Friday, December 15, 2017

Supreme Court directs Institute of Higher Learnings to comply with RPWD Act and provide Accessibility to students with disabilities in infrastructure and pedagogy

Court: Supreme Court of India

Bench: Justice A.K. Sikri and Justice Ashok Bhushan

Case No. :Writ Petitioner (Civil) No. 292 OF 2006

Case Title: Disabled Right Group vs Union Of India 

Date of Judgement/ Order:  15 December, 2017    

                                                                                           

                                                                                     REPORTABLE

                                       IN THE SUPREME COURT OF INDIA

                                          CIVIL ORIGINAL JURISDICTION

                                     WRIT PETITION (CIVIL) NO. 292 OF 2006


DISABLED RIGHTS GROUP & ANR.                          .....PETITIONER(S)

                                          VERSUS

UNION OF INDIA & ORS.                                          .....RESPONDENT(S)

                                                        WITH

          WRIT PETITION (CIVIL) NO. 997 OF 2013 (GEORGE PHILIPS vs. U.O.I .


Parties in Main Petition - WP (Civil) No. 292 of 2006

Petitioners

1     DISABLED RIGHT GROUP
       THROUGH ITS CONVENOR MR. JAVED ABIDI, HAVING ITS OFFICE AT D-31, 
        GROUND FLOOR, PANCHSHEEL ENCLAVE, NEW DELHI 
  
2      POOJA SHARMA S/D/W/Thru:- MR. R.K. SHARMA
        H.NO. 22, TYPE IV, HYDEL COLONY, FIELD HOSTEL COMPOUND, 
        VICTORIA PARK, MEERUT, UTTAR PRADESH

Respondent(s)

1     UNION OF INDIA 
       THE SECRETARY MINISTRY OF HUMAN RESOURCE DEVELOPMENT
       MINISTRY OF HUMAN RESOURCE DEVELOPMENT SHASTRI BHAWAN, 
       DR. RAJENDRA PRASAD ROAD, , DISTRICT: NEW DELHI 

2     THE SECRETARY, MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT
       SHASTRI BHAWAN, DR. RAJENDRA PRASAD ROAD, NEW DELHI 

3     CHIEF COMMISSIONER FOR PERSONS WITH DISABILITIES
       SAROJINI HOUSE, 6, BHAGWAN DASS ROAD, NEW DELHI 

4     THE DIRECTOR, SYMBIOSIS (A DEEMED UNIVERSITY)
       DR. S.B. MUJUMDAR, SENAPATI BAPAT ROAD,
       PUNE , MAHARASHTRA

5     THE CHIEF SECRETARY STATE OF MAHARASHTRA
       SECRETARIAT, MANTRALAYA, MUMBAI ,  MAHARASHTRA

6     THE CHIEF SECRETARY, GOVERMENT OF NCT OF DELHI
       NEW SECRETARIAT BUILDING, IP ESTATE,  NEW DELHI 
  
7     THE CHIEF SECRETARY, STATE OF RAJASTHAN
       GOVERNMENT SECRETARIAT, JAIPUR, RAJASTHAN , 

8     THE CHIEF SECRETARY, STATE OF KARNATAKA
       VIDHAN SOUDHA, BANGALORE, KARNATAKA
  
9     THE CHIEF SECRETARY, STATE OF ANDHRA PRADESH
       SECRETARIAT, HYDERABAD,  ANDHRA PRADESH
  
10   THE CHAIRMAN, UNIVERSITY GRANT COMMISSION
       BAHADUR SHAH ZAFAR MARG, NEW DELHI ,  
  
11   DR. A.JAY AGOVIND, THE VICE CHANCELLOR
       NATIONAL LAW SCHOOL OF INDIA, NAGARBHAVI, 
       BANGALORE , KARNATAKA
 
12   PROF. RANBIR SINGH THE VICE CHANCELLOR
       NALSAR UNIVERSITY OF LAW, JUSTICE CITY, 
       SHAMEERPET, RANGAREDDY, TELANGANA
  
13   JUSTICE N.N. MATHUR, THE VICE CHANCELLOR
       NATIONAL LAW UNIVERSITY, JODHPUR,NH-65, NAGOUR ROAD, 
       MANDORE, JODHPUR, RAJASTHAN
  
14   THE SECRETARY, BAR COUNCIL OF INDIA
       21, ROUSE AVENUE, INSTITUTIONAL AREA, 
       DEEN DAYAL UPADHYAY MARG , NEW DELHI 


Parties in Tagged Petition - WP (Civil) No. 997 of 2013

Petitioner

1     GEORGE PHILIPS S/D/W/Thru:- JOSEPH PHILIPS
       R/O D-2/199, KAKA NAGAR, NEW DELHI 

Respondent(s)
  
1     UNION OF INDIA, THROUGH THE SECRETARY, 
       DEPARTMENT OF SOCIAL JUSTICE AND EMPOWERMENT,
       MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT, 
       SHASTRI BHAWAN, NEW DELHI, NEW DELHI
  
2     MINISTRY OF SOCIAL WELFARE, THROUGH THE SECRETARY
       GOVT. OF NCT OF DELHI, DELHI SECRETARIAT, NEW DELHI 
  
3     CENTRAL COORDINATION COMMITTEE, THE CHAIRMAN
       DEPARTMENT OF SOCIAL JUSTICE AND EMPOWERMENT, 
       SHASTRI BHAWAN, NEW DELHI, NEW DELHI
  
4     THE CHIEF COMMISSIONER FOR PERSONS WITH DISABILITIES 
       SAROJINI HOUSE, 6 BHAGWAN DAS ROAD, NEW DELHI 


JUDGMENT

A.K. SIKRI, J.

Three issues are raised in this petition which is filed in public interest, for the benefit of persons suffering from ‘disabililty’ as per the definition contained in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation Act) 1995 (hereinafter referred to as the ‘Disabilities Act, 1995’) which now stands repealed and is replaced by the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as the ‘Disabilities Act, 2016’). The first issue related to the non-implementation of 3% reservation of seats in educational institutions as provided in Section 39 of the Disabilities Act, 1995 and Section 32 of the Disabilities Act, 2016. Second equally important issue raised in this petition, which is intimately connected with the first issue, is to provide proper access to orthopaedic disabled persons so that they are able to freely move in the educational institution and access the facilities. Third issue pertains to pedagogy i.e. making adequate provisions and facilities of teaching for disabled persons, depending upon the nature of their disability, to enable them to undertake their studies effectively.

We may state at the outset that though the petition as originally filed had confined these issues only to law colleges. In view of the fact that these issues are of seminal importance, this Court decided to extend the coverage by encompassing all educational institutions.

