P-PIL Promoting Public Interest Lawyering

FOSTERING EFFECTIVE ACCESS FOR THE DISABLED Research Note on Scribes for the Visually Impaired

Note Prepared by Professor Shamnad Basheer, Founder P-PIL Sai Vinod, Associate Director P-PIL Vatsala Sahay, Associate Researcher, P-PIL Sahana Manjesh, Associate Researcher, P-PIL Akshay Sharma, Associate Researcher, P-PIL With Inputs From Rahul Cherian, Founder, Inclusive Planet Kanchan Pamnani, Leading lawyer and disability activist Sam Taraporewala, Xaiver’s Resource Centre for the Visually Challenged Neha, Xaiver’s Resource Centre for the Visually Challenged Gopal Sankarnarayan, Supreme Court advocate

FOSTERING E FFECTIVE ACCESS FOR THE DISABLED Research Note on Scribes for the Visually Impaired

CONTENTS
I. INTRODUCTION ........................................................................................................................................ 3 II. EXISTING LEGAL FRAMEWORK......................................................................................................... 4
A. RIGHTS OF P ERSONS WITH DISABILITIES UNDER THE INDIAN CONSTITUTION...........................................................4 B. RIGHTS UNDER THE PWDA.......................................................................................................................................................4 C. INSTITUTIONAL P OLICIES ...........................................................................................................................................................4 D. RIGHTS UNDER THE NEW BILL .................................................................................................................................................6

III. JUDICIAL PRONOUNCEMENTS ......................................................................................................... 7
A. MAHARASHTRA RAJYA APANG KARMACHARI SANGHATANA V. MAHARASHTRA HOUSING AREA DEVELOPMENT AUTHORITY ......................................................................................................................................................7 B. BOMBAY CASE AND GUIDELINES .........................................................................................................................................7

IV. RIGHTS OF THE DISABLED UNDER INTERNATIONAL CONVENTIONS ............................. 9
A. APPLICABILITY UNCRPD IN INDIA ......................................................................................................................................10

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FOSTERING E FFECTIVE ACCESS FOR THE DISABLED Research Note on Scribes for the Visually Impaired

I. INTRODUCTION
The Indian Constitution recognizes the rights of disabled to access educational opportunities and facilities without any significant barriers. In this regard, several educational institutions and State departments have fostered disability friendly policies by permitting candidates to bring their own scribes and/or to use computers to take their exam. These policies have been formulated by various institutions based on the rights guaranteed to persons with disabilities in various legal instruments, both national and international, as discussed in detail in the sections below. These policies unanimously suggest that it is only fair that the candidate be allowed to choose her own scribe. Furthermore, the Bombay High Court vide order dated December 18, 2006 in Public Interest Litigation No. 129 of 2003 laid down elaborate ‘Guidelines for Appointment and Availing Facility of Scribe’, the most critical components of which are extracted below. We propose that similar guidelines be framed for CLAT as well. 1. The Scribe/writer should either be provided by the examining authority or be arranged by the candidate himself/herself at the discretion of the candidate. 2. It is desirable that the candidate and the scribe are from the same stream. 3. In case the candidate avails the services of his/her own scribe/writer, the scribe/writer should be one grade junior in academic qualification than the candidate if from the same stream. However, this condition shall not apply if the scribe/writer is from a different stream. 4. No other restriction should be imposed on the selection of a scribe/writer. Further, the University Grants Commission (hereafter UGC) vide letter dated January 2006 directed all Universities to extend computer facilities to all visually impaired students who desired to take their exam on a computer. The guidelines were issued pursuant to a similar request from a student registered with the Anna Malai Open University before the Chief Commissioner of the Office of Persons with Disabilities. Following this, the Commissioner vide letter dated 25 July 2005 requested the UGC to issue an advisory to all universities and institutions to provide laptop facilities to visually impaired candidates. The UGC did so, thereby indicating that this norm is now applicable to all Universities and educational institutions under the purview of the UGC and MHRD.

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FOSTERING E FFECTIVE ACCESS FOR THE DISABLED Research Note on Scribes for the Visually Impaired

II. EXISTING LEGAL FRAMEWORK
A. Rights of Persons with Disabilities Under the Indian Constitution
The courts have time and again interpreted the trio of Articles 14, 19 and 21 expansively to offer meaningful protection to the weaker sections of society. The non-provision of enabling facilities to the disabled (such as scribes for exams) would amount to discrimination under Article 14 of the Constitution of India.1 Further, it would also violate the right to life under Article 21 of the Constitution of India. Section 14 of the Constitution of India permits a ‘reasonable classification’ between persons to achieve a legitimate policy objective. The key statutory enactment dealing with the rights of the disabled is the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995, as discussed below.

B. Rights under the PWDA
The Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 Act (hereafter PWDA) came into force on 07 February 1996 in order to give effect to the ‘Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region’, which was adopted by India in 1992. The PWDA makes special accommodations for children with disabilities. The Act requires the governments to provide free education in an appropriate environment to all children with disabilities until the age of 18 years.2 In order to realize rights under the Act, Section 30 imposes an obligations on states to provide access to transport facilities, remove any architectural barriers, supply books and uniforms, provide scholarships, setup grievance redressal mechanism and design curriculum to suit the needs of children with disabilities. Section 31 of the Act provides that ‘all educational institutions shall provide or cause to be provided amanuensis to blind students and students with or low vision’.

C. Institutional Policies
The organizers of various competitive examinations have framed guidelines under Section 31 for provision of scribe to the disabled. The notification on ‘Examination Writing Policy
1

State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75; State of Bombay v. F.N. Balsara, AIR 1951 SC 318; R.K. Dalmia v. Justice Tendolkar, AIR 1958 SC 538; In re Special Courts Bill, 1978, (1979) 1 SCC 380;
2

P ERSONS WITH DISABILITIES (EQUAL OPPORTUNITIES PROTECTION OF RIGHTS AND FULL PARTICIPATION) ACT , 1995, § 26(a).

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FOSTERING E FFECTIVE ACCESS FOR THE DISABLED Research Note on Scribes for the Visually Impaired

for Students with Disability’ issued by the University of Delhi on November 09, 2011 states that: Students, who will be eligible for writer/scribe/interpreter in any of the categories mentioned above, may arrange for their own writers, scribes, interpreters as the case may be. In case they are unable to do so, the Superintendent of the Examination Centre would provide the same on receipt of written request from the candidate at least 24 hours prior to the commencement of the examination. A writers’ bank must be created in each college for the purpose for a ready availability of writers whenever required. Support may be sought from the Equal Opportunity Cell, if need be. The candidate must be given an opportunity to satisfy himself/herself about the writer’s ability to take dictation from the candidate. As far as possible the writer should be less qualified than the examinee. However, if the writer is more qualified than the examinee, the Superintendent of examination centre should ensure that the writer has not studied the subject at the higher level in which the examinee is appearing. Similarly in matters relating to employment in public offices, candidates are permitted to get their own scribes. The table below encapsulate guidelines that apply to candidates appearing for various examinations relating to recruitment in public offices:

1

2

Central Bank of India, Guidelines Regarding Persons with Disabilities (Online Examination for Recruitment of Specialist Officers, 2012) Coal India Limited, Guidelines for Use of a Scribe or Paper Writer for Visually Handicapped or Orthopedically Handicapped Candidates (Recruitment of Management Trainees, 2011) Life Insurance Corporation, Use of Scribe (Recruitment for the Post of Assistant Administrative Officer, 2010)

 

The candidate will have to arrange his own scribe at his own cost. The academic qualification of the scribe should be one grade lower to that of the candidate.

