Parliament passes the 93rd Constitution Amendment Bill relating to the educational rights of children. But as it stands, it is seen as being at best a lopsided piece of legislation.
IGNORING the overwhelming public demand to make equitable, quality and free education a fundamental right for all children up to the age of 18 years, Parliament passed on November 28 the 93rd Constitution Amendment Bill which will make education a fundamental right only for children in the six to 14 age group. The day the Bill was passed in the Lok Sabha, at least 70,000 people from 16 States gathered in the national capital demanding that education be made a fundamental right also for children up to six years of age. The rallyists argued that the guarantee of education for the six to 14 years category was meaningless without the state taking responsibility for Early Childhood Care and Education (ECCE) for the latter group. In the Lok Sabha the debate went on for more than four hours with the Left parties, notably the Communist Party of India (Marxist) and the Congress(I), stressing the importance of ECCE.
Earlier, the National Democratic Alliance (NDA) government's decision to move the Bill came in for criticism on the ground that it dilutes all previous commitments to universalise elementary education. In 1993, in J.P. Unnikrishnan vs the State of Andhra Pradesh, a five-member Bench of the Supreme Court had laid down that the right to education was a fundamental right that flowed from the Right to Life (Article 21). Therefore it held that free education up to the age of 14 was a fundamental right of every child.
However, the Bill relieves the state of its duty to guarantee free and compulsory education for children up to the age of six. By keeping the zero to six age group out of the scope of "fundamental rights," the government has diluted the long-term objective of Universalisation of Elementary Education (UEE). The new Bill places the onus on parents, who will have to ensure that their children are provided "opportunities for education".
The disappointment and anger over the provisions of the Bill were accentuated by the fact that the government failed to accommodate informed public opinion on the matter. The November 28 rally was an impressive one, led by the National Alliance for the Fundamental Right to Education (NAFRE), a grassroots coalition of some 2,400 non-governmental organisations (NGOs) from 15 States, and attended by like-minded groups. The rally was preceded by several campaigns nation-wide. While cautiously welcoming the Bill which will now become Article 21 A of the Constitution, NAFRE had pointed out certain flaws and suggested corrective measures. The South Asian Coalition on Child Servitude (SACCS), an organisation committed to the abolition of child labour, went a step ahead and demanded that the right to education be extended to the 15 to 18 age group as well. It suggested the levying of an education cess on multinational companies, given the huge profit margins that they in general extract, using cheap Indian labour. Like NAFRE, the SACCS is critical of the fact that the Bill left issues such as resource mobilisation, equity and quality of education unaddressed.
According to NAFRE, the Bill is incomplete and unrealistic. In ignoring the right to free education of children in the zero to six age group, children in the six to 14 age group will also be effectively excluded from the benefits of the Act, it says. Other questions are raised, too. In the absence of any provision for the zero to six category - the pool from which the six to 14 section will emerge - would it be possible for the state to ensure that elementary education remains a fundamental right? Even if education is guaranteed for the six to 14 age group, what would prevent the girl child from being pressed into household chores, while the parents struggle to earn a livelihood? The Bill does not address the issue of making ECCE, a concept mooted in the National Policy on Education, 1986, mandatory.
According to NAFRE national convener Sanjiv Kaura, the only way to get the girl child into the educational system is by making ECCE a fundamental right and not just a pious hope. The amendment has merely ensured that the right to education remains non-functional, as there is no financial commitment by the state. NAFRE has demanded a financial commitment to be made by the government. Sanjiv Kaura points out that a government committee had worked out an estimate of the costs likely to be involved. According to the committee's findings, universalisation of elementary education for the six to 14 age group would involve an expenditure amounting to 0.78 per cent of India's Gross Domestic Product for the next 10 years. So the old system, characterised by under-paid and under-qualified teachers on the one hand and poor parents who end up bearing a good part of their children's educational costs, on the other, is likely to prevail.
