Special Provisions for Persons with High Support Needs (Sections 38–40)

A rights statute is only as strong as its weakest beneficiary can feel it. For most persons with disabilities, the Rights of Persons with Disabilities Act, 2016 (the “RPwD Act”) delivers through guarantees of equality, non-discrimination, accessibility and reasonable accommodation. But a small number of persons — those with the most profound, multiple or intellectual impairments — cannot meaningfully exercise even those guarantees without an intensive, individualised package of human and material support. Chapter VII of the Act, comprising the single Section 38, is the Parliament’s answer to this hardest case: a statutory mechanism for “high support”. It is best read alongside the opening provisions of Chapter VIII — Sections 39 (awareness campaigns) and 40 (accessibility) — because high support, awareness and a barrier-free environment together form the architecture through which the State discharges its duties to those at the deepest end of the disability spectrum. This chapter unpacks all three sections, the implementing Rule 14A, and the leading authorities, including the watershed accessibility ruling in Rajive Raturi v. Union of India (2024).

The Scheme: Why Sections 38–40 Sit Where They Do

The RPwD Act is organised so that its substantive guarantees build outward from the individual to the State. Chapters II to VI establish rights and entitlements, education, skill development, social security and the special protections for persons with benchmark disabilities. Chapter VII then carves out a category that the rest of the Act cannot fully reach by ordinary means — persons with high support needs — and creates a bespoke route to a tailored package of assistance. Chapter VIII immediately follows with the “Duties and Responsibilities of Appropriate Governments”, opening with Section 39 on awareness and Section 40 on accessibility.

The placement is deliberate and instructive for exam answers. High support (Section 38) is an individualised, demand-driven remedy: it is triggered by an application and resolved case by case. Awareness (Section 39) and accessibility (Section 40) are systemic, supply-side duties cast on the appropriate Government as a class obligation owed to all persons with disabilities. The three together illustrate the Act’s twin logic — remove the barriers that disable people (the social model), and where barriers cannot be wholly removed, supply the support that lets the person participate anyway. A candidate who grasps this individual-versus-systemic distinction can frame almost any question on these sections correctly. For the conceptual foundations of the social model, see the introduction to the Act and its definitions chapter.

“High Support”: The Statutory Definition

The expression “high support” is defined in Section 2(t) of the RPwD Act as “an intensive support, physical, psychological and otherwise, which may be required by a person with benchmark disability for daily activities, to take independent and informed decision to access facilities and to participate in all areas of life including education, employment, family and community life and treatment and therapy.” Three features of this definition are doctrinally important.

First, the support contemplated is intensive and multi-dimensional — physical, psychological and “otherwise” — distinguishing it from the ordinary entitlements available to every person with a disability. Second, the purpose clause is striking: the support exists not merely to keep a person alive or sheltered, but to enable “independent and informed decision” and “participation in all areas of life”. This anchors Section 38 firmly to Article 12 (legal capacity) and Article 19 (community living) of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), which the Act implements. Third, the support is tied to benchmark disability — only a person with benchmark disability (40% or more, certified) can be the subject of a high-support application, a point reinforced by the Rules. The aim of fostering autonomy rather than mere custody is the through-line that connects high support to the Act’s vision of community living.

Section 38: The High-Support Application Mechanism

Section 38 is short but carefully sequenced into four sub-sections. Section 38(1) provides that any person with benchmark disability who considers himself to be in need of high support — “or any person or organisation on his or her behalf” — may apply to an authority, to be notified by the appropriate Government, requesting that high support be provided. The third-party trigger is crucial: a person with profound intellectual or multiple disabilities may be unable to initiate the process, so the law expressly permits a relative, guardian, friend or NGO to apply on the person’s behalf. This avoids the cruel paradox of a support mechanism that only the already-capable could access.