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The candidate will have to arrange his own Scribe at his own cost and inform the Centre Head beforehand.  The academic qualifications of the Scribe should be one grade lower than the eligibility criteria stipulated for the post, i.e. where the eligibility criteria stipulated is gradation, the qualification should not be more than HSC/XIIth/PUC.  Candidate will have to arrange his own Scribe at his own cost.  The academic qualification of the Scribe should be one grade lower than the stipulated minimum eligibility criteria and the Scribe should possess less marks than the candidate. 

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FOSTERING E FFECTIVE ACCESS FOR THE DISABLED Research Note on Scribes for the Visually Impaired

4

State Bank of India, Notes for Orthopedically Handicapped (OH)/ Visually Handicapped (VH) (Recruitment of Probationary Officers in Associate Banks of SBI, 2010)

 

The candidate will have to arrange his/her own scribe/writer at his/her cost. Scribe/writer must be processing one grade lower educational qualifications of the candidate (i.e. graduation in this recruitment). Thus the qualification of scribe/writer should not be more than XII standard.

From the above, the general policy on scribes is very clear in that these institutions confer on the disabled the right to get a scribe of his choice subject to very basic eligibility criteria.

D. Rights under the New Bill
With the ratification of the United Nations Convention on Rights of Persons with Disabilities (hereafter UNCRPD), the Government felt the need to usher in a more comprehensive new legislation to offer meaningful protection to the disabled. The government is presently considering a draft of the Persons with Disabilities Bill, 2011. Section 23K of the draft Bill states that: every person with disability appearing for an entrance examination for any higher educational institution has a right to adequate, necessary and appropriate support for the purposes of such examination; Further, Section 23A(1)(k)(iv) of the Bill defines ‘Support’ to include ‘provision of amanuensis or other technological support as required’. The Center for Disability Studies at NALSAR University of Law in its report on ‘The Rights of Persons with Disabilities Bill, 2011’ to the Committee appointed by the Ministry of Social Justice and Empowerment, Government of India laid down guiding principles for appointment of scribes for the disabled. The report strongly urges that: …basic guiding principles relating to scribes must be incorporated in the statute: only eligibility criteria for scribes should be that at the time person is acting as scribe, person shouldn’t be eligible to appear for the exam, or should not have been eligible over last 3 years. Further, the Scribe should be selected at the discretion of candidate. Competence of the scribe is important. The scribe policies of various institutions and the above report recognize the right of a disabled candidate to chose her own scribe. Hence, the State has an obligation to maintain reasonable accommodation with regard to the discretion of the candidate, in choosing a scribe.

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FOSTERING E FFECTIVE ACCESS FOR THE DISABLED Research Note on Scribes for the Visually Impaired

III. JUDICIAL PRONOUNCEMENTS
While there have been several decisions in relation to the rights of the visually impaired in relation to examinations and scribes, we discuss the most important ones below: A. Maharashtra Rajya Apang Karmachari Sanghatana v. Maharashtra Housing Area Development Authority3 A Public Interest Litigation was filed by the Maharashtra Rajya Apang Karmachari Sanghatana against the guidelines of the Maharashtra Housing Area Development Authority on its recruitment examination of visually impaired candidates. The impugned guidelines reads as follows: (1) candidate’s scribe must himself have secured a lower score than the candidate in a previous examination or less than 60 per cent marks in his examination, and (2) visually challenged students and their scribes shall be criminally prosecuted if found indulging in malpractice during exams.

The Bombay High Court invalidated both the guidelines. The former was invalidated because it might affect the candidate adversely in the examination. The latter was invalidated because the Court felt that it would create a wrong environment in which good scribes will be discouraged to come forward to the aid of the visually impaired. The Court asked the MHADA to ‘be sensitive’ to the visually impaired and directed it to remove the provision. B. Bombay Case and Guidelines Furthermore, the Bombay High Court vide order dated December 18, 2006 in Public Interest Litigation No. 129 of 2003 laid down elaborate ‘Guidelines for Appointment and Availing Facility of Scribe’. They are as follows: 1. The Scribe/writer should either be provided by the examining authority or be arranged by the candidate himself/herself at the discretion of the candidate. 2. Any attempt at cheating can be curbed by ensuring proper supervision and vigilance, by the invigilators. 3. Considering the practical problems, it is necessary that if the scribe is provided by the examination conducting authorities, such authorities must ensure the competence of the scribe/writer.

