K.S. Bagga talks about the enforceability of the right to education being a fundamental right in the Indian as well as the international context and emphasis on the most suitable method of education for the disabled people.

Introduction

Education is commonly referred to as the process of learning and obtaining knowledge at school, in a form of formal education. However, this commonplace definition does not go in depth of the need of education for the all round personality development of an individual. Education is now recognized as a basic human right, the need and significance of which has been emphasized on the common platform of the United Nations, through the medium of various Covenants and Treaties. It is also being seen as an instrument of social change and hence education leads to empowerment which is very important for a country like India, which after 59 years of independence has not been able to eradicate illiteracy in spite of the constitutional mandate given by way of Article 45 of the Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995.

Although countries all over the world have made laws relating to imparting of education, these laws have not been created in a vacuum. There exist various international commitments by way of convention, treaties etc., which have compelled governments all over the world to enact provisions relating to education and its establishment as a human right. Article 26 of the Universal Declaration of Human Rights, 1948 clearly proclaims the right to education. Protocol 1 of the European Convention on Human Rights, 1952, states that no person shall be denied the right to education. According to UNESCO Convention against Discrimination in Education,1960, the States’ parties to this convention undertake to formulate, develop and apply a national policy which will tend to promote equality of opportunity and of treatment and in particular to make primary education free and compulsory.

However, till the mid-1960’s, the UN recognized the importance of education but did not make any strong policy recommendation in terms of making it a fundamental right. It was only after the International Covenant on Economic, Social and Cultural Rights, 1966 that the United Nations started viewing education as a right. Protocol of San Salvador to the American Convention on Human Rights, 1988, states that the States’ parties to this Protocol recognize that in order to achieve the full exercise of the right to education, primary education should be compulsory and accessible to all without cost. In 1989, Convention on the Rights of the Child, the rights of the children were standardized, in a single legal instrument, approved by the international community.

In India the development of right to education has undergone an eventful journey, when the Constitution was enacted education was kept in the Part IV of the Constitution, as Directive Principles of State Policy, wherein Article 41 provides rights to work, to education, and to public assistance in certain cases. Article 45 makes provision for free and compulsory education. Article 46 provides the promotion of educational and economic interests of scheduled castes, scheduled tribes and other weaker sections. Education is a two way concept, it is the state’s obligation to provide education by way of the Directive Principles of State Policy, and it is also guaranteed as a fundamental right in Part IV of the Indian Constitution.

Right to education, was for the first time recognized as a fundamental right in the case of Anand Vardhan Chandel v University of Delhi , the Delhi High Court observed that the law has now settled that the expression ‘life and personal liberty’ in Article 21 of the Constitution includes a variety of rights, though they are not enumerated in Part III of the Constitution, provided that they are necessary for the full development of the personality of the individual and can be included in the various aspects of the liberty of the individual. The right to education is, therefore, also included in Article 21 of the Constitution.

In the case of Bapuji Education Association v State the Court, expanded the contours of personal liberty guaranteed by Article 21 of the Constitution to the extent it includes in its ambit the right of the minorities to education. But the Supreme Court took notice of this controversy in the case of Mohini Jain v State of Karnataka while deciding issues of capitation fee in education institutions in Karnataka, the court held that the right to life under Article 21 and the dignity of an individual couldn’t be assured unless accompanied by the right to education. The very next year in 1993 the Supreme Court delivered the judgment in the case of Unnikrishnan J.P. v State of Andhra Pradesh, which overruled the decision in Mohini Jain’s case, wherein, it was held that the right to education was a fundamental right available to all the citizens of India but the said right is available only up to the age of 18 years.

The 86th Amendment Act was a result of the recommendations of the two committees namely the Education Commission and Saikia Committee. The Amendment Act provided for the following three insertions/changes in the Constitution. The insertion of Article 21-A, which provides that the State shall provide free and compulsory education to all children between the ages of 6-14 years in such a manner as the State may by law determine. An amendment to Article 45, that is the provision for early childhood care and education to children below the age of 6 years; the State shall endeavor to provide early childhood care and education for all children until they complete the age of 6 years. In Article 51-A, after clause (j) the following clause (k) has been inserted: “a parent or guardian shall provide opportunities for education to his children or ward between the ages of 6-14 years.”

Different models of education of the disabled

In my opinion the Legislature has completely ignored the children in the age group of three to six years which is a very crucial period for mental and physical growth of the child. The new amendment failed to carry forward the spirit of Article 45 as it stood before the Amendment which provided education for all children up to the age of 14 years. While it’s an established fact that the scope and ambit of the Constitutional provision of right to education extends to the disabled persons also, the right to education for the disabled is available up to the age of 18 years. Disability in The Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995, has been defined in the interpretation clause.

Disability is not merely a physical fact, but also involves a normative, cultural, and legal concept. The society’s perception of a disabled person also reflects its idea of a normally functional human being and the definition as considered by the society gives us an insight into the society’s self image. The recognition by the society of the terms mentally and physically disabled also implies a responsibility of the society towards the people who fit that description. A society with deep ethos of social responsibility is likely to be more open in its definition of disability.

The graph below shows the distribution of children suffering from various disabilities in various grades.

(1) Special Education
The knowledge and processes of educating the disabled children or ‘special education’ as it is known now, came to India in the last two decades of the 19th century through Christian missionaries. While special education enables the teachers to focus on the needs disabled children and these special schools are equipped with the resources that are required as per the needs of the disabled children. However, the special education system is based on the principle of segregation and not integration and is considered to be an expensive option, and at the same is considered to be violative of human rights.

