Right to Education for Children with Special Needs

As a parent, you’d be happy to know that the government has provided certain special provisions for the education of your child. To begin with, the Right of Children to Free and Compulsory Education Act, 2009 provides all children between the ages of 6 and 14 the right to free and compulsory education in a neighbourhood school. Thanks to the intervention by the disability sector in 2012, this Act now also provides the same right to children with special needs and disabilities.
Exercising this right means access to free textbooks, uniforms, writing material as well as special learning and support material for children with disabilities. They can exercise this right anytime from class 1 to class 8. And like any other fundamental right in the country, every child in this age group can exercise his/her right, irrespective of caste, socio-economic background, geography, language or gender.

Which disabilities are covered under the Act?

Children falling under these three categories have the right to free and compulsory education in a neighbourhood school as per law:

  1. Children who are blind, have low vision, are leprosy-cured, are hearing impaired, have locomotor disability, have mental retardation, or have mental illness (Section 2 (i) of the Persons with Disabilities Act, 1995)
  2. Children with any of the conditions relating to autism, cerebral palsy, mental retardation or a combination of any two or more of such conditions and includes a person suffering from severe multiple disability (Section 2 (j) of the National Trust Act, 1999);
  3. Children with severe disabilities, that is eighty percent or more of one or more multiple disabilities (Section 2 (o) of the National Trust Act, 1999)

As of today, specific learning disabilities including ADHD are not recognized under this Act. The enactment of the Rights of Persons with Disabilities Act would be a step forward but things may still not change until there is a certification process to identify these disabilities under the rules of the Act. It is not uncommon to see children certified to have mental retardation or mental illness for the purpose of seeking accommodations under the Laws but this is not a recommended strategy.

 What is your child entitled to under the Act?

  1. In 2011, the Delhi Government included ‘children with special needs’ and ‘suffering from disability’ (as defined under the Persons with Disabilities Act, 1995) in the Delhi School Education (Free seats for Students belonging to Economically Weaker Sections and Disadvantaged Group) Order 2011. This makes them fall under the category of children from ‘disadvantaged groups’ and entitles them to be included in the 25% of seats reserved for children from disadvantaged groups in certain schools.
  2. These children can also be admitted through regular intake in all schools under the Act and are entitled to protections such as:
    • Prohibition of holding back and expulsion till class VIII
    • Prohibition of physical punishment and mental harassment
    • Prohibition of payment of capitation fees and facing screening procedures
  3. The Delhi High Court passed a ruling in 2012 directing all recognized aided and unaided private schools in Delhi to appoint special educators and to make the school premises barrier free within a period of two years. If there were already children with disabilities studying in these schools, these measures had to be undertaken immediately. If not, the school may be derecognized
  4. Children with severe disabilities also have the right to home-based education. Home-based education requires a special educator to visit the child’s home to teach them. It is important to note that these students do not have to mandatorily opt for home-based education. But by and large, home-based education has not been successfully administered under the RTE

 Where can your child avail these rights?
Children can exercise these rights under neighbourhood schools defined as:

  • For children in classes I to V, neighbourhood schools are those that are established as far as possible, but within a radius of one kilometre from the child’s house
  • For children in classes VI to VIII, neighbourhood schools are the ones established as far as possible but within a radius of three kilometres from the child’s house
  • Though the Act mandates a school mapping exercise to be carried out to in order to identify schools which would be ‘neighbourhood schools’, it appears to not have been done
  • For ‘open’ admissions also, since other considerations have been barred by the Act, there is a specified criteria under the Recognized Schools (Admission procedure for pre-primary class) Orders (as amended) which allocate 70 out of 100 points to students who live within a 8 km radius of the school

But not every neighbourhood school is the same
Not every neighbourhood school is obliged to provide free and compulsory elementary education to all children who study there. For instance, schools imparting religious instruction do not come under this Act. Also, not all provisions of the Act apply to all other schools either. How far a school will go to honour the provisions of this Act depends on the aid that that school receives from the government or a local authority. You can find the list of aided schools and government schools online.