3

Writ petition, December 8,2011 (Mohit Shah, Roshan Dalvi) (Bombay High Court)

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FOSTERING E FFECTIVE ACCESS FOR THE DISABLED Research Note on Scribes for the Visually Impaired

4. The examining authority should make it very clear in the advertisement itself regarding availability of scribe/writers. 5. The Candidate should furnish in the application form itself that he/she would like to avail the facility of writer from the examining body or he himself would arrange for the scribe/writer. 6. The examining body should identify the scribes/writers and make the panel at district/Division or state level as per requirement of examination. 7. The Panels of scribe should be as per requirement of the stream/discipline eg. Arts, Commerce, Science & Mathematics, Engineering, Medical etc. and only eligible scribes should be included in the panel. 8. It is desirable that the candidate and the scribe are from the same stream. 9. In case the candidate avails the services of his/her own scribe/writer, the scribe/writer should be one grade junior in academic qualification than the candidate if from the same stream. However, this condition shall not apply if the scribe/writer is from a different stream. 10. No other restriction should be imposed on the selection of a scribe/writer. 11. The Chief invigilator of the examination center should have discretionary powers to accept last minute change of scribes under exigencies 12. More than 1 scribe may not be permitted to write different papers. However, subject * J clause (11) above such change be permitted. 13. The letter approving the scribe should contain the following information in writing: a. The extra time given to the candidate b. He shall be seated separately c. Beside the date and subject name, scribe name should be printed for every paper. d. Contact address and phone number of competent authority should also be printed for last minute change of scribe. 14. Refreshments, if any to scribes/writers should either be served before or after the examination

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FOSTERING E FFECTIVE ACCESS FOR THE DISABLED Research Note on Scribes for the Visually Impaired

IV. RIGHTS OF THE DISABLED UNDER INTERNATIONAL CONVENTIONS
UNCRPD imposes an obligation on States ‘to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity’.4 India ratified the Convention on October 01, 2007. Article 5(3) of the Convention requires the State, on a non-discriminatory basis, to take all appropriate steps to ensure that reasonable accommodation is provided to promote equality and eliminate discrimination of the disabled with others. Article 2 of UNCRPD defines ‘reasonable accommodation’ as: necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms Article 24 of the UNCPRD then speaks about “reasonable accommodation” within the specific context of education by stipulating that “States Parties shall ensure that persons with disabilities are able to access general tertiary education, vocational training, adult education and lifelong learning without discrimination and on an equal basis with others. To this end, States Parties shall ensure that reasonable accommodation is provided to persons with disabilities.” Lastly, under the Convention, India is obliged to take the following measures under Article 4(1): (b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities; (d) To refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention; (e) To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise; From the above, it is clear that international law mandates that those with disabilities such as the visually impaired are provided with all the necessary support (such as an

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U NITED NATIONS CONVENTION ON RIGHTS OF PERSONS WITH DISABILITIES, ART. 1

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FOSTERING E FFECTIVE ACCESS FOR THE DISABLED Research Note on Scribes for the Visually Impaired

effective scribe system) so that they are not disadvantaged in any way and are on a near equal footing with those that write the exam without any disability.

