Important Cases
1. Mohini Jain v. Union of India: {1992 AIR 1858; 1992 SCC (3) 666; 1992 SCR (3) 658} The supreme court recognized the right to education as a fundamental right and linked it to the right to life.
2. Unni Krishnan, J.P. and Ors v. State of Andhra Pradesh: {1993 AIR 217, 1993 SCR (1) 594, 1993 SCC (1) 645, JT 1993 (1) 474, 1993 SCALE (1)290.} The Supreme Court stated that children with disabilities have a fundamental right to education, and the state must take action to ensure this right.
3. Parivartan Kendra v. Union of India: {(2016) 3 SCC 571 — SLIC.} The Supreme Court emphasized inclusive education and directed the government to ensure the admission and necessary facilities for children with disabilities in regular schools.
4. State of Kerala v. A. Peethambaran: {17341 Ker} The Kerala High Court held that children with disabilities have the right to access and study in any institution without discrimination.
5. National Federation of the Blind v. Union Public Service Commission: {1993 AIR 1916 1993 SCR (2) 556 1993 SCC (2) 411 JT 1993 (2) 541 1993 SCALE (2)181} The Supreme Court ruled that blind candidates should have options for writing civil services examinations.
6. Jeeja Ghosh and anr V. Union of India and ors
In this case, Ms. Jeeja Ghosh is suffering from cerebral palsy and she was arbitrarily removed from a Spicejet aircraft for being ‘danger to safety of other passengers’. A writ petition was filed by Ms. Jeeja wherein the court remarked that:
7.Rajneesh Kumar Pandey V. Union of IndiaThe above case is an ongoing PIL that raises the concern about shortage of special education teachers in Uttar Pradesh. The Court emphasized the need for a separate system and said "the students who suffer from blindness, deafness and autism or such types of disorder may be required to have separate schools with distinctly trained teachers".
Government Notifications
1) MHRD Notification: Centrally Sponsored Scheme of ‘Inclusive Education of the Disabled at Secondary Stage’
This scheme benefitted over 2 lakh children with disabilities. The aim of this scheme was to provide educational opportunities to special needs children in general schools and to provide for their expenses. The scheme also supported the appointment of special teachers for special needs students, provisions of resource rooms, and disabled-friendly infrastructure.
2) Sarva Shiksha Abhiyan and National Action Plan for Inclusion in Education of Children and Youth with Disabilities
These programs emphasized the idea of including children and young persons with disabilities in all general school settings from Early childhood to higher education.
Provision Under the constitution of India
The Indian Constitution has terms to protect the rights of special and disabled children.
The relevant articles are as follows:
Article 15(1) forbids discrimination based on religion, race, caste, sex, or place of birth, ensuring equal rights for all citizens, including those with disabilities.
Article 15(4) allows the state to make special provisions for socially and educationally backward classes, which includes children with disabilities.
Article 21 promises the right to life and personal liberty, including the dignity and rights of persons with disabilities and special needs.
Article 21A, known as the Right to Education Act, ensures free and compulsory education for all children aged 6 to 14, including those with disabilities, promoting inclusive education.
Article 29(2) ensures that no citizen is denied access to state-run educational institutions or state-funded help based on religion, race, caste, or language.
Article 41 directs the state to secure the right to work, education, and public assistance for cases like unemployment, old age, sickness, and disablement.
Article 45 mandates free and compulsory education for all children, including the disabled, until the age of 14.
Article 51A(K) enforces a fundamental duty on parents to educate their children aged 6 to 14.
Apart from the Constitution, several laws protect and promote the rights of special and disabled children:
Rights of Persons with Disabilities Act, 2016 (RPWD Act): This Act safeguards the rights of persons with disabilities, including children, covering aspects like education, health, accessibility, and employment. It ensures free education, promotes integrated education, and establishes special schools.
The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental
Retardation, and Multiple Disabilities Act, 1999: This Act aims to improve the lives of people with autism, cerebral palsy, mental retardation, and multiple disabilities.
The Right to Education Act, 2009 (RTE Act): Though not specifically focused on disabled children, it guarantees free and compulsory education up to age 14 and promotes inclusive education for children with disabilities.
The Mental Healthcare Act, 2017: This Act protects the rights and well-being of persons with mental and learning disabilities, including children.
The Rehabilitation Council of India Act, 1992
I. The Act aims to establish the Rehabilitation Council of India and regulate the training of rehabilitation professionals up to International standards.
II. The Act defines the term ‘handicapped’ which includes a person visually handicapped or hearing handicapped or suffering from locomotive disability or mental retardation.
