By Guest Writers Jayam Jha and Pooja Rajawat
In the ongoing session of the Rajya Sabha, the seat of the former Indian Prime Minister, Dr. Manmohan Singh was shifted from the first row to the last row, due to his inability to walk to the first row because of health-related issues. This has sparked a debate regarding the accessibility of public buildings for persons with disabilities. It asks a pertinent question: what do we do when the parliament of a country is not accessible for persons with disabilities? Out of all other institutions, the need to revamp educational institutions—be it public or private—is more important than ever before, especially when we observe the 30 years of Unni Krishnan vs. The State of Andhra Pradesh, wherein the Right to Education was included within the ambit of Right to Life under Article 21 of the Constitution of India. This right to education was later explicitly inserted under Article 21A of the Constitution by way of the Constitution (Eighty-sixth Amendment) Act (2002). Reading Article 21 within the framework of Article 15 of the Constitution shows that inaccessibility to educational institutions of the persons with disabilities amounts to violation of their fundamental rights.
Section 16 of The Rights of Persons with Disabilities Act (2016) (now referred to as the ‘2016 act’), casts a duty upon the government at different levels to ensure that public funded educational institutions or government-recognized educational institutions are providing inclusive education to children with disabilities.
However, the UDISE+ data reflects that for the year 2019 to 2020, only 0.98% of the children with disabilities out of the total population were enrolled in primary level schools. Not only this, the figures for the years 2014 to 2017 shows that apart from the trends of senior secondary level for the year 2016 to 2017, the enrollment rates have been gradually decreasing for every subsequent year across all levels. This clearly indicates that the legislation, in spite of being well- intentioned, has failed to uplift the level of integration of persons with disabilities.
The failure of the legislative provisions in place to effectuate the benefits of these welfare legislations can be attributed to two reasons. Firstly, the inability to incorporate and crystalize a proper regulatory framework to streamline the implementation of the act in spirit and secondly, lack of institutional support from the state. In Rajive Raturi v. Union of India, the Supreme court talks about the shift in the approach toward persons with disabilities. The court suggests that the objective should not be to endow some charity towards persons with disabilities out of pity, but to ensure their dignity and cease their exclusion from mainstream society. Inclusion of persons with disabilities can be done through ensuring higher rates of enrolment of children with disabilities in public and private schools and universities.
Section 16 (ii) of the 2016 act mentions that the campus, building, and other facilities of educational institutions should be accessible to children with disabilities. Now, most of the educational buildings escape from the mandatory application of this provision as there is no mechanism to enforce them. The 2016 act is progressive in terms of recognising the roadblocks for persons with special needs to have the ability to live a dignified and meaningful life. However, the act has achieved only a stunted outcome because of implementation related challenges.
Thus, in order to effectuate the mandates of the 2016 act, there is a need for an amendment in the act to include a provision for the establishment of a ‘Regulatory Authority’. In such a case, every public funded institution or the institutions recognised by the government, whether school or university, would have to get a ‘green signal’ from the regulatory authority. In private institutions, the union and the state governments can come up with concerted schemes to allocate funds for revamping and realigning low-budget institutions according to the needs of making it accessible for persons with disabilities. In the initial period, this scheme would incentivize educational institutions and provide support to the schools and colleges to comply with the guidelines of the regulatory authority.
The regulatory mechanism could contain provisions mandating procurement of special reading materials for students with visual impairment. Every university hostel must have special rooms catering the needs of students with disabilities. Recently, on February 14, 2023, the apex court in Rajneesh Kumar Pandey & Ors vs. Union of India has sought details from the state governments of different states regarding total number of children with disabilities in the state, the total of special education teachers enrolled in the state, and total vacancies. The court also ordered to give details pertaining to ad hoc appointments and to provide a stipulated time frame to fill the vacancies.
Another aspect is the institutional support from the state’s end. For instance, the Ministry of Law and Justice, Government of India has initiated a Nyaya Bandhu scheme, wherein the ministry has collaborated with 69 law schools across India in order to expedite the dispensation of legal services amongst the target groups. Under the scheme, the legal aid clinics of the law schools also receive funds on regular intervals from the ministry. Similarly, the Ministry of Social Justice and Empowerment can also collaborate with educational institutions across the country for the empowerment of students with disabilities within the educational institution and beyond it. Under this scheme, welfare committees catering to the needs and interests of the students with disabilities can be established in universities and colleges, apart from other things.
India’s present disability rights law is riddled with the issue of inconsistency and non-compliance and, thus, it needs to be shielded with regulatory and institutional mechanisms for its effective implementation, lest it will turn into merely a ‘Kora Kaagaz’.