4 Jun 2010

State lacking in providing for disabled: High Court

Dealing with the challenge to the dispossession of over-age inmates at the blind hostel,the Delhi High Court in a recent decision ruefully noted the stark lack of facilities for the under-privileged in the country. Noting the facts relating to overstay by inmates uptil age of 25-35 years in a hostel meant for young visually challenged students in Classes I to VIII, the High Court couldn't express its resentment to the aghast shortage of infrastructure.

The High Court observed in this regard as under;
13. The above submissions have been considered by this Court. The facts narrated underscore the problem of acute shortage of decent accommodation for the economically disadvantaged disabled students in the capital city. They also are a pointer to the general problems that beset state managed institutions for social welfare. It appears that the institutions that provide shelter to the disabled are no different from other state-run quasi-penal custodial institutions like Observation Homes for children and Nari Niketans. The problems are essentially of lack of resources, trained and sensitive manpower, poor standards of hygiene, overcrowding, lack of accountability and the continued affront on the rights to life, liberty and dignity of the inmates. The decisions of the Supreme Court in B.R. Kapur v. Union of India (1989) 3 SCC 387, Rakesh Chandra Narayan v. State of Bihar 1989 Supp 1 SCC 644, Supreme Court Legal Aid Committee v. State of Madhya Pradesh (1994) 5 SCC 21 and Dr. Upendra Baxi v. Agra Protective Home (1983) 2 SCC 308, (1986) 4 SCC 106 are some instances in the past where the courts have noted with anguish the decrepit state of state-run institutions, meant for the care and protection of the socially, economically, physically and mentally disabled. This Court too repeatedly confronts these issues in its PIL jurisdiction while dealing with state-run institutions in Delhi like the Beggars‟ home at Lampur (See e.g. the order dated 15th October 2001 in M.S. Pattar v. Govt. of NCT of Delhi). The obligation of the state to protect and respect the rights to life, liberty and dignity of inmates of state-run institutions have been repeatedly emphasised in the above decisions. Therefore, while examining the problems faced by inmates of a state-run institution like the Andh Mahavidyalaya the above basic principles which are traceable to Article 21 of the Constitution require to be foregrounded.
14. In the context of the inviolable human rights of the disabled, it is necessary to take note of the binding and mandatory provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (specifically Sections 26 and 30) (`PDR Act‟) and the Convention on the Rights of Persons with Disabilities (`CRPD‟) which has been ratified by India. In particular, Article 7 which set out the obligations of the States towards children with disabilities, Article 9 which obliges the States to take appropriate measures to ensure access to “schools, housing, medical facilities”, and Article 24 which deals with the right to education are relevant. In the context of the present case, reference may be made to Article 24(2) CRPD which read as under:
“Article 24 - Education . . . .
2. In realizing this right, States Parties shall ensure that:
(a) Persons with disabilities are not excluded from the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability;
(b) Persons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live;
(c) Reasonable accommodation of the individual's requirements is provided;
(d) Persons with disabilities receive the support required, within the general education system, to facilitate their effective education;
(e) Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion.”
15. More recently in the context of the right to education we have the Right of Children to Free and Compulsory Education Act, 2009 (`RTE Act‟). The statute operationalises the constitutional mandate which obliges the state to provide free education to a child between the ages of six and fourteen. It appears that on 31st March 2010 an amendment was introduced to the RTE Act in Parliament to specifically include within its ambit a child with disability. 
16. Therefore, in the context of a disabled child housed in a state-run institution there are a cluster of laws and a bouquet of rights, all of which can be traced to the fundamental rights to liberty and life with dignity. Given the Parliamentary intent of making the right to education a fundamental right for every child between the ages of six and fourteen, which naturally therefore would include a disabled child, the primary responsibility of taking measures that preserve and protect this right is on the state. International human rights law, in the form of the International Covenant on Economic, Social and Cultural Rights would view this as an obligation of conduct of the State which cannot be avoided on the plea of lack of resources. The State will be obliged to take positive measures to enable realization of this right for those who are relatively weak and disadvantaged. In a lexical ordering of priority of rights, those that involve the weakest, socially and economically, deserve special treatment.
17. In the facts of the present case, the Andh Mahavidyalay is a state-run educational institution which also provides shelter to a doubly disadvantaged child, up to the age of fourteen. Such child combines in herself or himself a bundle of inviolable rights: as a person, as a young person, a disabled young person, a disabled young person whose right to education is guaranteed. In the context of a young person receiving education in a state-run institution as a resident scholar, the right to shelter and decent living is an inalienable facet of the right to education itself. Then we have other survival rights of such child including the right to health which is an integral part of the right to life under Article 21 of the Constitution. Therefore, when the State takes over the running of an educational institution that caters to the needs of the disabled children its constitutional and statutory obligations are manifold. It has to account for the `cascading effect‟ of multiple disadvantages that such children bear the burden of.
18. Viewed in the above background, it is clear that primary purpose of having a hostel attached to the Andh Mahavidhyalya was to ensure that visually challenged young students, up to Class VIII, are provided shelter during their stint at the school. The policy of restricting the hostel facility to children who have not yet completed Class VIII is a reasonable one considering the limited scope of availability of the fundamental right to education to the age group of six to fourteen. At a practical level also, it is understandable given the shortage of space in the hostel attached to the Andh Mahavidyalaya. If inmates, are permitted to stay on in the hostel long after completing Class VIII, then it restricts the right of access to the institution by other deserving young visually challenged students who are in need of education and shelter. There is limitation as to resources and all the visually challenged persons at present at the Andh Mahavidhyalya, irrespective of their age, cannot possibly expect to be allowed to live there irrespective of their age. The primary purpose should be to cater to the needs of young children studying up to Class VIII. If this primary object is not kept in view, then it may result in an unfair denial of the right to education of other deserving young students who are visually challenged.
19. The present case highlights the competing demands by two groups of disabled inmates of an hostel attached to an educational institution: one comprising the young children studying up to class VIII and the other comprising the older inmates who have completed Class VIII, some of them many years ago, and are still staying in the hostel for the simple reason that they have not yet been evicted. It is not possible to agree with the submissions on behalf of the five inmates who are facing eviction that only because there are others of the same age group or older who are staying on in Andh Mahavidyalya they should also be permitted to stay on. It is not desirable to have different age groups of inmates living under the same roof in a cramped space. This will not be healthy for either the body or the mind. If there are other older inmates, they too will have to make way for the younger and more deserving lot of students in need of shelter during their studying years. That cannot justify the petitioners who have been asked to be evicted staying on indefinitely.

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