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Education - a Fundamental Right of a child

 Category:Home \ Constitutional Law
 Article:

Education - a Fundamental Right of a child

Comparative Study of the provisions of The Persons with Disability Act 1995 [PWD Act] and The Constitution of India having a bearing on Education. The growth of any country is based upon the education level of its citizens. In the era of Globalization where the world is becoming very small and competition level is going high at that time to provide equal opportunity and full participation to disabled the PWD Act was enacted in the year 1995. As the Socrates says, “Equal should be treated equally and unequal unequally.” Based upon this philosophy the PWD Act provides necessary privileges to the disabled. But the questions arise,
1. Whether these privileges are in tune with the Constitution of India?
2. Whether the Constitution of India should be amended or the PWD Act 1995?

The article focuses on the above mentioned aspect.

The Preamble of the Constitution of India declares the concept of justice, equality of status and opportunity and the dignity of the individual. At the same time when we are talking about the education provisions the Constitution of India consists of following provisions which
Having a bearing on education:
- Fundamental Rights [Part III]
- Directive Principles of State Policy [Part IV]
- Fundamental Duties [Part IV A]
- Rural (Panchayati Raj) & Urban (Municipal) Local Bodies [Part IX & Part IX A]
- Scheduled & Tribal Areas [Part X]
- Centre-State Relations [Part XI]

1. Fundamental Rights
In part III of the Constitution named Fundamental Rights Articles. 13, 15, 21A, 28 and 30 have a bearing on the education. The Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth, while the most effective article in the area of education in the Constitution is
Article 21A“Right to Education”.[1] At the same time Article 28 allow attending religious activity like instructions and worshiping in certain educational Institution. Article 30 empowers minority section to establish and administer educational Institutions.

2. Directive Principles of State Policy
Part IV of the Constitution of India has some provisions which are in connection with the topic education directly or indirectly. They are as follows:
- Article 37 on application of the principles contained in this Part
- Article38 :State to secure a social order for the promotion of welfare of the people
- Article39 :Certain principles of policy to be followed by the State
- Article41 :Right to work, to education and to public assistance in certain cases
- Article45 Provision for free and compulsory education for children[2] Provision for early childhood care and education to children below the age of six years
- Article46 :Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections
- Article47 :Duty of the State to raise the level of nutrition and the standard of living and to improve public health

3. Fundamental Duties
Article 51 A states the fundamental duties of the states which also have some or the other way significance on the education.

4. The Panchayats & The Municipalities
In this part Article243B - Constitution of Panchayats, Article243G - Powers, authority and responsibilities of Panchayat[3], Article243Q - Constitution of Municipalities, Article243W- Powers, authority and responsibilities of Municipalities, etc[4]. Basically in this part the above mentioned articles empower local authorities to make schemes for increasing the education level among the people of their jurisdiction.

5. The Scheduled and Tribal Areas
In this part the Article 244 which talks about administration of Scheduled Areas and Tribal Areas[5] which also have provisions as to the Administration and Control of Scheduled Areas and Scheduled Tribes[6]. They also have provisions as to the administration of tribal areas in the States of Assam, Meghalaya, Tripura and Mizoram. This part has basically the power of administration in which indirectly the education factor has been cover.

6. Relations between the Union and the States
Basically in this part, Article246 and Article 254 say that the laws made by parliament and laws made by the legislatures of states should have inconsistency with each other.

The Persons with Disability Act 1995 also have chapter V which talks about the education but there are some other provisions which also have some relevance with education they all are as follows:
- Sec. 25 : Appropriate Governments and local authorities to take certain steps for the prevention of occurrence of disabilities
- Sec 26. Appropriate Governments and local authorities to provide children with disabilities, free education, etc
- Sec 27. Appropriate Governments and local authorities to make schemes and programmers for non-formal education, etc
- Sec.28. Research for designing and developing new assistive devices, teaching aids, etc.
- Sec 29. Appropriate Governments to set up teachers' training institutions to develop trained manpower for schools for children with disabilities
- Sec 30. Appropriate Governments to prepare a comprehensive education scheme providing for transport facilities, supply of books, etc
- Sec 31. Educational institutions to provide amanuensis to students with visual handicap
- Sec. 39 All educational institutions to reserve seats for persons with disabilities
- Sec.51 : No person to establish or maintain an institution for persons with disabilities except in accordance with a certificate of registration

Comparison of the Provisions of PWDA 1995 & Constitution of India

Section 25: Appropriate Governments and local authorities to take certain steps for the prevention of occurrence of disabilities[7]
This section is really very important because it talks about prevention. For the very first time the concept of prevention has been mentioned in the whole section & also for the very first time legal attention has been made to social awareness & communication. It explains the programs and different scheme which can be helpful for the prevention of such disabilities. The constitution does not have any direct provisions in relation to the prevention of the disabilities. But after this section the changes has came. Parliament has also accepted the concept of social awareness.

