Human rights and human development

Although the 93rd Constitution Amendment proposes to give constitutional sanctity to the legally enforceable right to free elementary education, it has invited criticism for having restricted the right to children between six and 14 years of age.

C. RAJ KUMAR

"A Constitution may indicate the direction in which we are to move, but the social structure will decide how far we are able to move and at what pace,"

- Andre Beteille

THE passing of the 93rd Constitution Amendment Bill by the Lok Sabha unanimously has indeed resulted in the development of a fundamental right to education as a guaranteed right. It is important to analyse and evaluate the circumstances under which this Constitution Amendment has come to be passed and also the implications of the amendment on human rights and human development policies in India.

The Constitution of India (Article 45) states that "the state shall endeavour to provide within a period of 10 years from the commencement of this Constitution for the free and compulsory education of all children until they complete the age of 14 years". This commitment was made more than 50 years ago. The Supreme Court of India, in its hearings of two cases in 1992-93 upheld the fundamental right to education. In Mohini Jain vs State of Karnataka, the Supreme Court, speaking through Justice Kuldip Singh, held that the right to education was part of the fundamental rights to life and personal liberty guaranteed by Article 21. In a subsequent case, Unnikrishnan vs State of Andhra Pradesh, the question came up, "whether the Constitution of India guaranteed a fundamental right to education to its citizens". While it was agreed that the right to education emanated from the right to life guaranteed by Article 21 of the Constitution, Justice B.P. Jeevan Reddy observed that "...every child/citizen of this country has a right to free education until he completes the age of 14 years and after a child/citizen completes 14 years, his right to education is circumscribed by the limits of the economic capacity of the state and its development". Thus, this was the legal position relating to the right to education within the Constitution before the passing of the 93rd Constitution Amendment Bill.

The 93rd Constitution Amendment, with the insertion of a new article (Article 21 A) to say that "the state shall provide free and compulsory education to all children of the age of six and 14 years in such manner as the state may, by law, determine", enable any citizen to seek the enforcement of the right by way of resort to writ jurisdiction under Articles 32 and 226 of the Constitution. It is in this sense that the amendment has given an enforceable right to education. To have a particular right is to have a claim on other people or institutions that they should help or jointly collaborate to ensure access to that right or freedom. Thus, to assert a human right to free elementary education (as it is done through the 93rd Constitution Amendment) is to claim much more than that it would be a good thing for everyone to have elementary education - or even that everyone should have education. In asserting this right, the Constitution claims that all are entitled to free elementary education and that if some persons avoidably lack access to it, there must be some culpability somewhere in the social systems (Amartya Sen, 2000). This insistence on the enforceability of a right is the crucial dimension of the concept of integration of human rights with human development. But it needs to be observed that the Amendment in its present form illogically and unreasonably restricts the right to education for children between one and five years of age, which was earlier guaranteed by the Supreme Court's decision in Unnikrishnan. While the 93rd Constitution Amendment proposes to give constitutional sanctity to a legally enforceable right that already exists, it should not have narrowed the existing law on this issue by restricting the fundamental right to education for children between six and 14 years of age.

The inclusion of a fundamental right to education in the Constitution has indeed some parallels elsewhere in the world. Most important, the Universal Declaration of Human Rights through Article 26 provides that elementary education shall be free and compulsory, higher education shall be generally available on the basis of merit, and parents have a prior right to choose the type of education. Additionally, the South African Constitution has a provision for adult basic education, and further education, which the state will make available on a progressive basis (Article 29(1)). In France, there is no right to education as such, but the preamble of the Constitution provides for equal access for children and adults to education and training, including cultural education; providing free and secular public education is a duty of the state. Further the Conseil Constituionnel has also recognised a limited "freedom of private education". The Constitution of Argentina authorises Congress to ensure free and equitable public education (Article 75(19)); in Switzerland, the Constitution provides for a provision whereby citizens can seek free elementary education in government schools as well. In Japan, the Constitution provides for a fundamental right to education. All people shall be obligated to have all boys and girls under their protection receive ordinary education as provided by law and such compulsory education shall be free of cost (Article 26). In China, the Constitution provides for a fundamental right to education: citizens have a right as well as duty to receive education (Article 46).