A. Applicability UNCRPD in India
Article 51(c) of the Constitution dealing with ‘Promotion of International Peace and Security’ imposes an obligation on the State to make efforts to ‘foster respect for international law and treaty obligations’. Further, Article 73 read with Article 253 and Entry 14 of the Union List grants the Union powers to enter into international treaties and conventions. Courts have held that any international treaty obligation undertaken by the State takes up is valid and binding as long as it is not inconsistent with the provisions of the Constitution and any Parliamentary enactment.5

To this extent, courts have adopted principles from international conventions and norms and effectively construed them as part of domestic law unless they conflicted with existing parliamentary enactments or the constitution. However, this has been more or less limited to cases involving human rights and the like (and has not extended to international conventions dealing with trade etc).67 Cases such as Vishaka v. State of Rajasthan8 are illustrative of this approach. Further, even in the context of disability rights, the Supreme court has read in the provisions of the UNCRPD into domestic laws to provide effective provision to the disabled (See Suchita Shrivastava v. Chandigarh Administration.9)

5

Vishaka v. State of Rajasthan, (1997) 6 SCC 241. Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 ; Vishaka v. State of Rajasthan (1997) 6 SCC 241 Vishaka v. State of Rajasthan, (1997) 6 SCC 241. Id. (2009) 9 SCC 1.

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7 8

9

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DRAFT - CLAT POLICY FOR CANDIDATES WITH DISABILITIES

1. Candidates with disabilities appearing for the Common Law Admission Test shall be eligible for additional extra time of: a. 40 minutes, to complete the under-graduate entrance test; and b. 60 minutes to complete the post-graduate entrance test. 2. Candidates who need scribes to write their test shall have the option of a. bringing their own scribes; or b. requesting for scribes to be provided by CLAT authorities. 3. Candidates opting to bring their own scribes shall ensure that the following conditions are complied with: a. The scribe should at least be one class junior to the candidate i.e. if the candidate is in Class XII, the scribe should be in Class XI. Similarly, if the candidate is in the first year of a degree programme, the scribe should be in Class XII or a lower class; if the candidate is in the second year of a degree programme, the scribe should be in the first year of a degree program. This need not be the same degree program, but could be any degree programme, provided it is a degree of equivalent hierarchy i.e. BA and BSc would be equivalent undergraduate degrees; similarly, MA and MSc would be equivalent post graduate degrees. b. He/she should not be pursuing or have pursued any degree or diploma course specifically related to law. He should not have appeared for any law entrance exam in the past. 4. Each candidate proposing to bring their own scribe must immediately notify the CLAT committee (in no case later than 30th April 2012) and submit the following documents (no later than 5th May 2012): a. An affidavit/declaration from the candidate stating that the scribe they have selected fulfils all the pre-requisites laid down in this policy and that they have

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FOSTERING E FFECTIVE ACCESS FOR THE DISABLED Research Note on Scribes for the Visually Impaired

not in any way requested, nor will request at any point of time until the end of the CLAT examination, the scribe to help them with the answers other than the normal process of reading the paper and helping them pencil the correct answer. A draft declaration is available on the CLAT website. b. A declaration from the scribe attesting that the said scribe complies with all the pre-requisites stated in this policy. And that they will not in any way help the disabled candidate answer any question in the paper, apart from their regular duty of reading out the paper and penciling the correct answer. A draft declaration form is available on the CLAT website. c. An attested copy of the marksheet of the last examination cleared by the scribe. Instructions 1. Candidates who wish to be provided with scribes by the CLAT committee must intimate the CLAT committee at NLU, Jodhpur by the 30th of April 2012. They must do so by email <state address> or <telephone number>. Please call up the CLAT office to confirm that your request has reached. 2. Candidates who wish to bring their own scribes must also intimate the CLAT committee by the 30th of April 2012. They must do so by email <state address> or <telephone number>. Please call up the CLAT office to confirm that your request has reached. 3. However, all the relevant documentation in this regard (2 signed affidavits) need to be provided only by 5 th May 2012. You may send this by both physical copy and electronically (scanned copies). Please note that the two affidavits need to be signed by both the scribe and the disabled candidate as also by one witness. There is no need to have the affidavit notarized. For the purpose of this specific policy relating to scribes and extra time, a candidate with disability includes any candidate who is visually impaired or motor impaired or impaired in any other way that their ability to read the paper or write the answers (within the required time given for the exam) is affected. Provided, however, that the said candidate should have already disclosed in their CLAT application form that they are opting to write the CLAT exam as a “disabled” candidate and have provided medical certificate etc to confirm this.