Section 38(2) requires the notified authority, on receipt of the application, to refer it to an Assessment Board consisting of such Members as may be prescribed by the Central Government. Section 38(3) directs the Assessment Board to assess the referred case in the prescribed manner and to send a report to the authority “certifying the need of high support and its nature.” Finally, Section 38(4) provides that on receipt of the report the authority “shall take steps to provide support in accordance with the report and subject to relevant schemes and orders of the appropriate Government in this behalf.”

Two textual cautions matter for precision. The Assessment Board does not grant support; it certifies the need and its nature. The operative obligation to provide support rests on the authority under sub-section (4). And that obligation, though framed with the mandatory “shall take steps”, is qualified by the words “subject to relevant schemes and orders” — meaning the actual quantum of support is mediated by Government schemes. This qualification has been criticised as diluting an otherwise strong entitlement, an issue revisited below.

Rule 14A: Constituting and Operating the Assessment Board

Section 38 is skeletal; the flesh is supplied by Rule 14A of the Rights of Persons with Disabilities Rules, 2017, inserted by the Rights of Persons with Disabilities (Amendment) Rules, 2019. Rule 14A(1) requires every State Government or Union Territory administration to notify the authority to whom a person with benchmark disability may apply for high support under Section 38(1). Rule 14A(2) restricts eligibility: only persons with benchmark disabilities holding a permanent certificate of disability may apply for high support — a sensible filter, given that high support presupposes an enduring, not transient, condition.

Rule 14A(3) prescribes the composition of the Assessment Board, to be constituted at the district or division level depending on the number of persons with benchmark disabilities. The Board is chaired by the District Chief Medical Officer (or Civil Surgeon / Medical Superintendent), with the District Social Welfare Officer as a member, alongside a panel of rehabilitation specialists — typically a Physical Medicine and Rehabilitation or orthopaedic specialist, an ENT specialist, an ophthalmologist, a general physician (or a paediatrician where the applicant is under eighteen), and a psychiatrist. The multidisciplinary make-up reflects the reality that high support needs cut across motor, sensory, intellectual and psychosocial domains. Rule 14A further requires the Board to invite the applicant for assessment and, where necessary, to undertake clinical assessment before it certifies the need and nature of high support to the notified authority. In effect, Rule 14A converts the bare statutory promise of Section 38 into an administrable procedure — though the practical activation of these Boards across States has been uneven, a gap that exam answers can flag as an implementation deficit.

High Support, Legal Capacity and Supported Decision-Making

Section 38 cannot be understood in isolation from Section 13 (legal capacity) and Section 14 (limited guardianship), which together effect one of the Act’s most radical reforms. Section 13(1) guarantees that persons with disabilities have the right to own and inherit property and to control their financial affairs on an equal basis with others, and Section 13(2) requires the appropriate Government to ensure they enjoy the right to equal recognition before the law and legal capacity on an equal basis. Where support is needed to exercise legal capacity, the Act’s philosophy — drawn from Article 12 UNCRPD and General Comment No. 1 of the UN Committee — is one of supported rather than substituted decision-making.

This is why the definition of high support in Section 2(t) stresses “independent and informed decision”. The Section 38 package is meant to be the practical scaffolding that lets a person with profound disability exercise her own will and preferences, not a route to having decisions taken away. Section 14 reinforces this by replacing plenary guardianship with limited guardianship based on mutual understanding and trust, taken to be a system of joint decision-making. A high-support determination should therefore be read as supplying the means of autonomous participation — mobility aids, personal assistance, communication support, therapy — not as a finding of incapacity. The Supreme Court’s broader equality jurisprudence under the Act, discussed in right to equality and non-discrimination, confirms that the Act’s default posture is enablement, not substitution.

