Aditi Sadhu and Aryaka Jain
The terms inclusivity and accessibility thrive across educational institutions and workplaces, as the discourse on disability rights presents various emerging facets such as digital accessibility, media accessibility and legal accessibility, et al. This discourse is also plagued by the usage of ableist terms that determine the level of mettle exhibited by an individual with a disability; using terms such as differently abled, person with disability and person with special needs/ abilities has a delimiting and constrictive effect on the psychology of a person, making them feel excluded and inferior. Individuals with disabilities of physical, mental, psychosocial and other natures have historically been viewed as outsiders; they are often deprived of social cohesion among their peers because disability is seen as a barrier. As humans, they have the full right to enjoy participation as citizens in the public space and avail proper education to maintain stable social and economic living standards.
Right to Education
In the past, the right to education was a part of the Directive Principles of State Policy (DPSP) under Article 45, restricted to written texts and lacking enforceability. Later, the right to education was elevated to a fundamental right by the 86th Constitutional Amendment Act of 2002 inserting Article 21A and modifying the requirements of Article 45. This was further solidified by the Right to Education Act 2009 which laid down a cohesive framework of rights and responsibilities in the elementary education system. However, despite such ambitious moves, lacunae still exist in recognition of the right of persons with disabilities concerning their right to education. These laws must take into consideration the factor of access to education for all sections of society and the development of quality education, upholding the pillar of social justice. Creating a welcoming environment, establishing and executing practices in the curriculum that emphasize the preliminary use of the equity principle, providing proper furniture, and suitable transportation, and by introducing conducive practices in the curriculum such as scribing and extra writing time during an examination to bring students with disabilities on the same footing as the rest of their peers. These are pivotal to the commitment to protect, promote and ensure participation and completion of education. But the development of an accessible environment remains a far cry with the presence of various loopholes spread across draft policies and the implementation of legislation, as observed in the case of Avni Prakash v. National Testing Agency.
The petitioner, Avni Prakash was a student who suffered from dysgraphia, a learning disability that causes irregular and inconsistent handwriting, transcription difficulties, sluggish pace of writing and diminished coherence. It is listed in Entry 2(a) of the Schedule to the Rights of Persons with Disabilities Act 2016. She qualifies for the benchmark disability standard, owing to a 40 per cent permanent disability, under Section 2(r) of the said act. The issue is whether the appellant was entitled to an hour’s worth of compensatory time owing to her PwD status under the NEET Bulletin 2021 and the Guidelines for Written Examination issued by the Union Ministry of Social Empowerment and Justice issued on August 29, 2018.[i] The guidelines entitle the facility of a scribe, reader or lab assistant and the option of choosing the mode of exam through Braille, large print or computer. Compensatory time in an examination is compulsory as well. Upon violation of the following guidelines, the aggrieved party filed a case in the Bombay High Court which was met with an unfavourable outcome, shifting the case to the Supreme Court via SLP. The counsel for the respondent, the National Testing Agency demanded that in order to claim compensatory time, a medical certificate has to be furnished from a designated center and in correct format, as outlined in Appendix VIII-B of the Regulations on Graduate Medical Education (Amendment), 2019. But this was required only during the admission process and not before the declaration of results as per Appendix VIII-A.
The injustice against the petitioner originated as a result of the wrongful denial of rights prescribed by law. This could not be brushed under the carpet as a necessary consequence of a competitive examination; failure to provide a suitable recourse would mean meting out unfairness to the petitioner’s life. Such a state of affairs is a reflection of the lack of responsibility that had to be taken up by the first respondent i.e., National Testing Agency; to ensure that personnel at examination centres are trained to adhere to the guidelines drafted for PwDs and implement them effectively. In the absence of adequate training, rights conferred on candidates with specified disabilities are set at naught and hence would have no meaning. The apex court issued clarifications that outlined strict directions to eliminate any leeway of elusiveness and discriminatory interpretation and ensure universal and non-discriminatory access to education, assigning paramount importance to the realization of the right to education. The court listed directions for relief, declaring that the appellant was wrongfully deprived of compensatory time of one hour while appearing for the NEET without any fault of her own, despite her entitlements as a PwD and a PwBD. It asked the NTA to take steps to rectify the injustice within a period of one week alongside necessary consequential measures under intimation to the DGHS and ensure the elimination of all existing ambiguity in the provisions of the NEET Bulletin that outline entitlements. It emphasized upon the recurrent sensitization of personnel at exam centres about reasonable accommodation, as well as the reinforcement of the legislative intent of the statutory provisions under the RPwD Act 2016.
Analysis of the judgement
The decision to deny a re-examination for the petitioner was taken in accordance with the case of National Testing Agency v. Vaishnavi Vijay Bhopale. It serves as an important example of a commonly faced human rights dispute in which courts resolve the clatter between the rights of two individuals or entities, or a person’s rights and the collective good of others, and strike a favourable balance between the two. These conflicts shed light on the scope of judicial review in human rights cases and how courts frame the outline of its conception of human rights, and the extent to which majestic theoretical precepts can be applied to complicated practical circumstances.[ii]
The denial of a reasonable accommodation to a PwD is extremely invidious. Laying out a distinction between PwD and PwBD exacerbates the consciousness created alongside the ableism that enveloped the petitioner. In Vikash Kumar v. Union Public Services Commission, the court stressed emphatically that the conferred rights and entitlements cannot be constricted by adopting the definition of benchmark disability as a condition precedent or as a condition of eligibility for availing of the rights. Rather, the standards of benchmark disability may apply as per the law but the right to avail reasonable accommodation cannot be subjected to the same scrutiny. The submission that only PwBD candidates can be provided with the facility of a scribe was rejected; the petitioner was entitled to reasonable accommodation even if he did not suffer from a benchmark disability. The persuasive value of this argument is to emphasize that reasonable accommodation is the right of every person who needs it.
