All disabled persons have right to not only minimum education but higher education as well: Supreme Court [Read Judgment]
Supreme Court in Disabled Rights Group v. Union of India & observed that everyone can learn and that there is no such person as one who is ineducable and that it is a basic and well recognized assumption.
The Apex Court Court remarked, “We may add that a basic underline assumption, which is well recognized, is that everyone can learn; there is no such person as one who is ineducable (sic) and that, accordingly, all disabled persons (from whatever disability they are suffering) have right to get not only minimum education but higher education as well. Not making adequate provisions to facilitate proper education to such persons, therefore, would amount to discrimination.”
Supreme Court was hearing a petition filed in public interest for the benefit of persons suffering from “disability” under Rights of Persons with Disabilities Act, 2016. The first issue in the petition related to the non-implementation of 3% reservation of seats in educational institutions as provided in Section 39 of the Disabilities Act, 1995 and Section 32 of the Disabilities Act, 2016. Second equally important issue raised in this petition, which is intimately connected with the first issue, is to provide proper access to orthopaedic disabled persons so that they are able to freely move in the educational institution and access the facilities. Third issue pertains to pedagogy i.e. making adequate provisions and facilities of teaching for disabled persons, depending upon the nature of their disability, to enable them to undertake their studies effectively.
Supreme Court understanding the importance of the issue and considering the fact that it is of seminal importance extended the coverage of the petition to all educational institutions. It is pertinent to mention here that petition was otherwise filed only to cover law colleges. Petition was filed in the year 2006 and was pending since eleven years.
Disabilities Act, 2016, makes exhaustive provisions insofar as providing of educational facilities to the persons with disabilities is concerned. Section 31 confers right to free education upon children with benchmark disabilities who are between the age of 6 to 18 years. Section 32 (1) of the Act says that all Government institutions of higher education and other higher education institutions receiving aid from the Government shall reserve not less than five per cent seats for persons with benchmark disabilities and its subsection 2 says further that the persons with benchmark disabilities shall be given an upper age relaxation of five years for admission in institutions of higher education.
Commenting on implementation of above mentioned provisions, Supreme Court said that “[…]we direct that all those institutions which are covered by the obligations provided under Section 32 of the Disabilities Act, 2016 shall comply with the provisions of Section 32 while making admission of students in educational courses of higher education each year. To this end, they shall submit list of the number of disabled persons admitted in each course every year to the Chief Commissioner and/or the State Commissioner (as the case may be). It will also be the duty of the Chief Commissioner as well as the State Commissioner to enquire as to whether these educational institutions have fulfilled the aforesaid obligation. Needless to mention, appropriate consequential action against those educational institutions, as provided under Section 89 of the Disabilities Act, 2016 as well as other provisions, shall be initiated against defaulting institutions.”
Analyzing rationale behind passage of Disabilities Act, Court observed:
“It hardly needs to be emphasized that Disabilities Act is premised on the fundamental idea that society creates the barriers and oppressive structures which impede the capacities of person with disabilities. Capability theorists like Martha Nussbaum are of the opinion that there cannot be a different set of capacities or a different threshold of capabilities for persons with disabilities. This raises the critical issue of creating a level playing field whereby all citizens to have equality of fair opportunities to enable them to realize their full potential and experience well-being. To ensure the level playing field, it is not only essential to give necessary education to the persons suffering from the disability, it is also imperative to see that such education is imparted to them in a fruitful manner. That can be achieved only if there is proper accessibility to the buildings where the educational institution is housed as well as to other facilities in the said building, namely, class rooms, library, bathrooms etc. Without that physically handicapped persons would not be able to avail and utilize the educational opportunity in full measure.”
Saying that for rights based approach and exhaustive details on rights of disabled persons, its judgment in Rajive Ratouri v. Union of India & Others should be referred to, Justice A. K. Sikri pronouncing the judgment of the Bench comprising him and Justice Ashok Bhushan passed a slew of following directions in furtherance of its directions in Rajiv Ratouri case earlier:
(i) While dealing with the issue of reservation of seats in the educational institutions, we have already given directions in para 8 above that the provisions of Section 32 of the Disabilities Act, 2016 shall be complied with by all concerned educational institutions. In addition to the directions mentioned therein, we also direct that insofar as law colleges are concerned, intimation in this behalf shall be sent by those institutions to the Bar Council of India (BCI) as well. Other educational institutions will notify the compliance, each year, to the UGC. It will be within the discretion of the BCI and/or UGC to carry out inspections of such educational institutions to verify as to whether the provisions are complied with or not.
(ii) Insofar as suggestions given by the petitioner in the form of “Guidelines for Accessibility for Students with Disabilities in Universities/Colleges” are concerned, the UGC shall consider the feasibility thereof by constituting a Committee in this behalf. In this Committee, the UGC would be free to include persons from amongst Central Advisory Board, State Advisory Boards, Chief Commissioner of State Commissioners appointed under the Disabilities Act. This Committee shall undertake a detailed study for making provisions in respect of accessibility as well as pedagogy and would also suggest the modalities for implementing those suggestions, their funding and monitoring, etc. The Committee shall also lay down the time limits within which such suggestions could be implemented. The Expert Committee may also consider feasibility of constituting an in-house body in each educational institution (of teachers, staff, students and parents) for taking care of day to day needs of differently abled persons as well as for implementation of the Schemes that would be devised by the Expert Committee. This exercise shall be completed by June 30, 2018.
(iii) Report in this behalf, as well as the Action Taken Report, shall be submitted to this Court in July, 2018. On receipt of the report, the matter shall be placed before the Court.
Petitioner(s) were represented by Advocates Baijnath Patatel, Sweta, Romila, Jyoti Mendiratta along with AOR Anjani Kumar Mishra. Respondents were represented by AOR Asha Gopalan Nair, AOR Charu Mathur, AOR G. N. Reddy, AOR Ardhendumauli Kumar Prasad, AOR Sushma Suri, and AOR Sushil Balwada.
For directions of the Supreme Court earlier in Rajiv Ratouri case, click here.
Read the Judgment below: