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.

Supreme Court of India wants an Expert Panel To Determine What Areas of Medical Practice Can Colour-blind MBBS Aspirants Study based on international best practices [Judgement Included]

Court: Supreme Court of India

Bench: Hon'ble Chief Justice Dipak Misra, Justice Amitava Roy and Justice AM Khanwilkar 

Case No: Civil Appeal No. 4394 of 2017 (arising out of S.L.P.(C) No.30772 of 2015)

Case Title: Pranay Kumar Podder Vs. State of Tripura and Others

Date of Judgement: 23 March 2017 and Complianace Order dated  12 Sep 2017

Brief

Dear colleagues,

In a progressive order, the Hon'ble Supreme Court bench comprising Justice Dipak Misra and Justice AM Khanwilkar has directed the Medical Council of India to constitute a committee of experts to look into the areas of practice that MBBS aspirants with colour blindness could indulge in. 

The bench passed these orders while hearing a Civil Appeal No. 4394 of 2017 (arising out of S.L.P.(C) No.30772 of 2015), filed by two MBBS aspirants, who were declared ineligible for admissions at the stage of counseling in 2015, as they had partial colour blindness. 

The petitioners had challenged the decision of the committee that refused them admission because of their colour-blindness before the High Court of Tripura and  Agartala, contending that there existed no regulation framed by the Medical Council of India, under the Medical Council Act, 1956, debarring them from seeking admission. The high court had, however, refused to interfere, and had dismissed their petition. 

Before the Hon'ble SC, the petitioner's counsel contended that it was “obligatory” on the part of the Medical Council of India to take a “progressive measure so that an individual suffering from CVD may not feel like an alien to the concept of equality, which is the fon juris of our Constitution”. Amicus Curiae Mr. Viswanathan urged that a complete ban on the admission of individuals suffering from CVD to MBBS course would violate conferment of equal opportunities and fair treatment. To buttress this submission, he had made reference to provisions of the Convention on the Rights of Persons with Disabilities and Optional Protocol, to which India is a signatory. 

The Amicus Curiae Mr. Viswanathan had urged that as colour blindness is not considered as a disability under the Persons with Disabilities Act 1995 nor it is a disability under the recently notified Rights of Persons with Disabilities Act 2016, the nature and severity of colour blindness and the disciplines they can practise has to be given a re-look.

The defendants, on the other hand, had submitted that since the complete diagnosis and prognosis of a disease or disorder may depend upon colour detection, there is requirement for restriction in the field of practice of an individual with colour blindness in this country.

Considering rival submissions, the court made reference to a judgment of the Delhi High Court in the case of Dr Kunal Kumar v Union of India and others, and also to a judgment of the Rajasthan High Court in Parmesh Pachar Vs. Convener, Central Undergradutate Admission Board. While the Delhi HC had concurred with the view that people with colour blindness may not be able to pursue certain courses or disciplines, the Rajasthan HC had opined that students suffering from disabilities cannot be debarred from seeking admissions..

The apex court, however, wished neither to lean in favour of the view of Delhi High Court nor generally accept the perception of Rajasthan High Court. It, thus, directed an assessment by an independent expert committee, and observed, “Total exclusion for admission to medical courses without any stipulation in which they really can practice and render assistance would tantamount to regressive thinking. The march of science, apart from our constitutional warrant and  values, commands inclusion and not exclusion. That is the way a believer in human rights should think”.

The bench directed that the expert committee shall also  concentrate on diagnostic test for progress and review of the disorder and what are the available prosthetics aids to  assist CVD medical practitioners and what areas of practice could they undertake without difficulty with these aids. It further said the committee shall include representatives of the Medical Council of India, and experts from genetics, ophthalmology, psychiatry and medical  education, who shall be from outside the members of the Medical Council of India. It has been directed to submit a report to the court within three months. The matter has been listed for July 11.

Writing the order the court expressed, "Human being is a magnificent creation of the Creator and that magnificence should be exposed in a humane, magnanimous and all-inclusive manner so that all tend to feel that they have their deserved space. Total exclusion for admission to medical courses without any stipulation in which they really can practise and render assistance would tantamount to regressive thinking. When we conceive of global phenomenon and universal brotherhood, efforts are to be made to be within the said parameters. The march of science, apart from our constitutional warrant and values, commands inclusion and not exclusion. That is the way a believer in human rights should think.

The bench has directed the Committee of Experts to submit a report to the court within three months, andd fixed the next listing on 11 July 2017 for compliance.

