NTRODUCTION:
The constitution of India is the supreme law of the land, which provides all its citizens with rights and freedoms. The rights and freedoms are equally available to all its citizens irrespective of sex, caste, place of birth or any other kind of discrimination. Education is a key to built and to reframe the society . It is thus important that education is available to all the citizens , to disabled citizens as well. India has incorporated legislations and provisions for inclusive education and for providing equal opportunity to the disabled citizens. But still there are discriminations faced by them from the society. One such injustice is dealt by Supreme Court in Avni Prakash v. National Testing Agency.
FACT:
Avni Prakash, a NEET aspirant is suffering from dysgraphia, which is a specified disability under the Section 2(a) of Rights of persons with disability Act 2016(RPwD) and the appellant has been diagnosed with 40% permanent disability , falling within the definition of ‘person with benchmark disability ‘(PwBD) under the Section 2(r) of the Act of 2016. Dysgraphia is a neurological condition which causes impaired and inconsistent handwriting , poor spelling and spacing, transcription difficulties and incoherence. The aspirant were devoid of the compensatory hour provided to the disabled under 2016 act and the guidelines of NEET by the examination centre ( second respondent) on the ground that the centre was unaware of the rights of disabled candidates.
ISSUES:
The issue in this case are twofold,
- Whether the act or authority in depriving compensatory hour unconstitutional and arbitrary?
- Whether the appellant eligible for a re-examination on deprival of her reasonable rights?
PROCEDURAL HISTORY:
On 23rd September the appellant moved a writ petition under Article 226 of the Constitution before the Bombay High Court . Among other reliefs she sought a direction to the first respondent to hold a fresh examination for the appellant. The Bombay high court passed an interim order directing the National Testing Agency to conduct a fresh examination. In furtherance with the interim order the appellant approached the Grant Government Medical College , Mumbai, to collect the certificate in the prescribed format under Appendix VIII-A , and the appellant was informed that the form is applicable only at the time of admission and cannot be used to avail relaxations in the conduct of examination. On 26 September , appellant filed another affidavit in the high court indicating the certificate conforming to issue Appendix VIII-A is required only after declaration of results and is requires only for seeking admission. The high court without considering the contention of the appellant, declined to entertain the petition. Thereafter , the appellant filed an appeal to the Supreme Court .
DECISION:
The Supreme Court while deciding the matter considered In Vikash Kumar v. Union Public Service Commission and others, emphasised that reasonable accommodation is the heart of the principle of equality and non-discrimination espoused under the RPwD Act 2016. The denial of reasonable accommodation to a PwD amounts to discrimination. It is the positive obligation of the State to create the necessary conditions to facilitate the equal participation of disabled persons in society. In present case , the appellant was denied her entitlement to reasonable accommodation and the State failed to fulfill its positive duty of protecting her right to inclusive education. The Court observed that the certificate under Appendix VIII-A is applicable only at the time of admission ,as held in ,Vidhi Himmat Katariya v. State of Gujarat,in which three judge Bench of this Court observed that the certificate under Appendix VIIIA is applicable while seeking admission to medical courses . The Supreme Court held that there was a gross negligence on the part of the authority and the rights of the appellant was obstructed and there would be irretrievable injustice to the life of the appellant. But the court stated that a re-examination would not be practical as it would be injustice to other students considering it would delay admissions and would create chaos.
DIRECTIONS:
The supreme court passed following directions,
- The request for re- examination by the appellant was denied;
- The appellant was wrongfully deprived of one hour of compensatory irrespective of any fault of her own;
- In the future, NTA shall ensure that provisions which are made at the NEET in terms of the rights and entitlements available under the RPwD Act 2016 are clarified in the NEET Bulletin by removing ambiguity;
- Facilities which are provided by the law to PwD shall not be constricted by reading in the higher threshold prescribed for PwBD;
- The purpose of availing the reservation under Section 32 of the RPwD Act 2016 or an upper age relaxation as contemplated in the provisions, the concept of benchmark disability continues to apply;
- The persons working for the first respondent and exam centres like that of the second respondent should be sensitised and trained, on a regular basis, to deal with requirements of reasonable accommodation raised by PwDs.
ANALYSIS:
Education is not a privilege; it is a right. Education is the key to the socio and economic inclusion and to the participation in the society. Right to inclusive education is important for non- discriminatory approach of education. Inclusive education as defined in section 2(m) of the RPwD Act points out as the process in which pupil with disability learns in coalition with person with no disability. Thus, right to education essentially includes right to inclusive education. Persons with disability are provided with additional supports ,such as provision of scribes or compensatory time , in every competitive exams. In the present case the aspirant was deprived of her reasonable accommodation and the state failed to protect and restore her right to inclusive education. As mentioned under Article 41 and 46 of the Constitution it is the duty of the state to protect the rights of oppressed classes in works, education etc. Lack of knowledge on the part of the exam centre and lack of proper communication of conduct of exam from the top authority has put the future of a child at stake .More than 15 lakhs students competed in NEET 2021 and behind these students are their dreams and future lives which are dependent on the proper administration of this examination. When students are entrusting their whole life and trust upon an administrative body, they do have responsibility to raise up to the expectations and not to provide any injustice. Officials should not be allocated with immense power that they start to exploit ; there should be a restriction upon the power , so as to avoid injustice. In the present situation there are disabled students who have availed the reasonable accommodation when the appellant was deprived the same , there was a clear infringement of right to equality under Article 14 along with infringement of her right to education. For effective participation of the students with disabilities in the society, the safeguards which are provided by the law must be duly enforced and any breach of entitlement must be answerable at law. Responsibility and power without accountability are an anathema to our Constitution.
CONCLUSION:
In the case of Avni Prakash v. National Testing Agency, while penning down the verdict, the bench of Dr. D Y Chandrachud and A S Bopanna , has directed the NTA the steps that can be taken to rectify the injustice , emphasizing the need for inclusive education. However the request of the appellant to conduct re – examination was declined by the court stating that there would be a delay in admissions and would be chaos.
REFERENCES:
- Vikash Kumar v. Union Public Service Commission and ors ,(2021) 5 SCC 370
- Vidhi Himmat Katariya v. State of Gujarat, (2019)10 SCC 20 iii) Right of Persons With Disability Act, 2016 iv) NEET Bulletin 2021
- Roy .D , Supreme Court directs relief for NEET candidate with disability who was denied an extra hour ,Bar and Bench( Nov 23,2021),
http://www.barandbench.com/news/litigation/supreme–court–directs–reliefneet–candidate–disability–denied–one–extra–hour
- Prachi Bharadwaj, NEET| “Behind abstract number of 15 lakh students lie human lives “;SC asks NTA to rectify injustice caused to a “one-off” PwBD student, SCC online (Nov 24,2021),
http://www.scconline.com/blog/post/2021/11/24/neet-behind-abstractnumber-of-15-lakh-students-lie-human-lives-sc-asks-nta-to-rectify-injusticecaused-to-a-one-off-pwbd-student/
