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This article is written by Indrasish Majumdar, intern at LawSikho. The article has been edited by Ruchika Mohapatra (Associate, LawSikho).

Introduction

Schooling for disabled children has long been at a crossroads. Because of the coronavirus pandemic, curriculum styles and daily classrooms have suddenly shifted to virtual modes. According to Census 2011, students with disabilities, who account for approximately 40 lakh people aged 5 to 19, have been overwhelmingly affected by a virtual model of teaching, which has become the norm nowadays.

About the fact that the Narendra Modi government’s recently announced PM eVidya platform would appeal to learners with visual and hearing impairments, there is no public knowledge about how digital schooling, like online classroom instruction, would be rendered broadly available. Similarly, “the Department of Empowerment of Persons with Disabilities (under the Ministry of Social Justice and Welfare)” issued “Comprehensive Disability Inclusive Guidelines” for the Safety and Protection of Persons with Disabilities during Covid-19, which discusses providing the necessary services and assistance to people with disabilities but nowhere does it address their educational needs. There are no arrangements for children to receive distance, open, or home-based schooling.

The method by which online schooling is availed to persons with disabilities is out of date and uncoordinated. “The Ministry of Human Resource Development (MHRD”) issued a National Policy on ICT in School Education in 2012, which is devoid of universal design standards for interactive education and does not conform to the most recent “Web Content Accessibility Guidelines (WCAG)”, which were published in 2018.  The “MHRD” strategy is not included in the collection of guidelines issued in 2018 by “the Telecom Regulatory Authority of India (TRAI)” on rendering ICT available to people with disabilities. Furthermore, the inter-ministerial steering committee created as per the TRAI guidelines does not include the MHRD guidelines, showing that the issue of digital education connectivity is being discussed in silos. The fact that “the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act)” only includes norms and requirements for physical facilities in schools is the most telling example of this fragmentation. The RTE Act’s “Schedule” clearly specifies that teaching and learning equipment would be given to each class if required, without contemplating if such technology must be electronic and if so, so long as it is inclusive.

This article is an effort to provide a better understanding of the hurdles associated with teaching students with Visual Impairment. According to the PWD Act, children with disabilities should be progressively admitted to schools alongside students that do not have disabilities. However, to meet the PWD Act’s goal of providing adequate education to children with disabilities, schools must make specific provisions in terms of infrastructure, student health programmes, and teacher preparation. With India’s ratification of the UN Convention on the Rights of Persons with Disabilities, the responsibility on the part of schools that tend to students with disabilities only grows. With this in mind, it remains to be seen how effectively the schools can live up to the provisions of these conventions in these trying times. A study of this kind is a step in the right direction. While a lot still needs to be achieved, a starting point to that effect is provided by this paper.

Issues faced by specially-abled children and their families during the pandemic 

The findings of a survey regarding the accessibility to education for the visually impaired amidst the Pandemic conducted in collaboration with the Blind Boys Academy at Ramkrishna Mission, Narendrapur, Kolkata, West Bengal and a few other studies suggest the following hurdles are encountered by specially-abled children and their families during the pandemic.

Households encounter job/income setbacks, increased mortgages, poor nutrition and inability to afford medical services

  1. Access to child well-being determinants such as fitness, recovery, and routine is interrupted, forcing certain children to discontinue treatments or to forgo scheduled medical check-ups and rehabilitation counselling. 
  2. Children’s mental health suffered as a result of disrupted schedules, especially those with developmental disabilities.

Limitations in the methods of imparting education used during the pandemic

  1. Inadequate access to relevant training and learning resources (TLM). 
  2. Inability to afford portable technology and high-speed broadband, as well as a lack of technical knowledge among parents and students. 
  3. Except for those who did attend classes daily, the majority of students were unable to comprehend lessons and submit assignments. 
  4. Students with visual and auditory impairments identified specific problems with TLM connectivity, such as a shortage of subtitles or sign language interpreters on TV lessons for the latter. 
  5. In-person focus, social contact, and schedule were found to be more important to children with visual disabilities. Experiences largely differed depending on impairment groups and household socioeconomic context. 

