COMPARATIVE DISABILITY AND MENTAL HEALTH LAW

PROJECT ON

TRACING THE CHANGING LANDSCAPE OF EDUCATIONAL

POLICIES AND LEGISLATIONS FOR PERSONS WITH
DISABILITIES

Submitted by Supervised by
MASOOM REZA Prof. (Dr.) Saptarshi
Mandal

2022
NATIONAL LAW SCHOOL OF INDIA UNIVERSITY, BANGALORE
Introduction:
The Right to education is one of the basic human rights. Education is an essential tool for
developing a just and jubilant society, a robust modern economy and a vibrant polity. It does
not only enlarge the intellectual and analytical power of the individual but also opens new
avenues of the world. However, all strata of society do not get equal opportunity to get access
to education. For instance, the level of education of persons with disabilities is very abysmal
as their literacy rate is 54.5% in contrast with 74.04% of non-disabled population. 1 The
participation of PWD students in higher education is merely around 5.56 %.2

It is axiomatic that an Inclusive education environment prepares children for life. It aims at
fostering belongingness and developing social cognition. Since independence, the
government, civil societies and private players have made effort towards universalizing
education for PWDs. However, an analysis of various literature reviews and case studies of
persons with disabilities reveals that significant barriers still remain in participation of
disabled students in educational institutions and despite several efforts of governmental and
nongovernmental organizations, there is still a pressing need to facilitate access to
educational institutions. The article will present a bird’s eye view of the transforming
landscape of educational policies and law pertaining to PWDs in the country. Finally, it will
conclude with suggestions/recommendations to make education more accessible and
inclusive for all.

Research methodology:
This research article adopts a “black letter” approach where the focus is on the content of the
legislations and policies, not their effects. The author has adopted doctrinal method to
complete the paper and relied on books, case laws, blogposts, journal articles ETC.

1
Samarth Bansal, Census 2011 records rise in literacy among disabled, The Hindu, JULY 16, 2016,
https://www.thehindu.com/news/national/Census-2011-records-rise-in-literacy-among-disabled/
article14491381.ece (last visited on 31 August 2022).
2
Disabled get only 0.56% of seats in higher education, Times of India, Apr 5, 2015,
https://timesofindia.indiatimes.com/education/news/disabled-get-only-0-56-of-seats-in-higher-education/
articleshow/46810639.cms (last visited on 30 July 2022).
Objective of the paper:
To trace the contour of educational laws and policies for persons with disabilities in India.

Literature Review:
The concept of inclusive Education has emerged in recent times as an alternative of both
‘Special Education’ and ‘Integrated Education Approach’, which means to accommodate or
to include students with different needs under the common roof.3 However, the awareness
level about imparting inclusive education in educational institutions throughout the country is
still very dismal and institutions are a bit hesitant to include non-disabled students and
disabled students in the same classroom.4

The World Bank Report (2009) revealed that the persons with disabilities are subject to
multiple deprivations and they remain the most excluded from education. 5 Several research
have identified countless factors that hamper educational opportunities of persons with
disabilities, such as dearth of special teaching aids and appliances, resource constraints,
absence of trained educators and non-implementation of statutory mandates.6

Over several decades, education of persons with disabilities has been a part of policy
development in India. The reflection of the same can be traced in the enactments, schemes
and through institutions established for various activities. International policies related to
disability and education such as the UN Standard Rules on the Equalization of Opportunities
for Persons with Disabilities (1993), the Salamanca Statement and Framework for Action on
Disability Education (1994) and United Nations Convention on the Rights of Persons with
Disability 2006, have shaped Indian policies and legislations related to education for children
with disabilities.7 The Rights of Persons with Disabilities Act, 2016, which replaced the
previous 1995 Act, has been enforced to fulfil obligations under international commitments. 8

3
Mr. Amit Kumar, Educational Rights of Children with Disabilities in India: With special reference to Inclusive
Education Approach, 5 (1) IJLMH. 19, 28 (2022).
4
Sushma Kumari and Gita Jyoti Ojha, The Universality of Education for Children with Special Needs in India:
Current Status, ICISTECH. 474, 479 (2021).
5
People with Disabilities in India: From Commitments To Outcomes, The World Bank, June 2009,
https://documents1.worldbank.org/curated/en/577801468259486686/pdf/
502090WP0Peopl1Box0342042B01PUBLIC1.pdf (last visited on 28-08/2022).
6
S. M. Abinaya, Educational Policies for Persons Living with Disabilities in India, 4 (3) IJLMH. 1852, 1856
(2021).
7
Sandhya Limaye, Factors influencing the accessibility of education for children with disabilities in India, 3 (3)
Global Education Review, 43, 56 (2016).
8
The Rights of Persons with Disabilities Act, 2016, Act 49 of 2016.
The judiciary has also played a vital role in guaranteeing the equal educational opportunities
to persons with disabilities. The Supreme Court recently While directing the Central
Government to notify the standards of pupil-teacher ratio in schools, observed that students
with disabilities can study in either mainstream or special schools and the efforts are to be
made to make environment conducive to their specific needs.9

