Authored by Anshid C K, a 3rd-year law student at Jamia Millia Islamia University, New Delhi
The Supreme Court of India (“SC”) recently permitted an applicant with 88% muscular dystrophy to attend NEET counselling, even though the National Medical Council (“NMC”) guidelines under Graduate Medical Education Regulation 2023 stipulated an 80% ceiling. The ruling was given just after a detailed judgement of the court was published, allowing a student with 40-45% speech and language disability to pursue MBBS. The NMC requirement in the latter case is that a candidate with a maximum of 40% speech and language disability is qualified for admission. In both cases, the court, being satisfied with the competence of the candidates delivered the verdict after examining the experts’ reports. In an earlier case this year, NMC informed the court that people with mental illness are qualified to pursue MBBS subject to their rankings in NEET. The report came after the direction of the court to appoint an expert panel to reconsider the provision of the guidelines disqualifying people with mental illness exceeding 40% on the Indian Disability Evaluation Assessment Scale (“IDEAS”).
The recurring incidents to this effect prompt a revision of the guidelines. This article scrutinises the guidelines, testing them on the scale of India’s obligations under international law and the duty to respect the equality principles enshrined in the Constitution. The conclusion will answer the question of whether the guidelines serve a purpose or cause more harm than benefits.
Reasonable Accommodation
India ratified the Convention on the Rights of Persons with Disabilities of 2007 (“Convention”) and passed The Rights of Persons with Disabilities Act of 2016 (“Act”) giving effect to the convention. The main goal of the Convention and the Act was to create an inclusive society where people with disabilities are valued and allowed to exercise all of their basic rights and freedoms, just like everyone else.
According to Article 4 of the Convention, the state parties must ensure reasonable accommodations. Article 24 addresses reasonable accommodation in education. The Act also contains provisions for ensuring reasonable accommodation for persons with disabilities under Sections 2 and 16.
The SC has emphasized the importance of reasonable accommodation in several cases. In the case of Syed Bashir-ud-din Qadri v. Nazir Ahmed Shah, the court ordered a person with cerebral palsy to be appointed as a teacher, holding that the petitioner’s disability doesn’t affect the performance of his duties. The court underlined that the state should make every effort to provide people with disabilities with reasonable accommodation. The Court in the case of National Legal Services Authority v. Union of India & Ors described the importance of reasonable accommodation to attain the primary values of international law, equality and non-discrimination.
The primary objective of the principle is to create a welcoming atmosphere for persons with disabilities where they can enjoy a non-discriminatory environment. Although the definition under Article 2 of the Convention and Section 2(y) of the Act places more emphasis on taking proactive steps, it still requires state parties to remove all kinds of discriminatory barriers including legal, technical, and social ones. Standardised assessment systems, including entry examinations, that directly or indirectly exclude students with disabilities are also discriminatory and in contravention of articles 5 and 24.
Educational institutions are gateways to the medical workforce, and ensuring reasonable accommodation of students with disabilities will preclude an increase in the number of physicians with disabilities, which essentially will improve the substandard and inadequate treatment served to disabled patients. In effect, denying reasonable accommodation prevents patients with disabilities from benefiting from the experiences of physicians intimately familiar with the processes of their daily lives. Additionally, studies have shown that doctors with disabilities have an advantage over the “typically abled” doctors because they have an insider’s view of what the patient is going through (called “patienthood”), effectively improving the doctor-patient relationship.
A more inclusive workforce can work toward dismantling ableism, the disability-based stigma that leads to discriminatory attitudes and behaviours, it also counters the stereotype that people with disabilities are a "burden." Our modern understanding of disability relates to the social barriers that restrict a person's participation rather than a focus on the health condition or impairment. So, the first barrier that must be eliminated is the mindset of society, and normalisation is the only way ahead. This also concludes that the objective of reasonable accommodation will be achieved only when the proportion of doctors with disabilities in the workforce is high enough to ensure recognition on par with "typically abled doctors."
The notion of “Undifferentiated Physicians”, which holds that all medical graduates are competent in every medical speciality, is another barrier. This places an unwarranted and excessive load on doctors with disabilities. Some practices like prolonged surgeries involve activities that persons with certain disabilities couldn’t perform, but some practices like general practices and counselling place more emphasis on communication and empathy. So, removing unreasonable expectations of “holistic physicians” will make the space more diversified and inclusive.
In order to guarantee reasonable accommodation, it is also necessary to create an atmosphere that is equally accessible to people with disabilities. However, it is important to strike a balance between creating a conducive atmosphere and placing an undue burden on the institutions. Adapting infrastructure catering to the needs of those who need ambulatory assistive devices is a fundamental right and a mandate by the standard guidelines under the Act of 2016, so no institute can be exempted from complying with this condition. Other facilities that need to be adopted are individual-specific assistive devices and technologies. For this purpose, disabilities can be classified as sensory, and physical. The former, like dyslexia, can be remedied by making the faculties and students aware of the cognitive imbalances and dispelling misconceptions. For example, in the case of dyslexia, the students are cognitively fit, but they take time to read the materials; the fact they want more time to complete the exams is not to take an undue advantage over other students but to perform to the best of their ability. Physical disabilities can also be cured by adopting assistive devices like a special stethoscope that allows either amplified or visual auscultation of heart and lung sounds for students who are deaf and hard of hearing. The reluctance of educational institutions to set up assistive devices and technologies for physicians with disabilities and its unabated willingness to instrument “typically abled physicians” with exorbitant “physician extenders” and sophisticated technologies such as robotic surgical systems ultimately brings us to the same conclusion that prejudicial attitudes conventionally embedded in the society are the driving force in all institutions and establishments.
