ARNAB ROYversusCONSORTIUM OF NATIONAL LAW UNIVERSITIES & ANR.

                 [2023] 14 S.C.R. 464 : 2023 INSC 261



                            CASE DETAILS
                             ARNAB ROY
                                     v.
  CONSORTIUM OF NATIONAL LAW UNIVERSITIES & ANR.
                 (Writ Petition (Civil) No. 1109 of 2022)
                            MARCH 17, 2023
          [DR. DHANANJAYA Y CHANDRACHUD, CJI,
           PAMIDIGHANTAM SRI NARASIMHA AND
                   J. B. PARDIWALA, JJ.]
                             HEADNOTES

      Issue for consideration: The issue specifically addressed by the
petitioner relates to the facilities for candidates who intend to avail of a
scribe in the Common Law Admission Test (CLAT) 2023.
     Rights of Persons with Disabilities Act, 2016 – Following the
decision of the Supreme Court in Vikash Kumar Vs. Union Public
Service Commission & Ors., by an Office Memorandum dated
10.08.2022, guidelines have been formulated by the Ministry of Social
Justice and Empowerment:
      Held: 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 – In pursuance of the interim directions of the
Court, the Consortium of National Law Universities extended necessary
facilities to PwD candidates in terms of the statement which was tendered
before the Supreme Court. [Paras 11, 12]
     Rights of Persons with Disabilities Act, 2016 – The CLAT
advertisement was issued on 28.08.2022 and the registration closed on
18.11.2022 – The Consortium issued its set of guidelines on 24.11.2022
and the entrance test was conducted on 18.12.2022 – Petitioner urged
guidelines to be issued together with the advertisement:


                                    464
     ARNAB ROY v. CONSORTIUM OF NATIONAL LAW                                465
                   UNIVERSITIES

      Held: It was directed 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. [Para 17]
     Rights of Persons with Disabilities Act, 2016 – Directions issued
to the Consortium conducting CLAT:
     Held: CLAT directed that, in the future, formulate the modalities in a
manner consistent with its formulation which was placed on the record before
the Supreme 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 10.08.2022 issued by the
Ministry of Social Justice and Empowerment, Department of Persons with
Disabilities. [Para 19]
      Rights of Persons with Disabilities Act, 2016 – In the Common
Law Admission Test, the Consortium had sought to prohibit scribes
if they are (a) above the 11th grade in educational attainment; or (b)
affiliated to any test-preparatory organisation or examination coaching
centre – Propriety:
      Held: 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 two-fold restriction has been imposed – Moreover, it has been submitted
that in any event, if a candidate has any difficulty 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 – Therefore, the request
of the Consortium is allowed 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. [Paras 22, 27]
466           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


      Rights of Persons with Disabilities Act, 2016 – Facilitation of a
scribe to the candidates – Where the consortium provides scribe, at
least two days’ time should be provided so as to enable the candidate
to interact with the scribe:
      Held: 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 – It was
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
– 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. [Para 26]
       LIST OF CITATIONS AND OTHER REFERENCES

    Vikash Kumar Vs Union Public Service Commission & Ors. (2021) 5
SCC 370 – relied on.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES

     CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 1109
of 2022.
      (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
      With
      Miscellaneous Application (Diary No. 8493 of 2023)
      Appearances:
      Nikhil Nayyar, Sr. Adv., N. Sai Vinod, Abhinav, Advs. for the Petitioner.
    Mrs. Aishwarya Bhati, A.S.G., Siddharth Aggarwal, Sr. Adv., Arun Sri
Kumar, Ms. Pritha Srikumar, Anirudh G., Ms. Arshiya Ghose, Mrs. Lalita
Kaushik, Aman Sharma, Yashraj Singh Bundela, Manvinder Singh Rathore,
Manvendra Singh Rathore, Shashwat Parihar, Shaswat Parihar, Amrish
Kumar, Raj Bahadur Yadav, Advs. for the Respondents.
      By Courts Motion
     ARNAB ROY v. CONSORTIUM OF NATIONAL LAW                                467
                   UNIVERSITIES


       JUDGMENT / ORDER OF THE SUPREME COURT

                                JUDGMENT

DR. DHANANJAYA Y CHANDRACHUD, CJI
      1. The petitioner who is a lawyer and disability rights activist
moved these proceedings under Article 32 of the Constitution of India for
challenging certain conditions which were imposed for the conduct of the
Common Law Admission Test 20231. CLAT was scheduled on 18 December
2022. The issue specifically addressed by the petitioner relates to the facilities
for candidates who intend to avail of a scribe.
     2 The petitioner avers that he was personally aware that at least 13
visually impaired candidates would be denied the assistance of a scribe
because of the conditions belatedly imposed by the Consortium of National
Law Universities2 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.”



1   “CLAT”
2   “Consortium”
3   (2021) 5 SCC 370
4   “PwDs”
468           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


      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 11th 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 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
   ARNAB ROY v. CONSORTIUM OF NATIONAL LAW       469
UNIVERSITIES [DR. DHANANJAYA Y CHANDRACHUD, CJI]

           (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.
470             SUPREME COURT REPORTS                       [2023] 14 S.C.R.


     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:-


5     “DEPWD”
6     “MSJE”
   ARNAB ROY v. CONSORTIUM OF NATIONAL LAW       471
UNIVERSITIES [DR. DHANANJAYA Y CHANDRACHUD, CJI]

             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.
472     SUPREME COURT REPORTS                         [2023] 14 S.C.R.


      (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.
   ARNAB ROY v. CONSORTIUM OF NATIONAL LAW       473
UNIVERSITIES [DR. DHANANJAYA Y CHANDRACHUD, CJI]

           (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
474          SUPREME COURT REPORTS                          [2023] 14 S.C.R.


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
   ARNAB ROY v. CONSORTIUM OF NATIONAL LAW       475
UNIVERSITIES [DR. DHANANJAYA Y CHANDRACHUD, CJI]

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.
476            SUPREME COURT REPORTS                             [2023] 14 S.C.R.


      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.


Headnotes prepared by:          Writ petition and Miscellaneous Application disposed of.
Ankit Gyan