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Seminar Paper on Disabilities Law

Topic of the Paper- Analysis of the The Persons With Disabilities (Equal Opportunities, protection Of Rights And Full Participation) ACT, 1995 with respect to Education

Table of Contents Introduction Statistics: Disabled Children in India Current Educational Status of Children with Disabilities The Current Law Different Models of Education for the Disabled What the Government is doing Why the Act is not enough The role of Non Governmental Organizations Conclusion and Suggestions

Introduction Education as we all know is an important part of our life. We learn everyday from the experiences that we go through, hence education is not only limited to the classroom education. However, classroom education is equally important because it is there where we learn what to do, how to do, and prepare ourselves to face the world, to stand independently on our feet, take care of ourselves and the ones we love. Noble is the thought, however, in todays world education to an extent has become something for which one needs to be qualified to a certain level in order to acquire the same from a school. This could be in terms of money, or in terms of ability. The concept seems absurd totally, as it is education that is supposed to make us able and capable of doing the things that are expected out of us. If we have no teacher, how do we learn? Where money is a concern, Government Schools have propped up. The standard of education available to government school going children is obviously nothing compared to private and public schools; however, it is a step in the right direction. On the other hand, where ability is a concern, there are schools for the disabled, not many in number, but they are coming up. But are we doing as much as we can and should be doing for those falling in this category? Education is an important aspect of life and every child has a right to it. The Supreme Court in 1993 held free education until a child completes the age of 14 to be a right1 by stating that: The citizens of this country have a fundamental right to education. The said right flows from Article 21. This right is, however, not an absolute right. Its content and parameters have to be determined in the light of Articles 45 and 41. In other words, every child/citizen of this country has a right to free education until he completes the age of fourteen years. Thereafter his right to education is subject to the limits of economic capacity and development of the State. Spurred by the Unnikrishnan judgment and a public demand to enforce the right to education, successive governments from 1993 worked towards bringing a constitutional amendment to make education a fundamental right. That led to the 86th amendment in December 2002 which inserted the following articles in the Constitution:

Unnikrishnan and others Vs State of Andhra Pradesh and others

1. Insertion of new article 21A- After article 21 of the Constitution, the following article shall be inserted, namely:Right to education."21A. The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine." 2. Substitution of new article for article 45- For article 45 of the Constitution, the following article shall be substituted, namely:- . Provision for early childhood care and education to children below the age of six years. "45. The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years." 3. Amendment of article 51A- In article 51A of the Constitution, after clause (J), the following clause shall be added, namely:"(k) who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years." Hence, it is an established and an agreed upon fact that education for every child is an essentiality that has to be looked upon and dealt with. The Persons with Disabilities Act 1995 deals with disabled children and the said Act has a chapter on education- Chapter V. But how effective have these provisions been up till now? Does something lack here? Is the Government fulfilling its responsibility towards such children? Or is it just another Act that is there in our country but not actually there when some reforms have to be materialised for the betterment of the disabled people. This paper will attempt to answer these questions by critically analysing the education chapter given in the Persons with Disability Act, 1995; comparing it with the Working Drafts that have come up in the recent times to serve a similar purpose, the implementation of the Act, the role of the Governmental and Non-Governmental Bodies, and the various schemes that have been started in the country.

Statistics: Disabled children in India Disability is a multi-dimensional and complex construct and there is no single universally accepted, unproblematic definition of disability. Not only do definitions differ across countries but these also differ and change within a country with evolving legal, political and social discourses. It is very difficult to find reliable data about the prevalence of disability in India. In general, the search for a single prevalence rate is an illusion, and the range of estimates, and their varied origins, makes it difficult to say very much with assurance about people with disabilities. The two main large data-sets are the 2001 Census (Registrar General of India, 2001) and the 2002 National Sample Survey 58th Round (NSSO, 2003). Unfortunately, as Mitra and Sambamoorthi (2006) point out, the definitions of disability used by these two enquiries differ in some fundamental ways. The 2001 Census, covering five types of disabilities, recorded a prevalence rate of 2.13 percent, or 21.91 million people with disabilities out of a total population of 1028 million. The National Sample Survey Organisation (NSSO) 58th round (July-December 2002) survey reported that 1.8 percent of the population (18.5 million) had a disability. While 18-22 million people with disabilities is a large number, this is still arguably a gross underestimation, especially when one considers that World Health Organisation estimates a global prevalence rate of 10 percent. A leading Indian disability NGO, the National Centre for Promotion of Employment for Disabled People (NCPEDP), argues that 5 to 6 percent of the population has a disability. World Bank (2007: 12) notes that the real prevalence of disability in India could easily be around 40 million people, and perhaps as high as 80-90 million if more inclusive definitions of both mental illness and mental retardation in particular were used. The Registrar General of India (2001) agrees that the Indian data on disability are unreliable,due to few well-trained field investigators, and issues of social stigma. Underreporting due to stigma and a range of other socio-cultural variables has also been noted by the World Bank (2007); Kuruvilla and Joseph (1999); Erb and Harriss-White (2002). Current survey methods are unable to minimise and/or account for these factors. They are not only unsuccessful in providing a reliable picture of prevalence rates of disability, but there is also a greaterlikelihood of the identification and reporting of some easily identifiable impairments, while others remain hidden. Thus, it is difficult to state if differences in estimates provided by various data-sets are real differences in impairments or due to other factors. Moreover, societies where extended kin groups retain significant rights and obligations (as in much of Indian society) the impact of disability will be broader than where kinship groups are