Section 39: Awareness Campaigns and Sensitisation

Section 39 opens Chapter VIII and casts a duty on the appropriate Government — in consultation with the Chief Commissioner or the State Commissioner, as the case may be — to conduct, encourage, support or promote awareness campaigns and sensitisation programmes to ensure that the rights conferred by the Act are protected. Sub-section (2) particularises the content these programmes must carry. They must promote values of inclusion, tolerance, empathy and respect for diversity; advance recognition of the skills, merits and abilities of persons with disabilities and of their contributions to the workforce and professional life; foster respect for the decisions of persons with disabilities on all matters relating to family life, relationships and the bearing and raising of children; provide orientation and sensitisation at school, college, university and professional-training levels on the human condition of disability and the rights of persons with disabilities; provide similar orientation to employers, administrators and co-workers; and ensure that the rights of persons with disabilities are included in university, college and school curricula.

The provision is the statutory expression of Article 8 UNCRPD (“awareness-raising”). Its inclusion immediately after the high-support section is logical: even the best-designed support and accommodation mechanisms fail when administrators, employers and the public hold disabling attitudes. Clause (c)’s explicit protection of the autonomy of persons with disabilities in family life and parenting is particularly notable, because it confronts a deep-seated prejudice that persons with disabilities are unfit for intimate and parental roles. Although Section 39 is framed as a duty rather than an individually enforceable right, it supplies an interpretive backdrop against which courts read the Act’s rights generously, as the awareness-and-attitude rationale in Vikash Kumar v. Union Public Service Commission illustrates.

Section 40: The Accessibility Rule-Making Mandate

Section 40 is one of the most litigated provisions of the Act. It provides that the Central Government shall, in consultation with the Chief Commissioner, formulate rules for persons with disabilities laying down standards of accessibility for the physical environment, transportation, information and communications — including appropriate technologies and systems — and other facilities and services provided to the public in urban and rural areas. The verb “shall” and the noun “rules” are the operative words: Section 40 does not merely exhort the State to be accessible, it commands the framing of binding, enforceable accessibility standards.

Accessibility is the precondition for almost every other right under the Act. A guaranteed right to education, employment or healthcare is hollow if the school, office or hospital cannot be entered, the website cannot be read by a screen reader, or the bus cannot be boarded. Section 40 must therefore be read with Sections 44 (mandatory observance of accessibility norms for the grant of permission to build), 45 (time-bound accessibility of existing public buildings) and 46 (time limits for accessibility of services). The rules contemplated by Section 40 were operationalised through Rule 15 of the RPwD Rules, 2017, which adopted sectoral guidelines such as the Harmonised Guidelines and Standards for Universal Accessibility (2021). The legal adequacy of that delegated-legislation route became the central question in Rajive Raturi, discussed next.

Rajive Raturi v. Union of India (2017): The Foundational Accessibility PIL

The accessibility story begins with the first Rajive Raturi v. Union of India, (2018) 2 SCC 413, decided on 15 December 2017. The petitioner, a visually impaired human-rights worker, filed a public interest petition in 2005 contending that despite statutory obligations the country’s public infrastructure, transport and information services remained largely inaccessible to persons with disabilities. The Court, in a judgment authored by Sikri, J., located accessibility within the constitutional guarantees of Articles 14, 19 and 21 and the State’s obligations under the (then) Persons with Disabilities Act, 1995 and the newly enacted RPwD Act, 2016.

The 2017 ruling issued a detailed set of action points — commonly numbered as eleven directions — requiring the Union, States and Union Territories to make public buildings, transport and information-and-communication systems accessible within fixed timelines, and to file compliance affidavits. It dovetailed with the Government’s “Accessible India Campaign” (Sugamya Bharat Abhiyan). Crucially, Rajive Raturi (2017) reframed accessibility not as charity or welfare but as an enforceable facet of the fundamental right to live with dignity. Yet, as the years passed, compliance lagged. The Court retained the matter, and the chronic implementation gap eventually produced the far more consequential 2024 judgment.