Teachers, student’s encounter a variety of challenges 

  1. Teachers recorded increased non-teaching events, work instability, and concerns about utilising interactive modes of instruction to teach CWDs.
  2. Government teachers, in particular, registered an uptick in non-teaching tasks such as COVID-19 relief work. Teachers in private conventional schools did not show an uptick in non-teaching jobs at the same rate. 
  3. Teachers encountered the same challenges as students in navigating multimedia ways of learning, such as connectivity to computers and the internet, technical know-how, and the commitment and time required to navigate new modes.
  4. Digital means of communication have little space for a two-way conversation. Although several attempted to perform home visits, many were barred from entering neighbourhoods or homes for fear of catching the virus and many of those who were residing with the students as scribes left midway. 

Since the beginning of the pandemic, CSOs (Central Statistical Organisation) have confirmed a drop in and diversion of efforts and funds away from CWD education. Similarly, administration authorities indicated that schooling should not be prioritised over food and health care. Stakeholders around states raised common questions about the usability and feasibility of digital forms of education for students and teachers, as well as the need to assist disadvantaged households. 

Legal provisions safeguarding the right to education for the visually-impaired 

People with print disabilities, whether blind or visually disabled, have the same need as anyone else to have access to all types of content to be socially included. The three main drivers in social inclusion are the availability, reliability, and usefulness of information, tools and services. The following section enumerates the rights available to the above-mentioned category of people. There was a dearth of knowledge (particularly those who were unable to access the online teaching facilities due to geographical and economic constraints) that their right to an accessible education is protected under several legislations which either have been enacted by the Indian Legislature or endorsed by it. Making the respondents of the survey aware of the same rights can significantly reduce some of their financial concerns relating to access to justice. 

In furtherance of this idea, the Indian constitution prohibits prejudice against all legal citizens of India, whether they are fit or impaired in some way (physically or mentally). The deprived are granted the following human privileges and legislative guarantees under the Constitution: The preamble to the Constitution guarantees men, including the impaired, the right to justice, liberty of thinking, speech, opinion, religion, and worship, equality of rank and opportunities, and the fostering of fraternity. Furthermore, Articles 15(1), 15(2), 17,21,21A, 23, 2, 25, 29(1), 29(2), 32,41,45, and 51a(k) obligates the state to take adequate measures to ensure the right to work, education, and public assistance in cases of unemployment, old age, sickness, and disablement, as well as in other cases of undeserved want and the parent or guarantor. 

The Union Parliament of India enacted “the People with Disabilities (Equal Opportunities, Protection of Rights, and Complete Participation) Act in 1995” to remove all obstacles to disabled people’s full participation in society. The Act has anti-discrimination and affirmative action clauses, as well as provisions for disadvantaged people to have fair access to schooling and jobs. Section 26 the Act states that the central government and local governments must maintain and offer free education for all disabled children under the age of 18 in a suitable setting. Section 27 of the Act requires the government to develop non-formal education systems and programmes, as well as offer free access to special books and facilities required for the education of children with disabilities. The term “private books” refers to books that are available in convenient formats for disabled students. Section 28 states that governments must implement or prompt non-governmental organisations to initiate research to create new adaptive pieces of equipment, instructional aids, unique training resources, or other things required to provide a person with an impairment with equitable educational opportunities. 

Section 48 of the Act notes that the respective governments and local authorities shall promote and sponsor research in areas of disability rights and rehabilitation, including community-based rehabilitation; Section 49 states that the appropriate governments shall provide financial assistance to universities and other institutions of higher learning for research. 

As a result, the legislation proposes that the government can not only supply resources in usable formats to people with disabilities but rather actively participate in the advancement of technologies for converting materials into accessible formats. In particular, the Act is far more aligned with the requirement to provide disabled people with a life of integrity, safe quality of living, assistive services, and an accommodating atmosphere as a matter of right and to ensure providing an equitable opportunity to them. The primary goal of this act is to implement “the United Nations Convention on the Rights of Persons with Disabilities”. On December 13, 2006, the “United Nations General Assembly” ratified its Convention. 

