The Law Flaw and Disability Delusion:

The Contemporary Concern of Inclusive Education

Ajaykumar Mahapatra
ajayayjnihh@rediffmail.com
a.j.a.y@india.com

Abstract:

This paper presents a broad view of complex legislations, statements and

conflicting understanding of disability for inclusive education. It deals with the
inherent statutory contradictions in policy initiatives and conventional approach to
interpretation and implication of inclusive education. This paper explores the
arrangements that impede rather than facilitate implementation.

The researcher tries to reveal the dualities related with the interpretation and
implementation of inclusive education policies in India. The focus is on the
contemporary practice of inclusive education launched in 2002 based on the
principles of ‘education for all’. This study explores the complexities of the policy
issues and unravels the unlawful and illogical practices that make it a unique
study for searching human right based strategies. The law making process has
to reconcile the differences between the policy streams - the educational
‘entitlement’ in mainstream schools and the educational practice for children with
disabilities.

####

Ajaykumar Mahapatra

AYJNIHH, Regional Centre,

Janla, Khurda, Odisha-752054

Mob No: 9937197357 / 9439780837

 THE LAW FLAW AND DISABILITY DELUSION:
THE CONTEMPORARY CONCERN OF INCLUSIVE EDUCATION

Ajaykumar Mahapatra
a.j.a.y@india.com

Contemporary Education in India has been constructive to create a culture with full
human rights for each and every citizen irrespective of any diversity. The powerful
cry for inclusion has been a decade long now. Across the country, it has been
generally accepted that „Inclusion‟ means inviting those who have been historically
locked out to „come in‟. This indicates a great concern in a democratic country.
“Who has the authority or right to invite others in? And how did the inviters get in?
Who is doing the excluding?” It is time, we, all recognize and accept that we are all
born in. No one has the right to invite others in. So what is inclusion? Inclusion is
recognizing our universal oneness and interdependence. Inclusion is recognizing that
we are one even though we are not the same. The act of inclusion means fighting
against exclusion and all of the social diseases exclusion gives birth to - i.e. racism,
sexism, disability etc. Fighting for inclusion also involves assuring that all support
systems are available to those who need such support. Providing and maintaining
support systems are a civic responsibility, not a favor. (Shafik Asante, 1997).

Inclusion denotes the principle of non-discrimination. Non-discrimination reflects

the idea that no one should be subjected to unfair or inappropriate treatment because
of personal characteristics that in a given context are irrelevant. This principle
constitutes a fundamental human right -the right to be free from discrimination and
is deeply rooted in contemporary international and national law (McKean 1971).
Non-discrimination law is particularly concerned with redressing structural
disadvantage and counterbalancing the underlying power inequalities in society, as a
result of which people with some personal characteristics encounter more difficulties
in enjoying equal rights and opportunities than others.
Around the world, there is a longstanding practice of excluding people with
disabilities from mainstream society and subjecting them to all forms of inhuman and
degrading treatment (Wolfensberger 1981; Degener 1995). In fact, people with
disabilities were (and still are) often perceived as social outcasts and dangers to
society. People with disabilities therefore doubtless are constituent among those
groups of non-dominant people most in need of and entitled to legal protection
against discrimination. Against this background, only a few countries have enacted
legislation that offers adequate protection against discrimination on grounds of
disability. This also holds true with respect to the United Nations (UN) Standard
Rules on the Equalization of Opportunities for People with Disabilities (Standard
Rules), by far the most important and comprehensive international instrument
guaranteeing the rights of people with disabilities. The twenty-first century seems to
become the century of legal change. Numerous international organizations and
countries have committed themselves to expanding the scope of existing non-
discrimination treaties and acts to include the ground of disability, or to introduce
comprehensive disability specific legislations.

India has seen its first Act –„Persons With Disabilities Act-1995‟ in the beginning of
1996. We were fortunate to have a second legislation-„The National Trust Act‟ in
1999 which speaks of some more persons with disabilities who had not been their
place in the PWD Act-1995. The National Policy for Persons with Disabilities, 2006
is of course a step ahead to bring equality of opportunities and protection of rights.
No doubt, these have thrown light and generated nationwide the idea that persons
with disabilities can live with others who have so called no disabilities and enjoy the
same rights as others do. The most recent was The Right To free and compulsory
Education Act-2009. All these indicate, India is growing, developing and moving
upwards. It is true that there has been a paradigm shift in legislations and
nomenclatures but not in action. We have shifted from segregation to integration and
then to inclusion. We also have recent legislation, the most important human right
based comprehensive law „Right To free and compulsory Education Act-2009.
All these Acts and Policies specifically speak about education of children and persons
with disabilities in our common neighborhood school but with ambiguity.
„Why these commitments are not always translated into concrete action with regard
to providing equal opportunity, protection of rights, full participation, non-
discrimination and typically most age appropriate quality education‟ is the question
that makes the researcher inquisitive to search for an answer.

As the question involves fundamentally the literatures with regard to the laws and
their interpretation, implementation and implications, the researcher has examined
the specific law documents pertaining to education of children and persons with
disabilities and other related research findings on inclusive education.