Rajive Raturi v. Union of India (2024): Rule 15 Struck Down as Ultra Vires Section 40

In Rajive Raturi v. Union of India, 2024 INSC 858, [reported as 2024 LiveLaw (SC) 875], decided on 8 November 2024, a three-judge Bench of Chief Justice D.Y. Chandrachud and Pardiwala and Manoj Misra, JJ. delivered the most authoritative reading of Section 40 to date. Frustrated by years of non-compliance, the Court had earlier appointed the Centre for Disability Studies, NALSAR University of Law (led by Professor Amita Dhanda) to audit ground-level accessibility; its report, Finding Sizes for All (2024), supplied the empirical foundation for the judgment.

The Court’s central holding was that Rule 15 of the RPwD Rules, 2017 was ultra vires Section 40 of the Act. Section 40, the Bench reasoned, mandates the framing of compulsory, non-negotiable accessibility standards; but Rule 15, while using the word “shall”, incorporated sectoral guidelines (such as the Harmonised Guidelines 2021 and the civil-aviation guidelines) that were themselves drafted in advisory, illustrative or aspirational language. By smuggling self-regulation in through delegated legislation, the Rule defeated the mandatory compulsion that the parent statute intended. The Court therefore directed the Union Government to frame fresh, mandatory minimum accessibility rules under Section 40 within three months, in consultation with stakeholders including NALSAR-CDS, segregating non-negotiable requirements from broader good-practice guidance. The judgment is exam-critical because it establishes that a Rule cannot dilute a mandatory statutory standard into a voluntary one.

Accessibility as a Foundational Principle: The Two-Pronged Framework

The most quotable contribution of Rajive Raturi (2024) is its conceptual distinction between accessibility and reasonable accommodation. Accessibility, the Court explained, is an ex-ante, systemic and group-directed obligation: barriers must be removed proactively, before any individual request arises, so that the built and digital environment is usable by persons with disabilities as a class. Reasonable accommodation, by contrast, is ex-post and individualised — a tailored modification responding to a particular person’s circumstances, governed by the proportionality limit in Section 2(y) (“without imposing a disproportionate or undue burden”). One is a non-negotiable precondition; the other is a context-sensitive adjustment.

The Court paired this with a two-pronged implementation approach: the State must (i) prescribe and enforce mandatory minimum accessibility standards as a non-derogable floor, and (ii) pursue progressive realisation of higher accessibility over time through retrofitting existing infrastructure and designing new infrastructure inclusively from inception. This framework matters for Section 38 too: high support is the most acute form of individualised assistance, sitting at the far end of the same spectrum that runs from universal accessibility, through reasonable accommodation, to intensive person-specific support. A barrier-free environment reduces the population that needs high support, while high support backstops those for whom accessibility and accommodation alone are insufficient.

Vikash Kumar v. UPSC (2021): Reasonable Accommodation Beyond Benchmark Disability

The complementary doctrine of reasonable accommodation received its definitive statement in Vikash Kumar v. Union Public Service Commission, (2021) 5 SCC 370, decided on 11 February 2021 by a three-judge Bench led by Chandrachud, J. The appellant suffered from writer’s cramp (dysgraphia) and sought a scribe for the Civil Services Examination. The UPSC refused on the ground that scribes were available only to candidates with “benchmark” disabilities (blindness, locomotor disability or cerebral palsy at 40% or more), and writer’s cramp did not qualify.

The Supreme Court rejected this gatekeeping. It held that the facility of a scribe could not be confined to persons with benchmark disabilities, because reasonable accommodation — defined in Section 2(y) — is owed to the wider class of “persons with disabilities” under Section 2(s), not merely the benchmark sub-class. Drawing on General Comment No. 6 of the UN Committee, the Court located reasonable accommodation at the heart of substantive equality and held that its denial constitutes disability-based discrimination under Section 3 of the Act. While Vikash Kumar concerns reasonable accommodation rather than high support, it illuminates the spectrum logic underpinning Section 38: the Act distinguishes the benchmark sub-class (eligible for reservations and for high support under Section 38) from the wider class (entitled to non-discrimination and reasonable accommodation), and courts will not let rigid benchmark thresholds defeat the statute’s enabling purpose. For the full doctrinal treatment, see right to equality and non-discrimination.