smaller and more individuated2.This is likely to impact on peoples willingness to disclose disability within a family. More importantly, this lack of reliable estimates has an impact on the kind of policies and provisions that are framed for people with disabilities and indeed those for their families. Even though current disability figures are not the most reliable, it is noteworthy that national prevalence rates suggest that about 35 percent of people with disabilities are in the 10-29 years age group. By comparison with 1991, incidence rates amongst the 0-9 age group have shown a decline, but there has been an increase in the incidence rates among the age groups of 10-29. The decreasing trends could be attributed to immunization coverage for polio eradication, especially since the figures for movement disabilities among the 0-4 age group in 2001 are well below those for the 5-9 and 10-19 age groups. The increasing rates among young adults could be due to factors such as accidents, on the road and/or at work3. This raises important issues of access to education and a need for focusing on transitions (educational, socio-emotional, physical etc.) for young people with disabilities in later years.

Current educational status of children with disabilities Differing combinations of structural factors (such as caste, gender, religion, poverty etc.) intersect with disability resulting in varied individual experiences, but the broad commonalities that shape the lives of people with disabilities in India transcend these divisions. Their lives are largely marked by poverty and marginalization from mainstream social processes. A recent study by the World Bank (2007), for example, noted that children with disability are five times more likely to be out of school than children belonging to scheduled castes or scheduled tribes (SC or ST). Moreover, when children with disability do attend school they rarely progress beyond the primary level, leading ultimately to lower employment chances and long-term income poverty. Government documents also describe marked variations in the provisions envisaged for different marginalised groups. Historically, SCs/STs have had a strong political lobby since independence and this is reflected in the provisions made for them. Article 46 of the Constitution makes a straightforward commitment to promoting the special care and

See Singal (2007) for an extended discussion on the cascading impact of disability on the individuals family. See Singal (2008) for a detailed discussion on these trends.

education of SC/ST populations, whereas Article 41 referring to children with disabilities, states: The State shall within the limits of its economic capacity and development make effective provision for securing the right to work, old age, sickness and disablement. The clause, within the limits of the States economic capacity and development, greatly reduces the expectation of urgent action that is seen in Article 46. Such caveats have had a significant impact on the national planning process. Majumdar (2001: 123), analysing educational provisions for various disadvantaged groups across different states, sums up the scenario for children with disabilities as: Apparently, nothing is available other than a few government scholarships, facilities in the form of a couple of institutions for boys and girls and institutes for training teachers for the disabledfor the mentally disabled, no conscious developmental scheme is focused on by any of the states. Even though various efforts have been made in the recent past, both the rates of educational participation and outcomes of education, remain very poor for children and young adults with disabilities. Illiteracy rates for this group remain much higher than the general population and school attendance continues to lag behind that of non-disabled peers. Based on NSS data, the World Bank (2007: 64) report categorically states that, it is very clear that both educational attainment of all PWD and current attendance of CWD are very poor and far below national averages. Data suggests that people with disabilities have much lower educational attainment rates, with 52 percent illiteracy against a 35 percent average for the general population. Illiteracy levels are high across all categories of disability, and extremely so for children with visual, multiple and mental disabilities (and for children with severe disabilities across all the categories). Equally, the share of children with disabilities who are out of school is around five and a half times the general rate and around four times even that of the ST population. Even in states with good educational indicators and high overall enrolments a significant share of out of school children are those with disabilities: in Kerala figures stand at 27 percent and in Tamil Nadu it is over 33 percent. Data also indicates that across all levels of severity, CWD very rarely progress beyond primary school.

