Right To Inclusive Education for Persons with Disabilities in India -With Special Reference to UN Conventions on Rights of Persons With Disabilities

1. INTRODUCTION

“Every learner matters and matters equally”[1] is the core intent of UNESCO with respect to inclusive education which has published a guide in the year 2017 in order to ensure inclusive and equitable education. Children with disabilities were considered as most marginalized and excluded from quality education in many countries. The main reason for this being, the right to quality education is not part of fundamental rights or basic rights of many countries including India. United Nations Educational Scientific and Cultural Organization (UNESCO) in its guide defines inclusive education as “Process of strengthening the capacity of the education system to reach out to all learners”[2]

Education is the main concern of UNESCO, since it is considered as the basic universal human rights. UNESCO being the specialized agency for education strives for the strengthening of global education system and responds to the challenges faced at global level. And education is one among the 17-goal stipulated in sustainable development goals, set by UN General Assembly in the year 2015 with the deadline of 2030 (the goals need to be achieved before 2030)[3]. The Goal 4 aims to ensure inclusive and equitable quality education and promote lifelong learning opportunities for all. It underlines inclusiveness and equality as cornerstone for quality education. The goal calls for child-friendly and disability-sensitive environment. The term inclusion denotes the participation, presence and achievement of the learners and also to overcome the obstacles that limits the participation. And equity is all about imparting impartial education to all learners. “A high-quality education system requires a smooth transition for all students across different phases of education. Ideally, all students, regardless of their differences, difficulties or disabilities, should be able to enter the education system as young children, progress through its phases and emerge into a meaningful and useful adult life”[4].

In Indian perspective, Section 2(m) of the Rights of Persons with Disabilities act, 2016 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 adopted to meet the learning needs of different types of students with disability[5]. It can be derived from the definition that the education system is said to be inclusive only when both abled and disabled students are endorsed to participate in the learning environment together with specially adopted system to meet the needs of all categories of students. India is one among the countries that has adopted a special legislation to protect the rights of disabled persons. Apart from the enactments, various policy frameworks and schemes are available which has direct relevance to the disabled persons. “In India, disabled people were more likely to be poor, hold fewer assets, and incur greater debts”[6] says World Bank report. However, these policies vary considerably worldwide. Some countries instead of providing equal opportunity in education, involves in setting up of special school and centers. The core idea of inclusive education is misconstrued by some countries.

2. CONVENTION ON RIGHTS OF PERSONS WITH DISABILITIES ACT 2007 (UNCRPD)

UNCRPD [7] is the comprehensive framework that categorizes different types of disabilities and also ensures that all disabled persons should enjoy human rights and freedom. The convention consists of 50 articles and has optional protocol. The convention provides the considerable interpretation of what is inclusive education. Article 24 is specific about the education rights of disabled persons which provide that the states should give equal opportunity to disabled persons in pursuing the education and they should not be excluded from the general education system.

Non-discrimination, freedom to make choice, inclusiveness in society, equality of opportunity, equal participation, gender equality and respect for rights of child with disabilities are core principles of the convention which are construed in UNCRPD. In this regard, the convention directs the state parties to take necessary measures to adopt and implement the mandates set forth the convention. State measures may include enacting new legislation, modifying the existing legislation or by abolishing existing legislation, policies, customs and practices. The convention authorizes the state parties to refrain from an activity that goes against the convention. The convention requires the state party to undertake research on use of new technology and devices and to provide them with affordable costs. Disabled persons participation in decision making is one of the requirements of the convention. The convention necessitates the state parties to consult the disabled person (including children with disabilities) pertaining to implementation of laws and policies in protecting the rights of the disabled persons.

Article 5 of the convention lays down emphasis on equality and non-discrimination. Article 6 protects the rights of disabled women because women and children are subjected to multiple discrimination. Hence the convention requires the state to ensure the advancement and development of women with disabilities. Article 7 protects the rights of children with disabilities. The concept of best interest of the child is mentioned in this provision. The convention recognizes the right to express and further provides that due importance should be shown based on their age and maturity. Moreover, if the children are not able enough to express their opinion due to their disability then such children should be given some assistance to realize the right.

Article 9 deals with accessibility. State should ensure that all services and amenities such as transportation, buildings, communication and other technologies made available to the disabled persons. States should also identify and resolve any obstacles that prevent the disabled person from access to these amenities and services. States have to keep a check on facilities and services rendered by private entities.

Article 12 to 16 of the convention recognizes the legal empowerment of the disabled persons including right to recognition as persons before law, access to justice, freedom from unlawful and arbitrary arrest, freedom from cruel and inhuman treatment, and freedom from violence and abuse. Article 19 stipulates the right to full inclusion and participation in the community on par with the others. Most importantly article 20 ensures the mobility of disabled persons and obliges the state to make necessary steps to provide the assistive technology at affordable price in order to enhance the independent mobility of the disabled persons. Article 21 protects the right to freedom of expression and opinion along with the corollary right to receive information and to communicate their ideas. This right requires the state to make appropriate action to facilitate methods and technologies such as Braille, sign languages etc. Article 24 provides for education. Article 25 to 30 of the convention relate to economic, social and cultural rights such as right to marriage, health, rehabilitation, right to work and employment, social protection, cultural participation etc.

