 370 4 “PwDs”
urged, would eliminate nearly every 10th 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
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 Disabilities5 of the
Ministry of Social Justice and Empowerment6.
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
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
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
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
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 11th
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
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
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 11th 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
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 11th 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.
[Dr Dhananjaya Y Chandrachud]
[Pamidighantam Sri Narasimha]
[J B Pardiwala] New Delhi; March 17, 2023 GKA
Writ Petition(s)(Civil) No(s). 1109/2022
ARNAB ROY Petitioner(s)
VERSUS
CONSORTIUM OF NATIONAL LAW UNIVERSITIES & ANR. Respondent(s)
WITH
Diary No(s). 8493/2023 (XIV-A)
Date : 17-03-2023 These matters were called on for hearing today.
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.
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.
(Signed reportable judgment is placed on the file)