The Research and Policy Team of IDIA recently had the opportunity to answer a query regarding leeway granted to students with disabilities (with specific emphasis on dyslexic students) during examinations such as the IIM-Indore IPM Aptitude Test, CLAT, NMIMS-NPAT (BBA), Symbiosis-SET etc. We looked into the legal position on the issue, investigating specifically whether a dyslexic student is entitled to demand:
- additional time
- access to calculators
Locating the right
The, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 [“PWD Act”] is the special legislation in India applicable to persons with disabilities. “Disability” is defined under S. 2(i) of the Act and it includes inter alia, mental retardation.[1] However, given that dyslexia is not characterized as a mental retardation issue, but rather a ‘learning disability’, it is debatable whether it will fall under S. 2(i)(vi) of the PWD Act. It is not clear whether the other disability related statute – the National Trust For the Welfare of Persons with Autism, Cerebral Palsy Mental Retardation and Multiple Disabilities Act, 1999 [the “NT Act”] – includes dyslexic students or not.[2]
While some courts others have discussed dyslexia under the provisions of the PWD Act and the NT Act,[3] others have held that dyslexia is excluded from the ambit of the Act.[4] In an attempt to bring clarity to this issue, some NGOs and socially oriented organizations have over the years petitioned for an amendment to the PWD Act to specifically include dyslexic students.
Despite this statutory ambiguity, some by-laws and regulations of State bodies, such as the CBSE[5] and the ICSE[6] take into account dyslexic students. The Tamil Nadu Government has also made specific provisions for the same.[7]
On Examinations
Neither the PWD Act nor the NT Act contain provisions relating to how examinations are to be conducted. Courts have sought to locate this right under the PWD Act in the following provisions/chapters:
- S. 42 – In Abhay Partap Singh v. Haryana Public Service,[8] the Punjab and Haryana High Court located the right under S. 42. They directed the appropriate governments to “by notification make schemes to provide aids and appliances to persons with disabilities”. This is not a particularly sound argument as S. 42 of the Act only refers to schemes in light of “aids and appliances”. This indicates that it only covers schemes relating to equipment such as hearing aids, crutches etc. and not examination concessions.
- Chapter V – In the noted case of Dhawal S. Chotai v. Union of India,[9] “the tenor” of the chapter has been stated as one requiring the State to ensure all facilities are provided to disabled candidates in the matter of education. This is undoubtedly a vague statement, unsupported by the language of the statute. However, S. 27, which refers to the “schemes” the State is required to make, refers to both schools and universities. This is possibly one provision in which this right to examination concessions can be located.
Additional Time
In 2007, the Court of the Chief Commissioner for Persons with Disabilities in Gopal Sisodia, Indian Association of the Blind v. State Bank of India [10]ordered the Ministry of Social Justice & Empowerment to issue guidelines for examinations. The matter had come before it after an order of the Delhi HC directing it to look into “comprehensive Policy for conduct of written examinations for persons with disabilities”. The Court specifically noted that while the petitions before the HC (and consequently before it) prayed for relief for candidates with poor vision, they were concerned with all disabilities.
This decision directly led to Executive Order/O.M. No.16-110/2003-DD.III dated 26.2.2013 by the Ministry of Social Justice. It lists guidelines that all State Governments are required to follow: “Guidelines for conducting written examination for Persons with Disabilities.” [11] Clause XI, which is the most relevant, states:
“The word extra time or additional time that is being currently used should be changed to compensatory time and the same should not be less than 20 minutes per hour of examination for persons who are making use of scribe/reader/lab assistant. All the candidates with disability not availing the facility of scribe may be allowed additional time of minimum of one hour for examination of 3 hours duration which could further be increased on case to case basis.”
The decision and the guidelines issued thereunder have been enforced by several High Courts around the country. [12] Earlier this year, a matter concerning the guidelines came up for hearing before the Delhi High Court in Sambhavana v. Union of India. The UPSC for Civil Service Examinations for 2014 had issued guidelines for blind candidates, stating that they can use a scribe but would only be granted additional time of 30 minutes. This was challenged as being contrary to the one hour under the guidelines issued by the Ministry of Social Justice. The Court, appreciating this position, stated:
“The guidelines contained therein were issued as per the directions of the Chief Commissioner for Persons with Disabilities who is an Authority appointed under Section 57(1) of the Act and cannot be treated as mere executive instructions and the said guidelines having been issued for effective implementation of the provisions of the Disabilities Act, have statutory force and are bound to be implemented by all Departments and Authorities.”
From this, it is clear that the guidelines are binding on all state governments. Therefore, additional time as prescribed must mandatorily be granted to any person with disability requesting it.
