On December 4, a Supreme Court bench comprising Chief Justice Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud directed the state of Uttar Pradesh to explain how it plans on operationalising the provisions on inclusive education set out under the Rights of Persons with Disabilities Act, 2016 (RPWD Act). These observations came in response to a PIL filed by one Rajneesh Kumar Pandey, urging the court to direct the UP government to appoint more special educators for children with disabilities.
This marks a significant departure from the approach adopted by the court in its order dated October 27, 2017. Then, the court had stated that it found it “impossible to think” that children who have disabilities can be imparted education in mainstream schools, opining that such children must only be taught in special schools.
A deeply flawed approach
At a time when domestic and international legal instruments recognise the proposition that inclusive education plays a central role in equipping children with disabilities with the confidence and skills to step out into the world, the court’s observations in its October 27 order betrayed a profoundly regressive view about the capabilities of persons with disabilities.
By observing that it would be ‘impossible’ for those with disabilities to study in mainstream schools, the apex court lost sight of the thousands of mainstream schools across the country which are truly committed to making the schooling experience fully accessible for their students with disabilities. Further, such an observation also sent a clear message to the country’s 12 million children with disabilities that there is no way in which they can be accommodated in a mainstream institution.
One of the core purposes of the RPWD Act, which came into force earlier this year, is the promotion of inclusive education as an instrument to facilitate the meaningful integration of children with disabilities in society.
Section 16 of the Act puts an obligation on all schools funded or recognised by the appropriate government or local authority to provide inclusive education to disabled children. Section 17 outlines the steps that the appropriate government must take in this regard, such as establishing teacher training centres and suitably adapting the curriculum and examination system to meet the needs of disabled students.
Contrary to the view espoused by the Supreme Court in its October 27 order, the Act refers to special schools only once, in entitling children with benchmark disabilities to study in a special school if they so choose. Thus it is clear that the Act entrusts the government with the obligation to create and maintain the very type of ‘inclusive education system’ which the court found impossible to even envision.
This being the case, the court’s decision to take a relook at its earlier view in light of the perspective proffered by the RPWD Act marks a much-needed course-correction.
Inclusive education: An exception or the norm?
While the Supreme Court’s focus on inclusive education is a welcome development, the court still appears somewhat reluctant to fully recognise its transformative potential. There are at least two reasons which indicate that the court continues to view special education as the norm and inclusive education as the exception.
First, in its December 4 order, the court set up a two-member committee only for the inspection of special schools and not mainstream schools imparting inclusive education. This makes it clear that ‘special schools’ remain the focus of any judicial intervention at present while inclusive education is relegated to the unenviable position of judicial afterthought.
Second, in its October 27 order, the court stated that it was not using the term ‘disability’ in the way in which the Act defines it. The court noted that some physical disabilities may not warrant getting admission in special schools whereas students “who suffer from blindness, deafness and autism or such types of disorder may be required to have separate schools with distinctly trained teachers”. The RPWD Act does not lay down a threshold which has to be met in order for a student to be eligible to receive inclusive education. As a result, the court has created false categories not recognised by law and has made inclusive education the exclusive preserve of a small portion of the population with disabilities which does not suffer from such disabilities as blindness, deafness and autism.
Given that the court did not rectify this anomaly in its December 4 order, one hopes that the court’s interpretation of the term ‘disability’ in its final judgment will be informed by the forward-looking manner in which the term is defined under the RPWD Act.
The way forward
Earlier this year, in the case of Endrew F. vs Douglas County School District, the US Supreme Court ruled that every individualised education programme (IEP) – an action plan setting out the manner in which disabled children can be accommodated in a mainstream school – must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”. Holding that an IEP that ensures bare minimum inclusion would not be sufficient, the court held that “receiving an instruction that aims so low would be tantamount to (the disabled children) sitting idly, awaiting the time when they were old enough to drop out”.
When the Indian Supreme Court finally rules in this matter, it will have two choices before it. It could either, like its American counterpart, choose to imbue the guarantees of inclusive education set forth in the RPWD Act, or it could adopt the view set forth in its October 27 order. While the former would help make the right to inclusive education meaningful and real for children with disabilities, the latter would transform the guarantees under the RPWD Act into nothing more than a hollow promise and ‘parchment barrier’ to discriminatory conduct by mainstream institutions.
Many decades ago, in the celebrated case of Brown vs Board of Education of Topeka, the American Supreme Court ruled that in the field of public education, the doctrine of “separate but equal” has no place, inasmuch as separate educational facilities are inherently unequal. In its October 27 order, the Supreme Court not only sought to revive that long-buried doctrine, but in fact went one step further by suggesting that ‘separate’ alone is ‘equal’.
This being the case, the court’s decision to revisit this approach in its December 4 order is a heartening development. As the court noted in a recent judgment dated December 15, the approach of all educational institutions towards students with disabilities must be informed by the unexceptionable principle that no child is ‘ineducable’, inasmuch as every disabled child, when provided appropriate support systems, has the ability to learn. One only hopes that these recent developments are emblematic of a paradigm shift in the court’s sensibility about the capabilities of those with disabilities and not merely an aberration.
Madhavi Singh is a fourth-year student at National Law School of India University and a member of the disability vertical at Increasing Diversity by Increasing Awareness, an organisation which trains students from underprivileged backgrounds to become lawyers. Rahul Bajaj is also a member of the disability vertical at IDIA and a Rhodes scholar.