The Special Case of the Right to Primary Education of Children with Disabilities in India: Legally Lacking
Department of Human Rights and Human Development at Rabindra Bharati University, India.
Abstract: The education of children with disabilities must be organized not merely on humanitarian grounds, but also because proper education enables a disabled child to largely overcome his/her handicap, and makes him or her a useful citizen. Social justice also demands and it has to be remembered that the constitutional directive on compulsory education under Article 21-A includes children with disabilities as well. Very little has been done in this field so far on account of several excuses. There is much we could learn from the educationally advanced countries which in recent years have developed new methods and techniques based on advances in sciences and medicine. It may be reiterated that the primary task of education for a disabled child is to prepare him for his socio-cultural environment. It is essential, therefore, that the education of children with disabilities be an inalienable part of the general educational system
Keywords: Right, Education, Children with Disabilities, India.
In India, the Constitution (86th Amendment) Act 2002 which has made free and compulsory education right of all children from 6 to 14 years of age, gave further thrust to the goal of universal primary education. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 provides that every child with a disability shall have access to free education until 18 years of age. This is a statutory responsibility cast on all appropriate governments in the country.
The Ministry of Social Justice and Empowerment, the nodal Ministry for disability issues estimates the number of children with disabilities having special needs as five percent of the total population of the country. One of the focus areas of universal primary education is to increase access, enrollment of all children and reduce school drop outs. The emphasis is also on providing equality education to all children and needs of children with disabilities support to them in regular schools and giving them an opportunity to receive education in the most appropriate environment. Hence, education of children with disabilities is considered an important area that requires a great deal of technical expertise to deal with the problems of children having different kinds of impairments. The impact of the legislative recognition of right to education of children with disabilities is that the program of Integrated Education for Disabled Children (IEDC) has been commenced in each State, District and Metropolis. Naturally, two questions arise in the existing situation: (a) whether the program of integrated education for children with disabilities can be offered to those children who cannot benefit fully by going to regular schools? (b) whether some children with disabilities require specialized services offered through special needs schools? Hence, there is a need to evaluate the existing educational scheme with special reference to primary education developed through legislations in Kolkata Metropolis and suggest schemes supported by law for the benefit of students with disabilities.
The education of children with disabilities
The education of children with disabilities has to be organized not merely on humanitarian grounds, but also on grounds of utility and as a constitutional requirement under Article 21-A. Proper education generally enables a disabled child to largely overcome his/her handicap, and makes him or her a useful citizen. Social justice also demands and it has to be remembered, as pointed out above, that the constitutional directive on compulsory education under Article 21-A includes children with disabilities as well. Very little has been done in this field so far on account of several excuses. There is much we could learn from the educationally advanced countries which in recent years have developed new methods and techniques based on advances in sciences and medicine. It may be reiterated that the primary task of education for a disabled child is to prepare him for his socio-cultural environment. It is essential, therefore, that the education of children with disabilities be an inalienable part of the general educational system. The differences lie in the methods employed to teach the child and the means to acquire information by the child. These differences in methodology do not influence the content or goals of education. This form of education is, therefore, referred to as special education.
The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 notified on 1st January, 1996 has not been effective so far because the handicapped arc not getting equal opportunities as envisaged by the Act. They are also not able to exercise their rights even after admission to regular schools. This prevents their full participation in life with others Although the National Policy on Education, 1986 (modified in 1992), stated, “the objective should be to integrate the physically and mentally handicapped with the general community as equal partners, to prepare them for normal growth and to enable them to face life with courage and confidence”, the ground realities are quite different. This policy also envisages “wherever it is feasible, the education of children with motor handicaps and other mild handicaps, will be common with that of others”. But in reality, most schools turn away even mildly handicapped children. The Act, though general in nature, is silent on reservations for handicapped students in schools and colleges. Section 39 of the Act provides, “All government education institutions and other educational institutions receiving aid from the government, shall reserve not less than three percent seats for persons with disabilities”. But this section occurs in the chapter relating to ‘employment’ and cannot be interpreted as providing three percent reservations for admission of handicapped students to various seats in the educational institutions. A similar provision should have been inserted in Section 26(b) of the Act which deals with ‘education’. It appears that the intention of the drafters might have been that Section 39 would take care of reservation for students also, but that is not possible in view of interpretative technicalities.
This is an apparent legislative defect. The reason may be the fast tracking of the impugned Bill, passed without debate in December, 1995. It does not appear that the drafters intended to keep handicapped students away from schools and other academic and educational institutions. Had that been so, they would not have incorporated other beneficial provisions in the Act to provide concessions to such students. For example, Section 30 refers to the provision of “transport facilities to the children with disabilities and financial incentives to parents and guardians to enable their children with disabilities to attend school”. It also provides for “removing architectural barriers from schools and colleges, supplying books, uniforms and other materials to children with disabilities attending schools, grant of scholarship to students with disabilities, restructuring of curriculum for the benefit of children with disabilities” and a number of other facilities. When the legislation provides for three percent reservations for all jobs in both government and aided schools including teachers with disabilities, how could it not provide for reservation of scats in academic institutions for students with disabilities? It definitely appears to be a case of an unintentional oversight and not intentional neglect or discrimination on the part of drafters. If not, Section 8(2) (f) would not have been in the Act which requires taking steps to ensure barrier free environment in public places, work places, public utilities, schools and other institutions. Section 8(2)(g) further directs monitoring and evaluation of the impact of policies and programs designed for achieving equality and full participation of persons with disabilities. It will not be possible to implement these policies without admitting the disabled students to schools and other educational institutions at a much larger scale. The Act needs to be amended and a clause may be appropriately added to Section 26 providing that every school and any other institution, whether government or non-government, aided, unaided or autonomous, shall admit in every class such percentage of disabled students as prescribed, not less than five percent, reserving at least one seat for each of the groups with: (i) blindness or low vision; (ii) hearing impairment; (iii) locomotor disability or cerebral palsy.
