[eebill] FW: SJ article on education Bill 2005

From: "Social Jurist" <[email protected]>

Subject: article on education Bill 2005 for publication, circulation,debate and comments
Date: Sun, 6 Nov 2005 18:43:14 +0530




In December 2002, Article 21-A has been incorporated in the Constitution of India, which says "21-A. Right to Education-The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine." By the Constitution (Forty-second Amendment) Act, 1976, the subject "Education" was brought in the concurrent list from the State list. However, there is no Central Legislation so far on the subject of education particularly in relation to elementary education. A follow up legislation in terms of Article 21-A is a necessity.

As a step in the direction of the follow up legislation, the Central Govt. sometime in July-August, 2003 prepared the first draft of the "Free and Compulsory Education Bill" and the same was placed on the HRD website. The said Bill was widely criticized for being anti-child and lacking in its objectivity and thereafter, on 10th December 2003, the Central Govt. came up with 2nd Draft of the "Free and Compulsory Education Bill". This 2nd draft Bill was again widely criticized for the same reasons and thereafter, on 8th January 2004, the Central Govt. came up with a 3rd draft of the "Free and Compulsory Education Bill".

With the change of Govt. at the Centre, the UPA Government reconstituted the Central Advisory Board of Education (CABE). The CABE in its meeting on 10/11 August 2004 decided to set up as many as seven committees to deal with different issues relating to education. One such committee was on the subject of "Free and Compulsory Education Bill and other issues related to Elementary Education" under the Chairmanship of Sh. Kapil Sibal, MOS Science and Technology. The said Committee has now come up with a draft of Right to Education Bill, 2005 and the same has also been posted on the HRD website for public comments. This Bill is expected to come up in the winter session of the Parliament.

On examination of this draft Bill, it has been found that barring few provisions like neighborhood school, prohibition of screening procedure, school management committee, certification of completion of elementary education and prohibition of physical punishment, the rest of the provisions are either far from the objectives underlying the Bill or intent to legalize the commercialization of education and exploitation of students/parents by the private schools. The government's approach behind this and the earlier draft Bills is more or less the same.

Let us look at some of the provisions of this draft Bill.

(1) "Capitation fee" as defined in Section 2 (e) means any fee, donation or contribution other than a fee or any payment that an aided/unaided school publicly notifies at the time of announcement for admission as being payable by all children in the event of admission to the school. The Section 15 prohibits capitation fees. By reading Section 2 (e) with Section 15, it is clear that these provisions give a free hand to the private schools to commercialize the education and to exploit the innocent parents who are sending their children in these schools. These provisions legalize the fee structure decided by the school, how so ever arbitrary and unjustified it may be, if the same is publicly notified at the time of announcement for admission. There is nothing in the Bill as to what would be the criteria and method of determining the fee structure and how the same could be regulated. The powers and obligations of the State to check commercialization of education by these private schools are totally missing. It all goes against the law laid down by the Supreme Court in Modern School case (2004) 4 SCC 583. The Bill has attempted to undo the law laid down in the above case.

It is submitted that if one goes as per the letters and spirit of Article 21-A, every school, whether private or government, is constitutionally obliged to provide free and compulsory elementary education to every child. This argument is buttressed by the submission that a recognized private school stands on the legal pillars like, community service, philanthropic activity, public good, no commercialization and no profit and therefore, such school could and should not have any objection to provide free and compulsory elementary education to the children in the same manner as government school is obliged to provide. The Bill ought to have been drafted in the manner that could have achieved this objective. Has it been done, it would lead to establish Common School System (CSS), which has been recommended by the Kothari Commission (1964-66) and envisaged in National Policy on Education, 1968, 1986 and 1992 and would also be in tune of constitutional goals of social, political and economic justice to the people. It is the time for the government to rise to the occasion and to act firmly so to do justice to the vast majority of people who are hitherto completely deprived of the same.

