Disability and Education: Socio-Legal Approach

Role of Law and Policy in Disability and Education

Pranshu Dwivedi1 and Ehtesham Khan2

Abstract: Education is a powerful instrument of social change, and often initiates upward
movement in the social structure and thus help to bridge the gap between the different sections of
society. Education equips one to meet the challenges of life. The children with disabilities need
this more than any other section of the society to supplement their differential talents so that they
can prepare themselves for a happy productive and useful life. Efforts have been started to
educate children with disabilities soon after the independence of India. An attempt has been
made to examine the policies and legislations for educating the children with disabilities in India.
The paper discusses the issues relating to the provisions, practices and circular concerns for
children with Educational Needs. This paper concerned with those arising from physical, sensory
and intellectual disabilities. In the present paper the author will try to foreground the different
aspects of the above mentioned theme along with discuss the legislations as The disabled and the
constitution, Education Law for the Disabled, Health Laws, Family Laws, Succession Laws,
Labour Laws, Judicial Procedures, Income Tax Concessions, The Mental Health Act, 1987, The
persons with disabilities (PWD) (equal opportunities, protection of rights and full participation)
Act, 1995, The Rehabilitation Council of India Act, 1992, The national trust for welfare of
persons with autism, cerebral palsy, mental retardation and multiple disabilities act, 1999, UN
Declaration on the Rights of Mentally Retarded Persons.

Keywords: Children, Disability, Rights, Education, Law and Policy.

1. Introduction

India is the largest democracy in the world. According to census 2011, there are 1.2 billion
people in the country out of which, about 833 million people live in rural areas. United Nations

1
Student, 4th Year B.A.LL.B. (H), Department of Law Aligarh Muslim University (Murshidabad Centre),
E-mail: pranshudwivedi96@gmail.com , Contact No.: +91-7076506181, Address: A-36, Agnipath Awas Yojna,
T.B. Sapru Road, Civil Lines, Allahabad, Uttar Pradesh 211001.
2
Student, 2nd Year B.A.LL.B. (H), Department of Law Aligarh Muslim University (Murshidabad Centre),
Address: Room No. 09, Boys Hostel, AMU, Murshidabad Centre, Jangipur Barrage, Murshidabad, (W.B.)
observes that 10% of the population has disability and there are about 120 million people with
disabilities in India. Disability varies in type, form and intensity. Understanding disability will
require understanding these differences. As per the World Health Organization; Disability is an
umbrella term, covering impairments, activity limitations and participation restrictions,
impairment is problem in body function of structure; an activity limitation is difficulty
encountered by an individual in executing a task or action; while a participation restriction is a
problem experienced by an individual in involvement in life situations. Education equips one to
meet the challenges of life. The children with disabilities need this more than any other section
of the society to supplement their differential talents so that they can prepare themselves for a
happy productive and useful life3.

2. The disabled and the Constitution

The Constitution of India applies uniformly to every legal citizen of India, whether they are
healthy or disabled in any way (physically or mentally)

Under the Constitution the disabled have been guaranteed the following fundamental rights:

i. The Constitution secures to the citizens including the disabled, a right of justice,
liberty of thought, expression, belief, faith and worship, equality of status and of
opportunity and for the promotion of fraternity.
ii. Article 15(1) enjoins on the Government not to discriminate against any citizen of
India (including disabled) on the ground of religion, race, caste, sex or place of birth.
iii. Article 15 (2) States that no citizen (including the disabled) shall be subjected to any
disability, liability, restriction or condition on any of the above grounds in the matter
of their access to shops, public restaurants, hotels and places of public entertainment
or in the use of wells, tanks, bathing ghats, roads and places of public resort
maintained wholly or partly out of government funds or dedicated to the use of the
general public. Women and children and those belonging to any socially and
educationally backward classes or the Scheduled Castes & Tribes can be given the
benefit of special laws or special provisions made by the State4.