Whether this covers dyslexia or not is however, debatable. As noted earlier, while some by-laws/regulations include dyslexia, it is not clear whether it falls under the PWD Act. One way to get around this uncertainty is to locate the right in Part III of the Constitution. All the NLUs are statutory bodies, and will fall under the definition of State under Art. 12. Consequently, the Bombay High Court’s reasoning in Dhawal S. Chotai can be applied against CLAT. In that case, the petitioner had sought extra time due to slowness caused by Cerebral Palsy. The dispute arose over the quantum of time to be granted. The HC granted the extra time, holding:
“7. As far as respondent No. 2 institution is concerned, it is a statutory authority and it would fall amongst other authorities under Article 12 of the Constitution of India and would also be bound by Article 21 of the Constitution which provides for right to life which means right to have a decent life. The right to receive education and facilities for it will have to be read in it…” [13]
The extra time was thus understood as a right under Article 21. CLAT can thus be made to similarly grant extra time. Unfortunately, this ratio will not be applicable to NMIMS-NPAT or SET, which are private bodies.
Finally, it must be noted that the guidelines (in Executive Order/O.M. No.16-110/2003-DD.III dated 26.2.2013) do not discriminate between blind candidates and others for extra time. It merely refers to disabled candidates. Therefore, even though it is an order passed under the PWD Act, it can arguably be extended by High Courts in exercise of writ jurisdiction to dyslexic students as well.
Use of Calculator
There are no statutory provisions/executive orders/guidelines/decided cases on the use of calculators by disabled students. Existing jurisprudence focuses exclusively on granting additional time/permitting use of scribes. However, there is one enabling provision in the PWD Act itself regarding mathematical questions. S. 30 states: Without prejudice to the foregoing provisions, (be appropriate Governments shall by notification prepare a comprehensive education scheme which shall make Provision for
…
(f) Suitable modification in the examination system to eliminate purely mathematical questions for the benefit of blind students and students with low vision;
The limitation is that this only applies to blind students, and not students with other impairments. Given the already existing uncertainty surrounding the status of dyslexia under the act, it would be reasonable to assume that it is excluded.
END NOTES:
[1] S. 2(i)(vi), The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
[2] See the definition of “persons with disability” under S. 2(j) of the National Trust For the Welfare of Persons with Autism, Cerebral Palsy Mental Retardation and Multiple Disabilities Act, 1999.
[3] Pramod Arora v. Hon’ble Lt. Governor, W.P. (C) 1225/2014 (Del. HC) (Unreported); Rohan Sood v. Union of India, CWP No. 11959 of 2006 (P&H HC) (Unreported).
[4] Payel Sarkar v. Union of India, W.P. No. 10184 (W) of 2011 (Cal. HC) (Unreported).
[5] See Notification COORD/EC-25.11/2013 (20.02.2014), Central Board of Secondary Education, available at http://www.cbse.nic.in/examin~1/exambyelaw_20feb14_2014.pdf.
[6] Concessions, Council For The Indian School Certificate Examinations, available at http://www.cisce.org/Concessions.aspx
[7] G.O.Ms.No.110 (17.07.2003), Department of School Education, Government of Tamil Nadu, available at http://www.tn.gov.in/schooleducation/Inquiry_Commission/part1_annexures_140to298.pdf; See Minor A. Divya v. Secretary to Government, W.P.No.17202 of 2009 (Mad. HC) (Unreported); B. Tharunan v. Secretary to the Government, W.P.(MD) No.890 of 2011 (Mad. HC) (Unreported).
[8] Abhay Partap Singh v. Haryana Public Service, CWP No.21466 of 2011 (P&H HC) (Unreported).
[9] Dhawal S. Chotai v. Union of India, AIR 2003 Bombay 31.
[10] Order dated 23.11.2012 in case No. 3929/2007
[11] Executive Order/O.M. No.16-110/2003- DD.III (26.02.2013), Department of Disability Affairs, Ministry of Social Justice and Empowerment, available at http://wcdodisha.gov.in/sites/default/files/compendium/Guidelines%20for%20conducting%20Written%20Examination%20for%20PwDs.pdf.
[12] See, e.g., Arun Kumar Singh v. State of Jharkhand, W. P. (P.I.L.) No. 4891 of 2012 (Jhar. HC) (Unreported); Shehin S. v. Union of India, W.P.(C). No.35108 of 2014 (Ker. HC) (Unreported).
[13] Dhawal S. Chotai v. Union of India, supra note 9.
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Written by Ashwini Vaidialingam, Team Leader, IDIA Research and Policy Team