In a milieu of increasing deprivation, the absence of clarity on the questions of legal liability and quality renders meaningless the constitutional amendment on free and compulsory elementary education.
MANISHA PRIYAM SADHANA SAXENA KRISHNA KUMARFOR primary education in India, these have been the best of times. Arguably, these have also been the worst of times. This allusion to Charles Dickens captures the essence of the educational politics designed to cover up the serious dilution of policy norms and the general failure of the system to deliver. The elevation of elementary education to the status of a justiciable fundamental right does not explain how such a move would reverse the conditions that prevented the universalisation of elementary education in the last 51 years of operation of the Indian Constitution. In the absence of sustained raising of the issue, this elevation may, in fact, increase the powers of the executive to take away from the poor the entitlement to meaningful education. In the bureaucratic rush to educate anyhow, the substantive debates around issues such as curriculum, pedagogy, teacher orientation and appropriate institutional arrangements are likely to be rendered irrelevant. Debates on the relationship of education to issues such as poverty, food and child labour too are likely to meet a similar fate.
Etched into the Constitution at the time of its inception as a Directive Principle of State Policy, Article 45 was the only Article that had a deadline attached to it. Universal elementary education (UEE) had to be achieved within 10 years of the operationalisation of the Constitution, that is, by 1960. This deadline was extended 10 years at a time, up to 2000. The 1990s saw increased attention to education and literacy. At the Jomtien Conference on Education For All, held in 1989, this issue received the focussed attention of international aid agencies as well.
Meanwhile, failures in the realisation of the goals of development were instrumental in inducing a change within the development discourse, from the language of policy to the language of rights. The shift from the language of policy to the language of rights occurred in the 1980s, but the ground for this shift was already under preparation in the 1970s. The failure of economic development as a policy in the Third World countries was all too apparent in the early 1970s. The shift in the field of education of the deprived, especially adults - from social education and skill training amongst the farmers in the 1960s to the conscientisation of the masses in the 1970s and to their empowerment to fight for their own rights in the 1980s and 1990s - is all too well known. In addition, the emergence of women's movements, autonomous and party-affiliated, compelled the government to give attention to women's development based on this philosophy. Women's development programmes created a bizarre situation wherein the state, instead of ensuring the implementation of policies such as the payment of minimum wages, equal pay for equal work and so on, taught women to wage struggles for such rights against the establishment. With the failures of structural adjustment policies in Africa and Latin America, there was a loss of faith in the executive arm of the government. International development opinion made a noticeable shift towards the human development paradigm with an inclination towards rights. According to this paradigm, every human being is entitled to a basic set of rights. Rights empower people whereas policies are instruments of the government: this was the implicit belief of the rights-based approach to development.
However, the immediate motivation for this change of status for UEE from policy to right came from a Supreme Court verdict in the early 1990s. The Supreme Court observed in the Mohini Jain case in 1992 that the Directive Principles, which are fundamental in the governance of the country cannot be read separately from the Fundamental Rights. The more notable part of the judgment was its insistence that the right to education be read as an integral part of the right to life guaranteed under Article 21, Part III. Interpreted in an extended sense, the right to life implies a life worthy of living, which can hardly be conceptualised without giving a significant place in it to education. In 1993, the Supreme Court reiterated in the Unnikrishnan case that the right to education indeed flowed directly from the right to life; therefore, the state is under an obligation to provide basic education to all citizens during their childhood.
The new constitutional amendment seeks to make elementary education free and compulsory for children in the age group of six to 14 years. The ambit of meanings of the key terms "free" and "compulsory" is to be explicated by subsequent legislation, a Central law serving as a framework for a plethora of State laws. Commentators have been quick to point out that the crucial age segment of zero to six has been left out, and that there is no state commitment to quality. In addition, there is the important issue of deciding as to whose legal liability it is if the child does not go to school once the state has made the provision for free schooling.
We must remember that terms such as "free" and "compulsory" are not new policy gestures. There already exists in many States a record of legislation that makes education free and compulsory. In Travancore, now part of Kerala, primary education was made "free" in 1904 and "compulsory" in 1945. Compulsory education Acts were also passed in the States of Madhya Bharat (now part of Madhya Pradesh and Chhatisgarh); Bihar and the United Provinces (now Uttar Pradesh).
Many States have also taken substantial measures to enhance the scope of public instruction. There are measures such as freeships for the socially disadvantaged sections; where there is a fee, it is minimal. Similarly textbooks and uniforms are provided free of cost to the weaker sections and in some cases to girls. According to the Sixth All India Educational Survey, of the 5,70,455 primary schools in the country, 29.96 per cent gave free uniforms to pupils. In Tamil Nadu, 95 per cent of primary schools have implemented the scheme of supply of free uniforms, and free textbooks are distributed in 54.56 per cent of the primary schools. Mid-day meal programmes have been in operation in many States, at least intermittently.