Article 34 provides for the establishment of Committee on the rights of persons with disabilities (hereinafter referred as committee). The committee is the group of 12 exports. According to article 35 of the convention, state parties are required to submit an action taken report to the committee at least once in four years. The report may also contain the factors that affect the performance of member states from implementing the convention.

Optional protocol to UNCRPD is an add-on to the existing convention which acknowledges the committee to consider complaints both from the individuals and from the group of individuals who claim to be the victims of state parties under the convention provided committee can receive complaints only from the individual who belong to the state party of the protocol. It is pertinent to note here that the committee cannot receive complaints even if the individual belong to the state party of the convention. Once the committee considers the communication as admissible then the matter will be taken to the attention of the state party. Within six months of such communication the state party has to make clarification in written format on action taken and remedies provided for any violation. The committee makes recommendations if any to the state party and the petitioner.

3. THE RIGHTS OF PERSONS WITH DISABILITIES ACT, 2016 (RPWD)

Rights of Persons with disabilities act was enacted in the year 2016 in pursuance of UNCRPD. The provisions of RPWD act are similar to that of UNCRPD. It is a comprehensive legislation with 102 articles that protects the rights of disabled persons. Whereas section 16 of chapter III deals particularly with education of disabled persons. This provision has laid emphasis on inclusive education to disabled children. Article 16 empowers the government and local authorities to make sure that the educational institutions which are recognized and funded by government are fulfilling the responsibility entrusted to them. The duties of these institutions were mentioned in article 16 (i) to (viii) as follows: to admit the disabled children in school without discrimination, to provide opportunity in sports and other recreation activities, to make the infrastructure accessible to disabled persons, to provide reasonable accommodation according to individual requirements, to adopt appropriate modes in educating persons with visual and hearing impairment, to identify the learning disabilities and to take suitable measures to rectify the problem faced by the disabled child, to ensure the participation and progress of disabled children in education, to improve the transportation facilities keeping in mind the attendance of the student.

For the purpose of ensuring the responsibilities of the educational institutions set forth in section 16, appropriate government and local authorities are required to take certain measures in order to facilitate inclusive education[8]. The measures include conducting survey on school going children to identify disabled children for every five year, provided first survey to be conducted within two years of commencement of the act, establishing teacher training institutions, providing training for teachers, appointing teachers who are skilled in teaching disabled children, employing disabled teachers who are qualified in braille and sign language, creating resource centers to support educational institutions, providing learning materials and other assistant devices free of cost to children with benchmark disability up to the age of 18 years, providing scholarships for the children with benchmark disability, modifying the curriculum and examination system such as providing extra time in examination, arranging scribes and exempting the disabled persons from second and third language courses. Article 18 has made specific mention about adult education.

4. INDIAN JUDICIARY AND DISABILITY RIGHTS

Rajive Raturi v Union of India (2013) and Disabled Rights Group v Union of India (2016) are the two progressive judgments delivered by Supreme Court of India on disability rights. Both the judgments were delivered by Justice Sikri. The judgments emphasized that there is no use in creating an enactment without its proper implementation.

a) Rajive Raturi v Union of India[9]:

This case is concerned with the accessibility requirements of disabled person. Public interest litigation was filed by a visually disabled person for access to public places. The petitioner stated that nearly seventy million suffer from various forms of disability, out of which 50% of them are visually handicapped. The petitioner raised the basic concern of visually handicapped person’s accessibility to safer road and transport facilities. Petitioner also pointed out safety, independence, Affordability, and logical lay out as components of accessibility which is considered as internationally acceptable. Certain measures to be implemented are also mentioned in the petition. These include installation of auditory signals, construction of zebra crossings with slight incline, placing warning blocks along the edges of the pavement to make difference between road and pathway, providing unobstructed footpath, coloring the stair noses in subways, escalators in red in order to enable the low vision persons to have access, ensuring the advertisement boards, signboards to be placed before the head level in order to prevent the visually handicapped persons from injuring their head, providing bus route maps in braille, providing easily accessible entry and exit points at bus stops and railway stations, constructing warning blocks along the edges of railway platforms.