2) As can be discerned from the number assigned to this writ petition, it was filed in the year 2006 and, thus, is pending for eleven years. The reason was that this Court has been calling for the status report(s) from the respondents/Government Authorities from time to time about the implementation of the Disabilities Act insofar as provisions relating to the aforesaid aspects are concerned. Since the matter was ripe for passing final orders and directions, we deemed it proper to hear the counsel for the parties at length so that the writ petition is disposed of by giving final directions in this behalf.

(I) Re: 3% Reservation of Seats in Educational Institutions

3) Section 39 of the Disabilities Act, 1995 reads as under:

“Section 39 : All Government educational institutions and other educational institutions receiving aid from the Government, shall reserve not less than three per cent seat for persons with disabilities.”

4) As per this provision, all Government educational institutions as well as other educational institutions which are receiving aid from the Government are supposed to reserve seats for the benefit of persons with disabilities, which reservation shall not be less than 3%. Thus, 3% of the seats is the minimum reservation and it can be even more than 3%. This provision had come up for discussion before this Court in All Kerala Parents Association of the Hearing Impaired v. State of Kerala1 and the Court issued following directions therein:

“We...hold that Section 39 deals with the reservation of seats for persons with disabilities in government educational institutions as well as educational institutions receiving aid from the government, and necessarily therefore the provison thereof must be complied with.”

5) Disabilities Act, 2016 makes more exhaustive provisions insofar as providing of educational facilities to the persons with disabilities is concerned. Section 31 confers right to free education upon children with benchmark disabilities who are between the age of 6 to 18 years. This provision is made notwithstanding anything contained in the Rights of 1 2002 (7) Scale 198 Children to Free and Compulsory Education Act, 2009. Section 32 makes provisions for reservation in higher educational institutions.

Section 34 provides for reservation in employment. Since, we are concerned with reservation of seats in educational institutions and as Section 32 directly deals with the same, we reproduce that provision hereunder:

“32. (1) All Government institutions of higher education and other higher education institutions receiving aid from the Government shall reserve not less than five per cent. seats for persons with benchmark disabilities.

(2) The persons with benchmark disabilities shall be given an upper age relaxation of five years for admission in institutions of higher education.”

6) The educational institutions covered by this provision are not only the Government institutions of higher education but all those higher education institutions which are receiving aid from the Government.

Other pertinent aspect is that the extent of reservation is increased from 3% under Disabilities Act, 1995 to 5% under this Disabilities Act, 2016. One more important improvement made in Disabilities Act, 2016 over the earlier Act is that such provisions are made for ‘persons with bench mark disabilities’. This expression is defined in Section 2(r) which reads as under:

“Section 2(r) “person with benchmark disability” means a person with not less than forty per cent. of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority.”

7) It, thus, hardly needs to be emphasised that such educational institutions are bound to reserve seats from persons suffering from disability. Notwithstanding the same, grievance of the petitioner is that the educational institutions have not been adhering thereto.

8) No doubt, some progress is made in this behalf after the filing of this present petition and monitoring of the case by this Court, there is a need for complying with this provision to full extent. Accordingly, we direct that all those institutions which are covered by the obligations provided under Section 32 of the Disabilities Act, 2016 shall comply with the provisions of Section 32 while making admission of students in educational courses of higher education each year. To this end, they shall submit list of the number of disabled persons admitted in each course every year to the Chief Commissioner and/or the State Commissioner (as the case may be). It will also be the duty of the Chief Commissioner as well as the State Commissioner to enquire as to whether these educational institutions have fulfilled the aforesaid obligation. Needless to mention, appropriate consequential action against those educational institutions, as provided under Section 89 of the Disabilities Act, 2016 as well as other provisions, shall be initiated against defaulting institutions.

(II) & (III) Re: Provision for accessibility as well as facilities

9) In another judgment pronounced today itself in the case of Rajive Raturi v. Union of India & Ors. (Civil Appeal No. 243 of 2005 with Anr.), this very Bench has given detailed directions for making appropriate provisions for accessibility of handicapped persons, though the scope of that petition was confined to persons suffering from visual impairment. However, various aspects discussed and directions given for making suitable provisions in this behalf would benefit persons suffering from other disabilities as well. Therefore, the position of law discussed in detail in the said judgment and the directions issued therein need not be repeated for the sake of brevity. We would, however, recapitulate following provisions contained in Disabilities Act, 2016: 

Section 2(i) - ‘establishment includes a Government establishment and private establishment” Section 2(k) - ‘Government establishment’ means a corporation established by or under a Central Act or State Act or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 2 of the Companies Act, 2013 (18 of 2013) and includes a Department of the Government.

Section 2(v) - “private establishment” means a company, firm, cooperative or other society, associations, trust, agency, institution, organisation, union, factory or such other establishment as the appropriate Government may, by notification, specify; (w) “public building” means a Government or private building, used or accessed by the public at large, including a building used for educational or vocational purposes, workplace, commercial activities, public utilities, religious, cultural, leisure or recreational activities, medical or health services, law enforcement agencies, reformatories or judicial foras, railway stations or platforms, roadways bus stands or terminus, airports or waterways; Section 2(w) - “public building” means a Government or private building, used or accessed by the public at large, including a building used for educational or vocational purposes, workplace, commercial activities, public utilities, religious, cultural, leisure or recreational activities, medical or health services, law enforcement agencies, reformatories or judicial foras, railway stations or platforms, roadways bus stands or terminus, airports or waterways;

Section 2(zd) - “transportation systems” includes road transport, rail transport, air transport, water transport, para transit systems for the last mile connectivity, road and street infrastructure, etc; Section 2(ze) - “universal design” means the design of products, environments, programmes and services to be usable by all people to the greatest extent possible, without the need for adaptation or specialised design and shall apply to assistive devices including advanced technologies for particular group of persons with disabilities. Section 2(b) - “appropriate Government” means,—

(i) in relation to the Central Government or any establishment wholly or substantially financed by that Government, or a Cantonment Board constituted under the Cantonments Act, 2006 (41 of 2006), the Central Government;

(ii) in relation to a State Government or any establishment, wholly or substantially financed by that Government, or any local authority, other than a Cantonment Board, the State Government.

Section 16 mandates the appropriate Government and the local authorities to endeavour that all educational institutions funded or recognised by them provide inclusive education to the children with disabilities and towards that end shall make buildings, campus and various facilities accessible.

Section 25(1)(b) mandates the appropriate Government and local authority to take necessary measures for the persons with disabilities to provide barrier-free access in all parts of Government and private hospitals and other health care institutions and centres. Section 40 mandates the Central Government to frame Rules and laying down the standards of accessibility for physical environment, transportation system, information & communication system and other facilities & services to be provided to the public in urban and rural areas. Rule 15 deals with accessibility standards for public buildings, passenger bus transport and information and communication technology. As regards public buildings, the accessibility standards prescribed under the Harmonised Guidelines and Space Standards for barrier-free built environment for persons with disabilities and elderly persons issued by Ministry of Urban Development have been adopted. This implies that all the public buildings are now required to conform to these standards.

