While the recent promise made by the Union Human Resource Development Minister that a new central university for persons with disabilities will be set up may at first blush come across as a progressive development, it is emblematic of the selfsame biases about the disabled that have hitherto prevented their meaningful integration in society. What makes this move particularly regressive is the fact that it comes at a time when the magna carta on disability rights, the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), and the west have recognised the central role played by inclusive education at all levels in the meaningful integration of persons with disabilities in society.
[E]xclusionary initiatives by the state under the garb of inclusion fly in the face of the central tenets underpinning the Rights of Persons With Disabilities Act.
While this suggestion has been strongly criticised, this article will not focus on the problems associated with such initiatives, instead, it will focus on rights of persons with disabilities to inclusive education under the Rights of Persons With Disabilities Act, 2016 (RPWD Act) and will demonstrate how exclusionary initiatives by the state under the garb of inclusion fly in the face of the central tenets underpinning the RPWD Act.
The RPWD Act
Chapter III of the RPWD Act, modelled along the lines of the UNCRPD, sets out the provisions on inclusive education.
In line with Article 24 of the UNCRPD, Section 16 of the Act casts an obligation on educational institutions funded or recognised by the appropriate government and local authorities to provide inclusive education for all children with disabilities.
The section casts an unequivocal obligation on educational institutions to provide individualised support to cater to the needs of each student with a disability so as to maximise his/her academic and social development.
As boards such as CBSE and CISCE are recognised by the government, it stands to reason that Section 16 will also apply to private schools affiliated with such boards and, as a result, private schools must also develop individual plans for children with disabilities. This interpretation is further buttressed by the fact that the RPWD Act, being a piece of welfare legislation, must be construed in such a way as to effectuate its beneficent objects. Moreover, in this report, the standing committee of the Ministry of Social Justice and Empowerment was of the view that "educational institutions" should include within their ambit "boards, councils and certifying authorities."
This interpretation, if followed in letter and spirit, can transform private schools from sites of exclusion to bastions of inclusion. Interestingly, the erstwhile Persons with Disabilities Act, 1995 did not cast any such obligations on educational institutions to cater to the individual needs of children with disabilities. In this sense, the new law's unequivocal recognition of the diverse and heterogeneous needs of different students with disabilities is a much-needed course correction.
What does inclusive education entail?
The RPWD 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."
[T]he proposal to set up a separate university for the disabled reminds one of the "separate but equal" doctrine that was propounded during the dark days of racism in the US.
The Act does not set out standards for what constitutes "suitable adaptation." It is neither desirable nor feasible to adopt a straitjacket formula to ascertain what inclusive education entails. For instance, text to speech software is a suitable adaptation for students with visual disabilities but not for students with locomotor disabilities, who would need speech to text software.
However, what can be stated with certitude is that educational institutions cannot wriggle out of their obligation to make suitable adaptations merely by doing the bare minimum to comply with this legislative command. For in so doing, they would not only be doing a huge disservice to the 4.5 million students with disabilities in India, but also would rob our society of highly competent individuals who can function with the same level of productivity as their able-bodied counterparts when provided appropriate support structures.
Looking beyond India to understand "inclusive education"
Similar to the provisions of Section 16 of the RPWD Act, the Individuals with Disabilities Act (IDEA) of the US mandates that education must be provided in conformity with a child's individualised education program (IEP). The IEP is a comprehensive plan to be prepared by the child's teachers, parents, school officials after careful consideration of the child's individual requirements.
The IEP is not merely a procedural requirement to be fulfilled by schools but must be appropriately ambitious so as to ensure that every child with a disability has a chance to meet challenges objectively in the same way as a child without disabilities. This was held in a unanimous verdict of the US Supreme Court in the landmark case of Endrew F versus Douglas County School District. The court held:
A student offered an educational program providing "merely more than de minimis"progress from year to year can hardly be said to have beenoffered an education at all. For children with disabilities,receiving instruction that aims so low would be tantamount to "sitting idly awaiting the time when theywere old enough to 'drop out'." It requires an educational program reasonably calculated to enable a child to make progressappropriate in light of the child's circumstances.
Way ahead for India
In a country in which the right to education has been accorded the exalted status of a fundamental right, it is high time the government realised that the enjoyment of this right cannot be limited to only the able-bodied. Instead of taking robust measures to ensure the full enjoyment of this right by persons with disabilities on an equal basis, the government's proposal to set up a separate university for the disabled reminds one of the "separate but equal" doctrine that was propounded during the dark days of racism in the United States. The government would do well to remember the words of the U.S. Supreme Court in the case of Brown versus Board of Education in which this doctrine was buried for good:
Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does...To separate [coloured children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone...In the field of public education, the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal.
Armed with the provisions of the new Act, this is an opportune time for the government to ensure that our educational system is designed so as to promote inclusion, not exclusion; to recognise our sameness, not our differences; to work for the realisation of the abilities of every child as opposed to the exacerbation of their disabilities.
The authors are members of the disability vertical at IDIA (Increasing Diversity by Increasing Access to Legal Education)