The Current Law Statute According to chapter V, of the 1995 Act, children with disabilities should be provided free education by the appropriate government. The government must take steps to integrate children with disabilities into regular schools, but also make space for special schools that cater expressly to the needs of these children. In addition to the basic education schools, government are also required to make non-formal education programmes for children with disabilities that help attain literacy, rejoin school, impart vocational training, and provide them with free books and educational material. Teachers need to be specially trained to educate and see to the needs of children with disabilities. The government must also set up schemes that provide children with disabilities grant and scholarships and also provide funds for making buildings disabled friendly. Educational institutions are also required to provide visually challenged students with aids who will write for them.

Case Law However, a lot of questions are unanswered by the 1995 Act due to the concise chapter that it has, which in a way is not sufficient in itself. The courts in India have decided upon several questions and situations that have come before them with regard to education for the disabled. In Surinder Kumar v. Punjabi University & Ors4 a deserving candidate was not allowed admission in the B.Ed course of the University as he was blind but that another student with lesser merit who was also blind was given a seat. On this the Punjabi University argued that had Surinder been able to produce a certificate stating that he could teach, as was a condition in the prospectus of the University, he would have been granted admission. However, the court held that such a condition was contrary to the purpose of 2% reservation for the disabled and hence illegal. The Court held that Surinder was entitled to admission to the B Ed Course. The petition was accordingly allowed and the Punjabi University was directed to see that Surinder was admitted to one of the two colleges. The University was further directed that if the classes for this course had already begun then special classes would be held for him.

AIR 1995 P &H 131

However, it is also a concern that the relief that is to be provided to the disabled children through reservation should not be misused. In Udit Sehgal v. University of Delhi5 a candidate who had applied for admission in the general category, subsequently after the submission of application form had an accident and was disabled. Afterwards he wanted to be shifted to be considered and admitted in the reserved category for the disabled children, this significantly after the results were out when he realised he could not make it with the marks that he had obtained. Arguments advanced from Udits side were that since he had become disabled before the competitive exam, he had gone through injuries and trauma of being disabled for the rest of his life which was of a greater degree than someone who was already disabled from a long period. This argument was rejected by the Court and it was held that since the University had a policy of complete prohibition of any change in the category in the application after the receipt of the completed form and on and before the date of the receipt, Udit was not eligible to apply in the category of physically handicapped so the authorities had concluded that a case for special circumstance could not be made out and if his disability continued, it would be for him to apply in the handicapped category for the next academic session and take his chance in the changed category. The write petition was dismissed. In a case regarding the admission of Naveen Kumar to an Engineering Course under the provisions of Section 39 of the Persons with Disabilities Act,6 the facts were as follows: Naveen Kumar appeared in the entrance test for the B.E. Computer Course conducted by the Delhi University and secured a rank of 5,016 out of 25,000. He was however not granted admission. He then filed this petition demanding reservation of seats for the disabled, under Section 39 of the Act and for his admission to the course. Arguments made on behalf of the University of Delhi were as follows: The lawyer on behalf of the Delhi University opposed the petition on the following grounds:

Firstly, that Section 39 did not deal with reservation in educational institutions since the chapter of the Act containing that section dealt with employment.

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2003 (66) DRJ124 Naveen Kumar v. University of Delhi CWP No: 4657 of 2000, Decided on 24th Nov, 2000 (Unreported): (2005) 1 PDD (CC) 69

Secondly, it was contended that Naveen or any other individual suffering from any disability, had no right to claim admission against reserved seats as the University Bulletin did not mention that any seats were reserved for the disabled.

Thirdly, he argued that Naveen was handicapped to such an extent that he might not be able to pursue the course in a successful manner and granting admission to him might unnecessarily block the seat that could be used by some other deserving candidate.

The court observed that the lawyer for the Delhi University was right in stating that Section 39 of the Act did not fall within the chapter of the Act dealing with Education. The Court also observed that Section 39 had not been drafted properly. However, the Court held that bad drafting could not and should not debar the clear intention of the Act. The intention had to be accepted irrespective of the bad drafting. Furthermore, it was stated that it was quite obvious from Section 39 that it related to all educational institutions and referred to "seats" as against "vacancies." The Court accordingly rejected this argument. With regard to the second contention, the Court held that the Universities and all other Educational institutions had to comply with the provisions of the Act and reserve at least 3% of its seats for disabled candidates. The Court held that merely because the University Bulletin was silent about the seats reserved for handicapped persons, this was no reason for denying reservation to people suffering from disabilities. Lastly, the Court held that it was not in its power to decide whether Naveen was "too handicapped" to successfully pursue the course. The Court held that a Medical officer of the University would have to examine him to find out whether or not he could effectively pursue the Course without much difficulty. It was further directed that the Medical Officer would have to take Naveen around the workshop and the laboratory and observe whether or not he could pursue his studies. The Court further directed that the Medical officer would also have to take into account the question of moving space required by Naveen for his wheelchair. However, the Court held that he would be allowed the use of his wheel chair and calipers during the medical examination.

