Bombay HC dismisses plea by PwD candidate, denies interfering in Physical eligibility Criteria for MBBS admissions

The order of the HC bench comprising Justices S. C. Gupte and Surendra P. Tavade comes on 08.02.2021. The order had mentioned that the "Article 19(1)(g), which provides for the citizens' right to practice any profession, or to carry on any occupation is also subject to reasonable restrictions generally imposed by the State," and "Prescribing professional and technical qualification of a degree in medicine and eligibility criteria for enrolling for a degree course do come within these permissible restrictions."

The controversy ensued around the decision that had denied the petitioner MBBS aspirant, a person with a disability, her admission to undergraduate medical course. After being denied admission, the aspirant had challenged both the executive decision of Union Government and erstwhile Medical Council of India, now National Medical Commission, and also the law in this behalf, containing regulations called Graduate Medical Education (Amendment) Regulations, 2019.

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The aspirant, who is a physically disabled person, has her left arm amputated. The disability suffered by her is said to be 'left transcarpal amputation with disability of 60 percent'. It has been so assessed by the Disability Assessment Board of All India Institute of Physical Medicine and Rehabilitation, Mumbai. At the instance of the aspirant, she was again assessed for her disability by Grant Medical College and Sir J.J. Group of Hospitals, Mumbai, certifying her disability type as physical disability being locomotor disability and the specified category of disability under the broad sub-head "others", such as "Amputation, poliomyelitis". Both certificates had declared the Petitioner, aspirant to be ineligible for a medical/dental course.

Erstwhile MCI, now NMC, with the previous sanction of the Central Government, had made Regulations called as Graduate Medical Education Regulations (Amendment), 2019, which had amended the original regulations known as "Regulations on Graduate Medical Education, 1997" in connection with admission of students with specified disabilities under the Rights of Persons with Disabilities Act, 2016 to MBBS course.

The regulations, in the first place, had categorized various disabilities into broad heads, such as physical disability, intellectual disability and mental disability. They then had described the various types of disabilities within these three heads, first as broad categories and then specified disabilities within these broad categories and lay down the ranges of such specified disabilities for undertaking the medical course. The case involving the petitioner the aspirant had been concerned with the broad sub-head of "locomotor disability" including "specified disabilities" under clauses- a to f. Clause 'f' provides for a residual category, described it as 'others...such as Amputation, Poliomyelitis etc.'

This category had concerned the regulations to the following effect, "Both hands intact, with intact sensations, sufficient strength and range of motion are essential to be considered eligible for medical course."

When looked into the matter from the ranges of disability, the regulations had described three ranges from the point of view of eligibility for undertaking a medical course and applying through PwD quota for admission. The first had been less than 40 percent disability, which would make the candidate eligible for medical course, but not eligible for PwD Quota (person with disability quota). The next range had been between 40 to 80 percent. A candidate within this range would be eligible for the medical courses as well as for applying through the PwD quota. The third range had been above 80 percent Disability. This range of disability would make the candidate generally ineligible subject to one exception, such exception being in favor of a person, who, even with more than 80 percent of disability, may be allowed on a case to case basis, his or her functional competency being determined with the aid of assistive devices so as to see that with such devices, the disability could be brought to the level of below 80 percent. Save for this exception, the disability range of more than 80 percent had been described as not eligible for a medical course.

The two certificates issued in the case of the aspirant, the petitioner had indicated that she had been a person with locomotor disability coming within the broad head of physical disability, her specified disability being classified as 'F', that is to say, amputation, poliomyelitis, etc. The final opinion of both expert committees as per MCI guidelines had been that the Petitioner could not be eligible for medical/dental courses based on her disability.

Mr. Gaurav Bansal had represented the petitioner the aspirant in her case. He had submitted that the Respondents including the Union Government and erstwhile MCI, now NMC, had wrongfully denied her admission to the medical course. He had further submitted that the aspirant's physical disability had been commensurate with her capacity to undertake the course.

It had also been submitted that MCI itself had issued a competency-based curriculum, which talked about five roles of 'Indian Medical Graduate'. They had been said to be those of a (i) clinician, (ii) leader and member of the health care team, (iii) communicator, (iv) lifelong learner, and (v) professional.

Referring to those roles as specified by erstwhile MCI, now NMC, the counsel for the aspirant had further submitted before the Court that candidates with a disability such as the Petitioner could fulfill all these five roles with reasonable accommodation. To prove his point, he further relied upon several extracts and opinions, both National and International, on this subject. Based on this material, it had been submitted that the type and range of disability of the Petitioner admitted of her capacity and ability to undergo and successfully complete the under-graduate medical course.

Alternatively, it had also been submitted that the regulations themselves were unconstitutional, being in violation of the fundamental right of the Petitioner to practice the profession of her choice. It had also been submitted that the restrictions introduced by the Respondent-National Medical Commission for taking admission to undergraduate medical course inter alia by requiring that both hands of the candidate ought to be intact was an unreasonable restriction. It had also been submitted that the undergraduate medical course didn't involve any surgery and hence, there had been no rationale for denying admission to a person with a disability such as the Petitioner.