The court directed the Central Government and State Government to ensure 10% of the government transport facilities to be made accessible by March 2018. In this respect, the court cited section 41 of RPWD act 2019 which provides for accessibility. Moreover, the court referred to Martha Nussbaum’s capability approach in dealing with the disability rights in the judgment.

b) Disability Rights Group v Union of India[10]

This case is pertaining to reservation of seats in higher education institutions for disabled persons. Initially the case was raised for reservation of seats in law schools but the decision was given considering all government aided educational institutions. In this case the petition was filed on behalf of a handicapped law student. The court in this case, ordered all educational institutions receiving aid from the government to comply with the provision mentioned in section 32 of RPWD act. The provision mandates all higher education institution that fall under the category mentioned in the section 32 (1) to reserve 5% of seats for persons with benchmark disability.

5. CONCLUSION

Education is fundamental human rights that are recognized as economic, social and cultural rights under Universal Declaration of Human rights, 1948. However, inclusive education is first codified with the adoption of the Convention on rights of peoples with disabilities 2006[11]. In order to give effect to the convention as a signatory, India ratified the convention by enacting a new legislation on the same subject matters. The question often arises whether the act serves its purpose? To answer this question, like every other enactment this act also lacks its implementation in true spirit. Indian judiciary plays a vital role in enforcing the provisions mentioned in the enactments through directions issued to the Central and State Government in its decisions from time to time. It is also pertinent to mention here that various NGO’s have done appreciable task either by filing the public interest litigation on behalf of disabled person or by assisting them to file a petition in courts for enforcement of their right.

RPWD act is comprehensive and addresses all categories of disabilities in persons. The definition provided in the act for inclusive education is complete and encompass all aspects in it. By adopting the RPWD act the government had made tremendous effort considering the plight of the disabled persons. But what is required is the government should make swift efforts in order to enable the disabled persons fully empowered in the society. Because disabled persons are marginalized segments in the society and it is not only the responsibility of the government but also obligation of the society to support the disabled persons in realization of their rights.

In pandemic era, we are witnessing erasure of boarders in learning. The covid-19 has posed great challenge to the education sector than any other sector. While the non-disabled students face some constrains in switching to e-learning, the disabled children were totally excluded from technology-based learning who were already excluded. The post pandemic era would see a paradigm shift to technology-based learning. Hence, the state should design a strategy to involve disabled children in technology-based learning on par with the non-disabled children. Many innovative approaches adopted during this period by the education institutions excludes the concern of disabled children. Online platforms like zoom app, Google classroom, Google meet are inappropriate for disabled children whose learn through assistive technology that completely differ from internet technology. Deploying Artificial Intelligence (AI) technology could provide plausible solution to the problem where the technology with deep learning can be used to provide effective learning platform for both disabled students and non-disabled students. Voice-assisted AI technology is one of the major improvements in the ICT and this is appropriate for students with visual impairments. The cognitive system enables the disabled persons to learn through images. The other tools are speech-to-text and text-to-speech which allow the mentally disabled person to learn. Artificial Intelligence technology has intruded in all most all sectors and the states have to make a progressive step towards implementing the AI technology in the education sector to make it accessible to students as move towards achieving the objective of inclusive education.

REFERENCES [1] UNESCO, 'A guide for ensuring inclusion and equity in education' (UNESCO Digital Library, 3 July 2017) <https://unesdoc.unesco.org/ark:/48223/pf0000248254/PDF/248254eng.pdf.multi> accessed 05 May 2020 [2] Ibid. [3] UN General Assembly, ‘Transforming our world : the 2030 Agenda for Sustainable Development’, 21 October 2015, A/RES/70/1, <https://www.refworld.org/docid/57b6e3e44.html >accessed 16 May 2020 [4] UNESCO, Open file on Inclusive education, (2001) (<file:///C:/Users/HP/Downloads/125237engo.pdf>) [assessed 20 May 2020] [5] The Rights of persons with disabilities act 2016, s 2 (m) [6] The world bank, 'Social Analysis and Disability: A Guidance Note Incorporating Disability-Inclusive Development into Bank-Supported Projects' (Documents and Reports, March 2007) <http://documents.worldbank.org/curated/en/930491468158381717/Social-analysis-and-disability-a-guidance-note-incorporating-disability-inclusive-development-into-Bank-supported-projects> accessed 20 May 2020 [7] UN General Assembly, Convention on the Rights of Persons with Disabilities : resolution / adopted by the General Assembly, 24 January 2007, A/RES/61/106, available at: https://www.refworld.org/docid/45f973632.html [accessed 19 May 2020] [8] Explanatory Notes to The Rights of Persons with Disabilities act, 2016, para 1 [9] Rajive Raturi v. Union of India [2018] 2 SCC 413 [10]Disabled rights group & anr. v Union of India & ORS [2013] 2 SCC 397 [11] Gauthier de beco, and Shivaun quinlivan , The Right to Inclusive Education in International Human Rights Law (Cambridge University Press 2019)

Author Patcheappan. S is Assistant Public Prosecutor, Judicial Magistrate II, Commercial Taxes and Juvenile Justice Board (JJB), Puducherry

Co-author Chemmalar. S is Research Scholar, SRM School of Law, Chennai