THE Convention on the Rights of the Child (CRC) was adopted by the United Nations General Assembly on November 20, 1989, and it entered into force in record time on September 2, 1990. As of January 1, 2000, it had been ratified by 191 states. Only Somalia and the United States. remain outside the treaty regime. The Convention's coverage is considerable: it applies to 'every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier' (Article 1), thus putting the burden on the state to justify instances in which a lower age limit is prescribed. Article 28 of the CRC recognises the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, the states shall in particular make primary education compulsory and available free to all. Thus, the 93rd Constitution Amendment partially fulfils the mandate of the CRC, but with its relevance restricted to children aged between six and 14 years, it has a limited impact. The child's right to education is a matter not only of access (Article 28, CRC), but also of content. An education with its contents firmly rooted in the values of the CRC (Article 29 (1)) is for every child an indispensable tool for her or his efforts to achieve in the course of life a balanced, human rights-friendly response to the challenges that accompany a period of fundamental change driven by globalisation, new technologies and related phenomena. Such challenges include the tensions between, inter alia, the global and the local, the individual and the collective, tradition and modernity, long-term and short-term considerations, competition and equal opportunity, the expansion of knowledge and the capacity to assimilate it, and the spiritual and the material (UNESCO, 1996).

Article 29(1) of the CRC has far-reaching importance. The aims of education that it sets out, which have been agreed to by all states-parties, promote, support and protect the core values of the Convention: the human dignity innate in every child and his or her equal and inalienable rights. The aims are: the holistic development of the full potential of the child (29(1)(a)), including the development of respect for human rights (29(1)(b)), an enhanced sense of identity and affiliation (29(1)(c)), and his or her socialisation and interaction with others (29(1)(d)) and with the environment (29(1)(e). Thus Article 29(1) of the CRC not only adds to the right to education recognised in Article 28 a qualitative dimension which reflects the rights and inherent dignity of the child; it also insists upon the need for education to be child-centred, child-friendly and empowering, and it highlights the need for educational processes to be based upon the very principles it enunciates (The Aims of Education: 17/04/2001, CRC/GC/2001/1, CRC General Comment 1, U.N.). Hence, the State governments in India need to develop educational policies that are well in tune with the social realities.

Human rights and human development share a common vision and a common purpose - to secure the freedom, well-being and dignity of all people everywhere - and hence both are about securing freedoms. Human rights presuppose that all people have legitimate claims for social arrangements, which protect them against all forms of abuses and deprivations, which entitle all people to the freedom for a life of dignity. Human development is a process of expanding and enhancing capabilities by increasing choices and opportunities so that all people can lead lives of respect and value. Thus, when human rights and human development progress together, they quite obviously support and reinforce each other, thereby expanding all people's capabilities and protecting their rights and fundamental freedoms (Human Development Report 2000, UNDP).

The "goal rights system" (Amartya Sen, 1982, 1985) liberates the system of rights from the narrow confines of constraint-based obligation by demanding active steps towards the fulfilment of rights. The general formulation of the goal rights system leaves open the question of what substantive rights needed to be included as part of societal goals. Amartya Sen himself has argued for considering "capability rights" as the substantive content of goal rights. In this view, societal goals should include the fulfilment of the people's right to capabilities. If one adopts this perspective in the context of the 93rd Constitution Amendment, then the right to education is to be viewed as a proxy for the more fundamental rights to the capabilities that derive from access to education, namely, the capabilities of being free from ignorance, being educated and being able to avoid illiteracy and vegetative existence, being able to participate actively in society, and so on. Thus, the extent to which the people's right to education is fulfilled will then be assessed by the extent to which these capabilities are being attained. Also, the right to education will entail as obligation any action that others can take to improve people's capabilities. This is because capability rights are perceived as goal rights, whose fulfilment is supposed to be part of societal goals (Osmani, 2001).

The human rights and human development policies in India have acquired their meaning, relevance and significance from the Constitution, which has for its credit provisions setting goals for a social revolution - such as the Directive Principles of State Policy, the Fundamental Rights, the articles protecting minority rights, and those assisting the weaker sections which have somewhat diminished the repression of hierarchy and the effects of the indifference among the upper castes and classes to the conditions of the lower castes and classes (Granville Austin, 1999). All these developments have undoubtedly affected the governance administration in India and would continue to do so in the years to come. But the right to education as guaranteed by the new Amendment has a greater role to play, because education is the means of self-realisation and self-expression and the physical, social, emotional and spiritual development of human beings. Education is the only means to help Indian children escape from the infernal cycle of poverty and succeed in their struggle for survival in the street, in servile jobs or in institutionalised ignorance.

THE Constitution has two specific chapters that broadly reflect the human rights and human development policies for governance administration. They are the chapters on Fundamental Rights in Part III and Directive Principles of State Policy in Part IV. The Constitution guarantees fundamental rights to all citizens. These rights are fundamental because they are basic human rights and can be interpreted to mean civil and political rights. Articles 12 to 35 of the third chapter of the Constitution elaborate on the fundamental rights and their importance in democratic life. The six fundamental rights mentioned in the Constitution are: 1. Right to Equality, 2. Right to Freedom (of speech and expression, to assemble peacefully and without arms, to form unions and associations, to move freely within the territory of India, to live in any part of India, to practise any profession or occupation), 3. Right against Exploitation, 4. Right to Freedom of Religion, 5. Cultural and Educational Rights, 6. Right to Constitutional Remedies.