3
W. Ahmed, The Barriers of Inclusive for Children with intellectual Disability, 445 Indian Stream Research
Journal 2 (2012)
4
M P Jain, The Indian Constitutional Law, 234-248 (Lexix Nexix Butherworths Wadha, Nagpur, 7 th, 2014)
 iv. There shall be equality of opportunity for all citizens (including the disabled) in
matters relating to employment or appointment to any office under the State.
v. No person including the disabled irrespective of his belonging can be treated as an
untouchable. It would be an offence punishable in accordance with law as provided
by Article 17 of the Constitution.
vi. Every person including the disabled has his life and liberty guaranteed under Article
21 of the Constitution.
vii. Constitution (86th Amendment) Act 2002, has been enacted by the Parliament making
education a fundamental right of all children in the age group of 6-14 years by
inserting Article 21-A.
viii. There can be no traffic in human beings (including the disabled), and beggar and
other forms of forced labour is prohibited and the same is made punishable in
accordance with law (Article 23).
ix. Article 24 prohibits employment of children (including the disabled) below the age of
14 years to work in any factory or mine or to be engaged in any other hazardous
employment. Even a private contractor acting for the Government cannot engage
children below 14 years of age in such employment5.
x. Article 25 guarantees to every citizen (including the disabled) the right to freedom of
religion. Every disabled person (like the non-disabled) has the freedom of conscience
to practice and propagate his religion subject to proper order, morality and health.
xi. No disabled person can be compelled to pay any taxes for the promotion and
maintenance of any particular religion or religious group6.
xii. No Disabled person will be deprived of the right to the language, script or culture
which he has or to which he belongs.
xiii. Every disabled person can move the Supreme Court of India to enforce his
fundamental rights and the rights to move the Supreme Court is itself guaranteed by
Article 32.
xiv. No disabled person owning property (like the non-disabled) can be deprived of his
property except by authority of law though right to property is not a fundamental

5
Ibid.,
6
Id.,
 right. Any unauthorized deprivation of property can be challenged by suit and for
relief by way of damages.
xv. Every disabled person (like the non-disabled) on attainment of 18 years of age
becomes eligible for inclusion of his name in the general electoral roll for the
territorial constituency to which he belongs7.

2.1 Education Law for the Disabled

i. The right to education is available to all citizens including the disabled. Article 29(2) of
the Constitution provides that no citizen shall be denied admission into any educational
institution maintained by the State or receiving aid out of State funds on the ground of
religion, race, caste or language.
ii. Article 45 of the Constitution directs the State to provide free and compulsory education
for all children (including the disabled) until they attain the age of 14 years. No child can
be denied admission into any education institution maintained by the State or receiving
aid out of State funds on the ground of religion, race, caste or language.

2.2 Health Laws

Article 47 of the constitution imposes on the Government a primary duty to raise the level of
nutrition and standard of living of its people and make improvements in public health -
particularly to bring about prohibition of the consumption of intoxicating drinks and drugs which
are injurious to ones health except for medicinal purposes8.

3. Protection through Statutory Laws (Policies and Schemes of Central and State
Governments for Persons with Disability)

The governments agenda to universalise elementary education, and its commitment to the
Directive Principles of the Constitution, are guided by the recognition that a new universal
system of education should be based on equity, the redressal of past imbalances, and the
provision of access to quality education, especially for disabled groups. Most educators believed
that children with physical, mental or sensory disabilities were so different that they could not

7
Ibid.,
8
Ibid.,
participate in the activities. The first school for the blind was established in 1887. An institute for
the deaf and mute was set up in 1888. Services for the physically disabled were also initiated in
the middle of the twentieth century. The first school for the mentally challenged being
established in 1934.

The governments then the department of education initiative after independence were
manifested in the establishment of a few workshop units meant primarily for blind adults
(Luthra, 1974). These units later included people who were deaf, physically impaired and
mentally retarted (Rohindekar and Usha, 1988).