In the Indian scenario, it turns out be an expensive investment and other alternatives need to be evaluated, analyzed and decided upon soon, so that the goal of ‘education for all’ is realized as is not cost effective in the rural area where the infrastructure is not at par with the urban India. It also leads to the segregation of the disabled and the same time is also considered to be violative of the Human Rights as it leads to the formation of a specific disability culture.

This graph shows that, since 1947, there has been a steady rise of the number of special schools, which cater to different kinds of disabilities, which also indicates that the disabled children who were capable of being integrated lost the opportunity because the government did not utilize the funding for building infrastructure of the mainstream schools so that certain disabled children capable of being integrated or included could be admitted in mainstream schools.

(2) Integrated Education Model. Integrated Education
To overcome the disadvantages omnipresent in the special model of education, another model of education was developed in India in mid 1950’s, namely Integrated Education Model. Integrated Education provides for common education for all children, whether disabled or non disabled. In recent years the principle of Integration has been guidance for reforms in the field of disability care and special education. It is the goal to help the child develop such skills and such confident self concept that are necessary for satisfactory participation in ordinary social life and work.

(3) Integrated Education for Disabled Children (IEDC)
The government launched this scheme in December, 1974 to provide educational opportunities to CSWN in regular schools, to facilitate their retention in the school system, and to place children from special schools in common schools.

(4) Projected Integrated Education for the Disabled (PIED)
The government also launched another scheme and there was a conscious shift in strategy, from a school based approach to Composite Area Approach. In this approach, a cluster, instead of individuals is taken as a project area. All schools are expected to enroll children with disabilities. Training programmes were also imparted to the teachers.

(5) District Primary Education Programme (DPEP)
This scheme had a powerful impact on the integration of the disabled children. The main advantage of this scheme is that it takes care of all the areas identification, assessment, enrolment, and provision of appliances to total integration of disabled children in schools with resource support, teacher training and parental counseling.

(6) Sarv Shiksha Abhiyan
To uphold its commitments for achieving Education for All (EFA) by 2010, the Government of India had launched Sarv Shiksha Abhiyan (SSA) IN 2000-2001. Sarv Shiksha Abhiyan gives prime importance to good quality education to all children including those with disabilities. It has a special mandate to serve children with disabilities at the district level. The scheme has a provision that Rs.1200 to be spent on every child with disability identified with the district.

(7) Inclusive Education
The inclusive model of education is another model of education utilized for the education of the disabled. In inclusive education, the disabled children are taught in general education classrooms, in mainstream schools alongside children of their age who do not suffer from disabilities. This system of education ensures that the disabled children are not segregated at any stage and helps them to develop a sense of worth, standing and belonging in society. It also enables sensitization of children who are not disabled and helps to form a disabled friendly society which is impossible in the special education system setup.

Legislative Provisions pertaining to the Law of Disability

The 1989 United Nation Convention on the Rights of Child states that disabled children have the “right to achieve participation in the community and their education should lead to the fullest possible social integration and emotional development.”The 1990 World Conference on Education for All: Meeting Basic Learning Needs states that the learning needs of the disabled demand special attention. The Salamanca Statement and Framework for Action on Special needs Education (1994) stipulates that disabled children should attend neighborhood school. It declares that regular schools with this inclusive orientation are the most effective means of combating discriminatory attitudes, creating welcoming communities, building an inclusive society and achieving education for all. India has been a signatory to all these declarations.

The year 1981 was very significant being the International Year for Disabled Persons (IYDP). It was also in this year, in India that the education of the disabled was considered to be as a human resource development. Prior to this the education of the disabled, which was catered to largely in special schools, came under the purview of Department of Social welfare. This shift was considered significant because it helped create awareness in the general education system that disabled persons are also “human resources” and can become contributing members of the society.

In the 1990’s two historical legislation were enacted namely the Rehabilitation Council of India Act, 1992 passed in Parliament was created by the Ministry of Welfare to regulate manpower development programmes in the field of education of children with special needs and The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

In spite of the disadvantages of the special schools and the impact on the lives of the disabled children studying in them, the law still provides for setting up of these schools for disabled children. Special schools have steadily been increasing. Presently there are about 3000 special schools addressing persons with different disabilities. It is estimated that there are 900 schools for the hearing impaired, 400 schools for the visually impaired, 1,000 for the mentally retarded and 700 for the physically disabled children.

Conclusion and Suggestions

Keeping in mind, the developments that have taken place in the last two decades, in the field of education of the disabled, it is clear that to fulfill the goal of Education for All there has to be constant monitoring of children with special needs and disabilities. Because of the advent of special education, and the segregation, thereof, the general population is not exposed to the disabled people and don’t know how to react. If the law still calls for segregation of the disabled people, the people in the mainstream society do not get an opportunity to interact with these people and therefore are not sensitized to their needs. If we, as a society are exposed to disabled people, from the very inception and interact with them, the phenomena of de-labeling will also gain strength.

The law as it stands today does not make differentiation in the education of the slightly, moderately and severely handicapped children and therefore, disabled children who could have been integrated in the mainstream schools are denied the opportunity because the Legislature has failed to distinguish between the needs and requirement of the children suffering from slight, moderate and severe disability. Integrated and Inclusive model of education needs to be applied keeping in mind as to what is more suitable in the given infrastructure and economic conditions prevailing in the area.

Education and agriculture are the two sectors, often referred to as agronomy, which can help steer a country on the path of development. Therefore special attention needs to be placed on developing these two sectors. In India the education policy has lacked foresight and vision, and whenever problems have arisen, rather than tackling the problem, the authorities have seen fit to the change the policy to suit the circumstances.