(2) "Specified Category" in relation to State schools as defined in S 2 (nn) means the State schools known at the commencement of this Act as Kendriya Vidyalayas, Navodaya Vidayalayas, and Sainik Schools and such other categories of State schools having a distinct character as may be specified by notification by the appropriate Government, for the purposes of this Act. In terms of the Section 14, such State schools of specified categories shall not be obliged to provide free and compulsory elementary education to children. These schools, as in the case of unaided schools, however, would be required to admit children, to at least 25% to class I, from among children belonging to weaker sections and for the continued education of such children in the school thereafter till completion of elementary education or till they seek transfer from the school, which ever is earlier.

This provision is totally arbitrary and unconstitutional. The government through these provisions has conferred upon it the power to declare any category of State schools as "specified schools", meaning thereby, that more and more State schools can deny free and compulsory education to children. How a State school can be exempted from providing free and compulsory education to any child? The State schools cannot be legally sub- divided for the purposes of providing right to free and compulsory elementary education to children. It would be absolutely arbitrary and impermissible classification of State schools and would be hit by Articles 14 (right to equality) and 21(right to life) and 21-A (right to education) of the Constitution. Is it not the mockery of the Constitution? If it were accepted, where the child would go for education? It is an exclusion clause rather than an inclusion clause. If State itself starts behaving like it, it would be the end of everything. Moreover, if one believes on what is written in the Section 14, a child taking admission in such schools under 25% quota would not be entitled to continue in the such school after completion of elementary education, even if, such school is up to senior secondary class and the child wished to study up to sr. secondary class in the same school. If it were allowed to happen, would it not lead to trauma for these children as well as their parents?

(3) Section 3 - Child's Right to Free and Compulsory Education of Equitable Quality

It is submitted that there is nothing like " child's right" in this entire provision. On the other hand, ways and means to deny admission to child are writ large. In terms of Section 3 (1), any child with disability can be legally denied admission in a neighborhood school on the alleged ground that he is suffering from severe or profound disability. Does such approach not violate the fundamental and human right of every child with disability to education in the mainstream school?

In terms of the provision, any child not having proof of residence can be legally denied admission in a neighborhood school. The burden of proof of residence lies on the parent/guardian. Is every parent/guardian capable to discharge this burden of proof? The destitute child who does not have parent/guardian will have no scope to get admission in school because in case of destitute child, there is no question of existence of proof of residence. Similarly, crores of children of migratory labour would also meet the same fate. It is submitted that, even if, the residence is the criteria for admission in a neighborhood school, it must be the duty of every school to admit the child first, without questioning anything, and only thereafter, if required, it should again be the duty of the school admitting the child to find out the appropriate neighborhood school for him and then transfer him to that school. In other words, admission of child in a neighborhood school must be the sole responsibility of the school and the same cannot, in any manner, be shifted to the parent/guardian of that child. This provision is more in a nature of exclusion than that of inclusion. Though the concept of neighborhood school sounds well and needs to be effectively enforced but the provisions in the present form really negates this concept.

Sub-Sections (2) and (3) of Section 3 talks of enrolling child who is in the age group 7-9 years within one year and in the age group 9-14 years within three years. It is submitted that these periods of one year and three years really make the mockery of the provision. Firstly, in case of a child of 9 years, it is not clear, which period will apply? This itself gives leverage in the hands of a school, to deny admission to him at least for the next three years. Secondly, in case of a child of 14 years, if he was not admitted immediately, he would become 15 years next year and then, he would be told that he was no longer a "child" within the meaning of the Act and was not entitled to admission as a matter of right. If the analogy of this three years period as contemplated in the provision is applied, all the children who are in the age group 12-14 years at the commencement of the Act could be conveniently denied elementary education all the time to come. These time periods, in any way, could be abused to deny admission to a mass of the children in age group 7-14 years. This is not the objective of the Act.