Section 26: Appropriate Governments and local authorities to provide children with disabilities, free education, etc[8]
In Sec. 26 (a) access to free education has been enhanced for the children till he attains the age of eighteen years but as far as this limit in the constitution is concern, it is for till the age of fourteen only. But if we concern about the overall growth of the disables then the secondary education should be included and this age limit should be enhanced till eighteen years. But in the case State of Bihar V. Project Uchhca Vidya Sikshak Sangh[9] SC held that setting up of high Schools is not a constitutional function, education is a part of Human Development. The 86thAmendment Act, 2002 has added a new Article 21 A: Right to education a fundamental right. The best part of the constitution is that the right guaranteed in Article21 is available to ‘citizens’ as well as ‘non-citizens’. Sec. 26 (b) & Sec. 26 (c) has been specially enacted so that disabled children from any part of the country can have the access to free education in both ways:

(i) by normal schools as mentioned under Sec. 26 (b) and
(ii) By special schools under government and private sector.

In the case of Ganapathi National Middle School v. M. Durai Kannan[10] SC observed that Right to education is fundamental right of every child. The above both the provisions can be compared with the Article15 & Article 19 of the constitution respectively. They are also in tune with the Article 15(3). Sec 26 (d) also provides the vocational courses. It was observed in the case of Social Jurist vs. Union of India and others[11] that a disabled child has the fundamental right to have access to free education in an appropriate environment till he attains the age of 18 years as guaranteed to his under Articles 21 and 45 of the Constitution of India. And it was also been held that, “it is the legal duty of the government to provide free educational facilities till the age of 18 years.[12]”

Section 27: Appropriate Governments and local authorities to make schemes and programs for non-formal education, etc[13]

This provision of the PWD Act 1995 is based on the Constitution. Article 243 Q gives power to the panchayat to make schemes for-
(a) The preparation of plans for economic development and social justice,
(b) The implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule.

In Sec. 27of PWD Act 1995 has rightly interpreted the provisions of Article243Q. It has observed the enhanced meaning of the provision and mentioned the way in which the schemes can be made for creating social justice. Here the education has become the weapon to create social justice. In the sub (a) provides an option for the necessary persons as mentioned in the clause of this act. Sub clause (b) of the sec.27 provides special part time classes for providing functional literacy for children in the age of sixteen and above but in the constitution it is not clarified but indirectly it has been permitted in Article243Q. It was observed in the case of Bennet Coleman & Co. v. Union of India[14] that under Article41, the state has a duty to take effective steps to educate the people within the limits of its available economic resources, including political education. In short the Sec. 27 with sub clauses covers all the aspect related to maximum accessibility of education for disabled. It covers non- formal education under Sec. 27 (c) which has already been covered in the National policy for education 1986 (as modified in 1992).To inculcate the interest in education among the disabled sec. 27 (e) provides the option of interactive electronic or other media classes.

Section 28: Research for designing and developing new assistive devices, teaching aids, etc. states: “The appropriate Governments shall initiate or cause to be initiated research by official and non- governmental agencies for the purpose of designing and developing new assistive devices, teaching aids, special teaching materials or such other items as are necessary to give a child with disability equal opportunities in education”.

Generally to create social justice and equality in the society the “Equal should be treated equally and unequal unequally.” But as far as the education is concern to provide equal opportunities to physically and / mentally challenged children the Sec.28 has been enacted. According to Art 15 (3) special provisions or schemes can be enacted for children & women who also include the disabled children.

Section 29: Appropriate Governments to set up teachers' training institutions to develop trained manpower for schools for children with disabilities: The appropriate Governments shall set up adequate number of teachers' training institutions and assist the national institutes and other voluntary organizations to develop teachers' training programs specializing in disabilities so that requisite trained manpower is available for special schools and integrated schools for children with disabilities.

Sec. 29 works to maintain dignity and quality of education among disabled.

It talks about teachers’ training by number of teacher’s training institutions but at the same time the notifications under which the provision should be fulfilled is not mentioned or disclosed under the same provision. So it should be suggested that the method or scheme under which this can be started should come in to picture by notifications or other forms.

