The 2016 Disabilities Act provides scope for optimism for persons with intellectual disabilities, by including autism, learning disabilities and several other cognitive impairments in its schedule of specified disabilities. Persons so affected can obtain a certificate for their disability, and avail themselves of a host of positive measures mandated by the Act. One such entitlement is reservation in government or aided institutions of higher education. As a doorway to employment and the socio-economic mainstream, many persons with intellectual disabilities and their families look forward to this benefit. However, several difficulties stand in the way of implementation. This article, one in a series, discusses specific court cases and the provisions in the Act which are intended to counter these.
In the case of X vs. Delhi University (DLI withholds the name as the matter is in the courts), a person with a significant degree of dyslexia succeeded in passing the XII CBSE board exams, and with personal and family aspirations sought admission to the B.Com course in a college affiliated to Delhi University for the 2018-19 academic year. A primary requirement was to gain admission to a college reasonably close to their home, so that the student could be provided the extra family and academic support required to negotiate the curriculum. But to their great disappointment, the two closest colleges had declared their B.Com course “closed”, claiming they had already fulfilled the 5% reservation mandated by the Disabilities Act in the B.Com course. The admission gained by the student in a college more than 24kms away was of little use, as the distance made it very difficult for the student to undertake his studies with the required support.
Not content to let the matter rest there, the family of the student persisted with enquiries, and found that there were none, or hardly any, students with intellectual disability who were admitted to the two colleges close by. A Delhi University circular mandated an equitable distribution of 1% reservation for different categories of disabilities, which would amount to 6 and 12 seats for students with intellectual disabilities, respectively, in these colleges. But in actuality, one college had not admitted any such student, and the other, only one. The reason was not far to see: the colleges did not differentiate between candidates with physical and intellectual disabilities in fulfilling their reservation obligation. As a result, no effort was made at equitable distribution. Secondly, these colleges had declared some courses such as B.Com “closed” to persons with disabilities, even though the overall mandate of 5% reservation in all courses was not fulfilled.
The Disability Law Initiative’s case in the Delhi High Court stands on the ground that to effectively implement the 5% reservation mandated by the 2016 Disability Act, there must be an equitable distribution such that students with intellectual disabilities have least 1% of the seats reserved for them. The colleges affiliated to Delhi University did not differentiate reservation in higher education for physically and intellectually disabled persons, by having the same “cut-off” marks apply to both. This amounted to treating unequally situated persons as equals, and was therefore in violation of the Article 14, the equality clause in the Constitution of India.
Secondly, the colleges ought not to have declared any course closed for persons with disabilities, until and unless the overall 5% reservation of seats had been fulfilled in the college. The colleges could not have determined the 5% reservation course wise, for then seats in certain courses for which there is no demand (such as science courses for the visually impaired) would go unfilled, whereas other courses would be declared prematurely closed, as in the instant case. This was in fact the finding of the division bench of the Delhi High Court in another case, National Federation of Blind vs. Union of India , by a recent judgment in October 2018.
- Institutions of higher education ought to differentiate reservations for physically and intellectually disabled students, and ensure that at least 1 % of the seats in any course go to those with intellectual disabilities
- A counseling mechanism ought to be put in place, so that every qualified student with disability gains admission to the college and course of her choice, until the overall 5% of seats are filled.