10) It hardly needs to be emphasised that Disabilities Act is premised on the fundamental idea that society creates the barriers and oppressive structures which impede the capacities of person with disabilities. Capability theorists like Martha Nussbaum are of the opinion that there cannot be a different set of capacities or a different threshold of capabilities for persons with disabilities. This raises the critical issue of creating a level playing field whereby all citizens to have equality of fair opportunities to enable them to realise their full potential and experience well-being. To ensure the level playing field, it is not only essential to give necessary education to the persons suffering from the disability, it is also imperative to see that such education is imparted to them in a fruitful manner. That can be achieved only if there is proper accessibility to the buildings where the educational institution is housed as well as to other facilities in the said building, namely, class rooms, library, bathrooms etc. Without that physically handicapped persons would not be able to avail and utilise the educational opportunity in full measure.

11) Various theories on different models of disability have emerged, namely, the Social Model of Disability, the Medical Model of Disability, the Rights Base Model of Disability, the Model of Ethical and Philosophical Status, the Economic Model of Disability etc 2. It is not necessary to delve into these different models of disabilities. However, for the purpose of the present case, some comments are required on the Social Model of Disability. The Social Model of Disability locates disability as being socially constructed through the creation of artificial attitudinal, organisational and environmental barriers. Impairment is regarded as being a normal part of the human condition, with everyone experiencing impairment differently and having different access needs. Life is accepted as including negative experiences, and impairment may 2 For detailed discussion, see Theoretizing the Models of Disability Philosophical Social and Medical Concepts-An Empirical Research based on existing Literature by Shanimon. S. and Rateesh. K. Nair be - but is not necessarily - one of them. Disabled people are defined as being people who experience the unnecessary barriers created by society within their daily life. Social Model of disability has gained ground in the international debate. This views disability as a social construct and emphasizes society's shortcomings, stigmatization and discrimination in its reaction to persons with disability. It distinguishes between functional impairments (disability) both of a physical and psychological nature, and the loss of equal participation in social processes that only arises through interaction with the social setting (handicap). These developments have contributed to a new (WHO) model, which bears in mind social as well as functional and individual factors in its classification of health and health-related areas. Keeping in view the above, proper facilities are need to be provided to differently-abled persons while having higher education.

12) Insofar as the rights base approach is concerned, that has been narrated in detail in Rajive Raturi’s judgment. We may add that a basic underline assumption, which is well recognised, is that everyone can learn; there is no such person as one who is ineducable; and that, accordingly, all disabled persons (from whatever disability they are suffering) have right to get not only minimum education but higher education as well. Not making adequate provisions to facilitate proper education to such persons, therefore, would amount to discrimination. Such requirement is to ensure that even a student with disability, after proper education, will be able to lead an independent, economically self sufficient, productive and fully participatory life. This rights-based approach is an inclusive approach which class for the participation of all groups of the population, including disadvantaged persons, in the development process. Inclusive development builds on the idea of ‘Society for All’ in which all people are equally free to develop their potential, contribute their skills and abilities for the common good and to take up their entitlements to social services. It emphasises strengthening the rights of the people with disabilities, and foster their participation in all aspects of life. A disability is only actually a disability when it prevents someone from doing what they want or need to do. A lawyer can be just as effective in a wheelchair, as long as she has access to the courtroom and the legal library, as well as to whatever other places and material or equipment that are necessary for her to do her job well. A person who can’t hear can be a master carpenter or the head of a chemistry lab, if he can communicate with clients and assistants. A person with mental illness can nonetheless be a brilliant scholar or theorist3. The aforesaid discussion amply justifies right of access to students with disabilities to educational institutions in which they are admitted.

3 We have a celebrated examples of John Nash, a noted mathematician who earned laurels by getting noble prize and Stephen Hawkins.

13) It would be pertinent to mention at this stage that in the guidelines for development grant to colleges framed by the University Grants Commission (UGC), the UGC has specifically made provisions concerning ‘schemes for persons with disabilities’. There is a specific scheme in respect of Higher Education for Persons with Special Needs (HEPSN). This HEPSN scheme has three components, namely,

(i) Establishment of Enabling Units for differently-abled persons. The function of this unit as enumerated therein includes creating awareness about the needs of differently-abled persons, and other general issues concerning their learning. This special unit is to be guaranteed by a faculty member to be nominated by the Head of the Institution.

(ii) Component 2 of the scheme deals with providing access to differently-abled persons. For this purpose, UGC agreed to make a one-time grant of up to Rs.5 lakhs per college during the Plan period. To enable these institutions to make special arrangements in the environment for their mobility and independent functioning and to ensure that all existing structures as well as future construction projects in their campuses are made disabled friendly.

(iii) Third component deals with providing special equipment to augment educational services for differently-abled persons. It recognises that differently-abled persons require special aids and appliances for their daily functioning and that the higher educational institutes may need special learning and assessment devices in this behalf. In addition, visually challenged students need Readers. Thus, colleges are encourage to procure such devices such as computers with screen reading software, low-vision aids, scanners, mobility devices etc.

14) The petitioner had filed a compilation on February 22, 2016 containing suggestions, in the form of Guidelines, insofar as making adequate infrastructure for providing proper access and also teaching facilities (Pedagogy) for differently-abled persons are concerned: 

(I) INFRASTRUCTURE

(a) University/College Campus 

Barrier-free campus environment according to the provisions of Section 45 and Section 46 of the Persons with Disability Act, 1995 and further according to 2001 guidelines issued by the Chief Commissioner for Persons with Disabilities entitled “Planning a Barrier Free Environment”. Some specific examples – where a building is of more than 2 storeys, mandatory provision for lifts. Straight and barrier-free paths, removal of obstacles such as plants, furniture or bicycles adjacent to doors, entrances, on the steps or in corridors. Unnecessary interior decoration of areas should be avoided where the same leads to impairment of the mobility of disabled persons.

(b) On Campus Accommodation 

Priority assignment of on-campus/college hostel accommodation. Rooms assigned preferably on the ground floor. Suitable room and bathroom modifications in hostel such as provision of ramps and special fittings/adjustable furniture to facilitate mobility and comfort. Availability of attendant/helper/ assistant, as required, to help the disabled student with mobility and orientation in hostel. Special on-campus transportation on as-needed basis. Where no on-campus accommodation is provided, scheme for financial assistance to the disabled student for expenses for off-campus accommodation and related requirements such as helper/attendant, transport to/from campus, etc.

