Pramod Arora v. Lt. Governor of Delhi and Ors.

1. In this public interest litigation, preferred under Article 226 of the Constitution of India, the petitioner claims directions to the 2014:DHC:1887-DB W.P.(C) 1225/2014 Page 2 respondents, i.e. the Govt. of NCT of Delhi (“GNCT”) and the Union of India (“UOI”) with respect to admission of children with disabilities (hereafter “children with special needs” [“CWSN”]). The reliefs claimed include a direction to quash the amendment to Section 2(d) of the Right to Education Act, 2009 (“RTE Act”) brought into force through the amendment of 2012, and also for a direction to quash paragraph 14(b) of Order no. F/DE/15/1031/ACT/2013/12795-12809 issued by the Lt. Governor of Delhi on 18th December, 2013.

2. The petitioner is parent of a child with special needs. He states that he got his ward admitted with great difficulty in a school in Delhi in 2013. The child could not progress and was neglected on account of lack of proper attention and infrastructure. He claims to be deeply concerned about welfare of such CWSN and that parents of several such children have been in touch with him since they have been placed at a disadvantage in more ways than one with the advent of the amendment to the RTE in 2012, especially the impugned order of 18th December 2013. It is stated that several letters and communications were addressed to the respondents but have yielded no response. The petition alleged that in their anxiety to ensure free education available to the largest possible numbers, the needs of CWSN who have to face multiple disadvantages have been overlooked, thus marginalizing them completely. The impugned order, it is stated, clubbed the CWSN with those children belonging to “economically weaker sections” and “disadvantaged group” as defined under the RTE Act (“EWS” and “DG”) for the purpose of admission to pre-primary and other classes W.P.(C) 1225/2014 Page 3 governed by the Delhi School Education Act, 1973 and Rules framed under it. The petitioner highlights that the number of schools/institutions equipped with infrastructure and personnel to handle CWSN is very few and further, that the nature of the guidelines is such that those children have very little chances of getting admission in these institutions.

3. The petitioner relies upon the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act 1995 (“PWD Act”), especially the definitions provided in that enactment and Section 26 to say that the respondents are bound to provide access to free education in an appropriate environment to CWSN and also to permit the integration of CWSN. It is stated that an overall reading of the PWD Act clarifies that the Parliament intended that there should be a concerted effort to ensure that CWSN are enrolled in appropriate schools till they successively complete their education. Stressing upon the need to have an inclusive educational set-up in the entire country, it is submitted that this is sought to be achieved through provisions like Section 26, which were preserved in the RTE Act as originally enacted. It is submitted that the amendment of Section 2(d) of the RTE, enlarging the definition of “child belonging to disadvantaged group” to include CWSN has led to diminishing the already slim chances of the latter and a complete negation of the rights guaranteed under Section 26 of the PWD Act. It is argued that the 2012 amendment, even while seemingly protecting the rights of the CWSN through Section 3(3) in fact places them at a W.P.(C) 1225/2014 Page 4 disadvantage and at a worse position than they were before. Thus, argues the petitioner, the protection accorded by the enlarged definition of “children with disabilities” under the newly introduced Section 2(ee) is completely undercut by equating such children with those in disadvantaged groups. In other words, the net result would be that children with disabilities would have to compete for the same rights in respect of 25% quota earmarked under Section 12 (l) of the RTE Act by virtue of Section 2(d) in the Government, aided and unaided schools.

4. It is submitted that the RTE Act prior to the 2012 Amendment recognized the two distinct disadvantaged groups, i.e. child belonging to disadvantaged group (Section 2(d)) and children with disabilities (the proviso to Section 3(2) read with Section 3(1)) and protected the interests of the latter, by ensuring that the rights under the PWD Act were undisturbed. However, the impugned amendment to Section 2(d) forced an equation of the two groups (a) without any rational or reasonable basis and (b) which limited the otherwise broad-natured nature of rights given to CWSN.

5. Learned counsel submitted that Section 39 of the PWD Act mandates that all State, Central, and government aided or funded educational institutions ensure admission in respect of at least 3% of their intake in favour of CWSN. Section 26 universalized the rights of CWSN by directing the State to grant them access to free education. This right is special, and not subject to the limited regime under Section 39 – which applies to State institutions or establishments. W.P.(C) 1225/2014 Page 5 Counsel highlighted that the situation which existed between 2009 and 2012 enabled even unaided schools to admit into a certain percentage of their seats, CWSN who could be given attention, having regard to the nature and type of facilities and special educators in given schools/institution. The equation of EWS/DG with CWSN on the one hand, and the consequences of paragraph 14(b) of the LG’s order on the other, deprive and even destroy these distinct rights.

6. Arguing that CWSN are distinctly recognized under the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (hereafter referred to as the “1999 Act”) (and the newly amended Section 2(ee) of the RTE Act), learned counsel submitted that their vulnerabilities are such that unless a separate regime is protected and assiduously enlarged, these distinct groups will never achieve the full extent of their rights. Learned counsel highlighted the lack of adequate initiative by the State and submitted that as long as this class of children are permitted full and meaningful access to education, their quality of life and citizenship rights would be hollow. It was also argued that this group or section of children are most often neglected and overlooked because of their invisibility, and that such children are the highest group of school dropouts.

7. Further, it is urged that some CWSN at an advanced or severe stage cannot be integrated into mainstream education as they have to be sent to special schools. However, schools leverage this to say that the child is not competent to clear his/her curricula thus attempting to W.P.(C) 1225/2014 Page 6 wean them out prematurely even though the PWD Act clearly guarantees CWSN the right to an education till the age of eighteen years. The petitioner also states that there are other disabilities like dyslexia, dysgraphia, attention deficit hyperactivity disorder which can only be identified in children of age 6-8 years who are part of mainstream education and do not show positive signs of cognitive stimulus. It is argued that these disabilities need to be seen in an inclusive light and the schools must cater to children with all such disabilities, rather than concentrating one particular disability to one particular school or sowing the seeds of discrimination under the garb of discretion. Practically as well, this would seem unworkable as the concentration of schools in Delhi would suggest that such children would have to travel far and beyond if this division of schools on basis of disability is made.

8. The petitioner submits that all schools must therefore provide for CWSN, as the right to inclusive education is a right guaranteed to them under the PWD Act and according to the UN Convention on the Rights of Persons with Disabilities. In that vein, it is urged that all schools must keep 3% seats for CWSN and also at the same time upgrade their infrastructure and preparedness to handle such children. The UN Convention guarantees to them non-discrimination on the basis of their disability. Moreover, learned counsel urges that the Constitution also guarantees to the citizens of India non-discrimination and ensures equality to all. W.P.(C) 1225/2014 Page 7

9. It is submitted that in the LG’s order dated 27th November 2007, which was in force and implemented by GNCT prior to the order of 18th December, 2013 by Clause 14, used to provide discretion to the schools to adopt criteria on the basis of which students would be admitted to schools. Consequently, schools were making provision to admit children with disabilities by allocating 5-10 points or by reserving 3-5% seats for CWSN. Annexure B of the writ petition provides details on the arrangements of 43 such unaided schools. However, the LG’s order of 2013 altered this regime altogether. Clause 14 presently reads: “14(a) xxx xxxxxx xxxxxx 14(b) The total number of seats for admission to a class at entry level (below six years of age) of the school shall be divided into four parts: (i) 25% seats for Economically Weaker section and disadvantaged group as defined under the Right to Education Act, 2009 (except for minority schools. (ii) 05% seats as Staff Quota: for the wards of the staff/employees of the school. The unfilled seats of the staff quota shall spill over to open seats. (iii) 05% girl’s quota for co-ed schools: The seats for 5% girl’s quota shall be filled through draw of lots out of all the registered girl applicants residing within 6 k.m. radius. The remaining applicants shall be considered for admission as per the parameters/criteria and points for open seats.

(iv) Open seats: The remaining seats which are not covered under above three categories. The admission to open seats shall be made only on the W.P.(C) 1225/2014 Page 8 basis of fixed parameters and points as prescribed hereunder

┌───────────────────────────────────────────────────────────────────────┐
│          hereunder                                                    │
│           Sl no.    Parameters/Criteria              Points           │
├───────────────────────────────────────────────────────────────────────┤
│           1         Neighbourhood up to 6 km         70               │
│           2         Sibling studying in school       20               │
│           3         Parent Alumni of school          05               │
│           4.        Inter-State Transfer case        05               │
│                     TOTAL                            100              │
│          In case seats remain vacant/unfilled, same shall be filled   │
│          by draw of lots. The schools are not allowed to fix          │
│          additional points other than the points specified above.”    │
└───────────────────────────────────────────────────────────────────────┘

54. This clearly demonstrates that the representation of CWSN, in relation to the total number of children at the primary level, is much lower than their representation in the population. This indicates that for every disabled child in school, there are many almost twice the number who are not enrolled. The problem becomes even more revealing if we look at statistics for the number of children enrolled in Government aided or owned institutions compared with the capacity of these school to admit CWSN. This is reflected in the following chart: Data of Disabled Children Enrolled for the session 2013-14 Management Visually Impairment (Blindness) Visually (Low-Vision) Hearing Speech Locomotor Mental Retardation Learning Cerebral Palsy Autism Multiple All Class Class Class Class Class Class Class Class Class Class Class PP 1 PP 1 P P 1 PP 1 PP 1 PP 1 PP 1 PP 1 PP 1 PP 1 PP 1 DoE 0 3 6 26 3 16 6 3 10 23 3 23 2 8 0 3 0 2 1 8 31 115 DoE Aided 5 34 10 19 7 40 0 4 0 3 0 1 0 1 0 0 0 1 0 1 89 104 DoE Unaided 7 5 48 59 6 51 47 19 27 20 144 24 51 97 20 8 65 22 51 38 525 343 MCD 1 26 8 68 4 29 11 59 19 120 4 89 11 70 1 9 1 1 3 71 63 542 MCD Aided 0 0 0 0 0 0 0 0 0 0 0 2 0 0 0 0 0 0 0 0 0 2 MCD Unaided 0 0 5 11 1 1 0 0 0 2 4 3 0 6 0 3 0 0 2 1 12 27 NDMC 0 0 1 0 0 0 0 3 0 1 0 1 0 3 0 0 0 1 0 1 1 10 NDMC Aided 0 0 0 0 0 1 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 2 NDMC Unaided 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 DCB 0 0 0 0 0 0 0 0 0 0 0 1 0 0 0 0 0 0 0 0 0 1 Total 82 261 285 153 222 299 249 44 93 177 Stated Capacity 33 170 90 - 126 56 - 38 65 78 W.P.(C) 1225/2014 Page 48

56. The number of children enrolled with State owned or aided schools is presented in the second law column of the above chart, and the last column records the total number of seats available in those institutions, i.e. the capacity of those institutions for those specific disabilities. As a consistent trend, the number of children enrolled in these schools is much more than the number of seats available to cater to CWSN. In order for the education of CWSN to be effective, rather than merely counting attendance, the infrastructure and facilities in these schools must match-up to their intake. Clearly, that is not the case, even by the figures provided by the GNCT itself. The quality of education provided to these children comes into doubt, and absent any clear reporting mechanism, the issue is plunged into further darkness. This is keeping aside the fact that even considering the number of students enrolled (on paper), a majority are still excluded and are not enrolled even on paper.

57. The magnitude of the challenge becomes clear from these figures. Not only are our public institutions unable to cater to CWSN because of lack of adequate infrastructure, but moreover, there remains incoherence in the reporting itself. Despite the clear mandate of Section 26, not only can it not be said that all CWSN have access to education, but rather, a majority of CWSN are not in school, and even this fact cannot be attributed to exact figures, given the absence of a comprehensive and accurate reporting mechanism. The entire challenge is thus relegated to the background, without any attempt to W.P.(C) 1225/2014 Page 49 measure the statistics comprehensively, in order to pave the path forward.

58. The reading of Section 26, PWD Act and Section 3, RTE Act, preferred by the Court above must therefore be considered in the context of the facts and figures. The Court emphasises however that the content of the right does not depend upon the number of CWSN in Delhi. Every child – irrespective of numbers – is entitled to an education. The law exists to protect and empower all, whether a majority or minority, and indeed, in such cases, where the constituency being affected is routinely unable to voice its opinion, greater emphasis must be laid on ensuring that the State fulfils its mandate. Simply discussing the content of the right, divorced from the statistical background, however, would render the right ineffective, and one that exists only on paper. The mechanism through which this right is to be brought to fruition must consider the prevailing reality, and the facts and figures.