3.1 Family Laws

Various laws relating to the marriage enacted by the Government for DIFFERENT communities
apply equally to the disabled. In most of these Acts it has been provided that the following
circumstances will disable a person from undertaking a marriage9. These are:

Where either party is an idiot or lunatic,

Where one party is unable to give a valid consent due to unsoundness of mind or is
suffering from a mental disorder of such a kind and extent as to be unfit for marriage for
procreation of children
Where the parties are within the degree of prohibited relationship or are sapindas of each
other unless permitted by custom or usage.
Where either party has a living spouse

The rights and duties of the parties to a marriage whether in respect of disabled or non-disabled
persons are governed by the specific provisions contained in different marriage Acts, such as the
Hindu Marriage Act, 1955, the Christian Marriage Act, 1872 and the Parsi Marriage and Divorce
Act, 1935. Other marriage Acts which exist include; the Special Marriage Act, 1954 (for spouses
of differing religions) and the Foreign Marriage Act, 1959 (for marriage outside India) 10. The
Child Marriage Restraint Act, 1929 as amended in 1978 to prevent the solemnization of child

9
National Council of Educational Research and Training (NCERT): Sixth All India Educational Survey New Delhi
(1998)
10
Id.,
marriages also applies to the disabled. A Disabled person cannot act as a guardian of a minor
under the Guardian and

Wards Act, 1890 if the disability is of such a degree that one cannot act as a guardian of the
minor. A similar position is taken by the Hindu Minority and Guardianship Act, 1956, as also
under the Muslim Law

3.2 Succession Law for Disabled

Under the Hindu Succession Act, 1956 which applies to Hindus it has been specifically provided
that physical disability or physical deformity would not disentitle a person from inheriting
ancestral property. Similarly, in the Indian Succession Act, 1925 which applies in the case of
intestate and testamentary succession, there is no provision which deprives the disabled from
inheriting an ancestral property. The position with regard to Parsis and the Muslims is the same.
In fact a disabled person can also dispose his property by writing a will provided he
understands the import and consequence of writing a will at the time when a will is written. For
example, a person of unsound mind can make a Will during periods of sanity. Even blind persons
or those who are deaf and dumb can make their Wills if they understand the import and
consequence of doing it11.

3.3 Labour Law

The rights of the disabled have not been spelt out so well in the labour legislations but provisions
which cater to the disabled in their relationship with the employer are contained in delegated
legislations such as rules, regulations and standing orders.

3.4 Judicial procedures for the disabled

Under the Designs Act, 1911 which deals with the law relating to the protection of designs any
person having jurisdiction in respect of the property of a disabled person (who is incapable of
making any statement or doing anything required to be done under this Act) may be appointed by
the Court under Section 74, to make such statement or do such thing in the name and on behalf
of the person subject to the disability. The disability may be lunacy or other disability.

11
MHRD Annual Report 2012-13, New Delhi, Government of India.
3.5 Income Tax Concessions Relief for Handicapped

Section 80 DD: Section 80 DD provides for a deduction in respect of the expenditure

incurred by an individual or Hindu Undivided Family resident in India on the medical
treatment (including nursing) training and rehabilitation etc. of handicapped dependants.
For officiating the increased cost of such maintenance, the limit of the deduction has been
raised from Rs.12000/- to Rs.20000/-.
Section 80 V: A new section 80V has been introduced to ensure that the parent in whose
hands income of a permanently disabled minor has been clubbed under Section 64, is
allowed to claim a deduction upto Rs.20000/- in terms of Section 80 V.
Section 88B: This section provides for an additional rebate from the net tax payable by a
resident individual who has attained the age of 65 years. It has been amended to increase
the rebate from 10% to 20% in the cases where the gross total income does not exceed
Rs.75000/- (as against a limit of Rs.50000/- specified earlier).