Tracing the development after independence: educational policies and

schemes
After the independence, India saw a ton of development in the field of education, however, if
one would analyse their impact, it would be no exaggeration to say that it failed to ameliorate
educational scenario of PWDs.

(A) Kothari Commission (1964-1966):

Kothari Commission raised the issue of education of children with special needs and was one
of the first education commissions to highlight this matter. It endorsed that children with
special needs should be integrated into general schools. The education of such children
should not be based on merely pity, but its object needs to enable an individual to overcome
his/ her difficulty and play a vital role in the development of the country. For this purpose,
the commission recommended that the Ministry of Education should allot the adequate funds
to assist children with disabilities.

However, the government disregarded its recommendations and such matters were relegated
to the voluntary sector where the government would give out some funds for their welfare.10

(B) Scheme for Integrated Education for Disabled Children:

in 1974, the Ministry of Welfare unfolded a scheme for Integrated Education for Disabled
Children (IEDC). It aimed at providing educational opportunities to children with disabilities

9
Rajneesh Kumar Pandey and Ors. v Union of India, CIVIL ORIGINAL JURISDICTION WRIT PETITION
(CIVIL) NO. 132 OF 2016.
10
Dr. Goutam Patra, Kothari Commission Report on Indian Education: A Critical Review,
http://banipurbedcollege.org/e-learning-goutam-patra/kothari%20commission.pdf (last visited on 1st September
2022).
in the general schools to reduce their drop out and maintain their retention in educational set-
up. It also awarded full economic assistance for their education.11

(C) National Policy on Education (NPE) 1986:

the Program of Action of the policy provides that each PWD who can be educated in general
educational institutions should not be enrolled in a special educational institute.12

The policy mentioned that Universalization of Elementary Education has the following 3
components:

 universal access and enrolment;

 universal retention of children up to 14 years of age and
 a considerable improvement and transformation in the nature and level of education to
enable all children to attain required levels of learning.

(D) Plan of Action 1992:

It recommended a pragmatic placement principle for children with disabilities. It emphasized

that a child with disability whose education can be carried out in general school should be
taught/trained in general school, and not in a special school. Once children with disabilities
acquire daily living skills and communication skills, The endeavour should be made to
transfer them general schools even those who are at first got enrolled in special schools for
education or training.

(E) UN standard guidelines on equalization of opportunities for persons with

disabilities:

In 1992, UN standard guidelines on equalization of opportunities for persons with disabilities

were outlined. India was one of the signatories of this.

It made the declaration that Education of children with disabilities in ordinary schools
requires the arrangement of proper support services. To meet the requirements of persons
with different disabilities, appropriate services should be provided. Very young children with
disabilities should be given proper attention.13
11
Scheme of Integrated Education for The Disabled Children, https://nihhsrc.nic.in/sites/default/files/schemes
%20&%20facilities.pdf (last visited on 2nd September 2022).
12
National Educational Policy 1986, https://www.education.gov.in/sites/upload_files/mhrd/files/document-
reports/NPE86-mod92.pdf (last visited on 5th September 2022).
13
Standard Rules on the Equalization of Opportunities for Persons with Disabilities, United Nations Enable,
https://www.un.org/development/desa/disabilities/standard-rules-on-the-equalization-of-opportunities-for-
persons-with-disabilities.html (last visited on 6th September 2022).
(F) Salamanca Statement (1994):

The major achievement of the Salamanca Conference was the coining of the term Inclusive
Education, which focusses on casting duty on the general educational institutional framework
to devise methods of effectively teaching all the children, including persons with disabilities.

As per this framework, the idea of inclusive education envisages that all children should learn
together, to the extent possible, regardless of their differences. Such setup must provide an
environment to meet the diverse needs of their students, ensuring quality education to all
through appropriate curricula, inclusive teaching and assessment, and accessible study
materials, ETC.14

The advent of the first legislation: the Persons with Disabilities Act
1995
The chapter 5 of the Act explicitly contained the provisions pertaining to education.