(c) Classroom 

For visually impaired – Braille symbols at appropriate places in classroom buildings to assist with orientation. Auditory signals in elevators and lifts leading to classrooms. For students with low vision, adequate lighting in the classroom via natural light or adequate provision of bulbs, tube lights, etc. Provision for recording of lectures. Power plug points for visually impaired students to fit in their aids and appliances such as audio recorder, laptop, computer etc. Classroom acoustics to be designed so that all audio communication is clearly audible.

For orthopaedic impaired – Classrooms in locations accessible to wheelchair users. Ramps in classroom buildings and adaptations in toilets for wheelchair users and orthopaedic disabled persons. Seating priority in classrooms with adequate space for wheelchair users to move around. Avoidance of teaching platforms as being difficult to access for orthopaedic impaired persons.

For hearing impaired – Clear and prominent signs indicating locations of courses and classrooms to assist with orientation. Seating for the hearing impaired student as well as a note-taker, located such that lip movement of instructor and sign language interpreter can easily be seen.

(d) Science Laboratories 

Structure and layout modifications of the laboratories for safety and comfort of the visually impaired and orthopaedic impaired/wheelchair users. Use of Braille instruction sheets and tactile visual material. Availability of assistants for help with laboratory activities, particularly where some risk is involved, such as handling of chemicals. Sigh language interpreters for hearing impaired.

(e) Libraries 

For visually impaired students, Braille section and fully accessible computer systems with scanning facilities, JAWS software and Braille embossers for printing. For low vision students, large print books and computers equipped with text enlarging software. Digital libraries. Library cataloguing on computer with JAWS. Sign language interpreters as required for hearing impaired.

(f) Pedagogy (Teaching) 

For visually impaired – Course material in accessible formats such as Braille, audio books and electronic formats such as e-files in ‘daisy’ format. Availability of readers, note takers, scribes. Suitable curriculum modification and assistance esp. for scientific/pictorial/graphical material and science laboratories. Computers with screen reading software, accessible library and reference materials. Availability of tape recorders/ digital voice recorders.

For orthopaedic impaired – Note takers and scribes, as required, especially for persons with upper limb impairment. Suitable curriculum modification and assistance, especially in science laboratories.

For hearing impaired – Note takers for classroom and provision of laptop/computer for note taking. Sign language interpreters for communication support in seminars, meetings, discussions and at all university/college functions. Suitable curriculum modification and assistance for science laboratories. Sub-titling of classroom video material. Technological support for any other necessary and appropriate technology, including computer technology, to assist the hearing impaired student with learning.

(g) Examination and Testing 

Modifications Extension of time, use of reader/scribe, use of computer/laptop. Availability of question papers in accessible formats, including large print, Braille, audio, daisy format. Option of writing exams on computer with screen reading software. Modification of pictorial and graphical material for visually impaired.

(h) University/College Administration 

Scribes, helpers and sign language interpreters for disabled students in interactions with university/college administration, especially for the admission process, meetings with staff/principal, on-campus company recruitment interviews and communication with college officials such as career counsellors, student counsellors, psychologists and any other person attached to the university/college who provides services of any type to the students. Special admissions window for disabled students. Sensitivity training on disability to administrative and pedagogic staff.

(i) Sports, Culture, Recreation and Leisure Facilities 

Universities/colleges to ensure that cultural/recreational programs take into account need of students with disabilities to provide for their full participation in such programs. Some specific examples in sports: running courses/tracks to be straight where visually impaired and orthopaedic impaired students are participating. Special sporting events to be conducted such as cricket for visually impaired and special events according to para-olympic norms for orthopaedic impaired. International norms to be modified where necessary to suit the needs of the disabled students. Trainers to be sensitized towards disability and inclusion and respective societies/associations to ensure that the information about events/contests reaches the disabled students also. Similarly, cultural activities with adequate modifications to be made available. For example, disabled students to be enabled to take part in theatre, literary, dance and music activities with the help of assistants. Hearing impaired students to be provided with an interpreter for sports and cultural activities of various types.

15) Based on the aforesaid suggestions, the petitioner made written submissions on February 22, 2016, seeking following directions:

“(a) For an order directing the UGC to carry out an inspection of the 3% reservation record of respondent Nos. 11, 12 and 13 to ensure that 3% reservation for persons with disabilities are complied with, including the backlog.

(b) For an order directing the UGC to inspect all institutions of higher education to ensure that these institutions are made disabled friendly and make a report to the Central Executive Committee and the State Executive Committees who will, in turn, ensure that the institutions are made disabled friendly.

(c) For an order directing the UGC to consider the “Guidelines for Accessibility for Students with Disabilities in Universities/Colleges” submitted by the petitioner pursuant to the order of this Court dated December 09, 2010 and after making such changes as deemed fit, to issue directions to all institutions of higher education, including law colleges, for compliance within a specified period.”

16) After coming into force the Disabilities Act, 2016, further directions are sought in tune with the provisions contained in the said Act, in the following manner:

“(d) For an order directing the Central Government under Section 40 of the Disabilities Act, 2016 to frame the rules for persons with disabilities laying down the standards of accessibility for colleges, universities and other higher educational institutions, including pedagogical measures such as reasonable accommodation, modifications and aids and appliances for lectures, curricula, teaching materials, laboratories, libraries, examinations, classrooms and hostels etc. within six months from today; and for a direction to the appropriate Governments to implement the said rules within two years from the notification of the said Rules in accordance with Section 46.

(e) For an order directing the Central Government to take into consideration the Guidelines for Accessibility for Students with Disabilities in Universities/Colleges, as submitted by the petitioner, in accordance with this Court’s order dated January 20, 2011, while framing the Rules under Section 40 of the Act.

(f) For an order directing the Central Government to create an audit template in conformity with the Rules for accessibility in higher educational institutions referred to in (m) above, and for a direction to the appropriate Governments (Central and State Governments, UGC, BCI) to conduct an audit of all higher educational institutions within six months from today and to put all the audit reports on a website.

(g) For an order directing the UGC, the Central and the State Governments to invite applications from higher educational institutions for funding under the various schemes for accessibility and to release funds in accordance thereof to facilitate accessibility measures in the educational institutions.

(h) For an order directing all higher educational institutions to make their institutions accessible in accordance with the Act and the Rules within two years of the notification of the rules; and for mandatory formation in each institution of the Enabling Unit for disabled students as per UGC scheme ‘HEPSN’ to ensure monitoring and implementation of the standards and guidelines contained in the Rules.

(i) For an order directing the Central and State Advisory Boards to monitor the implementation of the Act and Rules and the orders of this Court to ensure compliance.”