Through a Jurisprudential lens
In the instant case, one can relate to the balancing of conflicting interests in Roscoe Pound’s theory of social engineering. Using this we can deduce that the court’s pragmatic approach served to prevent altering the ranks of 15 lakh other NEET candidates, which could have jeopardized futures and been detrimental to candidates ranked above the appellant. The principle of reasonable accommodation is at the heart of the right to inclusive education, premised on equality and non-discrimination and enshrined in Article 3 of the RPwD Act 2016. As defined under Article 2 of the UN Convention on the Rights of People with Disabilities, to which India is a signatory; it is the principle that promotes equality and grants positive rights while preventing discrimination based on disabilities or any health condition. It encapsulates the state and private parties’ obligation to provide extra support to disabled people to promote their full participation in society. It entails that the state must create an environment at educational institutions where they can feel safe to learn with normal students. Right to life as guaranteed under Article 21 is confined not only to discrimination and access to education but also to the wellbeing of an individual; in this case, the aggrieved party. Reliance on mere statutory backing while acknowledging the injustices suffered by the petitioner is of no use if the NTA does not truly acknowledge its presence and role in the examination process. The lackadaisical approach to adopting means for a fairer test defeats the legislative intent sought to be achieved.
The lack of a therapeutic approach in the judgement can be seen in how the bench ruled out that the NTA must provide compensation to the appellant within a week without specifying the optimum steps and solutions that should be utilized. There is no emphasis on the full and just rectification of the erroneous blunder and further no hearsay from the petitioner, casting a negative impact and skepticism about the academic prospects of the petitioner and many such students who have faced such difficulties in pursuit of their education. By using a reasonable thought process, it is clearly not feasible to compensate a student who has been preparing for an examination for one year or longer, in one week. It only remains to be seen if the remedial action taken by the respondents could truly serve to be beneficial to the petitioner’s wellbeing. Sensitizing personnel for future operations does not classify as suitable relief for the obliviousness of the exam centre to the petitioner’s reasonable accommodation needs, allowing the invigilation personnel at the examination centre to eschew strict penal action.
Reasonable Accommodation – the bone of contention
The crux of the instant case lies in the deliberation on reasonable accommodation and the norms and guidelines to determine reasonable accommodation for an individual in need of assistance. This question was raised in context of workplace in the case of Sri Bijoy Kumar Hrangkhwal versus Tripura State Electricity Corporation Limited & Ors., delivered by the Tripura High Court last month. The court held that it was the duty of the Corporation to provide reasonable accommodation to their employee, the petitioner who became disabled as a result of an accident during the course of his employment. The employee has every right to be given duties that he could deliver in accordance with his disability and receive his salary in accordance with Section 20 that entitles one to non-discrimination in employment. A similar question was raised in Blessen Baby v. Union of India regarding the extension of facilities to every disabled individual in need of special assistance regardless of the degree of the condition. Irrespective of the percentage of disability, the benefits of the earlier judgment of the Court may be extended to all the students in need of special assistance in Higher Secondary examinations.[iii]
The Draft National Policy for Persons with Disabilities mandates itself to construct an inclusive society that provides equal opportunities and cultivate an institutional framework that empowers the disabled to lead productive, safe and dignified lives. But this must work on reliable and accurate data and involve active participation of civil society. In 2022, the Ministry of Social Justice and Empowerment has suggested notable changes in areas of identification, healthcare, use of Unique Disability Identification Card, social security and education. It has stated that the Right to Education Act, 2009 and the RPwD Act, 2016 must align with each other to address the specific concerns of children with disabilities, sensitize and train teachers and encourage the use of sign language. It has also stipulated measures to safeguard their rights and empower legal recourse.
The biggest loophole that runs across all the three judgements discussed in the article is that the courts have not set the norms and standards to determine good reasonable accommodation and a suitable constitutional test in semblance to that of Articles 14 and 15 to assess any scheme, programme, facility or service for the disabled and the adherence to the stipulated norms. The reasoning that disability is a barrier pervades the set-up, as can be seen in how discriminatory employment and academic policies project their medical condition to be the causative problem, expurgating the need of inclusivity and equality.
Sadly, all existing policy and legislation on PwDs stands toothless despite an affirmative intent. This is attributed to the absence of a regulatory body to ensure proper compliance with disability rights laws and policies, especially that of reasonable accommodation. The mere recognition and congnizance will not help bear fruit towards expanding the enforceability of the Right to Education for persons with disabilities and special needs; it requires more than just acknowledgement but affirmative action.
[i] Shreyam Sharma, Rights of Persons with Disabilities not to be curtailed by applying standards prescribed for persons with benchmark disabilities: SC, The Leaflet ( Nov 30, 2021 ) https://theleaflet.in/rights-of-persons-with-disabilities-not-to-be-curtailed-by-applying-standards-prescribed-for-persons-with-benchmark-disabilities-sc/
[ii] Rahul Bajaj, Remedying individual injustice: The Supreme Court of India paves the way in Avni Prakash v. National Testing Agency and Ors., Oxford Human Rights Hub ( Jan 21, 2022 ) https://ohrh.law.ox.ac.uk/remedying-individual-injustice-the-supreme-court-of-india-paves-the-way-in-avni-prakash-v-national-testing-agency-and-ors/
[iii] SCC Online, Kerala HC issues to Centre and State in a PIL seeking the extension of facilities to every person with disability in need of special assistance irrespective of percentage of disability ( Aug 27, 2022 ) https://www.scconline.com/blog/post/2022/08/27/special-assistance-persons-with-disability-irrespective-benchmark-disability-legal-news-law-legal-updates/
The authors are Junior Editor and member at CASIHR respectively