Sub-Section (4) of Section 3 provides that a child who, though enrolled is not able to participate in elementary education, shall, in addition to the right specified in sub clause (1), have the right to be provided with suitable conditions, as may be decided by appropriate government, to enable her participation. Is it possible for a child in need of residential school or day boarding school or in need of any other thing to approach the appropriate government and wait for their decision? Is it appropriate to leave these things to be decided by the appropriate government only? Why can't it be decided by the Head of the school or at the most, at the level of the School Management Committee who are near to the child and are in the best position to understand his need/needs? The provision is only providing lip service.

Sub-Section (5) of Section 3 provides that no child shall be held back or expelled from school until she completes elementary education, except through an order of the School Management Committee, and in the event of an SMC passing an order, it shall be required to bring such order to the notice of the appropriate government, which will then give directions regarding other neighborhood schools to which the expelled child shall be admitted for purposes of her further education. What is logic behind sending the expelled child to another school? What is the logic behind expelling child at all? It is submitted that Rule 37 of Delhi School Education Rules, 1973 allows disciplinary measures like, fine, expulsion or rustication only in case the students who have attained the age of fourteen years. It is totally unjustified to even think of expelling a child from the school before he completes elementary education. The government by such provision is only abdicating its constitutional obligations to provide free and compulsory elementary education to every child.

(4) Section 5 - General Responsibility of State

Section 5 (ii) states that it shall be the responsibility of the State to ensure that every child is provided free education in the school provided that parents/guardians who choose to admit their children to non-free quota in a school shall not have any claim on the State for providing free education to their children. Firstly, the words, "general responsibility" used in Section 5 are inappropriate, as these do not create justiciable right in favor of child. It is required to be replaced by the words, "mandatory obligations".

Secondly, the provisions of Section 5 (ii) are arbitrary, discriminatory, unconstitutional and hit by the provisions of Article 14 and 21, 21-A of the Constitution. It overlooks the fact these Articles of the Constitution mandate the State to provide free and compulsory education to every child without exception. If it so, then how the State can legitimately deny claim of parents/guardians for providing free education to their children merely because of the fact that they did not choose to admit their children to non-free quota in a school? It also overlooks the fact that the right of every child to receive free and compulsory education in terms of Article 21-A is an independent right of every child and that does not, in any manner, depends on the economic status of its parents/guardians. The provisions of Section 5 (ii) are totally unwarranted and required to be deleted.

(5) Section 7- Provision of Facilities of Pre-School Education

Firstly, it is not mandatory and in no manner creates a justiciable right in favour of child to receive pre-school education. It is interesting to note that the Bill does not recognize a child as "child for purpose of this Act" if he is below six years or above fourteen years of age. This provision has been incorporated more as a matter of policy than that of law. Secondly, it assumes that ICDS or any other government programme is a substitute for pre-school education, which is not factually correct. The government is not justified in providing pre-school education to few and to deny the same to the others. In order to achieve the goal of UEE, it is a must that every child is provided pre-school education as a matter of right. It is submitted that the provision for pre-school education as a matter of right of every child is a pre-condition to effectuate the right to elementary education. Thirdly, ICDS, if it is available, must be merged in pre-school education in the school. Fourthly, the pre-school education must be in the school and not outside of the school. It is submitted that the government has acted totally against the interests of the children, when it did not include the children of age group 0-6 years in Article 21-A of the Constitution.

(6) Section 12 - Responsibility of Local Authorities

In clause (iv) of sub-section (1) of Section 12, the Local Authority is supposed to ensure sustained education of children of migrant families through special steps, including bridge courses, remedial teaching, and such other interventions as may be required. It is submitted that this provision of the Bill gives an impression that regular schools are not suitable for the children of migrant families and therefore, they should be provided with facilities like bridge courses etc. The government has miserably failed to address the educational rights of the children of migrant families.

(7) Section 14 - Responsibility of Schools to provide Free and Compulsory Education

The following are the characteristics of this provision: -

A. Specified schools and unaided schools have been placed at par so far as the obligations under this Act are concerned. It is totally unconstitutional to take away some State schools out of State schools and classify them as 'specified schools' and allow them to abdicate obligations to provide free and compulsory education to the children. It goes against the basic constitutional philosophy of social justice.