17) There cannot be any dispute that the suggestions given by the petitioner, which are reproduced above, appear to be reasonable and are worthy of implementation. However, at the same time, it would be appropriate to consider the feasibility thereof particularly with regard to the manner in which these can be implemented. This task can be undertaken by the UGC. Likewise, the directions which are sought by the petitioners are in consonance with the provisions contained in the Disabilities Act, 2016. In these circumstances, we dispose of these writ petitions with the following directions:

(i) While dealing with the issue of reservation of seats in the educational institutions, we have already given directions in para 8 above that the provisions of Section 32 of the Disabilities Act, 2016 shall be complied with by all concerned educational institutions. In addition to the directions mentioned therein, we also direct that insofar as law colleges are concerned, intimation in this behalf shall be sent by those institutions to the Bar Council of India (BCI) as well. Other educational institutions will notify the compliance, each year, to the UGC. It will be within the discretion of the BCI and/or UGC to carry out inspections of such educational institutions to verify as to whether the provisions are complied with or not.

(ii) Insofar as suggestions given by the petitioner in the form of “Guidelines for Accessibility for Students with Disabilities in Universities/Colleges” are concerned, the UGC shall consider the feasibility thereof by constituting a Committee in this behalf. In this Committee, the UGC would be free to include persons from amongst Central Advisory Board, State Advisory Boards, Chief Commissioner of State Commissioners appointed under the Disabilities Act. This Committee shall undertake a detailed study for making provisions in respect of accessibility as well as pedagogy and would also suggest the modalities for implementing those suggestions, their funding and monitoring, etc. The Committee shall also lay down the time limits within which such suggestions could be implemented. The Expert Committee may also consider feasibility of constituting an in-house body in each educational institution (of teachers, staff, students and parents) for taking care of day to day needs of differently abled persons as well as for implementation of the Schemes that would be devised by the Expert Committee. This exercise shall be completed by June 30, 2018.

(iii) Report in this behalf, as well as the Action Taken Report, shall be submitted to this Court in July, 2018. On receipt of the report, the matter shall be placed before the Court.


.............................................J. (A.K. SIKRI) 

.............................................J. (ASHOK BHUSHAN) 

NEW DELHI;

DECEMBER 15, 2017


ITEM NO.1502                   COURT NO.6                       SECTION X

(FOR JUDGMENT)

                  S U P R E M E C O U R T O F          I N D I A

                          RECORD OF PROCEEDINGS

Writ Petition(s)(Civil)      No(s).    292/2006

DISABLED RIGHT GROUP & ANR.                                 Petitioner(s)


                                      VERSUS


UNION OF INDIA & ORS.                                       Respondent(s)


([HEARD BY : HON. A.K. SIKRI AND HON. ASHOK BHUSHAN, JJ.]) WITH W.P.(C) No. 997/2013 (X) Date : 15-12-2017 These petitions were called on for pronouncement of judgment today.


For Petitioner(s)     Mr.   Baijnath Patatel, Adv.

                      Ms.   Sweta, Adv.

                      Ms.   Romila, Adv.

                      Ms.   Jyoti Mendiratta, AOR

                     Mr. Anjani Kumar Mishra, AOR

For Respondent(s)

                      Ms. Asha Gopalan Nair, AOR

                      Ms. Charu Mathur, AOR

                      Mr. G. N. Reddy, AOR

                      Mr. Ardhendumauli Kumar Prasad, AOR

                      Ms. Sushma Suri, AOR

                      Dr. Sushil Balwada, AOR

Hon'ble Mr. Justice A.K. Sikri pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice Ashok Bhushan.

The writ petitions are disposed of with the following directions:

(i) While dealing with the issue of reservation of seats in the educational institutions, we have already given directions in para 8 above that the provisions of Section 32 of the Disabilities Act, 2016 shall be complied with by all concerned educational institutions. In addition to the directions mentioned therein, we also direct that insofar as law colleges are concerned, intimation in this behalf shall be sent by those institutions to the Bar Council of India (BCI) as well. Other educational institutions will notify the compliance, each year, to the UGC. It will be within the discretion of the BCI and/or UGC to carry out inspections of such educational institutions to verify as to whether the provisions are complied with or not.

(ii) Insofar as suggestions given by the petitioner in the form of “Guidelines for Accessibility for Students with Disabilities in Universities/Colleges” are concerned, the UGC shall consider the feasibility thereof by constituting a Committee in this behalf. In this Committee, the UGC would be free to include persons from amongst Central Advisory Board, State Advisory Boards, Chief Commissioner of State Commissioners appointed under the Disabilities Act. This Committee shall undertake a detailed study for making provisions in respect of accessibility as well as pedagogy and would also suggest the modalities for implementing those suggestions, their funding and monitoring, etc. The Committee shall also lay down the time limits within which such suggestions could be implemented. The Expert Committee may also consider feasibility of constituting an in-house body in each educational institution (of teachers, staff, students and parents) for taking care of day to day needs of differently abled persons as well as for implementation of the Schemes that would be devised by the Expert Committee. This exercise shall be completed by June 30, 2018.

(iii) Report in this behalf, as well as the Action Taken Report, shall be submitted to this Court in July, 2018. On receipt of the report, the matter shall be placed before the Court.

Pending application(s), if any, stands disposed of accordingly.


         (Ashwani Thakur)                 (Mala Kumari Sharma)

         COURT MASTER                 COURT MASTER

Supreme Court of India: Rajive Raturi Vs. Union of India (15 Dec 2017) [Judgement included]

Court: Supreme Court of India

Bench: Mr. Justice A.K. Sikri and Mr. Justice Ashok Bhushan

Case Number & Title: WP Civil 243 of 2005  |  Rajive Raturi Vs. Union of India 

Date of Order: 15 Dec 2017

Cases Referred/ quoted:  Justice Sunanda Bhandare Foundation Vs. Union of India & Anr. ; 


Sunday, October 1, 2017

Can’t fix cut-off for filling up identified and reserved posts for persons with disabilities

A division bench of Bombay High Court consisting of Justice Naresh Patil and Justice ZA Haq has ruled that it was necessary to prepare a merit list of visually impaired people, and consider candidates from this list, without fixing benchmark or cut-off marks for filling up reserve seats for persons with disabilities. 

There cannot be any benchmark or cut-off for filing vacant posts earmarked for people with disabilities, said the  Bench. The court struck down the decision of the Union Ministry of Fnance to not appoint a visually impaired candidate to its economic and policy research department, as no one could cross the bench-mark fixed by it.

The bench said it was necessary for the department to prepare a separate merit list of visually impaired people, and consider candidates from this list according to merit, without fixing benchmark or cut-off marks. “In our view, once the post was identified and reserved for visually impaired person, then fixing cut-off marks for selection of the person for that post was impermissible,” observed the court. 

The bench was hearing a petition filed by Kranti Goyal, a visually impaired person, who had applied for the post of research officer in the Economic and Policy Research Department. He approached the high court after the department decided not to select any visually impaired candidates on the grounds that none of them could cross the cut-off of 210 of 350 marks in the written examination. The petitioner said the department had set the same benchmark for candidates from the general category and the visually impaired category – and merely granted 7% extra marks to visually impaired people.