The Court directed the University of Delhi to get Naveen medically examined by a Medical Officer of the University and decide the question of his admission within a period of 10 days. The petition was disposed of accordingly. The above cases are a clear proof of the fact that it is not that the judiciary is bent towards one side but that justice prevails. The provisions of the Act are to be used in the deserving and genuine instances and misuse of the same shall not be allowed. In another case, Umesh Kumar v. State of Haryana7, the facts were that Umesh Kumar got admission to the Engineering Course (B.E) in Chhotu Ram State College of Engineering, Murthal, Haryana. Every candidate seeking admission to this course was required to undergo a medical examination. The medical examination stated him to be fit for admission in the said course. However, he was still not granted admission. The Chief Medial Officer issued a certificate, which stated that according to the standard laid down in the Information Bulletin, the power of glasses Umesh had in both eyes made him unfit for admission to the course. The CMO was of the opinion that according to the prescribed standard of medical fitness, glasses were allowed for hypermetropic astigmatism up to 3.5 D and for myopia or myopia astigmatism up to 2.5 D. Since Umesh had had not been able to meet the requisite standard of eyesight he could not be granted admission. Accordingly, the Director-Principal of the College cancelled his admission to the Course. Umesh then filed this writ petition challenging the cancellation of his admission. In response to the petition the College stated that the standard of eyesight and power glasses mentioned in the Regulation of the College were a must and since a student of Engineering had to handle different instruments and machinery, a minimum standard of eyesight for this purpose, was very essential. The Court referred to the standard of vision that had been prescribed by most engineering colleges for admission to its Engineering Courses. The Court especially referred to the standard of vision followed by the Indian Institute of Technology and stated that since this institution was one of the pioneer institutes of the country, the requirement of fitness prescribed by it must be taken into account. After examining, the standard of vision prescribed by IIT the Court held that it could find no justification in the decision of Chhotu Ram College in denying admission to Umesh. The Court

AIR 1989 P&H 130

held that the standard of vision prescribed by the College in its brochure was completely arbitrary and unsuitable and quashed the same. Consequently, the Court allowed Umesh's writ petition along with the petition of another candidate with a similar complaint. The Court directed the College to allow Umesh to continue with his studies in the Engineering Course to which he had been admitted. The Court also held that the petitioners were to be granted costs of the petitions fixed at Rs. 500 in each writ petition. It should be brought to notice that blindly reservation is not followed when in certain cases certain disabilities in fact disqualify a candidate from taking admission owing to directives of the Medical Council.8 Questions regarding when the 3% reservation is applicable to professional courses and when not have also been answered by the Indian Courts.9 In this case, Mary Joseph had filed a writ petition for a declaration that persons with disabilities as defined in the Persons with Disabilities Act were entitled to not less than 3% of the total seats in the Government Colleges for the year 2000-2001. In this petition, Mary had also sought the quashing of various provisions in the prospectus published by the State of Kerala for admissions into Professional Courses, since these provisions did not provide reservation of seats for persons with disabilities as per Section 39 of the Act. In response to this, the State took up the stand that as per the prospectus 3 seats had been reserved for physically and orthopedically handicapped persons in the medical and 3 in the engineering branch, each. It was further pointed out that if Section 39 of the Act were to be applied as contended by Mary then 134 seats would have to be reserved for persons with disabilities, which would unsettle the entire selection process as well as the mandatory reservation to other categories. After examining the arguments, the Single Judge passed an order stating that a clear illegality had been committed. The Government should see to it that in future 3% seats are reserved for the disabled persons and it should be kept in mind that while framing the prospectus, the provisions of the Act are not violated.

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Manoranjan Deka v. State of Assam & Ors 2005 (2) GLR 317 State of Kerela v. Mary Joseph 2001 (3) KLT 26