B. The provisions for providing admission to the children of weaker sections to the extent of 25% by the unaided schools in class I or in pre-primary section for which the government will reimburse the expenditure to the school at a rate equal to the per child expenditure in State school/fully aided schools and State funded pre-schools, or the actual amount charged per student by such school, whichever is less, though sounds well in principle but a farce in reality. That such children of the weaker sections, in terms of these provisions, would be entitled to continue their education in these unaided schools only till completion of elementary education or till they seek transfer from the school, whichever is earlier. Has the government ever thought of what would happen to the studies of these children on completion of elementary education? Would they be entitled to continue their studies for higher classes in the same school? These children would be thrown out of the school on completion of elementary education and would not be entitled to continue in the same school, even when the school is up to class 12 and the child wished to study up to class 12. Would such situation not lead to trauma for such children and their parents/guardians? It is submitted that no child would dare to take advantage of the provision, if he is not assured by law that he would be allowed to continue his studies up to the upper most class, which is available in the school. The social objective behind the provision is undoubtedly laudable, and therefore, the government must ensure that all possible mischief is appropriately dealt with in the provision.

C. There is another aspect of this provision also. The unaided schools which are charging fee per student less than what is the expenditure per student in their counter part State school shall immediately increase their fee per student in order to ensure that they must get reimbursement from the government at the rate not less than that of per child expenditure in State schools. Who will suffer? The innocent students/parents who are already victim of commercialization of education would suffer further. Is the State not an accomplice to perpetuate commercialization of education? It is needless to say that the education is the only sector in our country where commercialization of the same is constitutionally prohibited and the State is obliged to check it.

(8) Section 17 - Recognition of Schools

The provision empowers the competent authority to withdraw the recognition of a school other than a State school for breach of conditions and that while passing an order withdrawing recognition, the competent authority shall also give direction regarding other neighborhood schools to which children studying in the de-recognized school shall be admitted for purposes of their education. Firstly, the Section does not contain the provision for taking over of the schools though such provision exists in the prevailing State Legislations. Secondly, the most fundamental question arises is: why a recognized school is at all allowed to be closed down? The Hon'ble Delhi High Court in case of Delhi Abibhavak Mahasangh AIR 1999 Delhi 124 observed, "There has to be an element of public benefit or philanthropy in the running of the schools. The schools are to be run for public good and not for private gain. The object has to be service to Society and not to earn profit. The public benefit and not private or benefit to a favoured section of Society has to be the aim". These are the pre legal conditions of a recognized school. The closing down of a school, unless such school is not needed for the education of the children, would be opposed to the public policy and detrimental to the public interest. A recognized school is a public property in law and no one except the community is empowered to take decision about its continuance or closure. Therefore, no school, after its commencement and recognition, should be allowed to be closed down provided that the competent authority is of the opinion that such school is not needed for the education of the children.

(9) Section 20 - Prohibition of Deployment of Teachers for Non-educational Purpose

It provides that no teacher of a State or fully aided school shall be deployed for any non-educational purpose except for decennial population census, election to local authorities, State Legislatures and Parliament, and disaster relief duties. The objective of this Bill is to ensure free and compulsory quality elementary education to all the children of this country. By deploying the teachers for non-educational purposes, even the routine education of the students is bound to be adversely affected and what to talk of quality education. That most of the State schools are already suffering from the shortage of teachers, absence of teacher as well as teachers not taking interest in the education of the children. The State schools, by and large, are failing in both retaining the exiting students and enrolling out of school children. This provision in the present form will only work against the objective of the Bill. The Hon'ble Delhi High Court has repeatedly held that teachers of State schools cannot be deployed for any non-educational purposes at the cost of the education of the students. This provision in the present form takes away such rights of the children, which they have secured through Court Orders.