Although the financial implications of ECCE has not been worked out, NAFRE's position is that the expenditure would not be an unrealistic one when expressed as a percentage of the GDP. Moreover, it points out that the ECCE concept addresses the needs of women and elder siblings, especially girl children.
The amendment replacing Article 45 in toto states: "The state shall endeavour to provide early childhood care and education for all children until they complete the age of six years." Article 45 states that the state "shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years." While appearing to make a radical departure from this position, in fact the government, by bringing the zero to six age group under the Directive Principles, has diluted the objective of guaranteeing free and universal education to children of all age groups. A classic case of one step forward and two steps backward, the Bill had been criticised for its half-baked objectives and non-holistic content. And given the non-enforceable quality of the amendment, it is likely to remain on paper. Further, the amendment states: "The state shall provide free and compulsory education to all children of the age of six to 14 years in such manner as the state may, by law, determine."
The authority of the state to determine this right by law is likely to undermine the quality of education. According to Anil Sadgopal, former Dean and Head of the Department of Edu-cation, University of Delhi, in the amendment the element of enforcement had been taken out. The absence of any financial provision is glaring. It betrays the government's lack of commitment.
Another feature of the Bill that had been criticised by NAFRE is the proposal to insert Clause (k) under Article 51A, which defines the Fundamental Duties under the Constitution. Clause 51A(k) states: "It shall be the duty of every citizen of India who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years." This, in NAFRE's opinion, relieves the state of its obligation to provide opportunities for education and puts the onus on parents. "Opportunities for education" could be interpreted to conclude that parents will have even to provide schools and so on for their children. Also, under the clause there is a possibility of harassment by local officialdom. According to NAFRE, between 1951 and 1971 at least 15 lakh parents have been prosecuted under the State Compulsory Education Act, which was in force in 19 States. Given this experience, it demanded the deletion of this clause.
NAFRE stressed the need for equitable and quality education, especially when the non-formal system, which is being aggressively encouraged, is going against some of the recommendations made by the Tapas Majumdar Committee, set up by the NDA government in 1999. It is estimated that in India there are at least seven crore children who do not go to school. Also, a uniform standard of education had to be ensured for India's 20 crore children. The committee was set up to look into the financial implications of operationalising the 83rd Amendment Bill introduced by the United Front government in 1997, seeking to make the right to free and compulsory education up to the age of 14 a fundamental right. The 83rd Amendment Bill had an additional feature - a financial memorandum that outlined the costs that would go into making education for children in the six to 14 age group a fundamental right for a 10-year period. Subsequently, it was renamed the 93rd Amendment Bill and significant changes were incorporated in it. The committee comprised a large number of bureaucrats and was headed by an academician. It held that even children belonging to the poorest sections of society must receive education that was comparable in quality with the best. It did not advocate low-cost alternatives as, in its opinion, they often tended to "flounder in the absence of adequate resource support over a long period of time". Clearly, there is no ambiguity about the need for quality education or the financial responsibility of the state. But this commitment is missing.
What is left unexplained is what constitutes "free" education. According to the committee, while government schools did not charge tuition fees, households incurred substantial direct costs of education (towards textbooks, uniforms and so on), which in turn constituted an important reason for the non-participation of children from poor families. Universal enrolment of children and their subsequent retention cannot be ensured unless education of a satisfactory quality was imparted, the committee observed. However, the Bill is silent on the question of quality. With reference to the scheme of deploying Shikshakarmi or para-teachers, the committee pointed out that there was no substitute for fully qualified and properly paid teachers. It was opposed to a national programme of deployment of para-teachers. Despite this, the Human Resource Development Ministry has come out with a report outlining an 'Education Guarantee Scheme and Alternative and Innovative Education,' where the concept of para-teachers was mooted ("The trouble with para-teachers", Frontline, November 9, 2001). The much-touted Sarva Shiksha Abhiyan of the government is also seen as a mere conglomeration of existing schemes with nothing new to offer.
The 93rd Amendment Bill is at best a lopsided piece of legislation. Unfort-unately, opinion within Parliament was in favour of passing it.
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