This appeal was then filed by the State of Kerala, Commissioner for Entrance Examinations and Director of Technical Education against the judgment given by the Single Judge. The lawyer on behalf of the State of Kerala and others argued that Section 39 of the Act was introduced with an intention to give admission to the disabled persons in all Government and Government aided institutions and other educational institutions and not for the purpose of admission to professional courses like Medical, Engineering and Agricultural courses. It was further argued that the main aim of the Act was rehabilitation and employment and was not really admissions to professional degree courses. Therefore, it was necessary to examine the scope of the Act and decide whether Section 39 was applicable for admission to professional courses. After examining the various sections of the Act, the Court concluded that Section 39 had to be read along with other sections and could not be understood in isolation. The Court further pointed out that the prospectus restricted admission only to those persons who could cope with the rigor of the courses in Engineering, Medical and other allied courses and permitted only those persons who had a minimum disability of 40% to apply. According to the Court this restriction was completely justified since people with more than 40% disability would not be able to cope with the professional courses unless certified by the Medical Board. The Court held that suitable reservation had been made for such individuals in the prospectus. In Medical and allied courses, 3 seats had been earmarked for orthopedically and other physically handicapped persons. The Court further pointed out that Section 39 of the Act did not intend to reserve seats in the Medical, Engineering and other allied professional courses since this section came within the heading Employment. Also, if this section was applied, 134 seats would have to be reserved for persons having 40% disability and this would adversely affect the mandatory and special reservations made to other categories. Accordingly, the Court held that the Commissioner for Entrance Examination would complete the selection process strictly on the basis of the prospectus and on the terms and conditions laid down in it. The Court also noted that in light of the order passed by the Single Judge, one of the petitioners (name not mentioned) was undergoing studies and had already completed one year. In such

circumstances, the Court was not inclined to disturb such admission. However, the direction given by the Single Judge to the State Government and to the Commissioner to reserve 3% seats for all persons suffering from disability of not less than 40% in the professional course was set aside. The writ petition was accordingly dismissed. On the other hand, plea that the academic session had already started and hence the 3% reservation rule could not be applied was not taken by the Court in the case of The Secretary, Educational Department, Government of Tamil Nadu, The Director of Medical Education and the Directorate of Medical Education vs. Master J. Rajkumar (Minor) rep. by his father and natural Guardian, D Joseph.10 Further in the case of Jitender Pal Kaur v. State of Rajasthan & Ors11 Jitender Pal Kaur was 18 and disabled. She had passed her Senior Higher Secondary Examination and had applied for the PMT/PVT Test conducted by the University of Rajasthan for admission to a Medical College. She had taken the written examination and the result showed that she was 2nd on the waiting list for disabled candidates. She then filed the present appeal claiming that the University had not reserved 3% seats for the disabled candidates according to the mandates of the Persons with Disabilities Act. The University had provided reservation for only 2 seats. Her contention was that there were 600 seats and accordingly 18 seats should have been reserved for the disabled people. The lawyer on behalf of the State of Rajasthan made two main arguments. Firstly, he contended that the University of Rajasthan was not a party and therefore the petition should be dismissed. Secondly, it was contended that since the process of giving admission was already over no such relief could be granted to her. According to the Court, both the arguments extended by the lawyer on behalf of the State of Rajasthan had no merit. The lawyer on behalf of the State of Rajasthan had contended that the result for admission to the Medical College had been declared and the admission process was over long back. The Court held that this argument did not have any merit since it was the mistake of the University in not granting admission to Jitender. The Court further observed that 34 seats were still vacant and therefore she could be granted admission in the current academic year.
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MANU/TN/0652/2003, Decided on 30.04.2003(unreported) MANU/RH/0160/2001.Decided on 27.11.2000 (Unreported)

The Court further contended that the University was bound to implement the provisions of the Act and therefore should have reserved 3% of the total seats for the disabled candidates. In view of the above discussion, the Court allowed the writ petition. The Universities of the State including the University of Rajasthan were directed to amend their ordinance and provide 3% reservation for disabled candidates. The Court also directed the Universities to implement the directions as soon as possible. Since minimum percentage of disability is fixed under the Central Act to be 40% it was held, going by the Constitution of India, that the Central Act will have precedence over the State Act which did not specify any percentage of disability, due to which a candidate whose disability was below the required percentage could not claim admission under the category reserved for the disabled people.12 Further, in the case Harsha Shivaram v. National Law School of India University13 the question was cleared that 3% reservation was only applicable in Government Universities or Universities aided by the Government.

Different Models of Education for the disabled In my opinion the Legislature has completely ignored the children in the age group of three to six years which is a very crucial period for mental and physical growth of the child. The new amendment failed to carry forward the spirit of Article 45 as it stood before the Amendment which provided education for all children up to the age of 14 years. While its an established fact that the scope and ambit of the Constitutional provision of right to education extends to the disabled persons also, the right to education for the disabled is available up to the age of 18 years. Disability in The Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995, has been defined in the interpretation clause. Disability is not merely a physical fact, but also involves a normative, cultural, and legal concept. The societys perception of a disabled person also reflects its idea of a normally functional human being and the definition as considered by the society gives us an insight into the societys self image. The recognition by the society of the terms mentally and physically disabled also implies a responsibility of the society towards the people who fit that description.
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Shiv Kumar Singh Yadav v. State of U.P. & Ors 2001(3) AWC 1972 I.L.R.1996 Kar 902

A society with deep ethos of social responsibility is likely to be more open in its definition of disability. The graph14 below shows the distribution of children suffering from various disabilities in various grades.