(10) Section 24 - Teachers Vacancies in State Schools and Fully aided Schools Not to Exceed 10 % Of Total Strength

This provision is unjust and makes the mockery of the entire exercise of framing a legislation to provide free and compulsory quality elementary education to every child. It virtually gives a license to the State to perpetuate teachers' shortage in school. One can understand the provision for having some percentage of surplus teachers to take care of the education of the children when regular teachers go on leave, but it is absolutely inappropriate, unjust and unconstitutional to enact a provision permitted the appointing authority to have, at least, shortage of teachers to the extent of 10% of the total sanctioned posts of teachers. This provision goes against the objectives of Article 21-A of the Constitution. The Hon'ble Delhi High Court by orders have directed the Government of Delhi to ensure that there must be zero teacher vacancy at the beginning of each academic year so that the education of the students should not suffer. It appears that the government is more concerned to cover up its own failures rather than remedying the same. The regulations are required and made to enforce the rights but here, it is otherwise. This is most unfortunate. The provision, therefore, requires to be modified accordingly.

(11) Section 33 - National Commission for Elementary Education

Sections 19 and 33 to 45 are concerned with the constitution, functions and powers etc. of the National Commission for Elementary Education (NCEE). It needs to be noted that the government has already moved a Bill in the Parliament for constitution of National Commission for Children (NCC). Though it is too early to comment upon the NCC but one thing is clear that the NCEE as contemplated in the Bill is totally toothless and very weak body having no power to take any action against the State on its failure to perform its duties assigned to it by the Bill. The NCEE is totally devoid of powers in granting any relief to the aggrieved citizen, student or parent against the State. The multiple bodies will only do more harm than furthering the cause of the children. It is submitted that the NCEE is neither required nor desirable. Instead thereof, some judicial forum ought to have been created empowering it to pass appropriate orders and directions and to enforce them. The body should be such that could be easily accessible to an ordinary citizen of this country. Any forum other than a judicial one would be unworkable. We are faced with a situation where the State is totally insensitive to the educational rights and other rights of the children. That all the District Judges of the country could be authorized by law to act as a judicial forum to deal with the complaints relating to violation of provisions of the Act.

(12) Section 46 - Redressal of Grievances Regarding Non-Implementation of School-related Provisions of this Act, Section 47- State-Level Regulatory Authority

These Sections provide for three-tier machinery for redressal of the grievances. The provisions give tiresome and ineffective mechanism. This mechanism is there to frustrate the complaint and harass the complainant. It is also there to hamper the move of a complainant to approach directly the Court of Law. The provisions are silent as to what is the mechanism available to a complainant, if these authorities do not act within the stipulated time. In fact, we need a quick remedial mechanism. We do not need so many authorities and so much time to have to take an effective decision in the nature of complaints that may be arising out of the provisions of the Act. A complaint relating to violation of child's right to education is not adversarial in nature, and, therefore, it needs most immediate attention and quick solution. As submitted above, the appropriate provisions may be enacted empowering all the District Judges in the country to take cognizance of violations of right to education without there being a need of a formal complaint, and to issue appropriate directions and orders and non-compliance of the directions and orders should be viewed seriously and should entail both civil and criminal liability.

(13) Section 48 - Ensuring Participation in Elementary Education

This provision says that no person shall prevent a child from participating in elementary education provided that notwithstanding anything contained in the Child Labour (Prohibition and Regulation) Act, 1986, no person shall employ or otherwise engage a child in a manner that renders her a working child. That Section 2 (tt) defines "working child" means a child who: (i) works for wages, whether in cash or in kind, or (ii) works for her own family in a manner, which prevents her from participation in elementary education.