Articles 36 to 51 outline an important part of the framers' vision for good governance administration, which unfortunately was given scant regard to for many years by the state, either because of economic limitations or by deliberate political choice. Together, these are known as the Directive Principles of State Policy. Here are some examples of the Directive Principles:

Article 38: The state shall secure a social order for the promotion of welfare of the people; Article 39: The State shall, in particular, direct its policy towards securing - a. that the citizens, men and women equally, have the right to an adequate means of livelihood; b. that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; c. that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment; d. that there is equal pay for equal work for both men and women; e. that the health and strength of workers, men and women, and the tender age of children are not abused, and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; f. that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

The provisions contained in this part are not enforceable by any court of law, but the principles laid down are nevertheless fundamental in the governance of the country and it is the duty of the state to apply these principles in making laws (Article 37, Constitution of India). The object of the Directive Principles is to embody the concept of a welfare state (Kesavananda Bharati vs State of Kerala). Interestingly, the Directive Principles, according to later decisions of the Supreme Court, have been held to supplement fundamental rights in achieving a welfare state. The contemporary relevance of human development policies in India may be traced back to the debate of including the chapter on Directive Principles of State Policy in the Constitution. Some critics received the idea of Directive Principles sceptically. Dr. K.C. Wheare doubted "whether there is any gain on balance from introducing these paragraphs of generalities into a Constitution". Notwithstanding this scepticism, experience has shown that the Directive Principles have been a guide for Parliament and the State Legislatures. The balance between the two is now considered part of the 'basic structure' of the Constitution (the Minerva Mills case).

IN addition to this, the Directive Principles of State Policy have been a great source of legal, jurisprudential and constitutional support for the judiciary in making decisions, besides guiding governmental bodies in formulating human development policies, thereby promoting good governance. The Government of India Fiscal Commission of 1949, for example, recognised that its recommendations should be guided by the Directive Principles. "It is obvious," the report said, "that a policy for the economic development of India should conform to the 'objectives' laid down in the Directive Principles of State Policy." Thus, it may be inferred that the Constitution has the basic framework upon which the human rights and human development polices of the country may be formulated for effective governance. But the integration of these two policies involves an approach that is highly demanding and ambitious upon the judiciary and other wings of government.

The Indian judiciary is mature enough to respond to this challenge of governance administration and hence need to play a pro-active role, thereby guiding Parliament and the executive towards greater integration of human rights and human development policies. The Supreme Court has already, through its creative interpretation of fundamental rights and the Directive Principles of State Policy, given legitimacy to the argument. It remains to be seen how far the other sections of the judiciary, including the High Courts and the lower courts, respond to the arguments of the Supreme Court and whether they are able to use these judgments to influence governance administration at the local, district and municipal levels. Also, the Supreme Court may itself adopt measures in the form of sanctions that would serve as enforcement guidelines to the executive, in the event of its non-adherence to these judgments that affect governance administration.

Human rights are the rights possessed by all persons, by virtue of their common humanity, to live a life of freedom and dignity. They give all people moral claims on the behaviour of individuals and on the design of social arrangements - and are universal, inalienable and indivisible. Human rights express our deepest commitment to ensure that all persons are secure in their enjoyment of the goods and freedoms that are necessary for dignified living. Human development is the process of enlarging people's choices, by expanding human functionings and capabilities. Human development thus also reflects human outcomes in these functionings and capabilities. It represents a process as well as an end. In the ultimate analysis, human development is the development of the people, for the people and by the people (Human Development Report 2000, UNDP).

The fundamental idea of human development, which believes in enriching the lives and freedoms of ordinary people, has much in common with the concerns expressed by various declarations of human rights. Thus, the promotion of human development and the fulfilment of human rights undoubtedly share a common motivation.

It would be interesting to examine as to how far this basic shared motivation between these two concepts to fulfil the commitment to achieve equality and dignity for all lives may be actually transferred for the integration of these two policies. An example of such a harmonious integration is the development of a fundamental human right to education within the Constitution. It remains to be seen how far it has helped to implement the human development policy of achieving literacy.

C. Raj Kumar, a Visiting Researcher at the New York University School of Law, New York, was a Rhodes Scholar at the University of Oxford and a Gammon Fellow at the Harvard Law School.