Under the Act, the Governments and local authorities were assigned the task to give children
with disabilities free education till he achieves the age of eighteen years, obliged to
endeavour to advance the integration of students with disabilities in the ‘normal schools’,
promote establishment of special schools, make the special schools for children with
disabilities equip for the facilities of vocational training and devise schemes and programmes
for non-formal education.15 Additionally, the research should be encouraged for developing
new assistive devices, special teaching materials and teaching aids to provide a child with
disability equal footing in education.16 The government was obliged to establish teachers'
training institutions to develop trained manpower for schools for children with disabilities. 17
In addition, the government educational institutions were mandated to reserve not less than
3% seats for students with disabilities.18

It must be noted that one important characteristic and fundamental aim of special education is
‘inclusion’ and the 1995 Act overlooked this notion. It was also found that it failed to
14
The UNESCO Salamanca Statement, http://www.csie.org.uk/inclusion/unesco-salamanca.shtml#:~:text=In
%20June%201994%20representatives%20of,inclusion%20to%20be%20the%20norm. (last visited on 7th
September 2022)..
15
The Persons With Disabilities (Equal Opportunities, Protection Of Rights And Full Participation) Act, 1995 (1
Of 1996) Sections 26 and 27.
16
Id S. 28.
17
Id S. 29.
18
Id S. 39.
appreciate the distinction between inclusion and integration as the section 26 prescribes "the
appropriate Government and local authorities shall endeavour to promote the integration of
students with disabilities in the normal school.”

Convention on the Rights of Persons with Disabilities:

UNCRPD is the first international human rights instrument which exclusively addresses the
issues of persons with disabilities. India has ratified this convention in 2007.

Article 24 specifically talks about education. It involves the idea of inclusive education
system at all levels and lifelong learning.

The Right to Education Act: A new Development:

In 2002, by the 86th Amendment Act of the Indian constitution, the new Article 21A has
been inserted. It guarantees free and compulsory education to all children within the age of
six-fourteen years. To effectuate this right, The Right of Children to Free and Compulsory
Education (RTE) Act 2009 was enacted 19. Section 3 of the Act provides that even a child
having disability shall entitled to pursue free and compulsory elementary education. The RTE
Amendment in 2012 included the provision that “child with ‘severe disabilities’ and a child
with ‘multiple disabilities’ referred to in National Trust shall also have the right to opt for
home based education.” The right to free and compulsory education, access to neighbourhood
school, barrier free access, no discrimination during education, without charge admission,
free books, special training for age-appropriate enrolment, no capitation fees are the major
enabling rights for the children with disabilities.

However, the Act failed to play a satisfactory role to encourage inclusive education in the
country. The Act makes no reference to the rights of children below the age of six as it
ensures free education to only children between 6 and 14 years.

19
Right of Children to Free and Compulsory Education Act, 2009, Act No. 35 of 2009.
The Rights of Persons with Disabilities Act, 2016: a sunshine piece of
legislation
The chapter 3 of the Act, ranging from sections 16 to 18, incorporates detailed provisions
about the educational rights of PWDs and the obligations of educational institutions.

The 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”. 20 Section 16
imposes several duties on all educational institutes which are funded or recognised by the
government and local authorities. The same is listed below:

 Admit PWDS without discrimination;

 Provide equal opportunity for education as well as sports and recreation activities;
 Make accessible buildings, campus and various facilities;
 Provide reasonable accommodation as per individual specific requirements;
 Provide necessary support to maximize academic and social development;
 Impart education to persons with visual disabilities or deaf or both in the most appropriate
means of communication;
 Ensure early detection of learning disabilities in children and take appropriate
pedagogical and relevant required measures to overcome them;
 Monitor participation level, progress and completion of education;
 Provide transportation services to children with disabilities;
 Provide the attendant of the children with disabilities having high support needs.

for the realization of the mandates of section 16, the appropriate Government and the local
authorities are obligated to perform certain duties which include:21

 Establish an adequate number of teacher training institutions;

 Train and employ teachers, including teachers with a disability who are qualified in sign
language and Braille and special educators trained to teach students with intellectual
disabilities;
 Promote the use of appropriate augmentative and alternative modes including means and
formats of communication;

20
Supra 8 S. 2(M).
21
Id S. 17.
 Provide learning materials and appropriate assistive devices to students with benchmark
disabilities free of cost up to the age of eighteen years;
 To provide scholarships to students with benchmark disabilities in suitable cases;
 To make required modifications in the curriculum and examination system to meet the
needs of PWD students including but not limited to:

(A) Extra time for completion of the examination paper,

(B) Facility of scribe or amanuensis,

(C) Exemption from second and third language courses;

The appropriate Government and the local authorities also have the obligation to take steps to
promote and ensure participation of PWDs in adult education and continuing education
programmes at par with others.22 Every child with a benchmark disability between the age of
six to eighteen years is given the right to free education in a neighbourhood school, or in a
special school, of his choice.23 All Government institutions of higher education shall have to
reserve at least 5% of seats for persons with benchmark disabilities and they should also be
given an upper age relaxation of five years for admission.24 Additionally,

the Act broadly covers ‘general’ capacity enhancement measures and fails to recognize
‘specific’ disability concerns. Hence, in educational institutions, making relevant provisions
identifying specific needs of an individual with various disabilities as per the requirement of
disability will be advantageous for all the students with disabilities and teachers.25

National Education Policy, 2020:

The objective of the policy is to ensure equitable and inclusive education - learning for all.

The policy gives emphasis on the importance of creating enabling mechanisms for providing
PWD students the equal opportunities of obtaining quality education as any non-disabled
individual. It recognizes the importance of the measures such as open schooling, suitable
infrastructure, and suitable technology interventions to ensure access to education.

22
Id S. 18.
23
Id S. 31.
24
Id S. 32.
25
Abeera Ca and Vanitha. C., A review of rights of persons with disability act (rpwd act) 2016 with special
focus to the provisions for capacity enhancement of children with disabilities, 3 IJRCS. 18, 22 (2019).
It promotes the adoption of provision of resources in educational institutions/school
complexes for the inclusion of PWD students, along with recruitment of special educators
with cross disability training. It advocates for the availability of assistive devices as well as
language appropriate teaching-learning materials for them.

The focus should be also on using Technology based solution for the orientation of
parent/care givers in conjunction with distribution of learning materials to enable them to
support their children’s learning needs. A continuity to be maintained about common
approach of equity and inclusion across school and higher education.

With the arrival of new National Education Policy and RPwD Act, 2016 there is a pressing
need to proactively take affirmative actions to foster inclusive education.26

However, the policy does not address several major issues, such as acute shortage of trained
staff, creation of alternative inclusive home-schooling mechanisms and curriculum
modifications for students with learning disabilities ETC.27

Conclusion: A path ahead

Despite all these legislative measures, the level of education of PWDs is extremely low if one
compares to non-disabled community. The need of the hour is to ensure strict and proper
implementations of laws and policies. Different policies and laws pertaining to education for
PWDs are not harmonized in terms of their approach to inclusive education. Generally,
classrooms in India are primarily designed for the ‘average’ learner’s needs, overlooking
specific needs of PWD students. The major problem is the lack of clarity on what ‘inclusion’
really implies as the awareness of inclusive education in educational institutions in India is
still at nascent stage.

The States will make mandatory the compliance of the provisions of RPwD Act, 2016 by all
universities/schools while recognizing to them. Every District should have a nodal officer to
monitor admission and enrolment of PWD students in inclusive educational institutions
without discrimination. Many children with disabilities who cannot join inclusive education
26
National Education Policy, 2020
https://www.education.gov.in/sites/upload_files/mhrd/files/NEP_Final_English_0.pdf (last vistied on 16th
September 2022).
27
Supra 4.
set-up will be facilitated to continue their education from special schools or through home
based learning systems, which aim to prepare them to join the inclusive education. A
mechanism needs to be devised to monitor the progress of each PWD student based on
his/her learning outcomes. Making digital modes of education inclusive and accessible which
involves using different and multiple modes of communication, enabling two-way interaction
between students and teachers can be useful.

Additionally, the Government should come up with new scholarship schemes, strengthen the
existing schemes and expand their outreach. To put an end to a trend of dropout at lower
classes and less enrolment in higher educational institutions, the government should explore
measures such as financial aid, providing assistive devices and accessible transport services.
Accessible e-content of all course curriculum will be developed, videos with sign language
interpretation and audio description will be made available. All the educational institutions
will mandatorily make their campus accessible including accessible classrooms, library,
academic blocks, toilets, auditoriums, etc.

As the on-line education has become new-normal, accessibility of online platforms and
contents should be given priority to help individuals with vision impairment. 28 Undoubtedly,
the participation of students with disabilities are increasing in higher education, but there is
much need to be done to eliminate barriers and make curriculum accessible.29

Moreover, the Government, with the collaboration with NCERT, AICTE, UGC and other
such bodies, should ensure periodic training of teachers to sensitize them about the specific
needs of PWD students, use of sign language, inclusive pedagogy and the issues of managing
such children in an inclusive environment. Both at the Central and State level, specific and
adequate financial allocation in the education budgets should be made for PWDs. Such
apportionments should be utilized for procuring assistive devices including learning tools
such as smartphones, laptops, etc. and making built environment accessible. It is also
essential that under Ministry of Education, a coordination mechanism will be set up for
purpose of an effective convergence of all education programmes for PWDs.

