What was the issue before the Court?
Writ Petition (Civil) 1225/2014 before the Delhi High Court
The Petitioner, Pramod Arora, who is a parent of a child with disability, filed a Public Interest Litigation in order to seek the Court’s powers in quashing or removing the amendment to the Right to Education Act in 2012, mandating the provision of free and compulsory education to children with disabilities in neighbourhood schools. His contentions were:
(i) The Persons with Disabilities Act, in Section 26, speaks about free and compulsory education to children with disabilities till the age of 18. The Act also talks about 3% reservation in Institutions for Education of Persons with Disabilities.
Therefore, there must be such admission reservations for children with disabilities. Under the RTE, children with disabilities were clubbed along with children of ‘disadvantaged group’ and ‘economically weaker sections’ and because of their unique requirements, they would never get admission under the 25% of reserved seats. In a lottery system for admission of these children, children with disabilities may be severely underrepresented. Therefore, The Right to Education Act was hampering the wider rights under the Persons with Disabilities Act.
(ii) Secondly, under the Right to Education Act and the rules framed by the NCT of Delhi, admission criteria gave high weightage to the distance from the school to the home of the child. A child with disability may not stay close to a school providing the accessibility requirements that they need. If they would apply to a school that had these requirements but was far away, they would lose points on account of the distance factor. Therefore, the ‘neighbourhood’ criteria was discriminatory to children with disabilities.
What did the Court rule?
(i) The right to free, compulsory education to children with disabilities guaranteed by Section 26 of the Persons with Disabilities Act is in no manner affected or diluted by the Right to Education Act. The State has to necessarily ensure the admission of all children with ‘special needs’ and to thereby give full and meaningful effect to the Persons with Disabilities Act. The provision regarding 3% reservation applies to higher education (because it uses the term ‘persons’ and not ‘children’)
(ii) To ensure adequate representation of all sections of society who fall under the category of disadvantaged groups and weaker sections, the State should ensure proportional representation of various groups
(iii) It would be violating the Persons with Disabilities Act if the ‘neighbourhood’ criteria was used in relation to admission criteria of children with disabilities. Therefore, the State Government should look at the criteria in place and make sufficient amendments to ensure there was no discrimination against children with disabilities
The Court further directed that the Department of Education make special provisions for admission of children with disabilities as children with special needs:
(i) Create a zone-wise list of all public and private educational institutions that are able to accommodate children with disabilities. The list will also mention the impairments the institutions are able to cater to, the facilities available, whether residential or day-boarding, and the contact details for the concerned authority
(ii) Create a Nodal Agency, under the authority of the Department of Education (for the processing of all applications pertaining to the admission of children with disabilities
(a) This Agency shall create a single form to be utilized by parents and guardians of children with disabilities for admission into public and private institutions, including all relevant details required for the purpose of admission
(b) Such forms shall be submitted to the Nodal Agency, which shall prescribe regulations for such process, and be forwarded to the concerned institutions
(c) Communication of decisions on admissions shall be done through the Nodal Agency. Schools could appoint liason officers to work with the Agency to smoothen the process
(d) The Nodal Agency shall keep a record of all applicants and institutions, and collate statistics at the end of every admissions cycle. This shall include figures as to the number of applicants, the nature of their disability, place of residence (zone-wise); and to the number of institutions, their location (zone-wise), the nature of disabilities they cater to and the number of available seats. Drop out statistics shall be collected and cases investigated by the Nodal agency and efforts made to seek readmission
(e) The Nodal Agency shall also prescribe a uniform mechanism and guidelines for the certification of children with disabilities by authorized persons
(f) The Nodal Agency shall also provide appropriate counseling facilities for parents and guardians, if requested by them
(g) Likewise, the Nodal Agency shall put in place a complaints mechanism and a mobile helpline to provide assistance
(iii) If, at any point during the admissions cycle, any child is unable to be placed in a school catering to his or her special needs, the Chief Commissioner of Persons with Disabilities and the Principal Secretary, Directorate of Education shall be informed in order to ensure that the mandate under Section 26 to place the child is fulfilled.
What have been the developments since then?
The Nodal Agency of the Department of Education maintains a zone-wise list of schools and the impairments they could accommodate. This list is available here.
Applications can be made to any school that accommodates an applicant’s impairments and requirements for the school to be in the neighbourhood area (as per the recognized schools admission procedure for pre-primary class as amended) will be relaxed accordingly by the Nodal Agency.
A common form for admission of Children with Disabilities is notified and available here to be submitted to the schools as well as to the Nodal Agency wherein the applicant can mention upto five schools of their choice.
Justice Rajiv Endlaw, in Ramesh Negi’s case (see below) mentioned the new form, but also mentioned that the order/circulars issued in furtherance of the Order are:
“…misleading. It appears that there is no proper system in place for the respondent DoE to forward the centralized applications forms to the schools having facilities for CWSN. It is suggested that respondent DoE, required to be submitted with it, if for the following academic year unable to devise a foolproof system therefore, ought to clarify that the parents in addition to filing an application with the respondent DoE are also required to approach the schools directly for admission.”