The court held that by fixing cut-off marks for the visually impaired people on par with the general category candidates, the ministry and the department had acted arbitrarily and contrary to the object of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. It said granting 7% grace marks was not a sustainable criteria.

The court has now directed the central department to prepare a separate merit list for visually impaired people and select a candidate from among them.

Related News in HT

Friday, June 30, 2017

California Federal Judge allows Website Accessibility Lawsuit to continue under Title III, ADA

Dear Colleagues,

Within a week after a Florida federal judge handed down a trial verdict finding that Winn Dixie had violated Title III of the ADA by having a website that could not be used by the blind plaintiff, U.S. District Judge John Walter of the Central District of California ruled that blind plaintiff Sean Gorecki could continue his lawsuit against retailer Hobby Lobby about the accessibility of its website. The retailer had asked the court to dismiss the case on various grounds, all of which were rejected by the judge. The case will now move forward.

This decision is significant for several reasons:

The decision illustrates that two judges in the same United States District Court can have diametrically opposite views on the very same issue. In March of this year, U.S. District Judge James Otero dismissed a lawsuit brought by a blind plaintiff against Domino’s Pizza about its allegedly inaccessible website. Judge Otero found that Domino’s had met its obligations under the law by providing telephonic access via a customer service hotline, and that requiring Domino’s to have an accessible website at this time would violate its constitutional right to due process. On the due process point, Judge Otero noted that neither the law nor the regulations require websites to be accessible, and that the Department of Justice (DOJ) had failed to issue regulations on this topic after seven years. As further evidence that covered entities have not been given fair notice of their obligations under the ADA, he cited the DOJ’s official statements from the beginning of the website rulemaking process that (1) it was considering what legal standard of accessibility to adopt, and (2) telephonic access could be a lawful alternative to having an accessible website. Based on these due process concerns, Judge Otero invoked the “primary jurisdiction” doctrine which “allows courts to stay proceedings or dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.”

In stark contrast, U.S. District Judge John Walter in the Hobby Lobby case rejected the due process argument and held that the “primary jurisdiction” doctrine did not apply. With regard to the due process argument, Judge Walter stated that “for over 20 years, the DOJ has consistently maintained that the ADA applies to private websites that meet the definition of a public accommodation” and that “Hobby Lobby had more than sufficient notice in 2010 to determine that its website must comply with the ADA.” Judge Walter also held that the “primary jurisdiction” doctrine did not apply because it only applies to cases whose resolution require the “highly specialized expertise” of a federal agency. Judge Walter found that this case is a “relatively straightforward claim that Hobby Lobby failed to provide disabled individuals full and equal enjoyment of goods and services offered by its physical stores by not maintaining a fully accessible website.”

Judge Walter reserved judgment on what Hobby Lobby would have to do to make its website accessible until after a decision on the merits. The Court specifically noted that the plaintiff was not asking for conformance with a specific technical rule such as the Website Content Accessibility Guidelines 2.0.

Because Judge Walter’s decision was on a motion to dismiss and not a final judgment, Hobby Lobby does not have the right to appeal the decision at this time. We predict that the case will settle before the court reaches the merits of the case.

Sources: 

Thursday, April 27, 2017

Supreme Court of India asks compliance report of new RPwDAct 2016 in 12 weeks | IA No. 10 of 2015 in Justice Sunanda Bhandare Foundation case [Judgement Included]

Court:         Supreme Court of India

Bench:         Justice Dipak Misra,  Justice A.M. Khanwilkar, Justice Mohan M. Shantanagoudar

Case No. :     I.A. NO.10 OF 2015 in  WP (Civil) No. 116 OF 1998, 

Case Title :   Justice Sunanda Bhandare Foundation  Vs. U.O.I. & Anr 

Date of Judgement:  25 April, 2017

Author: Justice Dipak Misra

--------------------

Dear Colleagues,

Hon'ble Supreme Court of India has, in a major move to ensure speedy justice to persons with disabilities, has passed directions to implement the Rights of Persons with Disabilities Act 2016 enforced by the Govt. of  India on 19 April 2017. In an interlocutory application filed by the petitioner in Justice Sunanda Bhandare Foundation vs. Union of India and Another, reported as (2014) 14 SCC 383, and on the application filed by intervener "Sambhavana Organisation",  the bench of  Justices Dipak Misra, A M Khanwilkar and M M Shantanagoudar passed the directions to all the States and Union Territories to file compliance report within 12 weeks on the Act of 2016.

The Intervener, Sambhavana Organisation - a self help group of persons with disabilities had also filed an application citing examples of over seven Universities that were discriminating against persons with Blindness and Vision Impairments while filing up various teaching and non-teaching posts. The intervener also cited instances that UGC that funds these universities has not taken any action on implementation of the provisions of the Disabilities Act particularly the reservation in employment and successive employment notification systemically failed to give the rightful representation to the stakeholders with visual disabilities.

The bench observed, "The 2016 Act visualizes a sea change and conceives of actualization of the benefits engrafted under the said Act. The whole grammar of benefit has been changed for the better, and responsibilities of many have been encompassed. In such a situation, it becomes obligatory to scan the anatomy of significant provisions of the Act and see that the same are implemented. The laudable policy inherent within the framework of the legislation should be implemented and not become a distant dream. Immediacy of action is the warrant."

The bench referred to certain provisions to highlight the salient features of the Act of 2016 and stressed that more rights have been conferred on the disabled persons and more categories have been added. That apart, access to justice, free education, role of local authorities, National fund and the State fund for persons with disabilities have been created. The 2016 Act is noticeably a sea change in the perception and requires a march forward look with regard to the persons with disabilities and the role of the States, local authorities, educational institutions and the companies. The statute operates in a broad spectrum and the stress is laid to protect the rights and provide punishment for their violation. 

The Court directed, "When the law is so concerned for the disabled persons and makes provision, it is the obligation of the law executing authorities to give effect to the same in quite promptitude. The steps taken in this regard shall be concretely stated in the compliance report within the time stipulated. When we are directing the States, a duty is cast also on the States and its authorities to see that the statutory provisions that are enshrined and applicable to the cooperative societies, companies, firms, associations and establishments, institutions, are scrupulously followed. The State Governments shall take immediate steps to comply with the requirements of the 2016 Act and file the compliance report so that this Court can appreciate the progress made. The Bench directed the SC registry to send its order to chief secretaries of all states and directed them to take immediate steps to comply with its direction by 16 Aug 2017.