See the judgement dated 23 March 2017 and  compliance Order dated 12 Sep 2017 below:

Judgement dated 23 March 2017:

 

 

Compliance Order dated 12 Sep 2017:

Bombay HC: Upholds rejection of a candidate with Colour Blindness for admission to FTII

Court: Bombay High Court (civil appellate jurisdiction)

Bench: Justice Shantanu Kemkar and Justice Prakash Naik 

Case No.: Writ Petition No. 12296 of 2016

Case Title:  Ashutosh Kumar Dariyapur Gola Vs. The Film and Television Institution of  India & Anr        

Date of Judgement: 07th March, 2017

Brief:

The Bombay high court on Tuesday upheld the decision of Film and Television Institute of India (FTII) not to grant a colour blind candidate admission to the film editing course.

A divison bench gave their verdict on a petition by Patna based Ashutosh Kumar who was short listed for the post graduate diploma course in film editing. During medical examination he was found to be colour blind and his admission was declined in view of FTII Rules which state that colour blind candidates are not entitled to get admission in various courses including film editing.

Kumar's advocate Kartikeya Bahadur argued that colour blindness is neither a blindness with the meaning of Persons with Disabilities Act and as such the denial on the  basis of colour blindness is illegal. The judges took note that FTII has set up an admission committee of experts from various fields to review the admission criteria.

The bench said when an expert body has fixed eligibility criteria and carved out six courses in which colour blind candidates are not found suitable, the action of  FTII denying admission cannot be said to be illegal or arbitrary. "Keeping in mind the aforesaid, we are of the view that the petitioner being a candidate suffering

from disability of colour blindness, he cannot claim admission in the course in question, in which according to FTII Rules framed by expert body, he cannot be allowed,'' it added. The judges also noted that in the absence of any mala fide or arbitrariness alleged by Kumar against FTII there is no need for the court to  interfere.

Supreme Court | Andhra Pradesh State Road Transport Corporation & Ors. Vs. B. S. Reddy | 23 Feb 2017 | Section 47 of PWD Act 1995

Court: Supreme Court of India

Bench: ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.

Case No.:   Civil Appeal No.3529 of 2017,Civil Appeal Nos.3428-3458 of 2017,Civil Appeal Nos.3464-3499 of 2017,Civil Appeal Nos.3501-3527 of 2017

Case Title: Andhra Pradesh State Road Transport Corporation & Ors. Vs. B. S. Reddy

Date of Judgement:  23 February, 2017.

Cited as : 2017 ALL SCR 1413

Cases Cited:

• Hawa Singh Vs. Delhi Transport Corporation, W.P. (C) No.7880/2011, Dt.3.2.2012 [Para 4,5]
• Airport Authority of India Vs. Kumar Bharat Prasad Narain Singh, L.P.A. No.1601/2005, Dt.14.12.2005 [Para 4,5]
• G. Muthu Vs. Management of Tamil Nadu State Transport Corporation (Madurai) Limited, (2006) 4 MLJ 1669 [Para 4]

Synopisis:  Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act (1995), Ss.47, 2(i) - Benefit of S.47 of Act - Prayer for - By employees of Andhra Pradesh and Telangana Transport Corporation - Benefit is available to only those persons who are covered under S.2(i) of Act and not to other persons - Schemes of Andhra Pradesh and Telangana Transport Corporation covers even those employees who are not covered by Section 2(i) of the Act - Thus, those who are disabled within meaning of S.2(i) are not without any benefit whatsoever - Employees of Andhra Pradesh and Telangana Transport Corporation are entitled to invoke such schemes but not benefit of Section 47. 2006 (4) MLJ 1669 Dissented from. (Paras, 4, 5, 6)

JUDGMENT

1. Delay condoned.

2. Leave granted.

3. We have heard learned counsel for the parties. The issue raised in this set of cases is whether benefit of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, is available to those covered by Section 2(i) of the said Act alone or applies even to persons not covered thereby.

4. The employees in question suffered disability during employment and they sought benefit of Section 47 of the Act to the effect that their services could not be dispensed with on account of the said disability, nor their rank could be reduced and they could only be shifted to some other post, with same pay-scale and service benefits. The claim was contested by the appellants-Transport Corporations with the plea that the benefit of Section 47 of the Act was available only to those covered by Section 2(i) which defines "disability". The said stand was supported on the basis of judgments of the High Court of Delhi in the cases of Hawa Singh v. Delhi Transport Corporation dated 3.2.2012 in W.P. (C) No.7880 of 2011 & Airport Authority of India v. Kumar Bharat Prasad Narain Singh dated 14.12.2005 in L.P.A. NO.1601 of 2005. The High Court of Delhi dissented from the judgment of the Madras High Court in G. Muthu V. Management of Tamil Nadu State Transport Corporation (Madurai) Limited - (2006) 4 MLJ 1669 which lays down that the definition under Section 2(i) could not control the provision of Section 47 of the Act, as the context of Section 47 of the Act requires a different meaning to be given to the word "disability".