(1) Special Education The knowledge and processes of educating the disabled children or special education as it is known now, came to India in the last two decades of the 19th century through Christian missionaries. While special education enables the teachers to focus on the needs disabled children and these special schools are equipped with the resources that are required as per the needs of the disabled children. However, the special education system is based on the principle of segregation and not integration and is considered to be an expensive option, and at the same is considered to be violative of human rights. In the Indian scenario, it turns out be an expensive investment and other alternatives need to be evaluated, analyzed and decided upon soon, so that the goal of education for all is realized as is not cost effective in the rural area where the infrastructure is not at par with the urban India. It also leads to the segregation of the disabled and the same time is also considered to be violative of the Human Rights as it leads to the formation of a specific disability culture.


K.S. Bagga, Ensuring disabled people their right to Education (IndLaw Journal Vol-1, Issue 4)

This graph15 shows that, since 1947, there has been a steady rise of the number of special schools, which cater to different kinds of disabilities, which also indicates that the disabled children who were capable of being integrated lost the opportunity because the government did not utilize the funding for building infrastructure of the mainstream schools so that certain disabled children capable of being integrated or included could be admitted in mainstream schools. (2) Integrated Education Model. Integrated Education To overcome the disadvantages omnipresent in the special model of education, another model of education was developed in India in mid 1950s, namely Integrated Education Model. Integrated Education provides for common education for all children, whether disabled or non disabled. In recent years the principle of Integration has been guidance for reforms in the field of disability care and special education. It is the goal to help the child develop such skills and such confident self concept that are necessary for satisfactory participation in ordinary social life and work. (3) Integrated Education for Disabled Children (IEDC) The government launched this scheme in December, 1974 to provide educational opportunities to CSWN in regular schools, to facilitate their retention in the school system, and to place children from special schools in common schools.

K.S. Bagga, Ensuring disabled people their right to Education (IndLaw Journal Vol-1, Issue 4)

(4) Projected Integrated Education for the Disabled (PIED) The government also launched another scheme and there was a conscious shift in strategy, from a school based approach to Composite Area Approach. In this approach, a cluster, instead of individuals is taken as a project area. All schools are expected to enrol children with disabilities. Training programmes were also imparted to the teachers. (5) District Primary Education Programme (DPEP) This scheme had a powerful impact on the integration of the disabled children. The main advantage of this scheme is that it takes care of all the areas identification, assessment, enrolment, and provision of appliances to total integration of disabled children in schools with resource support, teacher training and parental counseling. (6) Sarv Shiksha Abhiyan To uphold its commitments for achieving Education for All (EFA) by 2010, the Government of India had launched Sarv Shiksha Abhiyan (SSA) IN 2000-2001. Sarv Shiksha Abhiyan gives prime importance to good quality education to all children including those with disabilities. It has a special mandate to serve children with disabilities at the district level. The scheme has a provision that Rs.1200 to be spent on every child with disability identified with the district. (7) Inclusive Education The inclusive model of education is another model of education utilized for the education of the disabled. In inclusive education, the disabled children are taught in general education classrooms, in mainstream schools alongside children of their age who do not suffer from disabilities. This system of education ensures that the disabled children are not segregated at any stage and helps them to develop a sense of worth, standing and belonging in society. It also enables sensitization of children who are not disabled and helps to form a disabled friendly society which is impossible in the special education system setup.

What the Government is doing In keeping with demands for a more inclusive system of education in India, the government promises to include disabled children in all its educational programmes

In a move to make the educational system more inclusive, the government has promised to include disabled children in all its educational programmes including the Sarva Shiksha Abhiyan and the Integrated Child Development Scheme (ICDS). India is one of the few countries in the world where 90% of disabled children do not receive any form of education, although there are a handful of schools in Mumbai, Chennai and Delhi where inclusive education is being practised. In these schools, innovative teaching techniques like theatre, music and group work have replaced traditional teaching techniques. "Each child is different. It's like in a classroom you have 40 different sets of children and not two sets. We don't have a problem dealing with them. The point is that you have to think of different methods of dealing with them. It's not like we are doing something impossible. It is very possible to do this," says Annie Koshi, principal of St Mary's School, New Delhi, where inclusive education is being successfully practised.16 Thirteen-year-old Rohan Goel, who has Downs Syndrome, is among the 40 physically and mentally disabled students at St Mary's studying alongside other students. Rohan is like all the other children in his class. He studies the same subjects and appears for the same exams with the other children at the end of each term. "It's not like we feel different with them around. They are our friends and if they need help we help them," says Sahil, a student, about studying with disabled children.17 A number of schools, however, remain unconvinced that inclusive education will work in the long run; they have different sections for disabled students. "It's a problem because these children need special care and we can't have them in the same class as other children," says Cynthia Manoharan, principal, St Thomas' School, New Delhi.18 Although disability comes under the social empowerment ministry, those advocating the cause of inclusive education, or education for all, want it to be transferred to the human resources ministry that deals with education. Meanwhile, 40 participants from 15 countries attended a six-day conference in New Delhi, recently, on inclusive education with a special focus on disabled children. The conference stressed that special schools did more harm than good to children with disabilities.
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Govt promises inclusive education for all disabled children Ibid 18 ibid

