(UTF Founder General Secretary Appari Venkataswamy Memorial Lecture 3.4.2011)
Good news is that 2011 census show an increase in literacy rate, but nation is still to worry as 81 lakh of its future generation are out of school. Releasing the achievements in the first year of implementation of The Right of Children to Free and Compulsory Education Act, 2009, Human Resource Development Minister Kapil Sibal said 81 lakh children out of school was a matter of great concern.
The Children Rights and You, CRY reported that 17282 eligible habitations in India India
Translating a directive principle of state policy (Article 45) into a fundamental right (Article 21A) and then to statutory guarantee to right to education (RTE Act 2009) took, unfortunately, several decades. Provision of free and compulsory education to all children until they complete the age of 14 years is mandated under Article 45, a Directive Principle of State policy of the Constitution. In the endeavor to increase enrolment and achieve Universal Elementary Education UEE, the state governments have abolished tuition fees in Government schools run by local bodies and private aided institutions. Right to education is not stated expressly as a fundamental right in Part III. Supreme Court has not followed the rule that unless a right is expressly stated as a fundamental right, it cannot be treated as one. Freedom of press is not expressly mentioned in part III, yet it has been read into and inferred from the freedom of speech and expression and from Article 21 more particularly, sprung up a whole lot of human rights jurisprudence[1].
Right of the People or Duty of the State?
What we got ultimately through the Constitutional and Statutory ‘guarantee’ of right to education, in 2009? Right to education was not included in the guaranteed list of fundamental rights in Part III. The members of Constituent Assembly thought that the Governments would take the guidance from these Directives and fulfill their obligations towards the people. Article 45 made it mandatory for the Government impart education freely to all children up to 14 years within ten years from the commencement of the Constitution. But the first national Governments did not give any priority to this mandate. The country passed through the decade without any progress in providing education as per Article 45 and then several such decades passed off till 1993, when the Supreme Court questioned the executive about it. Justice Jeevan Reddy rightly said it was no more a directive but a right, and got consolidated into fundamental right with passage of time. It is good to hear that after forty three years the Supreme Court called it Fundamental Right but who will execute it? Judiciary has expanded the scope of Article 21 by leaps and bounds to secure the quality of Indian living beings. It includes within its realm, the right to know through education. But again it’s just rhetoric and does not mean any thing more than that, if not supported by a strong executive will and legal mechanism.
Limiting the rights by law and practice
Feeling uncomfortable with the judicial admonition of executive apathy regarding the right to education, the executive Government started ‘limiting’ that theoretic right. The limitation was clear and visible with 86th amendment in 2002 where it mandated that 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, provide. First of all it is not for all children, secondly Government shirked its responsibility towards children of age 0-6 or effectively 2-6 years and 14 to 18 years, and thirdly the manner is determined by the law to be made, which means further shrinking of right. It is strange that the constitutional guarantee of a fundamental right provides within itself enormous power to state to limit that right besides eliminating children of age group from 3-6 and 14 to 18 years.
This is the back ground of Right to Education enactment in 2009, which was not implemented till 2010. The Government chose April 1, 2010 to announce its implementation without any positive change in the situation as to provision of facilities to give education to poor people.
Not even notified!
Disputing earlier figures that only six out of 28 states notified the Act, and presenting a positive note of implementation of the 2009 enactment, the HRD Minister announced that as many as 15 States had notified the Rules. In India Union Territories Sikkim
Only 11 states constituted State Commissions for Protection of Child Rights, while 28 States adopted the policy of eight year elementary education. Andhra Pradesh has notified in February, and nine other states notified thereafter. There was a policy of no detention (failing) in 27 States, 28 states had banned corporal punishment and 26 had done away with board examination up to the elementary level. Several States had also banned private tuition, screening procedure and capitation fee[2]. Another meritorious achievement presented by the minister is that a huge number of children were now enrolled in schools – 13 crore at the primary level and another five crore at the upper primary level. Girl enrolment was 48 per cent. The NGOs question the authenticity of these figures saying that there are several lakhs of children out of school working in fields and factories.
Lack of awareness
Follow Prof. Madabhushi Sridhar, Professor, Nalsar at http://madabhushi.goforthelaw.com/
[1] B.P. Jeevan Reddy, J., in Unnikrishnan Case para 132.
[2] Aarti Dhar, 8 million children still out of school, The Hindu, April 2, 2011
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