3.6 The persons with disabilities (PWD) (equal opportunities, protection of rights and full
participation) act, 1995

The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation)
Act, 1995 had come into enforcement on February 7, 1996. It is a significant step which ensures
equal opportunities for the people with disabilities and their full participation in the nation
building. The Act provides for both the preventive and promotional aspects of rehabilitation like
education, employment and vocational training, reservation, research and manpower
development, creation of barrier- free environment, rehabilitation of persons with disability,
unemployment allowance for the disabled, special insurance scheme for the disabled employees
and establishment of homes for persons with severe disability etc.

3.6.1 Main Provisions of the Act

Prevention and Early Detection of Disabilities

Education
Employment
Non-Discrimination
 Research and Manpower Development
Affirmative Action
Social Security
Grievance Redressal

3.6.2 Prevention and early detection of disabilities

Surveys, investigations and research shall be conducted to ascertain the cause of

occurrence of disabilities.
Various measures shall be taken to prevent disabilities. Staff at the Primary Health Centre
shall be trained to assist in this work.
All the Children shall be screened once in a year for identifying at-risk cases.
Awareness campaigns shall be launched and sponsored to disseminate information.
Measures shall be taken for pre-natal, peri natal, and post-natal care of the mother and
child.

3.6.3 Education

Every Child with disability shall have the rights to free education till the age of 18 years
in integrated schools or special schools.
Appropriate transportation, removal of architectural barriers and restructuring of
modifications in the examination system shall be ensured for the benefit of children with
disabilities.
Children with disabilities shall have the right to free books, scholarships, uniform and
other learning material.
Special Schools for children with disabilities shall be equipped with vocational training
facilities.
Non-formal education shall be promoted for children with disabilities.
Teachers Training Institutions shall be established to develop requisite manpower.
Parents may move to an appropriate forum for the redressal of grievances regarding the
placement of their children with disabilities.

3.6.4 Employment
3% of vacancies in government employment shall be reserved for people with disabilities, 1%
each for the persons suffering from:

Blindness or Low Vision

Hearing Impairment
Locomotor Disabilities & Cerebral Palsy
Suitable Scheme shall be formulated for
The training and welfare of persons with disabilities
The relaxation of upper age limit
Regulating the employment
Health and Safety measures and creation of a non- handicapping, environment in places
where persons with disabilities are employed

Government Educational Institutes and other Educational Institutes receiving grant from
Government shall reserve at least 3% seats for people with disabilities.

No employee can be sacked or demoted if they become disabled during service, although they
can be moved to another post with the same pay and condition. No promotion can be denied
because of impairment.

3.6.5 Affirmative Action

Aids and Appliances shall be made available to the people with disabilities.

Allotment of land shall be made at concessional rates to the people with disabilities for:

House
Business
Special Recreational Centres
Special Schools
Research Schools
Factories by Entrepreneurs with Disability,

3.6.6 Non-Discrimination
 Public building, rail compartments, buses, ships and air-crafts will be designed to give
easy access to the disabled people.
In all public places and in waiting rooms, the toilets shall be wheel chair accessible.
Braille and sound symbols are also to be provided in all elevators (lifts).
All the places of public utility shall be made barrier- free by providing the ramps.

3.6.7 Research and Manpower Development

Research in the following areas shall be sponsored and promoted

Prevention of Disability
Rehabilitation including community based rehabilitation
Development of Assistive Devices.
Job Identification
On site Modifications of Offices and Factories
Financial assistance shall be made available to the universities, other institutions of
higher learning, professional bodies and non-government research- units or institutions,
for undertaking research for special education, rehabilitation and manpower
development.