Why the Act is not enough There is a growing political momentum behind the need to take disability provision seriously. The Indian government has just passed the Right to Education Act, which guarantees all children access to good-quality education. Krishna Jadhav, the Mumbai state educational officer, is optimistic that teachers can be trained in the more modern teaching methods necessary for inclusive education to succeed. "Nothing is impossible," he says confidently. However, the real difficulty will be implementing these commitments. "The policies just remain on paper," observes Mr Rajendra, a regional representative for Leonard Cheshire Disability, a charity that supports disabled people in 52 countries, including India. "There is no shortage of money, but it is not accessible."19 He gives the example of a government commitment to provide free medical care to all children with specific disabilities. But applying for the necessary disability card is incredibly bureaucratic, and many parents are not even aware that they can access such government help. Awareness is another issue that leads to non exhaustion of the Act in a practical manner. Half the disabled people, parents of disabled children are not aware of what all provisions are available for them with respect to education. Either reaching out is where the government lacks or it is the issue of trust because of so many failures and cheatings that have been there. Further, the Act does not give out a lot of things in detail. Provisions and requirements as to what kind of teachers, their salaries, etc are not mentioned. After all, education of a disabled child is most dependent on the teacher teaching, and requirements and specifying qualifications for such teachers is a must. Or else, the job which actually requires a lot of pain and patience would be taken by anybody, whether having the required skills or not. Also, as has been seen, a lot of questions are not answerable by the provisions given in the act by itself. Every situation does demand special attention because the facts of each case are different, however certain basic questions as to in which case reservations etc will be applicable and in which case they wont, such questions have not been answered by the Act. Due to such discrepancies and loops in the Act, it is but obvious that the role played by NGOs has come out to be very beneficial and philanthropic.

The Role of the Non-Governmental Organizations The sprawling rural state of Madhya Pradesh, with its lush greenery of roadside soya punctuated by the remnants of colonial white-brick architecture, contrasts starkly with the bustling, urban sprawl of Mumbai a few hundred miles to the south-west. The state capital, Bhopal, is synonymous with the chemical explosion there in 1984, which killed thousands and left tens of thousands more disabled. With disability touching so many lives, a vibrant advocacy movement has sprung up in the state, achieving influence in both regional and national policies. Local charity Arushi provides physiotherapy, book recordings for blind students and teacher training courses on disability. The feeling that resides is that most schemes announced by the government don't consider disabled people so it is left to the voluntary sector to fill the gap left by the state. Inclusive education has the potential to both break the cycle of poverty and disability and to change social awareness. The World Bank estimates that about 20% of the world's poorest people are disabled. Poverty causes disability through inadequate access to medical treatment and vaccinations, and exposure to unsanitary and unsafe living and working conditions. Children with disabilities in India rarely progress beyond primary education, with school enrolment less than 10% in many areas. This then reinforces social alienation and leads to very limited employment opportunities, causing more poverty. Gudbela secondary school in Madhya Pradesh demonstrates how inclusive education can work, even in a rural setting. The school is situated in a remote village of 2,500 people in Sehore district, but has nevertheless received national attention from both the media and Delhi politicians for its efforts to accommodate children with disabilities. One such student is Raisa Bi who has been affected by polio a condition that could have been easily prevented by childhood vaccinations. With mobility a problem, she was unable to attend school at all. "I only used to appear for exams but now things are different," she says. With Arushi's support, ramps, hand railings and accessible toilets have allowed students such as Raisa to access an education that would have otherwise been denied to them.20


