Two progressive judgments on disability rights have been recently delivered by Justice A.K. Sikri of the Supreme Court of India, which may help the disabled gain better access to educational facilities.
Justice Sikri who is known to be an ardent champion of equal rights for persons with disabilities at the Supreme Court, had previously ruled in the 2016 Jeeja Ghosh case, where he condemned an airline service for de-boarding a passenger with cerebral palsy, a violation of the law and had lamented the “gap between the laws and reality” .
His latest judgments also reinforce the fact that merely enacting laws that empower marginalised communities is not enough as effective implementation and tackling of attitudinal barriers of society is essential for real change .
- The Disability Rights Group & Anr vs. Union of India case
Initially, this case was limited to law schools, but recognising the importance of the issues at hand, Justice Sikri exercised his judicial discretion and has extended the decision to all educational institutions.
In its judgement, the court has ordered all higher educational institutions that come under Section 32 of the Rights of Persons with Disabilities Act, 2016 (RPWD Act) to comply with the provisions listed under it while admitting students each year.
Section 32 of the RPWD Act mandates that all governmental institutions of higher education as well as those receiving aid from the government must reserve not less than 5% of the seats for people having benchmark disabilities.
Currently, the reality is far different today as even established and reputed institutions are failing to implement these provisions .
The petitioner in the Shamnad Basheer v Union of India case currently pending before the Supreme Court, has highlighted that not even one seat was reserved for persons with disabilities by certain national law universities.
In order to ensure that the reservation does not remain limited to paper, the court has directed all institutions to submit a list containing the number of disabled persons that are admitted each year to the chief commissioner for persons with disabilities or to the state commissioner. The court has also clearly stated that it was the duty of the chief commissioner or the state commissioner to establish if educational institutions are fulfilling their obligation with regard to the reservation requirement.
- The Rajive Raturi vs. Union of India
Under this particular case, the court has addressed the accessibility requirements of persons with visual disabilities in regards to safe access to roads and transport facilities.
The judgement in this case directs the University Grants Commission (UGC) to set up a committee for considering the feasibility of the ‘Guidelines for Accessibility for Students with Disabilities in Universities/Colleges’ which has been developed and submitted by the petitioner.
Under the guidelines exhaustive recommendations have been provided that require inclusive infrastructure to be offered in schools/colleges and also changes to the teaching and examination structure in such schools/colleges.
The UGC has been asked to complete and submit an accessibility report and study in a time bound manner .
This direction may be a welcome relief for the disabled given that a 2016 audit found that not even one public building is currently accessible.
Justice Sikri referred to Martha Nussbaum’s rights-based model of development and capabilities in his judgement, noting that in order to ensure a level playing field, it was not only important to provide necessary education to the persons suffering from disabilities, but also “that such education is imparted to them in a fruitful manner.”
He noted that this can be achieved only with “proper accessibility to the buildings where the educational institution is housed as well as to other facilities” within the said buildings.
Measures To Adopt The Social Model Of Disability
The RPWD Act was brought into effect to implement the United Nations Convention on the Rights of Persons with Disabilities, which seeks to change attitudes and approaches towards persons with disabilities.
Current measures seek to move away from “the charity model of disability” which views people with disabilities as welfare recipients towards a “social model of disability”, where the focus shifts to addressing the social construct of society including attitudinal and physical barriers that prevent a person with a disability from leading a meaningful life.
While the RPWD Act attempts to do this, judgments like Justice Sikri’s help fleshing its provisions out in full.
In his judgement, the judge noted that impairment can be “a normal part of the human condition, with everyone experiencing impairment differently and having different access needs.” He further pointed out that Disabled people experience “unnecessary barriers created by society within their daily life”, which can be eliminated with “proper facilities” for differently-abled persons while seeking higher education.
With this ruling recognising persons with disabilities as individuals with rights equal to their able bodied counterparts the doors to inclusive education has been opened up.