High Support and the Right to Community Living

Section 38 is the operational partner of Section 5, which guarantees the right to live in the community. Section 5(1) provides that persons with disabilities shall have the right to live in the community, and Section 5(2) obliges the appropriate Government to ensure that they are not obliged to live in any particular living arrangement and have access to a range of in-house, residential and other community support services, including personal assistance, necessary to support living and inclusion in the community and to prevent isolation or segregation. High support under Section 38 is, in substance, the most intensive tier of that “range of services”.

Read together, Sections 5 and 38 implement Article 19 UNCRPD (“living independently and being included in the community”), which insists that even persons needing intensive support are entitled to live among others rather than be institutionalised. The danger the Act guards against is that high needs become a justification for warehousing people in custodial institutions. By routing high support through an individualised assessment aimed at participation “in all areas of life”, Section 38 is designed to keep the person in the community with support, not removed from it. This synergy is developed more fully in right to community living, and the broader catalogue of services is mapped in rights and entitlements.

Critiques, Gaps and Reform Debates

For all its conceptual ambition, Sections 38–40 attract sustained criticism that an exam answer should be able to articulate. First, the high-support entitlement in Section 38(4) is textually conditional: support is to be provided “subject to relevant schemes and orders” of the Government. Commentators argue this converts what reads like a right into a scheme-dependent benefit, allowing the State to plead the absence of a scheme as a defence — a structural weakness when compared with the unqualified language elsewhere in the Act.

Second, implementation of Rule 14A has lagged. Many States were slow to notify the competent authority and to constitute functioning Assessment Boards, leaving the Section 38 mechanism dormant in large parts of the country — a gap analogous to the accessibility non-compliance that drove Rajive Raturi (2024). Third, the eligibility restriction to benchmark disability with a permanent certificate (Rule 14A(2)) may exclude persons with severe but episodic or non-benchmark conditions who nonetheless need intensive support — a tension with the inclusive logic of Vikash Kumar. Fourth, Section 39’s awareness duty is non-justiciable in form, dependent on executive will rather than enforceable claim. Reform proposals therefore press for (i) unconditional minimum high-support guarantees backed by ring-fenced funding, (ii) statutory timelines for constituting Assessment Boards mirroring the accessibility timelines in Sections 45–46, and (iii) periodic compliance audits of the kind the Supreme Court ultimately imposed on the accessibility regime. Together these would close the gap between the Act’s promise and its delivery to those with the highest needs.

Exam Strategy: Answering Questions on Sections 38–40

For judiciary and CLAT-PG candidates, questions on this cluster tend to fall into predictable patterns. A short-note or MCQ will test precise section attribution: high support is Section 38 (Chapter VII); awareness campaigns is Section 39; accessibility rule-making is Section 40 (both in Chapter VIII). Remember that the Assessment Board certifies need (Section 38(3)) while the authority provides support (Section 38(4)), and that the Board’s composition flows from Rule 14A, not the section itself.

A longer essay will reward integration: situate Section 38 within the autonomy-and-community-living philosophy (Sections 2(t), 5, 13), then contrast it with the systemic duties in Sections 39–40, and deploy the case law as a controlled pair — Rajive Raturi (2024) for the proposition that delegated rules cannot dilute a mandatory Section 40 standard, and Vikash Kumar (2021) for reasonable accommodation as substantive equality reaching beyond benchmark disability. Close strong answers with the critique that Section 38(4)’s “subject to schemes” qualifier and the patchy activation of Assessment Boards leave a gap between text and reality. Always cite accurately: Rajive Raturi v. Union of India, (2018) 2 SCC 413 (the 2017 PIL) and 2024 INSC 858 (the rule-striking judgment); Vikash Kumar v. UPSC, (2021) 5 SCC 370. For the statutory bedrock, revisit the definitions chapter and the hub at Rights of Persons with Disabilities Act notes.