It is important to ask why, despite all these measures, poor households bear a major share of the expense of sending children to school. According to the estimates presented in NSS (National Sample Survey) 52nd round, 1995-96, and NCAER (National Council for Applied Economic Research) 1994 household surveys, these households bear 38-43 per cent of the visible cost of sending children to government schools where significant measures like freeships already exist. This estimate excludes the opportunity costs borne by the household, which are difficult to quantify. The only new dimension to this issue would be the enhanced force of the state to coerce children into attending any manner of schools, including the ones staffed by para-teachers working in ramshackle classrooms that overflow with children (Frontline, November 9, 2001).
It is important to remember that the right to education has come at a time when the poorest sections of society face exclusion from the production process itself. Increasing unemployment, casualisation and large-scale retrenchment of labour and suicide by indebted farmers - at times by consuming the same poison that is supposed to save their crops and bring prosperity - form the context in which this constitutional amendment has been made. Between 1997 and 2000, there have been 1,826 cases of suicide in Anantapur district of Andhra Pradesh alone. Out of this, as many as 868 people killed themselves by consuming Monocrotophos, the pesticide supplied free to the farmers by the Andhra Pradesh government. Given the slowdown in agricultural growth, the rising food prices, a decline in investment in rural infrastructure and reduced employment opportunities, a rise in rural poverty is not surprising. Hunger deaths amidst overflowing granaries and suicide by farmers across the States were the starkly visible signs of growing deprivation and helplessness during the past decade of reforms. Parts of India have also been reeling under drought. In this grim situation, it is worth asking what kind of measures will make the newly legislated right an enforceable policy.
One gets an inkling of a future scenario from a report that appeared in The Hindu (January 8, 2002). It showed the Andhra Pradesh Chief Minister's view on who should bear the responsibility for children's absence from school:
"...The Chief Minister referred to a Supreme Court order to the Government of India in this regard, and said the State government would amend existing laws to enable compulsory education. It was proposed to introduce deterrent punishment and other disincentives to those who declined to send their children to school." In addition, the Chief Minister made an erring parent, who did not send his child to school, tell the audience that what he did was an offence. In fact, punishing parents has been one of the central issues in the States legislation, and the National Alliance for Fundamental Right to Education (NAFRE) claims that a large number of parents have indeed been persecuted.
Similar thoughts were expressed recently by the Chief Minister of Rajasthan. He feels that facilities should be curtailed in villages with poor levels of enrolment and attendance in schools, in order to convey the government's displeasure. One can guess from such views what manner of accountability the new Act is expected to promote. It seems there will be a new emphasis on the myth that it is the ignorant who are responsible for perpetuating ignorance. It is the parents who will be seen as having committed a cognisable offence by not sending their child to school. Where will the parents lodge their complaint about the poor quality of schooling? Where will they find a forum to protest against discriminatory policies such as the recruitment of para-teachers for schools that serve the poor?
DESPITE the noticeable silence in the amendment with regard to a commitment to quality, the freezing of the contested terrain of education as a legal entity is likely to reinforce a particular turn towards teaching as an evidence-based activity. Teaching functionaries in government schools, wary of the legal action that they may become liable to, may shun efforts towards creative pedagogy. In debates on education, empirical testing for outcomes is likely to triumph over the more qualitative process-based approaches. The former may stand the scrutiny of courts better. If a poor person were to approach the court saying that the provision of a para-teacher meant downgrading of quality, a denial of the right to quality, what manner of evidence would the courts admit on quality issues? The new policy of defining curricular goals in terms of 'minimum levels of learning' hints at the direction in which school education is being pushed. The earlier concern for overall development is being replaced by a preference for behaviouristic, necessarily superficial, symptoms of learning.
To conclude, one must note the view taken by the National Human Rights Commission (NHRC) in response to a petition submitted by Janaki Rajan, Kumkum Roy, Ashwini Cariappa and Sanaya Nariman. These petitioners argued that the right to education would become meaningless if the curriculum was used for the propagation of communalism and if the basic infrastructure remained poor and inadequate. In its response, the NHRC has said that the right to education can only be safeguarded by a democratically oriented system that is capable of providing education of a certain quality. The Commission has merged the issues of equality and quality, paving the way for a fresh debate on provision of education. The notice served to the Human Resource Development Ministry and others argues that the status of education as a fundamental right extends to the character and the quality of the education provided.
Krishna Kumar is Professor, Department of Education, Delhi University.
Dr. Sadhna Saxena is a Reader in the Department of Education, University of Delhi.
Manisha Priyam is Lecturer, Department of Political Science, Gargi College, New Delhi.
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