The Court directed that compliance report to be filed by the States shall be supplied to the learned counsel for the petitioner (Justice Sunanda Bhandare Foundation), learned counsel for the Union of India as well as to the learned counsel for the applicant/intervenor (Sambhavana Organisation) so that they can assist the Court.

Read the Order Dated 25 April 2017 in matter titled Justice Sunanda Bhandare Foundation vs. Union of India and Another  embedded below:


Thursday, April 20, 2017

What the 21 Disabilities Covered in the Rights of Persons With Disabilities Act 2016

The number of recognized disability conditions was increased from 7 to 21 in the Rights of Persons with Disabilities Act 2016 (hereinafter RPWD Act 2016). The RPWD Act 2016 (Act 49 of 2016) was enacted by the Indian Parliament to fulfill India’s obligation to implement the UN Convention on the Rights of Persons with Disabilitis (UNCRPD). It received the assent of Hon'ble President of India on 27th Dec 2016 and notified in Gazette of India on 28th Dec 2016. The Act came in to effect on 19 April 2017 vide a notification.

The new list of recognized disabilities added as an annexure to the Act includes three blood disorders, people of Short Stature, Acid Attack Survivors, Parkinson disease, Chronic neurological conditions, Multiple Sclerosis etc. 

Following are the 21 disabilities included in the RPWD Act 2016:
  1. Blindness
  2. Low-vision
  3. Leprosy Cured persons
  4. Hearing Impairment (deaf and hard of hearing)
  5. Locomotor Disability
  6. Dwarfism
  7. Intellectual Disability
  8. Mental Illness
  9. Autism Spectrum Disorder
  10. Cerebral Palsy
  11. Muscular Dystrophy
  12. Chronic Neurological conditions
  13. Specific Learning Disabilities
  14. Multiple Sclerosis
  15. Speech and Language disability
  16. Thalassemia
  17. Hemophilia
  18. Sickle Cell disease
  19. Multiple Disabilities including deaf-blindness
  20. Acid Attack victim
  21. Parkinson’s disease

Here is the Schedule to the RPWD Act 2016 reproduced:

THE SCHEDULE
[See clause (zc) of section 2]
SPECIFIED DISABILITY

1. Physical disability.—
A. Locomotor disability (a person's inability to execute distinctive activities associated with movement of self and objects resulting from affliction of musculoskeletal or nervous system or both), including—
(a) "leprosy cured person" means a person who has been cured of leprosy but is suffering from—
    (i) loss of sensation in hands or feet as well as loss of sensation and
    paresis in the eye and eye-lid but with no manifest deformity;
    (ii) manifest deformity and paresis but having sufficient mobility in
    their hands and feet to enable them to engage in normal economic activity;
    (iii) extreme physical deformity as well as advanced age which
    prevents him/her from undertaking any gainful occupation, and the
    expression "leprosy cured" shall construed accordingly;
(b) "cerebral palsy" means a Group of non-progressive neurological condition affecting body movements and muscle coordination, caused by damage to one or more specific areas of the brain, usually occurring before, during or shortly after birth;
(c) "dwarfism" means a medical or genetic condition resulting in an adult
height of 4 feet 10 inches (147 centimeters) or less;
(d) "muscular dystrophy" means a group of hereditary genetic muscle
disease that weakens the muscles that move the human body and persons with multiple dystrophy have incorrect and missing information in their genes, which prevents them from making the proteins they need for healthy muscles. It is characterised by progressive skeletal muscle weakness, defects in muscle proteins, and the death of muscle cells and tissue;
(e) "acid attack victims" means a person disfigured due to violent assaults by throwing of acid or similar corrosive substance.

B. Visual impairment—
(a) "blindness" means a condition where a person has any of the following conditions, after best correction—
   (i) total absence of sight; or
   (ii) visual acuity less than 3/60 or less than 10/200 (Snellen) in the
   better eye with best possible correction; or
   (iii) limitation of the field of vision subtending an angle of less than 10 degree.
(b) "low-vision" means a condition where a person has any of the following conditons, namely:—
       (i) visual acuity not exceeding 6/18 or less than 20/60 upto 3/60 or upto 10/200      (Snellen) in the better eye with best possible corrections; or
       (ii) limitation of the field of vision subtending an angle of less than 40 degree up to 10 degree.
C. Hearing impairment—
(a) "deaf" means persons having 70 DB hearing loss in speech frequencies in both ears;
(b) "hard of hearing" means person having 60 DB to 70 DB hearing loss in speech frequencies in both ears;
D. "speech and language disability" means a permanent disability arising out of conditions such as laryngectomy or aphasia affecting one or more components of speech and language due to organic or neurological causes.

2. Intellectual disability, a condition characterised by significant limitation both in
intellectual functioning (rasoning, learning, problem solving) and in adaptive behaviour
which covers a range of every day, social and practical skills, including—
(a) "specific learning disabilities" means a heterogeneous group of conditions wherein there is a deficit in processing language, spoken or written, that may manifest itself as a difficulty to comprehend, speak, read, write, spell, or to do mathematical calculations and includes such conditions as perceptual disabilities, dyslexia, dysgraphia, dyscalculia, dyspraxia and developmental aphasia;
(b) "autism spectrum disorder" means a neuro-developmental condition typically
appearing in the first three years of life that significantly affects a person's ability to
communicate, understand relationships and relate to others, and is frequently associated
with unusal or stereotypical rituals or behaviours.
3. Mental behaviour,—
"mental illness" means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, but does not include retardation which is a conditon of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence.

4. Disability caused due to—

(a) chronic neurological conditions, such as—
(i) "multiple sclerosis" means an inflammatory, nervous system disease in
which the myelin sheaths around the axons of nerve cells of the brain and spinal
cord are damaged, leading to demyelination and affecting the ability of nerve
cells in the brain and spinal cord to communicate with each other;
(ii) "parkinson's disease" means a progressive disease of the nervous
system marked by tremor, muscular rigidity, and slow, imprecise movement, chiefly
affecting middle-aged and elderly people associated with degeneration of the
basal ganglia of the brain and a deficiency of the neurotransmitter dopamine.
(b) Blood disorder—
(i) "haemophilia" means an inheritable disease, usually affecting only male but transmitted by women to their male children, characterised by loss or impairment of the normal clotting ability of blood so that a minor would may result in fatal bleeding;
(ii) "thalassemia" means a group of inherited disorders characterised by reduced or absent amounts of haemoglobin.
(iii) "sickle cell disease" means a hemolytic disorder characterised by chronic anemia, painful events, and various complications due to associated tissue and organ damage; "hemolytic" refers to the destruction of the cell membrane of red blood cells resulting in the release of hemoglobin.
5. Multiple Disabilities (more than one of the above specified disabilities) including
deaf blindness which means a condition in which a person may have combination of
hearing and visual impairments causing severe communication, developmental, and
educational problems.