The convention enumerates the following guidelines for the protection of people with disabilities: (a) “respect for inherent dignity, individual autonomy, including the freedom to make one’s own choices, and personal independence”; (b) “non-discrimination”; (c) “full and effective participation and inclusion in society”; and (d) “respect for difference and acceptance of people with disabilities as part of society”.  Since India is a signatory to this convention, having ratified it on October 1, 2007.  It considered implementing the convention in light of the enactment of “the Rights of People with Disabilities Act, 2016” which was effective on December 27, 2016. “Equality and non-discrimination [Section 3]”, “Protection and Safety [Section 8]”, “Specific measures to promote and facilitate inclusive education [Section 17]”, “Vocational training and self-employment [Section 19]”, “No discrimination in employment [Section 20]”, “Social security [Section 24]”, “Healthcare [Section 25]”, “Reservation in higher educational institutions [Section 32]” etc.

Another important legislation safeguarding the rights of children/adults with disabilities and ensuring equanimity is the Mental Healthcare Act, 1987. The Act has come into existence in tandem with India’s international obligations arising out of its signing and ratification of the Convention on Rights of Persons with Disabilities and its Optional Protocol on 1st October 2007. It seeks to replace the obsolete Mental Health Act, 1987. Such ratifications mandate the incorporation of the aims and objectives of the Convention into the domestic laws of the signing country.

Article 1 of the convention states that “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” It expressly includes mental impairments in its ambit. Also under Article 3 (h) one of its general principles embodies, “Respect for the evolving capacities of children with disabilities and respect for the rights of children with disabilities to preserve their identities.” Both the Articles read together sufficiently establish that children with mental disabilities are entitled to evolving their capacities and preserving their identities as a matter of right. This can only be possible by providing education that fits the needs of such children so as to help them evolve into individuals with a capacity to meet their own needs and become contributing agents in the society rather than individuals which are in constant need of care and protection throughout their lifetime. Section 20 which provides a Right to protection from cruel, inhuman and degrading treatment merely mentions under clause (2) (c) that the persons suffering from disabilities would have a right to have reasonable facilities for leisure, recreation, education and religious practices.

Conclusively, the “Right of Persons with Disabilities Act, 2016” and/or “the Persons with Disabilities (Equal Opportunities, Protection of Rights, and Full Participation) Act, 1995” require that “environmental barriers” to gaining information in usable format be reduced for people with disabilities. Such access is needed in today’s world to guarantee an equitable opportunity for disabled people in education and jobs.

Landmark judgements of high courts on the rights of students with visual imparity to a fair and equitable access to education

The following section of the report deliberates on some landmark judgments of High Courts across various jurisdictions expounding the rights of children with visual imparity to a fair and equitable education in light of India’s national and international obligations. 

Lalit and Others v. Govt. of NCT and another

Facts of the case

12 residents of the Andh Mahavidyalaya hostel in New Delhi filed the petition, an establishment for students suffering from visual imparity, requesting a directive to not get them suspended or evicted from the hostel. The Respondents gave eviction notices against 5 of these 12 inmates because the hostel was only for occupants up to Class VIII and the complainants had outstayed past this level. The current inhabitants were between the ages of 25 and 35. Additionally, it was contended that for the eligible younger visually disabled students there was a deficit of rooms and that the older students were bullying the younger ones. A key question before the Court concerned why the plaintiffs were required to be adjusted by the hotel because of their disabling condition, even though it created problems for other similarly disadvantaged students. 

The court focused on “Article 24 of the CRPD”, which guarantees the “right to education”, and opined the case of a disabled child residing in a government facility, there are a slew of rules directly attributable to the “fundamental rights to liberty” and “a life with dignity”. The court further opined that when the Government undertakes the operation of any academic institution aimed to serve the needs of the disabled, it must accommodate the “cascading effect” of several disadvantages that children of similar disposition might encounter. 

