Indian Supreme Court Strengthens Right to Education for Children with Disabilities

by | Nov 9, 2021

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About Rahul Bajaj

Rahul Bajaj currently works as a Senior Resident Fellow at the Vidhi Centre for Legal Policy in New Delhi. A lawyer by training, Rahul successfully completed the BCL and MPhil in Law at the University of Oxford, as a Rhodes Scholar. Before joining Vidhi, Rahul served as a Judicial Law Clerk to Indian Supreme Court Justice D.Y. Chandrachud. In that role, he made a meaningful contribution in assisting the judge with two path-breaking Supreme Court judgments on disability rights law. His areas of interest are constitutional law, intellectual property law and disability rights law.

In a judgment delivered on 28 October 2021, the Indian Supreme Court took an important step in the direction of improving meaningful access to quality education for children with disabilities. At issue in Rajneesh Kumar Pandey and Ors. v Union of India was the determination of the appropriate pupil-teacher ratio to be maintained by schools admitting children with special needs (CwSN).

In an interim order in this case passed in October 2017, the Supreme Court had shockingly observed that it found it impossible to think how children with physical or mental disabilities could study in mainstream schools. It had noted that students who ‘suffer from’ blindness, deafness   and   autism   or   ‘such   types   of   disorder‘ must have separate   schools   with   distinctly   trained teachers.

I had problematised this order on the ground that it betrayed a profoundly regressive view about the capabilities of the disabled and the capacity of mainstream schools to accommodate them. Further, the Court had not only sought to revive the outmoded ‘separate but equal’ doctrine, but had in fact suggested that ‘separate’ alone is equal. It is refreshing, therefore, that in the final judgment, the Supreme Court proceeded on the implicit premise that children with disabilities must, in principle, be able to study in either mainstream or special schools; and focused its attention on making the environment in such schools more conducive for addressing their needs.

The Rights of Children to Free and Compulsory Education Act 2009 (RTE Act) operationalises the constitutionally guaranteed right to education in India. The schedule to the RTE Act outlines the norms and standards as to pupil-teacher ratio, infrastructural requirements and other amenities that all schools are mandated to comply with. Although the RTE Act was amended in 2012, to include a definition of children with special needs, the Supreme Court noted that no corresponding changes were made to the schedule to the RTE Act. The Supreme Court directed the Central Government to amend this schedule, to mandate the ratio of special teachers/rehabilitation professionals per student in all schools admitting CwSN (paragraph 34). This finding echoes research concluding that the RTE Act requires modification, to better address the needs of CwSN.

Till such amendment, as a stop gap arrangement, the Court prescribed the ratio of 8:1 for children with cerebral palsy; 5:1 for children with intellectual disability, ASD and specific learning disabilities; and 2:1 for the deaf-blind or a combination of the above disabilities (paragraph 52). It further provided a roadmap for adding special educators to schools admitting CwSN. The following important directions by the Court merit emphasis:

  • Creation of permanent posts to ensure that the number of special educators prescribed by the competent authority are duly maintained;
  • Initiating the appointment process for filling up such posts in a time-bound manner; and
  • Offering training and sensitisation to all teachers on the additional needs of CwSN (paragraph 57).

Recognising that the mere issuance of its directions was insufficient, the Court activated an existing mechanism under the Rights of Persons with Disabilities Act 2016 (RPwD Act) for monitoring compliance with such directions. Specifically, it directed the State Commissioners of Persons with Disabilities to initiate suo motu inquiries to monitor compliance with the roadmap laid down by the Supreme Court (paragraph 59).

In another significant move, the Court broadened the scope of the litigation, initially confined to the states of Punjab and Uttar Pradesh, by making its directions applicable to the whole of the country (paragraph 58). Finally, and crucially, instead of disposing off the matter, the Court listed it for another hearing in March 2022, so it can take stock of the extent to which its directions have been adhered to (paragraph 62).

Given that the scope of the litigation was confined to pupil-teacher ratio, the Court cannot be faulted for not focusing on other structural conditions that warrant attention for the empowerment of CwSN. One hopes, however, that the judgment will serve as a prompt not just for the prescription of the pupil-teacher ratio for CwSN, but also for the delineation of other standards that all schools must comply with in order to become more disabled friendly.

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