MONISHA Vs. NATIONAL TESTING AGENCY

JUDGEMENT

(1.) The Rights of Persons with Disabilities Act, 2016 (49 of 2016) was hailed by the Hon'ble Supreme Court as marking a paradigm shift. In Vikash Kumar v. UPSC, 2021 (5) SCC 370, it was held that though Part III of the Constitution of India does not explicitly include persons with disabilities within its protective fold, the golden triangle of Articles 14, 19 & 21 applies with full force and vigor to the disabled much like their abled bodied counterparts.

(2.) Sec. 20(2) of the Act mandates that no Government establishment shall discriminate against any person with disability in any matter relating to employment. Sec. 17 of the Act expects the Appropriate Government and the Local Authorities to take specific measures to promote and facilitate inclusive education. Sec. 2(y) of the Act defines "reasonable accommodation" As "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." Sec. 2(h) of the Act defines "discrimination" in relation to disability as "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".

(3.) The question that I am called upon to answer is if the Principle of Reasonable Accommodation should be restrictively applied and made available only to persons, who fall within the scope of the Central Act 49 of 2016. This issue arises in the context of examinations held for students and job aspirants. I hold that any Candidate not necessarily suffering from disability set out in the Schedule to RPwD Act, 2016 but otherwise having special requirements or needs by virtue of her/his biological condition is entitled to reasonable accommodation. Let me see how this principle can be applied to the facts of this case.