5. We are unable to subscribe to the view taken by the Madras High Court which has been followed in the impugned order and approve the view taken by the High Court of Delhi in Hawa Singh v. Delhi Transport Corporation & Airport Authority of India v. Kumar Bharat Prasad Narain Singh. We do not find any reason to hold that expression "disability" in Section 47 of the Act is used in a different context so as not to go by the definition given in Section 2(i) of the Act. We also note that even though Section 2(i) of the Act may not cover every disabled, scheme of the Andhra Pradesh and Telangana Transport Corporations covers even those employees who are not covered by Section 2(i) of the Act. Thus, those who are disabled within the meaning of Section 2(i) are not without any benefit whatsoever. They are, thus, entitled to invoke such schemes but not Section 47 of the Act.

6. In view of above, we allow these appeals in above terms and hold that the benefit of Section 47 of the Act will be available only to those who are covered by Section 2(i) of the Act. No costs.

7. It will be open for the appellants-Corporations to take decision on individual grievances of the employees and the employees are at liberty to take their remedies in terms of the above judgment.

8. Pending applications, if any, shall also stand disposed of.

Ordered accordingly.

SC says Reservations & Relaxations for disabled - a matter of Govt. Policy; Rejects Delhi & Madras HC view on number of attempts at CSE [Judgement Included]

Dear Colleagues,

While hearing Civil Appeal No. 858 of 2017 (Arising out of SLP (C) No. 21587 of 2013), titled Union of India & Ors Vs. M. Selvakumar & Anr., a bench of Hon'ble Supreme Court comprising  Sh. Justice Ranjan Gogoi and Sh. Justice Ashok Bhushan, in its judgement dated 24 January 2017 has observed, "It is not in the domain of the courts to embark upon an inquiry as to whether a particular public policy is wise and acceptable or whether the better policy could be evolved. The court can only interfere if the policy framed is absolutely capricious and non-informed by reasons, or totally arbitrary, offending the basic requirement of the Article 14 (right to equality) of the Constitution."

The bench headed by Ranjan Gogoi set aside the judgement of the Madras High Court and the view taken by Delhi High Court that "increasing the number of attempts for Physically Handicapped candidates belonging to General Category from 4 to 7 with effect from the 2007 Examination and not proportionally increasing the number of attempts for Physically Handicapped candidates belonging to OBC Category from 7 to 10, is discriminatory and arbitrary".

Judgement

To read the judgement in Civil Appeal No. 858 of 2017 titled Union of India & Ors Vs. M. Selvakumar & Anr  in portable document format (PDF) click here, and in Notepad format click here.

Background

It is pertinent to note that the Madras High Court in its order passed on 24.01.2012 in Writ Petition (C) No. 18705 of 2010 titled M. Selvakumar versus Central Administrative Tribunal and Others had discussed in detail clause-3 (iv) of the Notification for CSE 2008 and specifically discussed the provision which states that physically handicapped will get as many attempts as are available to other non-physically handicapped candidates of his or her community, subject to the condition that physically handicapped candidates belonging to the general category shall be eligible for 07 attempts. The High Court had further observed that the number of attempts for the physically handicapped persons in the general category has been increased from four to seven. However, the same benefit has not been proportionally extended to the PH candidates in the OBC community. Considering this to be inconsistent with Articles 14 and 16 of the Constitution of India the petitioner M Selvakumar was given relaxation in the number of attempts as had been granted to the PH candidates belonging to general category. However, there were no specific direction of the Madras High Court to quash clause-3 of the notification nor there was any direction to the respondents to make necessary changes in the Rules for future examinations.

The SC bench said "the horizontal reservation and relaxation for Physically Handicapped Category candidates for Civil Services Examination, is a matter of Governmental policy and the Government after considering the relevant materials have extended relaxation and concessions to the Physically Handicapped candidates belonging to the Reserved Category as well as General Category.

The verdict came on appeal filed by the Union of India challenging two judgements of the high courts which allowed Physically Handicapped students of OBC to avail 10 attempts instead of 7 attempts in the Civil Services Examination.

Both the High Court's had held that since the attempts for Physically Handicapped candidates belonging to General Category have been increased from 4 to 7 with effect from 2007 Civil Services Examination, there should be proportionate increase in attempts to be taken by Physically Handicapped Candidates belonging to the OBC Category. 

The apex court said when the attempts for exams of Physically Handicapped candidates of OBC Category as well as those of in General Category are made equal, there is no question of discrimination as the candidate belonging to OBC Category has already been given ten years relaxation in age which give them a relaxation of three more years.

"The present case is not a case of treating unequals as equal. It is a case of extending concessions and relaxations to the physically handicapped candidates belonging to general category as well as physically handicapped belonging to OBC category. Physically handicapped category is a category in itself, a person who is physically handicapped, be it physically handicapped of a general category or OBC category, suffering from similar disability has to be treated alike in extending the relaxation and concessions," noted the bench in its judgment.

Both being provided 7 attempts to appear in Civil Services Examination, no discrimination or arbitrariness can be found in the above scenario", the bench concluded.