28
Djenana Jalovcic and Hogskulen pa Vestlandet, Students with disabilities in online higher education: A
systematic literature review, 3, 15 (2015).
29
Bhuvaneswar & Swarnakumari., Enrollment of differently abled in Higher Education, 2(8) PIJR. 268, 71
(2013).
It is necessary to foster effective partnership involving Government, private sector, local
community and civil society to tackle the prejudices and stereotypes to create inclusive
attitudes towards the abilities of children with disabilities both within campus and beyond for
envisioning universal inclusive education. The country should also appreciate the reality that
formulating policies and enacting legislations are not at all enough and true inclusiveness
would require acceptance, dialogue and action. Despite progress made over the past years,
further concerted efforts are needed to remove the barriers to learning and to ensure an
inclusive environment for all.
BIBLIOGRAPHY

Constitutions/Statutes:

 The Constitution of India, 1950.

 The Persons With Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 (1 Of 1996).
 The Rights Of Persons With Disabilities Act, 2016, Act 49 Of 2016.
 Right of Children to Free and Compulsory Education Act, 2009, Act No. 35 of 2009.

Books:

 Dawn, Ranjita, The Social Model Of Disability In India (Routledge India, New Delhi,
2021).
 Puri, M. And G. Abraham, Handbook Of Inclusive Education For Educators,
Administrators, And Planners (Sage Publications Pvt. Ltd., New Delhi, 2005).

Case Laws:

 Avni Prakash Vs. National Testing Agency And Ors. Manu/Sc/1121/2021.

 Kamal Gupta V. State Of Uttarakhand 2018 See Online Utt 677.
 Pramod Arora V. Governor Of Delhi (2014) 5 Hcc (Del) 215.
 Vikash Kumar Vs. Union Public Service Commission And Ors Manu/Sc/0067/2021

Journals:

 Abinaya, S. M. Educational Policies For Persons Living With Disabilities In India, 4 (3)
Ijlmh. 1852, 1856 (2021).
 Ahmad, Wasim Higher Education For Persons With Disabilities In India Challenges And
Concerns, 1, 4 (2018)
 Bhuvaneswar & Swarnakumari, Enrolment Of Differently Abled In Higher Education,
2(8) Pijr. 268, 71 (2013).
 Ganapathy, B., Does Inclusive Higher Education Can Help For Physical Disability
Handicapped People In India? A Comparative Analysis, 2(5), Ijranss. 1, 16 (2014).
 Jalovcic, Djenana And Hogskulen Pa Vestlandet, Students With Disabilities In Online
Higher Education: A Systematic Literature Review, 3, 15 (2015).
 Limaye, Sandhya Factors Influencing The Accessibility Of Education For Children With
Disabilities In India, 3 (3) Global Education Review. 43, 56 (2016).
 Martin, P. J. Mathew, Arun Kalbage And Ali Yavar, Accessibility Of Higher Educational
Institution's Websites, 22(2), Ijol. 107, 124 (2013).
 Moudgil, Dr. Leena, Inclusive Education For Differently Abled Child: A Step Towards
Equality, 4 (3) Ijlmh 146, 160 (2021)

Reports:

 National Education Policy, 2020

https://www.education.gov.in/sites/upload_files/mhrd/files/NEP_Final_English_0.pdf.
 Plan of Action, https://www.education.gov.in/sites/upload_files/mhrd/files/document-
reports/POA_1992.pdf.
 Scheme of Integrated Education for The Disabled Children,
https://nihhsrc.nic.in/sites/default/files/schemes%20&%20facilities.pdf.

Websites:

 Bansal, Samarth, Census 2011 records rise in literacy among disabled, The Hindu, JULY
16, 2016, https://www.thehindu.com/news/national/Census-2011-records-rise-in-literacy-
among-disabled/article14491381.ece.
 Disabled Get Only 0.56% Of Seats In Higher Education, Times Of India, Apr 5, 2015,
Https://Timesofindia.Indiatimes.Com/Education/News/Disabled-Get-Only-0-56-Of-
Seats-In-Higher-Education/Articleshow/46810639.Cms (Last Visited On 15 July 2022).