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Letter to NLU-Jodhpur Vice-Chancellor

To Justice NN Mathur Vice Chancellor NLU Jodhpur 3rd April 2012

Re: Adoption of Disability Friendly Scribe Policy

Dear Justice Mathur: I hope this finds you well. Thank you very much for offering me a patient hearing to discuss the issues faced by the differently-abled candidates who appear for the CLAT exam each year. We write this request, as Mr Yugal Jain, a visually impaired candidate appearing for CLAT this year, was informed by the CLAT help desk that he would not be permitted to bring his own scribe. His email request and response are attached herewith as Annexure A. Given your sensitivity to this issue, we request you to urgently adopt a policy that is more disability friendly. We wish to bring to your attention the fact that several institutions permit the visually impaired candidates to bring their own scribes. Further, courts have in the past clearly recognized the right of visually impaired candidates to bring their own scribes, provided the educational qualification of the scribe is at least one level lower than the candidate . In pertinent part, the Bombay High Court vide order dated December 18, 2006 in Public Interest Litigation No. 129 of 2003 laid down elaborate ‘Guidelines for Appointment and Availing Facility of Scribe’. We extract the relevant portions below:

1. The Scribe/writer should either be provided by the examining authority or be arranged by the candidate himself/herself at the discretion of the candidate. 2. Any attempt at cheating can be curbed by ensuring proper supervision and vigilance, by the invigilators.

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FOSTERING E FFECTIVE ACCESS FOR THE DISABLED Research Note on Scribes for the Visually Impaired

3. Considering the practical problems, it is necessary that if the scribe is provided by the examination conducting authorities, such authorities must ensure the competence of the scribe/writer. 4. It is desirable that the candidate and the scribe are from the same stream. 5. In case the candidate avails the services of his/her own scribe/writer, the scribe/writer should be one grade junior in academic qualification than the candidate if from the same stream. However, this condition shall not apply if the scribe/writer is from a different stream. 6. No other restriction should be imposed on the selection of a scribe/writer. Please also note that the general norm (followed by leading educational boards and institutions such as CBSE) is that 20 minutes extra is provided for each hour of the exam so as to facilitate effective exam taking by disabled using scribes. Based on this, may we request that disabled candidates be provided 40 minutes extra for the CLAT exam. We also wish to bring to your notice the recent government notification regarding provision of computer facilities to disabled candidates. The UGC dated January 2006 directed all universities to extend computer facilities to disabled candidates who wished to write the exam directly on a computer, pursuant to a request from the Chief Commissioner of the Office of Persons with Disabilities. The UGC notification and the letter of the Commissioner are annexed herewith as Annexure B. We attach a small note as Annexure C outlining the law in this regard and the various institutional policies that we have been able to lay our hands on. Although we are aware that you are already familiar with all of this and highly sensitive to this issue, we are including it only by way of abundant caution. Based on the above note and after having studied the various policies around scribes for examinations, we have taken the liberty of crafting a draft policy in this regard for CLAT. We attach it with this letter (as Annexure D) and do hope that you can adopt something along these lines. Given that we are now short of time in the run up to the CLAT exam, and disabled candidates need adequate time to either pick their own scribes or notify you that they would rather have you arrange scribes for them, may we please request that this policy be announced at the earliest? Thanking you very much, I remain,

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FOSTERING E FFECTIVE ACCESS FOR THE DISABLED Research Note on Scribes for the Visually Impaired

Most sincerely yours,

Shamnad Basheer Ministry of HRD Professor of IP Law Founder, P-PIL

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