The counsel for the petitioner had further referred to Section 3 of Rights of Persons with Disabilities Act, 2016 (for short "Disabilities Act") and cited judgments of the Supreme Court in cases of Veer Pal Singh Vs. Ministry of Defence and Ramesh Chandra Agrawal Vs. Regency Hospital Ltd and the judgment of Kerala High Court in the case of Aswathy. P. Vs. Union of India. By referring to these judgments it had also been submitted on the behalf of the petitioner that expert opinion, which formed the basis of the particular regulation or guideline of the Medical Council, had been open to review through an independent body of experts.

Finally, the counsel for the petitioner had further implored the court to appoint such independent expert body to assess the wisdom of the expert opinion, which purportedly formed the basis of the relevant guidelines issued by MCI.

After listening to all the parties, the HC bench had opined that in the first place, any executive, quasi-judicial or legislative action, based on an expert opinion, could hardly be contested in a court of law on the basis of the wisdom of that opinion. It might, however, be permissible to question an executive action or a quasi-judicial order based on the expert opinion if the court had been of the view that such opinion had not been duly obtained or its credibility had been in doubt.

Referring to the earlier Supreme Court observations, the HC bench had noted:

"Though in administrative or quasi-judicial matters, it may thus be open, from this limited standpoint, to go behind or question an expert opinion, when it comes to legislative exercise by the State, it would be practically impossible to question the wisdom of any legislation based on an expert opinion. It is not open in such a case to examine the materials before the experts and assessment of such materials made by experts to form their opinion, on the basis of which the particular law is framed."

The court had further opined that the guidelines found in Appendix 'H-1' of the regulations framed by MCI, had described "various physical disabilities, their sub-types, and ranges of disabilities to be considered for each sub-type for eligibility to undertake the medical course. One of the stipulations so far as locomotor physical disability is concerned is that in the case of a candidate with amputation, with a view to consider the particular range of disability for assessing eligibility to undertake medical course, both hands of the candidate must be intact. If the candidate is prevented from using either of his/her hands, there is no question of assessing the disability range with a view to see if he/she is fit for undertaking medical course."

"Medical Council is a body of experts and there is no gainsaying that this particular stipulation is based on its expert opinion. It is not open, for the reasons stated above, for this court to question the legislative wisdom of the Council or to question the expert opinion, on which its legislation is based," observed the Court.

The argument against the candidate applying for medical admission was that the candidate was suffering from a disability on account of causes mentioned in the residuary category 'others', particularly, cerebral palsy. The court held that so far as cerebral palsy was concerned, the requirement was only that the disability of the candidate should not be more than 80 percent and the candidate should not be suffering from impairment of vision, hearing, cognitive function, etc. The candidate's impairment was not by reason of any locomotor disability, such as amputation, poliomyelitis, etc; her impairment was on account of cerebral palsy, and she was within the acceptable range of disability without suffering from the stated impairments. Based on this assessment, the court directed the respondents to admit the petitioner to the MBBS course applied for by her," stated the Court.

However, the HC bench had further opined that the facts of this had been altogether different. "The Petitioner there was, far from challenging the regulation, imploring the authorities to act within the regulations; she was seeking admission on the basis of the regulation, and not by questioning its wisdom. As we have noticed above, the facts of our case are wholly distinguishable from the facts before the Kerala High Court in Aswathy P.'s case," noted the HC bench.

Referring to the submission made by the counsel for the petitioner, that her denial of admission on account of her disability had amounted to discrimination prohibited both under Section 3 of the Rights of Persons with Disabilities Act, 2016 ("Disabilities Act") and Article 19(1)(g) of the Constitution of India, the Bombay High Court had opined that there had been no merit in that contention.

"Sub-Section (3) of Section 3 of the Disabilities Act, which provides for the rule against discrimination, itself recognizes the permissibility of an act of discrimination which is a proportionate means of achieving a legitimate aim. It is a legitimate aim to achieve excellence in the study and practice of medicine, which involves basics of surgery, commensurate with the rights of disabled persons to study and practice medicine. For achieving this aim, laying down of categories of disability and providing for different ranges within which individuals with disabilities shall be allowed access to medical education can surely be described as proportionate means to achieve that aim," stated the High Court.

Referring to Article 19(1)(g), which provides for the citizens' right to practice any profession, or to carry on any occupation, the High Court had further noted that the article "is also subject to reasonable restrictions generally imposed by the State by making a law, in the interests of the general public and particularly, by prescribing professional and technical qualifications necessary for practicing any profession or carrying on any occupation."

"Prescribing professional and technical qualification of a degree in medicine and eligibility criteria for enrolling for a degree course do come within these permissible restrictions," stated the Court.

Thus, finding no merit in the petition, the High Court bench had disposed of the petition.