For instance:

  1. If a school is established, owned or controlled by the government or a local authority (Section 2 (n) (i)), the school has to provide the following:
    1. Give free and compulsory education to all elementary school students and pre-school students (where services provided) and,
    2. In case a child is in a school without provisions for completion of elementary education, they can seek a transfer into such schools for completion of elementary education
  2. If it’s an aided school receiving aid or grants to meet whole or part of its expenses from the Government or the local authority (Section 2 (n) (ii)), it has to provide:
    1. Free and compulsory education only to a proportion of children admitted (including in pre-school, if services are provided) – the proportion depends on the amount of aid received from the Government (subject to a minimum of 25%) and,
    2. In case a child is in a school without provisions for completion of elementary education, they can seek a transfer into such schools for completion of elementary education
  3. If it’s an unaided school not receiving any kind of aid or grants to meet its expenses from the government or the local authority or a school belonging to specified category e.g. Rajkiya Pratibha Vikas Vidyalayas, Kendriya Vidyalayas, Navodaya Vidyalayas, Sainik Schools, then the school only has to provide:

Free and compulsory education only to 25% of the strength of Class I for children belonging to weaker section and disadvantaged groups in the neighbourhood and pre-school students (where services provided)

4. Educational institutions primarily imparting religious instruction e.g. Vedic Pathshalas, Madarsas are not mandated to provide any benefits.

 So what can you do when your child’s right is infringed?
There have been several attempts by parents of children with disabilities to ensure the realization of rights of their precious ones. One successful effort was made by Pramod Arora who challenged an amendment to the Right to Education Act. His efforts succeeded in getting special procedures for the admission of Children with Special Needs. This included the appointment of a Nodal Agency under the Department of Education to supervise all admissions of these children.
While all schools – including private unaided schools – are to make their campuses barrier free and appoint special educators, the Court mandated that the Nodal Agency of the Department of Education maintain a zone wise list of schools and the impairments the schools could accommodate.

The Act, in general, provides for different forums to approach in case of infringement of rights as follows:

Act/Omission Forum and Action
School demanding or receiving capitation fees (Section 13) School can be fined which may extend to ten times the capitation fee charged *
School subjecting child to screening procedure (Section 13) School can be fined to twenty five thousand rupees for the first contravention and fifty thousand rupees for each subsequent contraventions *
Running school without certification of recognition (Section 18) Fine which may extend to one lakh rupees and in case of continuing contraventions, to a fine of ten thousand rupees for each day during which such contravention continues *
Continuing running school after certification of recognition is withdrawn (Section 19) Fine to one lakh rupees and in case of continuing contraventions, to a fine of ten thousand rupees for each day during which such contravention continues *
Subjecting child to mental or physical harassment (Section 17) Teacher will be subject to disciplinary action under service rules
Failure of Teachers to perform duties under the Act (Section 24) Teacher will be subject to disciplinary action under service rules
Other grievances pertaining to rights of the child in education (Section 32) First complaint should be made to the District Deputy Directors of Education, Directorate of Education, Govt. of NCT, Delhi (details can be found here)

If you are unsatisfied with the result, you can approach the State Commission for Protection of Child Rights

Sanction for prosecution to be given by the official under whose jurisdiction the school lies –
Director of Education, Government of NCT of Delhi, Director (Education), Municipal Corporation of Delhi, Director (Education) New Delhi Municipal Council, Chief Executive Officer, Delhi Cantonment Board, District Deputy Directors of Education, Directorate of Education, GNCTD

What’s the application process for these schools?
Admission applications can be made to any school that accommodates an applicant’s impairments and in such a case, the requirements for the school to be in the neighbouring area will be relaxed accordingly by the Nodal Agency.
common form for admission of Children with Disabilities is to be submitted to the schools as well as to the Nodal Agency wherein the applicant can mention up to five schools of their choice. The form should be submitted to the schools that the applicant has shortlisted as well as to the Department of Education.