Analysis of Existing Laws
7.8 million children today suffer from disabilities. However, half this population is deprived of access to education and other facilities despite the various enactments seeking to ensure their protection and upliftment. The reasons for the same being the lack of awareness regarding their rights and entitlements, lack of access to grievance redressal mechanisms, and lack of a coordinated implementation mechanism amongst others. This article seeks to briefly analyse the rights and provisions guaranteed to children of special needs in India.
“Governments everywhere can no longer overlook the hundreds of millions of people with disabilities who are denied access to health, rehabilitation, support, education, and employment—and never get the chance to shine.”Stephen Hawking
Constituting 2.21% of the population, persons with special needs constitute a significant section of the Indian population.8 million children with disabilities exist in the age group of 0-19 within the country. Thus, they form 29.3 percent of the total population with disabilities. About 70,000 children of special needs (1.3%) under 14 years of age are married, divorced, widowed, or separated. 4% of the total population of children of special needs under 14 (2,28,000 children) are working.
The National Policy for Persons with Disabilities (2006) recognises persons with disabilities as valuable human resources of the country and seeks to provide equal opportunities and protect their rights. India has adopted several policies and laws to ensure that the children of special needs are treated equal and exposed to equal opportunities as any other child in the country. A methodology of targeted intervention has been adopted by the Indian government for the upliftment of people in a disadvantaged position. Focused initiatives for the welfare of the disabled are necessary in this era of inclusive development.
Right to Education of Children of Special Needs
According to UNESCO, 75% of the children of special needs in India, do not attend schools. 27% have never attended any educational institution. The number of girls of special needs attending schools being fewer than boys. This percentage of enrolment has significantly dropped with each successive level of schooling.
To integrate the physically and mentally challenged in society as equals, the government in 1974 introduced the Integrated Education for Disabled Children scheme (IEDC). This scheme sought to ensure the reader’s facility for the visually impaired, transport facility, uniform, stationery, books, instructional material, special teacher facilities, hostel facilities, assistive equipment and removal of all kinds of architectural barriers. The scheme was thus instrumental in integrating the education of children of special needs with that of the mainstream population.
Other legal policies include the Rehabilitation Council of India Act 1992 which provided standards for rehabilitation professionals, including special education teachers. The National Policy on Education 1986 and the Programme of Action 1992 were implemented to ensure the integration of children with special needs with other children. In 1999, the government enacted the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation, and Multiple Disabilities Actto ensure economic rehabilitation of people with disabilities. SarvaShikshaAbhiyan (SSA) was launched to provide for a ‘zero rejection policy’ which provides for quality education to every child irrespective of their mental or physical state. SSA aimed to universalise elementary education.
In 2001, the Supreme Court gave directions to “universalise” IEDC and make eight food-related schemes into legal entitlements, the children of special needs remain excluded from such schemes. An example of the same is the mid-day meal scheme which has not been extended to children enrolled in special schools. The only “universalistion” that has happened is in nurseries or anganwadis, wherein surveys are conducted to refer children of special needs to the nearest Primary Health Care Centres.
The Indian Disability Act, 1995 guarantees to children of special needs the right to education till the age of eighteen, in special schools. The necessary infrastructural and vocational training is to be provided by the government under this Act. Further, the Act also provides for the right of parents of children of special needs to approachan appropriate Court to redress their grievances concerning their children.
The Right to Education Act, 2009 mandated enrolment of children of special needs. Later, the Rights of Persons with Disabilities Act, enacted in 2016 gave statutory backing to inclusive education. However, the lack of clarity regarding the definition of “inclusive education” and other inconsistencies among the legislations has caused multiple challenges for its implementation.
Despite reforms, schemes, and programs implemented by successive governments, significant gaps remain. The parents of children of special needs are left with very few choices of school options for their children. There exists no specific standard method for the identification of children with disabilities. The teachers and special educators with proper training are few and hence are often overworked, receive low salaries, and are not provided any job benefits.
Children of Special Needs and the Indian Laws
- The Juvenile Justice (Care and Protection of Children) Act which was amended in 2006, recognises children with disabilities without a family as needing care and protection. However, there is nothing in the Act acknowledging the support and reasonable accommodation or the evolving capacities of the child which ought to be addressed for such children of special needs to be able to participate in legal proceedings or for their care and protection.
- Child Welfare Committees, child-lines, child protection societies, adoption agencies have been established to aid children. However, none of these facilities are capable of handling nor have they been given the necessary training to respond to children of special needs.
- The Integrated Child Protection Scheme has been developed to aid children of special needs. However, it covers their needs and protection only in the context of institutionalisation.
- The Guidelines for Adoption provide for the transfer of children of special needs who do not get adopted to specialised institutions. The living conditions in such facilities are appalling and the children are subject to gross human rights violations and abuse.
International law and Children of special needs
Children of special needs are protected under the UN Convention on the Rights of Persons with Disabilities (CRPWD) as well as the Convention on the Rights of the Child (CRC). Article 25 of the UN Declaration of Human Rights (UDHR) and the 1993 UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities (Standard Rules) also address the rights of children with disabilities.
Article 2.1 of the CRC prohibits discrimination on the ground of disability while Article 23 provides for the right to special care, education, and training for children of special needs. The CRC broadly follows four general principles for the protection and upliftment of children of special needs:
- Survival and development
- The best interest of the child
- Respect for the views of the child
The CRPWD, adopted in 2006 is a powerful initiative to safeguard and promote the human rights of all children of special needs. The Convention has adopted a broad categorization of persons with disabilities and seeks to protect the human rights and fundamental freedoms of persons with all kinds of disabilities. Article 24 of this Convention provides for the educational rights of children of special needs. Further, Article 7 of the Convention affirms the fundamental right of children of special needs to the entire range of human rights available to all children. The UN Standard Rules provide a detailed guideline on policy development and implementation for protecting the rights of the disabled. 
According to a report prepared by the Human Rights Watch, it was discovered that many children of special needs residing in special homes are subject to verbal and physical abuse. Human Rights Watch also reported instances of 11 disabled girls being subject to Electroconvulsive Therapy (ECT). The psychiatric departments which are entrusted with the duty of protecting these children have shown to exhibit no concern for the wishes of the child nor has monitored the evolving capabilities of those children. Further, it has also been found that families often keep such children of special needs in the custody of an institution, chained or even locked at home and are at heightened risk of sexual violence. Such actions fall short of India’s obligations under the UN Convention on the Rights of the Child.
The Government must take steps to bring about clarity regarding definitions of terms such as ‘inclusive education,’ ‘special schools’ and ‘home-based education’ in the Right to Education Act in line with the Right of Persons with Disabilities Act. Further, a special educator must be treated at par with the category of teachers as under the RTE Act, and their conditions of service and pay scale must be modified. It is necessary that we officially recognise the category of disabled persons in the Constitution, to prevent discrimination against them.
India ratified the UN Convention on Rights of Persons with Disabilities on 11 December 1992.But little has been done to protect the rights of the disabled in accordance with this Convention.Despite recommendations by the Human Rights Commission, India has failed to adopt a policy of non-discrimination against the disabled.
These children of special needs must be treated as equals in India. The government must collect qualitative and quantitative data to ensure the inclusion of such children and the proper implementation of various schemes.
“Each girl and boy is born free and equal in dignity and rights; therefore, all forms of discrimination affecting children must end.”
- Convention on the Rights of Persons with Disabilities
 Section 9, Point 5 of Guidelines for Adoption http://www.wbja.nic.in/wbja_adm/files/Cara_Guidelines.pdf