In the context of the current case, the court enumerated that “due to a lack of resources, all visually impaired people at the Andh Mahavidyalaya, regardless of age, cannot expect to be allowed to live there because the primary purpose should be to cater to the needs of young children studying up to class VIII”. If this important point is not considered, other eligible young students who are visually impaired will be denied their right to an education. As a result, the Respondent authorities were ordered by the court to make every attempt to ensure that all the five inmates who had been granted termination notices were housed in any of the other facilities in Delhi. Six months was additionally suggested by the court to be allowed for them to construct new plans, and that they should be provided with all the help and support in finding alternative housing. 

This case exemplifies the application of CRPD standards on fair accommodation and children’s right to education. The court was asked to strike a compromise between the two rights, which it eventually achieved by taking into consideration the degree of disability encountered by any party seeking accommodation.

Vishesh Shikshak Association of Uttar Pradesh v. State of Uttar Pradesh 

In this case, a PIL (Public Interest Litigation) was filed before the High Court of Allahabad, claiming that the pupil-teacher ratio for special teachers and children with disorders was insufficient and that the memorandum issued by the government on “the Integrated Education for Disabled Children Scheme” required an 8:1 pupil-teacher ratio. The petition also argued that the “Rehabilitation Council of India Act of 1992” placed a constitutional obligation on the state to provide students with visual and hearing disabilities with a sufficient number of teachers. 

The State’s constitutional responsibility to “provide all appropriate support and assistance to physically impaired students” was recognised by the High Court of Allahabad.

Kirtika Purohit and Anr. v. State of Maharashtra and Ors

The petitioner was a visually disabled student who wanted to register for a Bachelor of Physiotherapy program but was not allowed to do so. The plaintiffs argued that, while the position of physiotherapist was deemed appropriate for students suffering from blindness, the refusal of courses in physiotherapy for blind people violated “Section 39 of the PWD Act”, and as per “Article 24(2) of the CRPD” the defendants were required to render all alternative arrangements for the Petitioner.

It was argued by the respondents that the petitioner’s participation in the course was impractical. The court did, however, take notice of the petitioner’s emphasis on a Mumbai University directive stipulating that services be made accessible to visually disabled students for them to finish their courses. Based on these materials, the court concluded that the respondents had a hostile/discriminatory outlook toward people with disabilities and had “failed to understand the object behind the clauses of the Disabilities Act, 1995.” As a result, an interim order dated “2nd  August 2010”, ordered the “Commissioner of Disabilities” to review all the documents and provide appropriate directions to the respondents to enact necessary steps for the admission of visually impaired students. The court also opined that the tools for translating the content to braille be made available and that meanwhile, the petitioner is unofficially accepted to the curriculum, since he had already appeared for the first-semester examination and passed. 

Disabled Rights Group vs. Union of India

Disabled students pursuing higher education benefited significantly when the Supreme Court issued a series of directives requiring universities and colleges to provide disabled-friendly classroom and educational services, as well as a 5% reservation requirement for people with disabilities, as required by statute. In the case of Disabled Rights Group vs. Union of India, pleaded by advocate Rajan Mani of the Disability Law Initiative with assistance from advocate Sija Nair of “the Human Rights Law Network”, the Supreme Court (SC) directed “the University Grants Commission” (UGC) to form a committee to conduct a comprehensive examination for making provisions for inclusive academic programs and curricula Additionally, he court also directed that the UGC monitor the satisfaction of the reservation quota. 

According to the Petitioner’s attorneys, because the Disability Acts of 1995 and 2016 require universities and colleges to have usable classes and campus services, very little has been undertaken so far. There was no barrier-free campus area, which limited the accessibility of disabled students, for example. The petitioner proposed a variety of accessibility programmes to be introduced in universities and schools, ranging from appointing note-takers and scribes in the classroom for hearing and visually disabled students to allowing instructional resources accessible in alternate media such as Braille, books on cd, and the internet, with innovative computing technologies such as screen readers, and so on. The Court found the Petitioner’s recommendations to be rational and ordered the UGC to establish an Expert Committee to investigate their viability and conduct a thorough analysis before implementing initiatives for accessibility and pedagogy. Most importantly, the Court charged the Committee with investigating the possibility of establishing an in-house body in each university and college comprised of teachers, employees, parents, and students to handle the daily requirements of differently-abled people as well as the execution of the schemes to be proposed by the Committee.