The Law Flaw

India had its first specific legislation for children and persons with disabilities, the
PWD ACT-1995 enforced early in 1996. This Act in its Chapter-V, states that every
child with disabilities should have access to appropriate quality education till 18 years
of age. Wherever possible, children with disabilities should be integrated with their
typically counter parts.
The Act has not defined the word „appropriate‟ clearly. So, many professionals have
been claiming special schooling as most appropriate for these children. This is a kind
of flaw in our law which does not indicate the neighborhood schools as the
appropriate one leaving itself open to many interpretations.
The National Trust Act-1999 hardly states about inclusive education, thus silently
says that children with autism, with cerebral palsy, with mental retardation or with
multiple disabilities do not have rights to attend their neighborhood school with
others including their brothers and sisters. Can this be said to be the flaw of our law?
The most recent legislation, „Right To free and compulsory Education Act (RTE)-
2009 has been implemented since April o1, 2010. The right to education will be
accorded the same legal status as the right to life as provided by Article 21A of the
Indian Constitution. It envisages that all children within 6-14 years of age must have
access to the neighborhood elementary schools.
At the same time, Sarva Shiksha Abhiyan, as the massive implementing agency has a
provision of special schooling for some children and special school as a resource
centre. Inclusive education never speaks of special schooling for a few children. Flaw
in the RTE Act is that it completely fails to acknowledge the issue of quality
education. The Act discriminates between children, as it applies the faulty concept of
neighborhood schools, does not say anything about pre-primary education for
children below the ages 6 years and does not mention learning levels of children.
Education is a fundamental right. In order for children‟s education, teachers‟
trainings are standardized and recognized by two statutory bodies viz: (the NCTE,
Government of India and RCI, New Delhi). Inclusion envisages one for all. When teachers
are prepared differently with a different set of curriculum and most dramatically, differently
trained- the so called master trainers with least access in pedagogical areas, the practice is
clearly indicative of not believing of the inherent properties of inclusion. To add a little more,
RCI demands special school as essential component of a teacher training centre which again
indirectly discriminates and do not ethically prepare the future teachers. Will it be said to be
a flaw of our law?
Dual Governance like ours is another impediment in the path of success of inclusion
as a realistic humanistic vision. Once a law has been passed that should remain
unaltered. Whereas, in our state and of course elsewhere, modifying or delaying in
the process of implementation.
The practice of Special school education does prevail even today after a long decade
of taking up of inclusive education on the same soil.
Dual enrolment of children both at special as well as inclusive school naturally
corrupts one of the parties. The dual enrolment creates multiple problems starting
from funding to wrong representations of numbers of children with disabilities in the
national report as a whole.

The Disability Delusion

Delusion means "a mistaken idea or belief". S c o t t H a m i l t o n s a y s “ The only
disability in life is a bad attitude”.
Disability is no more an individual personal characteristic. It is more a human
characteristic. It is the relation of the environment with a person in terms of support
or a barrier to make him function as per his age and sex. Disability is a life issue. And
perhaps, we all have in some way or the other, have disabilities.
Therefore labeling a few with some kind of nomenclature is just unjust. Disability
might be in some case difficult to deal with but our delusion of disability is deadly.
Inclusion pervades with diversities as real life setting representation for learning. The
diversity includes girls, minorities, multi language speaking, rich and poor and
others. Disability is a kind of diversity but has become the major focus of inclusive
education. This leads to a conceptual unclearness in our understanding of inclusive
education. The researcher has observed these phenomena as delusion among the
professionals.
Most research findings indicate that children with disabilities love to learn together
and they are better together with all others who do not have disabilities. Therefore
having the label disability in mind we create prejudices not prospects.
We all have a disability of some kind; all are lacking in one way or another. Saul has
an injury to his leg. What if his personality was deformed? How much worse if his
soul was lame? Preachers or teachers look for the good in all of us. (Bless them for
doing so.) I don't see a cripple. I haven't met anyone yet who isn't handicapped in
some way. So what's the big deal? Don't hide your deformity. Wear it like a Purple
Heart." - Georgiann Baldino

Aart C. Hendriks, DREDF, in a concluding stage, says that by suggesting that we

can do without a definition of disability if we are to introduce legislation aimed at
eliminating disability discrimination and promoting equal opportunities for people
with disabilities, although we should always remain aware of those most vulnerable
to disadvantage, exclusion and inequality as persons entitled to the highest level of
protection

"I discovered early that the hardest thing to overcome is not a physical disability but the mental condition
which it induces. The world, I found, has a way of taking a man pretty much at his own rating. If he permits
his loss to make him embarrassed and apologetic, he will draw embarrassment from others. But if he gains
his own respect, the respect of those around him comes easily." -
REFERENCES
http://www.wrightslaw.com/info/lre.incls.rsrch.whitbread.htm retrieved on 22.nd
February, 2011

Shafik Asante is a former leader of New African Voices in Philadelphia, PA. He passed on in
1997.

The wrongs in the Right to Education Bill

Renu Singh, Jul 6, 2009, 06.49am I
:http://www.brainyquote.com/quotes/keywords/disability.html#ixzz1EY6nBRcK
retrieved on 16th February,2011

The Ethics of Inclusion: Three Common Delusions

by John O'Brien, Marsha Forest, Jack Pearpoint, Shafik Asante & Judith Snow

What Does the Research Say About Inclusive Education?

by Kathleen Whitbread, Ph.D.

Alexander de Seversky

Read more: http://www.disabled-world.com/disability/disability-quotes.php#ixzz1EYB8Juqk