III. Chapter 2 provides for the establishment of the council and Chapter 3 prescribes its functions.
The Rights of Persons with Disabilities Act, 2016
Education for People with Special Education Needs Act, 2004
I. The Act provides for inclusive education and it is the duty of the school to prepare an education plan for the child. The education plan needs to be provided to the parents of the child and if the parents are not satisfied, they can file for a review of the plan. The Plan needs to take into account the wishes of the child and emphasise upon the future educational plans as well.
The Disability Act, 2005
I. The Act stands on three pillars i.e.: EQUALITY, INCLUSION and ENABLING INDEPENDENCE AND CHOICE for the disabled.
II. The Act prohibits discrimination in employment and in provision of goods and services.
III. Part 3 of the Disability Act 2005 requires six Government departments to prepare plans (known as sectoral plans) that set out how they will deliver specific services for people with disabilities.
IV. Part 5 of the Disability Act 2005 provides for a statutory target, currently set at 3%, for the recruitment and employment of people with disabilities in the public sector.
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Individuals with Disabilities Education Act [IDEA]
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A Gist of the Practice in the United Kingdom
In the United Kingdom, a network is created consisting of schools and the Local Authorities. Schools help identify Special Education Needs children and the Local Authorities are responsible for drafting an Education Health and Care Plan under which a child is first diagnosed, prescribed a treatment and an education plan by a certified psychiatrist, in consultation with parents. The Local Authorities then, place the child in a mainstream school which is duty-bound to admit him and ensure that the child is fully integrated in the school community, curriculum and activities. If the parents are not satisfied with the EHC plan, they can appeal or mediate the same.
The Local Authority is duty-bound to provide the child with education in a mainstream school if the circumstances are compatible.
Relevant Case Laws
R v The Secretary of State for Education and Science, ex parte E [1992] 1 FLR 377 CA:
Statements (now EHC plans) must not be vaguely worded. Additionally, the Local Authority must include special educational provision for each and every special educational need identified.
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Bury Metropolitan Borough Council v SU [2010] UKUT 406 (AAC):
When considering the right of a child with a Statement (now an EHC plan) to a placement in a mainstream school, whether or not the school is “suitable” is not a relevant consideration. The only issue to consider is whether attendance at the mainstream school would be incompatible with the education of other children and if so, that incompatibility cannot be removed by the taking of “reasonable steps”.
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Harrow Council v AM [2013] UKUT 0157 (AAC):
Where a parent requests a mainstream school and there is no suitable school available (whether inside or outside its area), the Local Authority is under an absolute obligation to make a mainstream school suitable to meet the child’s needs, subject only to the qualification that it must be compatible with the efficient education of other children.
ME v London Borough of Southwark [2017] UKUT 73 (AAC):
When a parent or young person has asked for a mainstream setting, even if the placement is rejected under s. 39 Children and Families Act 2014 (on the grounds that it is unsuitable, or incompatible with the efficient education of others or the efficient use of resources), it may still be named under s. 33 Children and Families Act 2014 (the right to mainstream) unless the child or young person’s attendance would be incompatible with the efficient education of others and there are no reasonable steps that could be taken to avoid this.
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R (on the application of Y) v Croydon LBC [2015] EWHC 3033 (Admin); [2016] E.L.R. 138:
The mother of a severely learning-disabled child had been unable to get him to attend school despite significant efforts. The LA refused to change the school named in the Statement or provide other alternative education. The LA was found to be in breach of its duty under s. 19 Education Act 1996 to provide suitable education; as no further plan had been put forward, it was not reasonably practicable for the child to attend that school.
R v Oxfordshire County Council ex parte Pittick [1996] ELR 153:
If a school is not able to fund the special educational provision in the Statement or EHC plan from its own resources, the obligation to arrange and secure the provision remains with the LA. A dispute about funding between a school and an LA should never be the reason why a child or young person does not receive the special educational provision in their Statement or EHC plan.
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SEN and Disability Code of Practice
The Code provides for statutory guidelines for organisations which support SEN Children.
Special Education Needs and Disability Regulations, 2014
I. Part 3 of the Regulations provides for ‘Duties on Schools’. As per Regulation 50, it is the duty of the Special Education Needs Co-ordinator [SENCO] to identify and monitor the SEN program and ensure the program’s maintenance. It is the duty of the SENCO to promote the child’s inclusion in the school community, curriculum and activities.
II. Regulation 12 provides that while a EHC plan is being drafted for the child, the local authority must set out the child’s interests and aspirations, his Special Education Needs, health care and social care needs.
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The Children and Family Act, 2014
The Act is legally binding and not merely a directory.
UN Convention on Rights of Persons with Disabilities
The CRPD is an international legally binding human rights instrument of the UN. It was unanimously adopted, together with its Optional Protocol, by the UN General Assembly on 13th December 2006 and was opened for signature on 30th March 2007.
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