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A Hollow Promise of Equal Opportunity Under the New Disabilities Act

The new law has missed the opportunity to recognise the rights of students with disabilities to reasonable test-taking environments.

The Act is completely silent on the standards to be prescribed for scribes and for determination of additional time. Credit: Oli/Flickr (CC BY-NC-ND 2.0)

Millions of students with disabilities in India are denied equal opportunities to quality education. On paper, the government promises to empower persons with disabilities with equal rights and affirmative action, but in reality, the government has time and again failed to act on these lofty ideals, resulting in students with disabilities confronting discrimination at every step of their educational journey.

Standardised tests like the JEE, CLAT and UPSC examinations are gateways to premiere educational and employment opportunities in India. This summer, while students across the country toil hard to crack these high-stake examinations, students with disabilities need to gear up for a more immediate battle – a fight to demand reasonable test-taking environments.

What constitutes reasonable testing environment for persons with disabilities?

Reasonable accommodation under the new Rights of Persons with Disabilities Act, 2016 (RPWD Act) is defined as “necessary and appropriate modification and adjustments, without imposing a disproportionate or undue burden in a particular case, to ensure to persons with disabilities the enjoyment or exercise of rights equally with others; include provision of additional time, provision of scribes, etc.”

While this definition – modelled along the definition provided in the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) – may at first glance seem all encompassing and reasonable, when read in context, it is vague and paltry. For instance, the Act is completely silent on the standards to be prescribed for scribes and for determination of additional time. Persons with disabilities are then yet again left to the mercy of individuals and organisations who have unbridled power to determine the extent of accommodation to be provided.

More worryingly, the glaring omission of adaptive technologies from the definition of reasonable accommodation not only falls foul of India’s obligation to provide assistive technologies under the UNCRPD, but also robs persons with disabilities of the opportunity to be self-sufficient. This grave omission also flies in the face of the fundamental tenets of the rights-based approach to development, which the RPWD Act claims to be modelled on.

Missed opportunity

Paradoxically, while the Ministry of Social Justice and Empowerment (MSJE) consulted various stakeholders such as the state governments, union territories, central ministries and departments for preparing the RPWD Bill, it failed to look in its own backyard. In other words, in 2013, the MSJE published a comprehensive memorandum containing guidelines for written examinations. The guidelines were prepared pursuant to an order of the Chief Commissioner of Persons with Disabilities (CCPD). While one can only wonder why the MSJE did not include this ready reckoner prepared by it in the RPWD Act, one can say with certitude that persons with disabilities are left to bear the brunt of this careless omission.

The examination guidelines not only take cognisance of new avenues available for persons with disabilities as a result of progressive technology, but they also go a step further to state that persons with disabilities must be provided the option to choose the mode of examination (braille, large print, computer, recording of answers).

The guidelines also remove all restrictions imposed on scribes (scribes are individuals who read out questions and transcribe answers during examinations), such as educational qualification, marks scored and age. Instead, the guidelines recommend strengthening the invigilation system to address concerns of malpractices. Shifting the onus of conducting a fair examination onto the examining authorities not only reduces the undue burden imposed on persons with disabilities to find qualified scribes but also recognises them as right holders instead of mere welfare recipients.

Over four years have passed since these progressive guidelines were issued. However, till date, institutions fail to comply with them and do not provide reasonable test taking facilities. While certain institutions have argued that these guidelines are not law, the Delhi high court has held that the guidelines are enforceable and cannot be treated as mere executive instructions. However, judgments of the Delhi high court are not binding in other states and at best have persuasive value should a similar case come up in a different state.

If only the new RPWD Act codified these guidelines, then this uncertainty surrounding reasonable test taking accommodation would have been settled once and for all and students with disabilities would have finally had a shot to compete for quality education on par with their able bodied counterparts.

However, it is not too late to undo this grave omission. As the rules for the RPWD Act are yet to be notified, this is an opportune time for the MSJE to set out the comprehensive guidelines in the rules.

Perhaps, this order of the CCPD which directed it to frame the guidelines in the first instance can be a timely reminder to the MSJE on such much needed introspection on its functioning:

“…it goes without saying that in the absence of such uniform and comprehensive guidelines, persons with disabilities including the persons with blindness and low vision continued to be routinely subjected to prolonged and pervasive hardship and disadvantage with the result that more often than not, many candidates with disabilities have to run from pillar to post getting to fix various problems relating to taking off examinations by them such as issues around amanuenses, use of low vision aids, use of computers, extra time etc…

…this Court notes with utter dismay and shock that this matter did not move forward with the Ministry since 2008 and 2009 and it continues to hang fire compounding the hardship, disadvantage and irreparable loss faced by persons with disabilities…”

One can only hope that the MSJE will strike while the iron is hot and not miss the bus, again.

Anusha Reddy is an associate director at IDIA.