This focus on inclusive education is part of a shift in India towards adopting the social model of disability. Previously, people with disabilities were cared for outside the community in special homes or special schools with a focus on medical and palliative support. But as one Arushi volunteer explains: "It's not my wheelchair but the stairs in my school that disable me." The social model defines disability in terms of the barriers people face in society. This fits into the wider human rights perspective of the Millennium Development Goals, which have the right to universal primary education as one of their overarching targets. Inclusive education, therefore, is not simply about disability but about ensuring that all children, regardless of poverty, disability, caste or gender, are able to attend school. In Bhopal, MPVM has taken disability advocacy one stage further. Anand explains how the group has successfully adopted the tactics of direct action. One hundred and fifty members recently went to a local government official with a 10-point plan for improved disability provision, including better access to education and easier access to disability cards. When the official refused to even meet them, they declared a sit-down protest outside his offices, and announced a hunger strike until he came to take the plan. The story made national news, putting the inadequacies of government provision in the spotlight. It also helped to reshape social perceptions of people with disabilities as active participants in society rather than passive recipients of charity. Anand proclaims the group's motto with a smile: "Avevan, Nivedan, Danadan. First we ask, then we write, then we fight." In Dehradun, Karuna Vihar is a school for the special children. It is a part of the Latika Roy Foundation. KV is a day school which has children in the age group of four to 18 years, but parents are strongly encouraged to bring in their children when just a few months old. The organisation also conducts campaigns to spread awareness on the problems of the mentally challenged. The school has had notable success, what with people travelling from far away places like Gopeshwar, Batala and Rishikesh to bring their children here. Since most of the students come from deprived, poor families the fee per child has been fixed at about 2 per cent of the parents' gross earnings. However money has never been a reason to keep a child out. Happily, funding too has never been a problem. Jo is the main fund-raiser and travels regularly both here and abroad for this purpose. The money comes from many sources, the Tata trust is a principal funder, as is the ONGC. Help also comes in other forms: renowned lensman Avinash Pasricha photographs the calendars and brochures for free, which are later sold.

Everybody at KV is alive to the fact that these children need congenial environs even after leaving the school, and that's why their main concern is to prepare them and their parents to face up to life. A part of this attempt is the 'parents group', which takes decisions about the children's future, and KV's vocational training programmes. Some business houses also give the children jobs suited to their inclination and capabilities. For KV, the goal is to give the children the confidence to persevere against all odds.

Conclusion and Suggestions A working draft by the name of Persons with Disabilities Act, 2011 (9th February version) that has been prepared by the Nalsar Disability Law Research Centre has a chapter on education which is far more equipped than the one that we have in the present 1995 Act. It starts off with a good definition clause which almost then and there clears out what is what and when and where, leaving very little scope for doubt and query. Further, the working draft does not only talk about simple provision of education to the disabled but also there are provisions which are ancillary to education for the disabled, such as reasonable accommodation in education, entitlements of children, rights of admission, rights of transfer, right to support in school, preschool education, right to higher education, reservation and support in higher education, qualification of teachers, facilities in schools, local survey, capitation fee, duty of parent, etc.21Maybe we are in need of a law, an Act, which spells it all out for us, leaving very little scope for doubt or any kind of mis-management or insufficient standards. Keeping in mind, the developments that have taken place in the last two decades, in the field of education of the disabled; it is clear that to fulfil the goal of Education for All there has to be constant monitoring of children with special needs and disabilities. Because of the advent of special education, and the segregation, thereof, the general population is not exposed to the disabled people and dont know how to react. If the law still calls for segregation of the disabled people, the people in the mainstream society do not get an opportunity to interact with these people and therefore are not sensitized to their needs. If we, as a society are exposed to disabled people, from the very inception and interact with them, the phenomena of de-labeling will also gain strength.

21 Section 23

The law as it stands today does not make differentiation in the education of the slightly, moderately and severely handicapped children and therefore, disabled children who could have been integrated in the mainstream schools are denied the opportunity because the Legislature has failed to distinguish between the needs and requirement of the children suffering from slight, moderate and severe disability. Integrated and Inclusive model of education needs to be applied keeping in mind as to what is more suitable in the given infrastructure and economic conditions prevailing in the area. Education and agriculture are the two sectors, often referred to as agronomy, which can help steer a country on the path of development. Therefore special attention needs to be placed on developing these two sectors. In India the education policy has lacked foresight and vision, and whenever problems have arisen, rather than tackling the problem, the authorities have seen fit to the change the policy to suit the circumstances. There are a few suggestions that should be carried out so that the integration of the disabled children in the education field is ensured like providing emphasis on integration, facilities for training teachers and enforcing a systematic education policy of the state in order to guarantee the disabled people their fundamental right to education. Bibliography

The Persons With Disabilities (Equal Opportunities, protection Of Rights And Full Participation) ACT, 1995 Persons with Disabilities Act 2011 (working draft 9th February version)

Constitution of India
K.S. Bagga, Ensuring Disabled Children their Right to Education (India Law Journal, Vol 1, Issue 4) Education of Disabled Children in India

India: The fight for the disabled childrens right to education

Javed Abidi, The Minority is Invisible (India