Section 30: Appropriate Governments to prepare a comprehensive education scheme providing for transport facilities, supply of books, etc[15]

Sec. 30 mentions the different dimensions and areas which are necessary to provide healthy atmosphere to the needy people. It gives certain privileges to the disabled to provide them equal starting point from where they can take part in the process of individual and all over growth in the area of education. But at the same time there has been a failure on the part of the government to prepare a comprehensive education scheme in terms of Section 30 of PWD Act, 1995. Depending upon the same issue the case- Social Jurist vs. Union of India and others[16] is pending in the Delhi High Court.

Section 31: Educational institutions to provide amanuensis to students with visual handicap states “All educational institutions shall provide or cause to be provided amanuensis to blind students and students with or low vision.”

The aim and object of the PWD Act says that it is there to provide equal opportunity, full participation and protection of rights.

Section 39: All educational institutions to reserve seats for persons with disabilities further states “All Government educational institutions and other educational institutions receiving and from the Government, shall reserve not less than three percent seats for persons with disabilities.”

In the employment provisions it has been said that there is a provision of three percent reservation in the every education institution which comes under the category of this sec. In All Kerala Parents Association Vs. state of Kerala [17]case it was held that, “ Sec.39 deals with the reservation of seats for persons with disabilities in Government educational institutions as well as educational institutions receiving aid from the Government, and necessarily therefore the provisions thereof must be complied with.” This section was interpreted widely in the case of Dr Raman Khanna vs. University of Delhi[18] as follows: “the law does not state that the 3% reservation has 1% allocated to each of the 3 sub groups of disabilities. Since the law mandates a 3% reservation, the MCI cannot lower the quantum of reservation. Thus, it has to offer this 3% reservation to the category it allows, namely, physical or locomotors handicaps”.

Section 51: No person to establish or maintain an institution for persons with disabilities except in accordance with a certificate of registration[19]

To control the exploitation of the disabled on the name of help such restrictions are needed. That has been clarified under this sec. This has power to inquire about the organization because under this act the certificate is needed. The Constitution also has the same powers & significance indirectly.

Conclusion:
All and above the main area for consideration is that, In the Constitution of India there are provisions having a bearing on education for SCs, STs, OBCs, Weaker Section of the society, Socially, economically and educationally backward classes and minorities. Like….

- ARTICLE 30 : Right of minorities to establish and administer educational institutions

- ARTICLE 46: Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections but the disabled have no such articles in Constitution like the above both…More over they are not part of weaker section or minority so they cannot get the power as mentioned in the above two articles.

For Minority, According to the case Bal Patil & Anr. .V. Union of India & Ors…[20] “Minority as understood from constitutional scheme signifies an identifiable group of people or community who were seen as deserving protection from likely deprivation of their religious, cultural and educational rights by other communities who happen to be in majority and likely to gain political power in a democratic form of Government based on election”. The above definition does not include Disabled and Weaker Section also does not include disabled. The problem is that, even though SC & HC orders and / judgments many a times do not go in favor of disabled because it has no strong base for interpretation in the Constitution of India as the SCs & STs have. As far as the implementation part is concern it is a common problem for every law and its provisions.
--------------------------------------------------------------------------------
[1] Inserted by the 86th amendment, December, 2002
[2] Amended Text as per the 86th Amendment of December, 2002
[3] Inserted by the Eleventh schedule
[4] Added by the Twelfth Schedule
[5] Inserted by Fifth Schedule
[6] Inserted by Sixth Schedule
[7] Refer Persons with Disability Act, 1995, Section: 25
[8] Refer Persons with Disability Act, 1995, Section: 26
[9] (2006) 2 SCC 545, 567
[10] AIR 1996 SC 2803
[11] C.M.6736/2000 in C.W. 3956 of 2000 (Delhi HC),
[12] As per the Sec.26 of the PWD Act 1995
[13] Refer Persons with Disability Act, 1995, Section 27
[14] AIR 1973SC 106
[15] Refer Persons with Disability Act, 1995, Section 30
[16] C.W. 1342/2003 (Delhi H. C.)
[17] 2003(2)WLN692
[18] 2003 V AD (Delhi) 343
[19] Refer Persons with Disability Act, 1995; Section 51
[20] 2005 (6) SCC 690

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Authors contact info - articles The  author can be reached at: jagruti@legalserviceindia.com

 Added Date:27 Feb 2009
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About the Author: Jagruti Dekavadiya
2nd year student of B.A.LL.B. (Hons.), Nirma University Institute of Law

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