Tuesday, December 03, 2013

Unpacking the Obligation to Provide Reasonable Accommodation to Persons with Disabilities -- Guest Post

On the empowering occasion of World Disability Day, it is most appropriate to deal with the nature of obligation to provide reasonable accommodation for persons with disabilities in the sphere of education with particular focus on visually challenged students. It is well known that visually challenged students require the help of the scribe to write their answer papers during the examination. The same privilege has been legislated in Section 31 of the 1995 Persons with Disability Act (educational institutions to provide amanuensis to visual handicapped students). However, the plight of these students remains unabated.

Recently, a few visually challenged students applied for certain jobs advertised by the Thane Municipal Corporation. They were asked to appear for a test. Therefore, they sought the municipal authorities' permission to chose their own writers and gave the Corporation their writers' names in advance. The Corporation appears to have accepted these names. Yet, when the students actually appeared for the test, the authorities refused to allow them to use their own writers. The Corporation coerced the students to write their papers with the help of the writers chosen by it. When the students entered the examination hall, they were taken a back to find that students of 3rd and 4th standards were to be their writers during the test. Obviously, the children of 3rd and 4th standards found it difficult to follow the instructions of the visually challenged students, and the same adversely affected their performance. (I know some of these visually impaired students personally. The matter is now pending before the Bombay High Court through a writ petition).

This appalling episode of indignity has compelled me to ask to myself the poignant question, whether the sagacity is the first casualty for students with visual disability? I also need to reflect, whether the Corporation, which is the manifestation of the Indian ‘state’ under Article 12 of the Constitution, understands the obligation to provide reasonable accommodation to persons with disabilities.

The Concept of Reasonable Accommodation

Reasonable accommodation has been defined in United Nation Convention on Rights of Persons with Disability 2006 (hereinafter UNCRPD) as:
necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. 

A close look on this definition demonstrates that this concept has two dimensions. First, a procedural and substantive one. Second, a general and a particular one.

The procedural dimension casts a duty on educational institutions (the providers) to dialogue with students with disability (the recipient) to provide reasonable accommodation to them. The provider is expected to consult the recipient about the kind of accommodation she requires. In other words, the decision to adopt a particular measure in the form of modification or alteration should be acceptable to the recipient. The institution should not impose the same on the recipient. On the other hand, its substantive dimension deals with the reach of hard preferences by way of modifications and alterations in the curriculum or facilitating measures like providing scribes.

The generality element in reasonable accommodation addresses how and to what extent educational institutions should assimilate and include students with disabilities in educational sphere. The particular element, on the other hand, requires educational institutions to take account of those with special needs or disabilities in each particular case. The obligation is to treat each individual with disability on an equal basis with others. Accordingly, there ought to be a delicate balance between general measures suitable for inclusion of all persons with disability and particular measures necessary for assimilation of a particular individual with disability. However, since the accommodation has to be only "reasonable" rather than complete, institutions are required to take all appropriate measures provided that these measures do not cast a disproportionate or undue "burden" on students. It is unclear from the language of UNCRPD whether this refers to only economic burden or to other hardships.

Let me illustrate how educational institutions can provide a variety of choices to visually challenged students if they engage in meaningful and serious dialogue. The institutions may:

(i)     provide suitable writers;
(ii)    outsource the task of finding writers to NGOs;
(iii)   authorize students to choose their writers;
(iv)   allow students to write papers with the help of computers;
(v)  facilitate the use of audio equipment for students to answer questions;
(vi). permit students to write their answers in Braille; and
(vii) appoint their in-house teachers to write the papers of these students.

Contrary to the Corporation's apparent belief, enabling students with visual impairment to write their examination through enabling means is not a complex and insolvable conundrum. There is a huge basket of options available. In mutual understanding and dialogue,  institutions and students can decide what form of reasonable accommodation would most suit them.

A close look at these options  shows that none of them are particularly burdensome or financially and practically unviable. However, what is important is whether the most suitable choice was made available to a given student and a given institution under the circumstances of the case. In order to attain this objective, it has to be acknowledged by the State, other entities, and establishments under the State's control that principle of "reasonable accommodation" is inherent in the notion of substantive equality. The State needs to realize that reasonable accommodation plays the pivotal role of balancing the particular interests of persons with disabilities with the general societal interest. As a matter of fact, it assimilates the physical differences among persons with disabilities with the main stream of the society by casting obligation on the State to modify the so-called "able-bodied" norm.

In my next piece, I will demonstrate how the Indian judiciary has incorporated this principle into its equality jurisprudence with special reference to public employment.

Guest Post by Dr. Sanjay Jain, an assistant professor of law.
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