Rights of persons with disabilities not to be curtailed by applying standards prescribed for persons with benchmark disabilities: SC

Reasonable accommodations are an integral component of any education policy that aims to achieve equity and inclusivity. SHREYAM SHARMA writes about the Supreme Court's recent clarifications regarding distinctions between persons with disabilities and persons with benchmark disabilities under the Rights of Persons with Disabilities Act, 2016.

 —————-

THE Supreme Court, last Tuesday, in Avni Prakash vs. National Testing Agency, issued an important judgment clarifying that rights and entitlements under the Rights of Persons with Disabilities Act, 2016 (RPwD Act), including the right  to inclusive education, shall not be curtailed by the application of a higher threshold prescribed only for 'persons with benchmark disabilities' (PwBD).

The bench comprising Justices D.Y. Chandrachud and A.S. Bopanna, pronounced its verdict on a plea by a female National Eligibility cum Entrance Test (NEET) 2021 candidate suffering from dysgraphia (which is a learning disability that inhibits the ability to write), whose grievance was that she was denied an additional one hour's time for attempting the paper by the examination centre. The appellant's contention was that she either be allowed to sit for a re-examination or be reasonably or proportionately compensated by way of grace marks or elimination of negative marking or otherwise.

Factual background

The facts of the matter were that the appellant was suffering from dysgraphia, which is a specified disability listed in Entry 2(a) of the Schedule to the RPwD Act. She also qualifies for the benchmark disability standard, owing to a diagnosis with a 40 percent permanent disability, under Section 2(r) of the RPwD Act.

Also read: Right to Education Act Curtailed by New Education Policy, Experts Say

The issue framed by the Supreme Court, in the appeal against a Bombay High Court judgment from October, 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.

The counsel for the respondent, the National Testing Agency (NTA), had, on October 11, 2021 when the matter was before the High Court, demanded the procurement of a medical certificate as per the format contained in Appendix VIII-A and from a designated centre specified in Appendix VIII-B of the Regulations on Graduate Medical Education (Amendment), 2019, in order to claim the one-hour compensatory time. However, the Supreme Court observed that it is evident from the format prescribed under Appendix VIII-A that it cannot be issued at a stage before the declaration of results, and will only be considered for admission to the medical courses.

The Supreme  court further held that:

"Para 5.4(b) of the NEET Bulletin 2021 (extracted above) indicates that the appellant was entitled to compensatory time of one hour for an examination of three hours, irrespective of her reliance on a scribe. Para 5.3 indicates that the requirement of a certificate in Appendix VIII-A applies after the results are declared."

The crucial distinction

The court then went on to establish the distinction between PwD and PwBD under the RPwD Act. It referred to its decision in Vikash Kumar vs. Union Public Service Commission from February this year, in which it had categorically observed that the concept of benchmark disability is applicable in the context of the provisions contained in Chapter VI of the RPwD Act 2016, which is titled 'Special Provisions for Persons with Benchmark Disabilities'. In contrast to this, the rights and entitlements conferred upon PwD are specified in Chapter II instead. Section 3(5) of Chapter II requires the appropriate government to take necessary steps to ensure reasonable accommodation for PwD. Hence, the court clarified that:

"These rights and entitlements which are conferred upon PwD 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. Benchmark disability, as defined in Section 2(r), is specifically used in the context of Chapter VI.  Undoubtedly, to seek admission to an institution of higher education under the 5 per cent quota, the candidate must, in terms of Section 32(1)10, fulfil the description of a PwBD. But equally, where the statute has conferred rights and entitlements on PwD, which is wider in its canvass than a benchmark disability, such rights cannot be abrogated or diluted by reading into them the notion of benchmark disability"

Hence, the standards of benchmark disabilities shall apply in situations where admission is sought into an institution of higher education under the five percent quota, in accordance with Section 32(1).  However, the right to avail reasonable accommodation cannot be subjected to the same scrutiny.

Also read: India's Right to Education is failing in reality

In furtherance of the same principle, the Supreme Court had, in Vikash Kumar, rejected the submission that only PwBD candidates can be provided with the facility of a scribe. It held that the petitioner was entitled to reasonable accommodation even if he did not suffer from a benchmark disability.

The Right to Inclusive Education is a right enforceable at the examination stage (Section 17(i) under Chapter III), distinct from the rights that apply during the admission stage (Section 32 under Chapter VI).

The Court emphasised on the provisions envisaged under the RPwD Act with regard to inclusive education for PwD in Chapter III. Section 17 of Chapter III lays down specific measures to promote and facilitate inclusive education for students with disabilities. Among other inclusive measures, sub-section (i) provides for the duty of the State to make suitable modifications in the curriculum and the examination system to meet the needs of students with disabilities. This duty can be fulfilled by providing extra time for the completion of examination papers and/or the facility of a scribe. Section 18 provides that the government and local authorities are duty-bound to take measures to promote, protect and ensure participation of PwD in adult education and continuing education programmes on an equal footing with others.

The provision for reservation in Chapter VI specifically directed towards PwBD students is different from the provisions in Chapter III for PwD students. Essentially, it can be concluded that PwD encompasses a wider group, of which PwBD is a sub-set. The principle of reasonable accommodation is at the heart of the right to inclusive education, premised on equality and non-discrimination. The denial of reasonable accommodation to a PwD would certainly result in discrimination, especially when the same is denied by applying stricter thresholds meant only for PwBD.

Also read: To provide a scribe for competitive exams is not largesse, says SC; rebukes UPSC; holds Benchmark disability not a precondition to obtaining a scribe

The Court, therefore, held that there was a gross miscarriage of justice in this case by the High Court directing the appellant, who is aggrieved by the denial of a compensatory one hour, to seek a certificate in terms of Appendix VIII-A, on the basis of a statement made by the counsel for the NTA. The injustice meted out to the appellant occurred, noted the apex court, because of (i) a vague and imprecisely defined NEET Bulletin 2021, and (ii) the absence of adequate training to the second respondent which was allotted as the appellant's centre.

Court's directions

The bench, in accordance with the decision in National Testing Agency vs. Vaishnavi Vijay Bhopale, ruled out the possibility of conducting a re-examination for the appellant owing to impracticability and uncertainty due to delay in results. However, the NTA cannot shirk or abrogate its responsibility to rectify the injustice which had been caused to the appellant, and must therefore consider extrapolation of marks or grant compensatory marks or adopt a 'no negative scheme', after applying their mind, ruled the Court.

Furthermore, the court directed the respondent to strictly ensure that the provisions which are made at the NEET in terms of the rights and entitlements available under the RPwD Act are clarified in the NEET Bulletin by removing ambiguity. It observed that,"Facilities which are provided by the law to PwD shall not be constricted by reading in the higher threshold prescribed for PwBD."

Significance of the judgment

The judgement comes as a huge relief to the petitioner, who was wronged initially by the obliviousness of the examination centre to her reasonable accommodation needs, and then once again, subsequently, by an erroneous interpretation of the threshold for benchmark disabilities. The higher threshold meant that the government and implementing authorities could deny the necessity of providing reasonable accommodations in furtherance of the creation of an inclusive education system by creating obstacles for PwD students.

The clarification issued by the Supreme Court, accompanied by strict directions to remove possibilities of vagueness and discriminatory interpretation, would ensure a universal and non-discriminatory access to education. Particularly, it assigns paramount importance to the realisation of the right to education.

(Shreyam Sharma is a 2^nd year B.A., LLB (Hons.) student at the NALSAR University, Hyderabad. Views expressed are personal.)