From the above discussion, it is understood that the states are legally bound to ensure that persons with disabilities are not deprived of basic rights and to adopt positive measures for making an inclusive society in which persons with disabilities are placed in a position where they can compete with others, irrespective of their natural incapacity. The obligation to reasonably accommodate, however, is not an absolute one. It is quite intelligible that all persons with disabilities can’t be expected to be admitted as there might be disabilities impeding the proper pursuance of the course. But, applying uniform guidelines disqualifying a person with a certain percentage of a specific disability without considering the capacity of the respective person, is discriminatory. In addition to the infringement of the principle of reasonable accommodation, it violates the rights enshrined in Articles 14 and 15 of the Constitution.
Violation of Articles 14 and 15 of the Constitution
Article 14 of the constitution states that the state shall not deny to any person equality before the law and equal protection of the law. Thus, the state should make sure that the law made by it treats everyone equally and without any discrimination. The prohibition of discrimination is not absolute, in certain cases, the state can make laws catering to a specific group of people with a uniform quality. In case of a challenge, the court tests the legality of a law on the principle of intelligible differentia and the rational nexus. The principle implies that the group to whom a law applies should be distinguishable from the left out, and there should be a rational nexus between the group classified and the object sought to be achieved by a particular law. The courts have shown greater deference to the classifications where rational nexus is applied since the legislature and executive are presumed to act in good faith to attain substantive equality.
Over the course of time, the courts have expanded on the premise and made it more inclusive. In State of Gujarat v. Shri Ambica Mills Ltd., the SC stated that the primary consideration for the classification should be the purpose of law, the classification will be over-inclusive when it includes all those who are not similarly situated as to the purpose of law, and it will be under-inclusive if it leaves out some who are tainted with the same mischief at to those in the class. The SC in State of T.N. v. National South Indian River Interlinking Agriculturist Assn. has observed that over-inclusiveness, if it imposes a burden upon a wider range of individuals than intended to be included, would be illegal, especially if it is based on natural traits. In addition, Justice D.Y. in Navtej Singh Johar v. Union of India has highlighted the legal formalism caused by the classification criteria, where he pointed out that the courts should adopt a more pragmatic approach prioritising the effect over the object of the classification, especially when the objective is ostensible. Justice Malhotra’s judgment in the same case states that a classification wouldn’t be reasonable if it is based on an intrinsic and natural trait of an individual.
Here, it’s evident that the people with disabilities above the benchmark are starkly distinguishable from the other group. However, considering the purpose of this classification- namely, that those excluded may struggle to complete the course, and that graduates with certain disabilities could potentially pose risks to the public, the classification is prima facie over-inclusive. Many individuals with specified disabilities above the benchmark are frequently found capable of finishing the course and contributing positively to society. Additionally, the classification is based on an intrinsic and natural trait of an individual, and as it lacks intelligible differentia, it is therefore discriminatory.
In addition, A law arbitrarily depriving an individual of the inherent right of personal autonomy undermines the fundamental right under Article 15. In Naz Foundation v. Govt. (NCT of Delhi), the Hon’ble High Court of Delhi held that although Article 15expressly prohibits discrimination based on specified grounds only- religion, race, caste, sex, and place of birth, it also covers protection against discrimination on unspecified analogous grounds. Citing Anuj Garg v. Hotel Assn. of India, the court also stated that “protective discrimination” intended by a policy should be subjected to strict scrutiny and proportionate to the prospective aims. Lack of cohesion between the objectives and proposed discrimination or the unproportionate magnitude of the discrimination will fail the strict scrutiny test. In our case, the standardised exclusion of persons with specified disabilities strips an individual of his right to personal autonomy -the choice to pursue a career of his or her choice. The intended protective discrimination, to avoid the potential risk to society, fails the strict scrutiny test as the prospective aim is neither proved nor, if proved, passes the proportionality test. Hence, the guidelines infringe on the right conferred upon as per Article 15.
Furthermore, the SC, in several cases has fostered the adoption of a more pragmatic and individual-centric approach. The court has nudged the disability assessment board to evaluate persons with specific disabilities based on their capacity to pursue the course and disapproved of the practice of the board acting as an “exclusionary body”, cancelling qualified persons solely based on quantitative assessment. The state’s obligation to adopt effective measures to ensure equal and non-discriminatory treatment of persons with disabilities has also been recognised by the court. In Avni Prakash v. National Testing Agency, the SC ruled that the rights and entitlements shouldn't denied to them by taking a benchmark as a condition precedent.
Conclusion
Despite the conspicuous changes that have happened in the last decade or so, persons with disabilities are still to be an asset to the human capital. It's high time the NMC guidelines are revised and modified to align better with the state's responsibilities under international law and the constitutionally guaranteed equality values. The object of the modification shall focus more on building an inclusive atmosphere in the medical institutions. Various countries have preferred the individualistic approach over the uniform application of standardized procedures. In the UK, the candidate is called upon for counselling after qualifying primary selection procedures, including entrance tests and interviews, and then he or she is subjected to an outcome assessment in which the ability of the candidate to pursue the course is evaluated. There are requests from various corners of the world to remove technical standards that disqualify the candidates at the initial stages of the admission procedures. Hence, the preferable course of action would be to establish a system whereby eligible candidates after preliminary screening are assessed individually, and those who are found to be in a position to pursue the course, are granted admission accordingly.