The education scheme for children with disabilities comprising Section 26 to 31 is uncertain and confusing. Though “special education” and “special schools” have been predominantly mentioned at several places in Section 26(c), their scope and ambit has not been defined anywhere. Therefore, Act seems to lean towards a segregationist education. However, the use of the term ‘integration’ in Section 26 (b) and ‘integrated schools’ in Section 29, shows that the integrationist school concept has a presence here. As far as ‘inclusive’ education is concerned, even though the term itself is conspicuous by its absence; Section 26 (a) which envisages ‘appropriate’ environment, hints of an endeavour towards inclusive education in the Act. Other provisions that lend a more credible basis to the view that inclusive education has been promoted in the Act, are provisions such as Section 28 which provides for designing and developing new assistive devices, teaching aids, special teaching materials and other such items necessary to provide ‘equal opportunities in education’ to a child with disability; and clauses (f), (g), (h) of Section 29, which provides for suitable modification in the examination system through elimination of purely mathematical questions for the benefit of blind students and those with low vision (f); restructuring of curriculum for the benefit of children with disabilities (g); restructuring the curriculum for benefit of students with hearing impairment to facilitate them to take only one language as part of their curriculum (h). Section 31 also stipulates that al1 educational institutions shall provide amanuensis (scribes) to blind students and students with low vision.
However, these words are bound to fail in the absence of any ideological underpinning. Much improvement – both in language and concept – is called for in these provisions: the term ‘normal’ schools presumably intended to be ‘mainstream’ schools, is only one example. As already pointed out, the phrase, appropriate environment’ is inadequate and ambiguous, since it fails to lay down any standard of the appropriateness of the environment. In fact, in the absence of any qualifying words, there is a certain danger that segregation could be pushed as being appropriate. Further, provisions like clauses (f), (g), (h) of Section 29 are also inadequate for the same reasons; since they fail to clearly define the purpose for which these modifications and restructuring is needed and also fall short of making a definite statement in in favor of inclusive education. If the intent is to take up these exercises towards inclusive education, then the changes ought to have reflected the effective factors of inclusive education: such as access in the general curriculum, the medium and mode of teaching, the learning tools and material, access to the teaching, methods of assessment and most importantly, compulsory training of all teachers (not just special educators but all those teaching in mainstream institutions) to develop the skills and knowledge necessary to equip them to teach children with disabilities as well. In fact, some of these provisions plainly betray faulty assumptions, such as clause (f), which assumes an inability on the part of the blind or low vision students to learn mathematics, which is unwarranted since their only limitation is of access and tools. Section 28 does provide for designing and developing new assistive devices, teaching aids, special teaching materials or other such items necessary to give a child with disability ‘equal opportunities in education’, but it could be better worded to extend beyond just equal opportunities in curriculum and academics, to a totally interactive learning process, thereby implying the integration of all students, disabled and non-disabled. Therefore, the Act needs to be suitably amended to do away with its uncertainties.
The author holds a PhD in Human Rights and Peace Studies (recipient of the Swedish International Development Agency SIDA scholarship) from the Centre for Human Rights and Social Development, Mahidol University, Thailand; and is engaged as Assistant Professor (Human Rights), teaching at both Graduate and Post Graduate levels at the University of Calcutta, Kolkata, India. A prolific writer, she has published a number of her research studies in the arena of human rights, governance, peace and democracy in national dailies as well as leading national and international peer-reviewed journals.
Her immediate previous engagement was in the capacity of an Assistant Professor – Human Rights at the West Bengal National University of Juridical Sciences, Kolkata, in India. Dr. Rai Chowdhury obtained a Bachelor of Arts degree in English Literature followed by a Master of Arts in Human Rights from the University of Calcutta (with a First-Class-First). Her experience of ground situations (through fieldworks inquiring diverse human rights issues in different regions), are coupled with an active background in public speaking and debating and journalistic writing for public causes. With a steady background in writing and articulating public opinion; the author has been a frequent national and international representative to events of human rights and policy significance and contributed academic papers and ideas to many a seminar, conference and workshop in recent years.
While her research interests include Human Rights, Governance, and Peace and Sustainable Development and Environment; Dr. Rai Chowdhury speaks English, Hindi, Bengali and elementary French. She enjoys public speaking and takes a keen delight in developing public relations through creative communication and strives for the protection of the human person and her/his environment.