This provision takes us nowhere. That similar provisions exist in all most all the existing compulsory education laws in various States and Union Territories started with Delhi Primary Education Act, 1960. The experience of last 45 years tells us that such a provision has never resulted in bringing the mass of working children with in the folds of formal school system. The situation has rather gone from bad to worse. The Article 21-A mandates State to provide free and compulsory elementary education to every child between six and fourteen years of age. It has been universally accepted that both compulsory education and child labour cannot go together. One has to give way to another. Therefore, the child labour has to go completely to give way to compulsory education. The prevailing practice of child labour is unconstitutional and is squarely hit by Articles 14, 21 and 21-A of the Constitution. Unfortunately, the existing legislations relating to child labour, instead of completely banning the child labour in all its forms perpetuate the child labour. You cannot address the constitutional educational rights of 10 crores out of school children without completely prohibiting the child labour in all its forms. It is very much required that the government must show its will to bring a clear cut provision in this Bill, thereby prohibiting completely the child labour in all its forms and violations thereof must be viewed very seriously. It is both the objective and the mandate of Article 21-A.

(14) Section 49 - Entry Age for Elementary Education and Procedure for Computing Age of a child

This provision does not address the problem of a destitute child who may not at all be in the position to produce any type proof of his age as required. Therefore, the provision needs to be modified accordingly.

(15). Section 50 - Responsibility of Parent/Guardian

This provision says the if a parent/guardian persistently defaults in discharge of his responsibility to enroll his child in a school and to facilitate her completion of elementary education, SMC may direct such parent/guardian to perform compulsory community services by way of child care in the school.

This provision is pernicious in nature. It is based totally on misconceived and irrelevant premise that parents do not wish to send their children to school and the State is innocent. It provides punishment for the poor and marginalized parents only and no punishment for the mighty State. The scheme of the Bill grants complete immunity to the State from any penalty or punishment in any nature. The State has very cleverly attempted to shift its own responsibility on the innocent parents. Article 21-A mandates State to provide education to the children and the "parent" does not figure therein. Moreover, the words, " free" and "compulsory" education used in Article 21-A also refer to the State and to none else. Therefore, this provision is hit by Article 21-A.

. Moreover, it is also in breach of the pious statement of the then Hon'ble Union Education Minister on behalf of the government during the debate on 86th Constitutional Amendment Bill in the Parliament that no parent would be punished in the process of enforcement of the right to free and compulsory education. This provision needs to be deleted completely. It is totally ironical that the poor and innocent parents who are not sure of earning even two times meal a day are being asked to face punishment on the pretext that they are responsible for children not going to school.

(16) Section 51 - Penalty for contravention of Sections 15, 17 and 48

The provision does not at all provide any penalty against the State in the event of State's failure to discharge its constitutional and statutory obligations as contemplated under various provisions of the Bill. It only penalizes the innocent citizens for the faults of the State. Moreover, the power to make complaint completely rests with the State. This provision is a farce and mockery of the Constitution. The requirement was to empower the people to prosecute the State and not the other way round.

In the conclusion, it is said that the Bill in its present form is completely lacking in its vision and objectives. It does not address the educational rights of 10 crore out of school children who are engaged in one or the other work and are child labour. The objective of Article 21-A is that all out of school children must be in school and all the children must receive quality elementary education. It is not at all possible without prohibiting completely the child labour in all its forms. No attempt has at all been made to completely ban the child labour in all its forms. On the other hand, the Bill permits the child labour to perpetuate and grow further. It also does not address the educational rights of children with disabilities and other children of weaker sections of society. It attempted at furthering the cause of the private schools at the cost of government school system. It tends to legalize commercializing of education and exploitation of innocent citizens by the private schools. The provision of providing admission to children of weaker sections under 25% quota, in the present form, would only lead to trauma for such children as well as to their parents. It has also attempted at punishing the parents and granting absolute immunity to the State. Law needs to empower citizens to prosecute the State for its failure to implement the right to education, but unfortunately, it has attempted otherwise. It empowers the State to prosecute the innocent citizens for its own criminal negligence. The Bill in its present form, if legislated, would do more harm than to serve the interest of children for whom it is enacted. Therefore, the Bill in its present form needs to be rejected by the people. It needs to be modified urgently. This article is a contribution to the ongoing debate on the Bill all over the country.

(Ashok Agarwal is a lawyer and civil rights activist and can be contacted at [email protected])

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