Conclusion and suggestions 

The UN Special Rapporteur makes several recommendations regarding the concerns, challenges and opportunities faced by specially-abled children due to the pandemic in accessing education in a report titled “Report on the impact of the COVID-19 crisis on the right to education”. The report suggested that a comprehensive analysis should be carried out to identify the factors that contributed to an increase in educational discrimination during the crisis in each local context. It should look at how the measures taken to combat the pandemic are increasing inequalities; investigate the sustainability of economic and financial models underlying education systems, including the impact of underfunding public educational institutions; examine the role of private actors in education; assess the adequacy of social protection provided for education workers, including those in the private sector; and examine the lack of cooperation between States’ administrations, educational institutions, teachers, learners, parents and communities.

Furthermore, the Special Rapporteur emphasises that the use of online distance learning (along with radio and television) should only be viewed as a short-term solution to address a crisis. Rather than supplanting face-to-face education, the digitalization of education should be viewed as a grave threat to public education systems and the right to an education for all people. The future place of such learning must be thoroughly debated, taking into account not only possible opportunities but also the harmful effects of screens on children and youth, including their right to health and education.

This article presents practical suggestions on education access, social welfare, collaboration within government agencies, and communication between government and CSOs in the disability domain.  The guidelines could offer guidance for schools in other states in resolving problems of educational attainment for children with disabilities. As previously stated, guidelines include both urgent solutions to the COVID-19 pandemic and long-term strategies for mitigating socioeconomic vulnerabilities and integration of education. Recommendations are mainly directed at the Ministries of Education (central and state) and the Ministries of Social Justice and Empowerment (MSJE) (central and state), as well as disabilities commissioners, health and social services authorities.

  1. Determine which needs of CWDs need face-to-face contact and which may be met online without sacrificing consistency – in conjunction with parents, adolescents with developmental disorders should be given admission to special schools and recovery centres. Children with serious illnesses, low tolerance (possibly at greater risk of catching the infection and suffering more seriously from it), and children under the age of five do not return to kindergarten. 
  2. Return CWDs to schools to ensure continuous schooling and recovery (as needed) – recognise and monitor children at high risk of dropping out or who have stopped attending school since the pandemic, and reopen hostels/residential schools for older children with deaf/blindness, per the COVID-19 protocol. Additionally, highlight transportation requirements for children with limited mobility due to disabilities, ensure schools have adequate TLM that is open to children with vision and auditory impairments and build appropriate facilities to improve physical access for CWDs. 
  3. Making digital modes of teaching accessible and affordable – this includes using several methods of communication to be more diverse, responsive, and effective, featuring two-way interaction between students and teachers through home visits, follow-ups on calls or messaging apps, engaging sign language chaplains, using pre-recorded videos or television lectures, and reviewing the option of providing devices/ internet to vulnerable households where possible, among others. 
  4. Resolve the issues of CWDs’ more holistically, irrespective of the mode of instruction – which includes hiring special educators in regular classrooms and underserved areas as resource persons, reconfiguring pedagogical practises towards teaching children at their level rather than the completion of syllabus, and facilitating a comprehensive approach to a child’s education, including his/her mental socio-emotional development. 
  5. Reduce delays in accessing wellness, nutrition, and other assistance programmes, as well as early prevention. Reinforce the above-mentioned measures to assist low-income families: making sure access to healthcare for CWDs, particularly those with mobility issues or living in remote locations; setting up a database of frequently used and prescribed drugs by children with chronic ailments and guaranteeing their local stock availability.
  6. Organising virtual or on field campaigns to make the stakeholders aware of their rights under various National and International legislation (mentioned above) to free and equitable access to education.

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