3.6.8 Social Security

Financial assistance to non-government organizations for the rehabilitation of persons

with disabilities.
Insurance coverage for the benefit of the government employees with disabilities.
Unemployment allowance to the people with disabilities who are registered with the
special employment exchange for more than a year and could not find any gainful
occupation

3.6.9 Grievance Redressal

In case of violation of the rights as prescribed in this act, people with disabilities may
move an application to the
Chief Commissioner for Persons with Disabilities in the Centre, or
Commissioner for Persons with Disabilities in the State.
3.7 The Mental Health Act, 1987

Under the Mental Health Act, 1987 mentally ill persons are entitled to the following rights:

i. A right to be admitted, treated and cared in a psychiatric hospital or psychiatric nursing

home or convalescent home established or maintained by the Government or any other
person for the treatment and care of mentally ill persons (other than the general hospitals
or nursing homes of the Government).
ii. Even mentally ill prisoners and minors have a right of treatment in psychiatric hospitals
or psychiatric nursing homes of the Government.
iii. Minors under the age of 16 years, persons addicted to alcohol or other drugs which lead
to behavioral changes, and those convicted of any offence are entitled to admission,
treatment and care in separate psychiatric hospitals or nursing homes established or
maintained by the Government.
iv. Mentally ill persons have the right to get regulated, directed and co-ordinated mental
health services from the Government. The Central Authority and the State Authorities set
up under the Act have the responsibility of such regulation and issue of licenses for
establishing and maintaining psychiatric hospitals and nursing homes.
v. Treatment at Government hospitals and nursing homes mentioned above can be obtained
either as in patient or on an out-patients basis.
vi. Mentally ill persons can seek voluntary admission in such hospitals or nursing homes and
minors can seek admission through their guardians. Admission can be sought for by the
relatives of the mentally ill person on behalf of the latter. Applications can also be made
to the local magistrate for grants of such (reception) orders.
vii. The police have an obligation to take into protective custody a wandering or neglected
mentally ill person, and inform his relative, and also have to produce such a person
before the local magistrate for issue of reception orders.
viii. Mentally ill persons have the right to be discharged when cured and entitled to
leave the mental health facility in accordance with the provisions in the Act.
ix. Where mentally ill persons own properties including land which they cannot themselves
manage, the district court upon application has to protect and secure the management of
 such properties by entrusting the same to a Court of Wards, by appointing guardians of
such mentally ill persons or appointment of managers of such property.
x. The costs of maintenance of mentally ill persons detained as in-patient in any government
psychiatric hospital or nursing home shall be borne by the state government concerned
unless such costs have been agreed to be borne by the relative or other person on behalf
of the mentally ill person and no provision for such maintenance has been made by order
of the District Court. Such costs can also be borne out of the estate of the mentally ill
person.
xi. Mentally ill persons undergoing treatment shall not be subjected to any indignity
(whether physical or mental) or cruelty. Mentally ill persons cannot be used without their
own valid consent for purposes of research, though they could receive their diagnosis and
treatment.
xii. Mentally ill persons who are entitled to any pay, pension, gratuity or any other form of
allowance from the government (such as government servants who become mentally ill
during their tenure) cannot be denied of such payments. The person who is in-charge of
such mentally person or his dependents will receive such payments after the magistrate
has certified the same.
xiii. A mentally ill person shall be entitled to the services of a legal practitioner by
order of the magistrate or district court if he has no means to engage a legal practitioner
or his circumstances so warrant in respect of proceedings under the Act.

3.8 The Rehabilitation Council of India Act, 1992

This Act provides guarantees so as to ensure the good quality of services rendered by various
rehabilitation personnel. Following is the list of such guarantees12:

i. To have the right to be served by trained and qualified rehabilitation professionals whose
names are borne on the Register maintained by the Council
ii. To have the guarantee of maintenance of minimum standards of education required for
recognition of rehabilitation qualification by universities or institutions in India.

12
Rehabilitation Council of India: Status of Disability in India 2010, New Delhi
 iii. To have the guarantee of maintenance of standards of professional conduct and ethics by
rehabilitation professionals in order to protect against the penalty of disciplinary action
and removal from the Register of the Council
iv. To have the guarantee of regulation of the profession of rehabilitation professionals by a
statutory council under the control of the central government and within the bounds
prescribed by the statute

3.9 The national trust for welfare of persons with autism, cerebral palsy, mental
retardation and multiple disabilities act, 199913

i. The Central Government has the obligation to set up, in accordance with this Act and for
the purpose of the benefit of the disabled, the National Trust for Welfare of Persons with
Autism, Cerebral Palsy, Mental Retardation and Multiple Disability at New Delhi.
ii. The National Trust created by the Central Government has to ensure that the objects for
which it has been set up as enshrined in Section 10 of this Act have to be fulfilled.
iii. It is an obligation on part of the Board of Trustees of the National Trust so as to make
arrangements for an adequate standard of living of any beneficiary named in any request
received by it, and to provide financial assistance to the registered organizations for
carrying out any approved programme for the benefit of disabled.
iv. Disabled persons have the right to be placed under guardianship appointed by the Local
Level Committees in accordance with the provisions of the Act. The guardians so
appointed will have the obligation to be responsible for the disabled person and their
property and required to be accountable for the same.
v. A disabled person has the right to have his guardian removed under certain conditions.
These include an abuse or neglect of the disabled, or neglect or misappropriation of the
property under care.
vi. Whenever the Board of Trustees are unable to perform or have persistently made default
in their performance of duties, a registered organization for the disabled can complain to
the central government to have the Board of Trustees superseded and/or reconstituted.
vii. The National Trust shall be bound by the provisions of this Act regarding its
accountability, monitoring finance, accounts and audit.

13
National Sample survey Organization, Ministry of Statistics Program Implementation, Government of India
3.10 Integrated Education of Disabled Children (IEDC)

The Government of Indias appreciation of the need to integrate children with disabilities came
in 1974, when the Union Ministry of Welfare launched the centrally sponsored scheme of
Integrated Education of Disabled Children (IEDC). In 1982, this scheme was transferred over to
the then Department of Education of the Ministry of the Human Resource Development. The
centrally sponsored scheme of IEDC provides education opportunities for the disabled children
schools, to fecilitate their retention in the school system, and also to place in common schools,
such children already placed in special schools after they acquire the communication and the
daily living skills at the functional level.

4. UN Declarations on the rights of disabled persons

i. The UN Standard Rules on the Equalization of Opportunities for Persons with
Disabilities (1993) was an important resolution for improving the educational conditions
of persons with disabilities. This had major implications for the Indian situation in the
form of three legislative Acts- The RCI Act(1992), PWD Act(1995) and National Trust
Act(1999).
ii. The Salamanca Statement and Framework for Action on Disability and Education
(1994) emerged as a result of deliberations of more than 300 participants representating
92 governments including India and 25 international organizations in June 1994. For
furthering the objectives of education for all, it considerd the fundamental objectives
shifts required to promote inclusive education. It emphasizes that schools should
accommodate all children regardless of their physical, intellectual, social, emotional,
linguistic or other conditions14.

5. Conclusion

There is no doubt that the dream for discrimination free and equal education for the children with
disability may require a comprehensive change in the institutional arrangements and legal
provisions but the most important change has to come in our minds, in our thinking and attitude
towards the disabled. The need of the hour is concerted efforts amongst various stakeholders to

14
UNESCO 1994, The Salamanca Statement and Framework for Action 1994, Geneva, UNESCO Special
Education, Division of Basic Education
be made in a time-bound manner. We need to fulfil our obligations to this country and to the
international community. What is urgently needed is the political will to ensure that disability is
included across all policies, across and all Ministries and Departments, and a time is fixed to
make our facilities, schools, colleges, public places, etc. accessible for all people with disabilities
and adequate resources allocated. Removing barriers to accessing education and to learning for
children with disabilities are prerequisites for the Realization of Education for all. To ensure that
all children have access to quality education, education policies and practices must be inclusive
of all learners, encourage the full participation of all, and diversity as a resource rather as an
obstacle. Inclusive education will pave the way to prosperity for individuals and for the society.
This prosperity will, in turn, lead to a more peaceful and sustainable development of humanity,
with such a change in ethos we will all benefit.