Why Supreme Court’s Observations on Education for the Disabled are Misguided

This article criticises the Supreme Court's observations made about disabled childen in an interim order in the Rajneesh Kumar Pandey v Union of India, an ongoing PIL case concerning the shortage of special education teachers in Uttar Pradesh.

Rajneesh Kumar Pandey v Union of India (2016) is an ongoing public interest litigation (PIL) case before the Supreme Court. This PIL concerns the shortage of special education teachers in Uttar Pradesh. The petitioners have sought directions from the court to the state government in this regard. In an interim order passed in November 2017, a three-judge bench of the court asked the state government to submit its affidavit. While passing this order, the court also made the following observations:

“It is impossible to think that the children who are disabled or suffer from any kind of disability or who are mentally challenged can be included in the mainstream schools for getting education… The students who suffer from blindness, deafness and autism or such types of disorder may be required to have separate schools with distinctly trained teachers.”

However, such an order passed by the Supreme Court needs to be criticised, especially when current discourse on disability focuses on inclusivity of individuals considered to be “disabled” and not separation. This order shatters the very philosophy and motive behind the repeal of the Person with Disability Act, 1995 (“old act”) and bringing forth of the Right of Person with Disabilities Act, 2016 (“new act”). One of the primary reasons for bringing forth of a new act was that India is a signatory to the United Nations Convention on the Rights of Persons with Disabilities (“convention”), a convention enacted to change the attitudes and approaches towards persons with disabilities[1]. 

To recognise the legislative intent behind the creation of a law, it is vital to comprehend the preamble of the Act which highlights the philosophy that India aspires to have in its new disability law regime. Two of these principles, that are quite relevant to the present matter are a) full and effective participation and inclusion in society, and b) accessibility. Furthermore, the new act is considered to be a progressive step in the realm of disability law of India. 

Inclusive Education: In Name Only? 

The new act has allowed for the much needed transition from the “medical model of disability,” that is, one that focuses on impairment to the “social model of disability,” that is, one where the focus shifts to addressing the social construct of society including attitudinal and physical barriers that prevent a person with a disability from leading a meaningful life. The act makes specific reference to “inclusive education”. Section 2(M) of the new act defines “inclusive education” as “a system of education wherein students with and without disability learn together and the system of teaching and learning is suitably adapted to meet the learning needs of different types of students with disabilities.”[2] 

In Section 16, Chapter 3 of the Act, it is the duty of the appropriate government to require that educational institutes funded or recognised by them provide “inclusive education.” Section 17(d) makes it the duty of the appropriate government to train professionals for such “inclusive education.” Considering the aforementioned, the order passed by the Supreme Court, expressly removes the responsibility of the government to train and have teachers professionals, who can teach differently abled students in regular educational institutes. 

In its order, the Supreme Court has tried to read down the scope of the definition of disability provided in the new act. The court has assumed that the disability act requires that once an individual has been identified as disabled, they are required to go to a special school. Such an assumption is fundamentally a wrong interpretation of the Act; in the entire scheme of the new act, the reference to special schools has been made only once, that is, in Section 31. Only individuals with “benchmark disabilities” have the option of joining such special school, which is again is not mandatory. 

Recently, in the matter of Rajive Raturi vs Union of India (2018), the Supreme Court had held that, “Having regard to the aforesaid Constitutional and Statutory Scheme, there is no denial of the fact that visually impaired persons need to be provided proper and safe access to roads and transport as well as to buildings, public places, etc.” 

In the case of Disabled Right Group and Anr. V. Union of India and Ors (2018), the Supreme Court had stated:

“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… 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.” 

Through both these judgments, it can be inferred that the judiciary is trying to make education for the differently-abled more and more accessible in regular education institutions, as stated in the preamble of the new act and not just sending them to special school. 

Access to Education 

It needs to be emphasised, that it is not just in India, but in various other countries, that the focus has now changed from sending differently abled to special schools to making public schools responsible to accommodate such differently abled individuals. 

In Canada, in the matter of Moore v Her Majesty the Queen in Right of the Province of British Columbia (2012), the Canadian top court stated that students with disabilities are entitled to receive the accommodation measures they need to access and benefit from the service of public education. In this regard, the court said that adequate special education is not “a dispensable luxury.” The court acknowledged that such measures serve as “the ramp that provides access to the statutory commitment to education made to all children in British Columbia.” 

In the United States two significant court cases, Pennsylvania Association for Retarded Citizens v Commonwealth of Pennsylvania (1972) and Mills v DC Board of Education (1972), resulted in granting students with disabilities access to an education within the public schools. In the Pennsylvania case, a state’s association for citizens with mental retardation and parents of children with mental retardation challenged the fact that their children were not allowed to attend public school. By denying these students access to public schools, the judges ruled that they were denied due process and equal protection; schools were ordered to educate these students. The Mills case was similar, but it involved seven students with behavioural disabilities who had been excluded from school. The judges ruled that, regardless of severity of the disability, students with disabilities were entitled to a public school education.

In light of the aforementioned arguments, the Supreme Court’s order stating that differently abled children cannot be included in mainstream schools is incorrect, not just in accordance with the new act, but also Article 21A of the Constitution with the Right of Children to Free and Compulsory Education Act, 2009, which does not make it mandatory for differently abled children to be sent to special schools. 

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