6. Any other category as may be notified by the Central Government.

————

Wednesday, April 19, 2017

ना रहेगा बांस, ना बजेगी बांसुरी - Instead of making online audio and video content accessible at the order of Deptt of Justice, UC Berkeley removes entire public content - leaving all students in lurch.

Dear Colleauges,

A group of scholars have objected to a decision by the University of California, Berkeley, to remove many video and audio lectures from public view as a result of a Justice Department accessibility order.
In response to the Department of Justice's letter to the University of California, Berkeley, dated 30 Aug 2016 asking it to implement procedures to make publicly available online audio and video content accessible to people who are deaf, hard of hearing, deaf and blind, and blind, the University, rather than complying with the request, took the outrageous step of ending public access to those valuable resources, which include over 20,000 audio and video files, to avoid the costs of making the materials accessible. And on top of it, the UC Berkeley issued a public statement saying that disability access requirements forced this decision.
A large number of stakeholders have strongly objected to Berkeley’s choice to remove the content, and its public statement  The stakeholders feel that Berkeley has for years systematically neglected to ensure the accessibility of its own content, despite the existence of internal guidelines advising how to do so. Further, the Justice Department letter left sufficient room for many alternatives short of such a drastic step. The stakeholders allege that it was never the intent of the complainants to the department, nor of the disability community, to see the content taken down.
In fact, people who depend on the accessibility of online course content constitute a significant portion of the population. There are between 36 and 48 million individuals in the United States with hearing loss, or about 15 percent of the population. An estimated 21 million individuals are blind or visually impaired. Altogether, about one in five adults in the United States has a functional disability.
The prevalence of disability increases significantly after the age of 65: more than one in three older adults have hearing loss, and nearly one in five have vision loss. Refusing to provide public access to online content negates the principle of lifelong learning, including for those who may eventually acquire a disability. Moreover, many individuals without hearing and vision disabilities benefit from accessible online course content.
As per the post of Mr. Christian Vogler, the public response to Berkeley’s announcement - and to Inside Higher Ed’s reporting -- has been disheartening. While some commenters have acknowledged the need for accessible e-learning content, others have cast blame on those seeking access, accusing people with disabilities of putting their own interests first. Many have suggested that calls for access, such as captioning and audio description for video content, deprive the broader public of these resources. Many misrepresent this issue as one where the needs of the many outweigh the needs of the few.
Despite the large number of people who stand to gain from accessible content, changes to existing practice are rarely made voluntarily and typically occur through the enforcement of disability civil-rights laws. Those laws, including the Americans With Disabilities Act and its 2008 amendment, were passed unanimously or with overwhelming bipartisan majorities in both the U.S. House of Representatives and the U.S. Senate.
Once disability civil-rights laws are passed and implemented, the broader public stands to gain. As laid out by “The Curb Cut Effect,” the installation of curb cuts -- a direct consequence of the unanimously passed 1968 Architectural Barriers Act -- permitted diverse public access that has nothing to do with wheelchairs: baby strollers, shopping carts, bicycles, roller skates, skateboards, dollies and so forth. Today, curb cuts are so ubiquitous that we do not usually think about their existence anymore, yet we cannot imagine our country without them. In fact, Berkeley, often considered the birthplace of the civil-rights movement, led the way in curb cut implementation.
Captions are often referred to as digital curb cuts. As with physical curb cuts, widespread digital captioning originates from civil-rights legislation, including the 21st Century Communications and Video Accessibility Act of 2010. About 30 percent of viewers use captions, according to Amazon, 80 percent of whom are not deaf or hard of hearing. A 2011 Australian survey revealed similar numbers, and a 2006 British study found that 7.5 million people in Great Britain had used captions to view television, including six million, or 80 percent, with no hearing loss. On Facebook, 85 percent of viewers consume video without sound, and captioning has increased user engagement. And an October 2016 study found that about 31 percent of hearing respondent college students “always” or “often” use closed captions when they are available, and another 18 percent sometimes use captions.
It was never the intention of the complainants or their allies to have course content removed from public access. With the recent mirroring of 20,000 public lectures, the net outcome is that we are back to square one with inaccessible content, now outside of the control of Berkeley. (We wish to emphasize that we have no quarrel with the decision to mirror the content, and affirm the right to freedom of speech in the strongest terms.)
The Department of Justice’s letter did not seek the removal of content, either. Indeed, Berkeley’s peer institutions have affirmed that they will continue to make their materials publicly available while striving to make them accessible as well.
The letter cannot have come as a surprise to Berkeley. In February 2013, seven months after the university announced its partnership in edX with the Massachusetts Institute of Technology and Harvard University, faculty and staff members on Berkeley’s now-dismantled Academic Accommodations Board met to discuss how to “make sure students with disabilities have access” in “online education, including MOOCs.” There, board members warned that the university needed strong and immediate plans for disability access in its MOOCs.
In April 2014, the Civil Rights Education and Enforcement Center, on behalf of the complainants, contacted Berkeley and offered to engage in structured negotiation -- a successful method of dispute resolution that has been used with some of today’s biggest champions of captioned online video content. When the offer of structured negotiations went nowhere, the center filed with the Department of Justice in October 2014.
The Justice Department letter issued in August 2016 found that Berkeley had failed to enforce the accessibility of such content, resulting in few of their video or audio files being accessible. The department asked that the university strengthen its procedures to enforce accessibility guidelines. In response, rather than make the suggested changes, Berkeley publicly threatened to withdraw content and then went ahead with its March 2017 announcement to remove content.
The stakeholders acknowledge that remedial accessibility work -- after-the-fact efforts to make content accessible -- can be costly. Such work requires not only the addition of captions and audio descriptions but also checking to ensure that documents and materials can be read by screen readers or accessed on a variety of devices. That is why it is so important that leadership enforce accessibility policies from the beginning. The ADA contains an undue-burden defense that protects public entities that cannot afford to make accessibility changes. But it is difficult to see how this applies here, since Berkeley was offered the option to make content accessible over a longer period of time to keep the cost manageable.
The fact that the online content is free is immaterial. Civil-rights justice and access are built on the premise that everyone, with or without a disability, should be able to participate. Online educational content has become a key ingredient of community participation, irrespective of whether it is free or paid. Moreover, Berkeley created the content at the outset -- which means taxpayers, including taxpayers with disabilities, partially funded it.
Barriers to accessing the educational materials of a respected university hinder community participation by people with disabilities. The removal of digital access barriers is a crucial endeavor for a society that continues to revise its aspiration of justice for all. 
The stakeholders who were signatories to this article titled "Access Denied" originally appearing on InsiderHigherEd.com,  expressed that they experience such barriers on a very personal level. They have urged the UC Berkeley to reconsider its decisions and restore the access to the public content to all while the content is made accessibile in due course of time.