Edufundartdossier2

After almost 50 years of Independence and countless committees policy makers realized what it required to make universal elementary education a reality. It required not just allocation of resources and Centre-State co-ordination, but also a clear cut mandate. India had failed in what most other countries had managed to achieve because there was no compulsion of any on the state machinery to actually effectuate something like elementary education. Though Centre-State coordination was taking place for years together, India's masses remained illiterate because no agency could be hauled up for the dismal state of education. International Declarations had always stressed on the ‘compulsory’ aspect of education, because they knew that unless people were forced to act nothing would result out of policy papers. Therefore, in 1997 the Saikia Committee, consisting of State Education Ministers, came up with their suggestions of amending the Constitution to make Elementary education a fundamental right.

- Niranjanaradhya VP, Ch 4 pg. 32, Universalisation of School Education, Books for Change, 2004 [B. N21. N3]

The idea of free and compulsory education is not a new one in the Indian context. The earliest national attempt was made by Gokhale in March 1910 when as a non-official member representing the Bombay Presidency in the Imperial Legislative Council, he moved a resolution for free and compulsory elementary education in India...his resolution was rejected and the opposition to it centred on the following: there was no popular demand for it, that no additional taxes could be levied and that there was still some scope for the voluntary extension of primary education through the grants-in-aid system [Sen 1933].

Preceding Gokhale, however, was the compulsory education experiment that began in Baroda in 1893 [Saiyidain et al 1952]. The Bengal Primary Education Act 1919 included provisions for compulsory attendanceand several of its provisions are strikingly similar to those that the draft bill contains.

In addition to this several post-independence education commissions – including the Kothari Commission, the Acharya Ramamurthi Commission to name a few – have discussed at length the need for, as well as the ways in which elementary education can be made available for all. A national seminar on compulsory primary education was held in 1961 and in the Third Five-Year Plan a nationwide programme for compulsory schooling was launched which failed to meet with much success (GoI 1961).

- Sarada Balagopalan, Free and Compulsory Education Bill, 2004, Economic and Political Weekly August 7, 2004 [J.ELDOC.N00.07aug04EPW.pdf]

The 83rd amendment... bill was introduced in 1997 by S R Bommai, then HRD minister, and was referred to Standing Committee of Parliament. Since then when BJP led NDA government assumed office, the matter was referred to Group of Ministers (GoM) headed by Union Home Minister L K Advani. During the next four years, the bill was lying cold storage.Now all of a sudden, the bill was passed in rush with an eye in assembly elections in Uttar Pradesh and Punjab.

On March 28,1906, Gopal Krishna Gokhale, then member of thne viceroy's Supreme Legislative Council, delivered his 'budget speech' in the council. As the most important long range measure of general reform, he called for the introduction of free primary education throughout In-dia at once, with compulsion to be added gradually, first in urban areas, till "in the course of twenty years or so from now, we have in our midst a system of compulsory and free educa-tion hroughout the country, and that, for both boys and girls".

Any government, charged Gokhale, which neglected to foster most actively the spread of education would "be open to the reproach of failing in one of its most sacred duties to the people".

On March 18,1910, Gokhale once again raised the issue of primary education in the Viceroy's Supreme Legislative Council. He moved a resolution for this purpose and called for a bill to implement this resolution, insisting, "It is at present universally recognised that a certain minimum of general in-structions an obligation which society owes to its future members, and in nearly the whole civilised world, every states trying to meet this obligation". The well-being of millions of India's children waited upon the "humanising influence of education" he explained, stressing that "the whole of our fu-ture as a nation is inextricably bound up with it." On March 16, 1911 Gokhale introduced the'Primary Education Bill'. It failed to become the law. After Independence, the salient features of the Bill not only became the law, but the" Supreme Law' of the land viz. constitutional law. But has the ground reality really changed? Why do Gokhale's observations of almost a cen-tury go still have a contemporary ring about them?

2.1. Promises of Elementary Education In India, since the colonial regime, different Education Commissions and Committees unequi-vocally laid emphasis on the elementary education of every child.
þ The Hunter Commission, way back in 1882, recommended that the State should give maximum emphasis towards elementary education of the people.
þ In Wardha Congress in 1937, a committee was constituted under the chairmanship of Dr. Zakir Hussain, which argued for 8 years of education.
þ The Kher Committee set up in 1938-39 argued for 8 years of compulsory education for children between the ages of 6-14 years.
þ The Inter-University Board suggested 8 years of compulsory education starting from the age of 5.
þ The Central Advisory Board of Education (CABE) set up by the British Government, in 1944, recommended free primary education for all children between the ages of 6-14. The CABE emphasized the importance of universalisation of education and human resources development. After independence, the Constituent Assembly inserted Article 45 in the Directive Principles of State Policy of the Constitution, promising that within 10 years i.e. within 1960, all the children up to 14 years would be given elementary education ...

In pre-independent India, a couple of significant efforts were made to introduce universal free compulsory basic education. Gokhale one of the very few freedom fighters who gave importance to universal compulsory free basic education - made an effort to make primary education compulsory. He moved a resolution (19 March 1910) in the Imperial Legislative Council: "a beginning should be made in the directionof making elementary education free and compulsory throughout the country". The bill was, however, rejected. Another effort was made by Gandhiji and Dr. Zakir Hussain -- what is popularly known as Wardha Scheme of Education 4 .Another important landmark during the British period was "The Plan of Post-War Educational Development in India prepared by the Central Advisory Board of Education (1944) popularly known as the Sargent Plan (after the name of the then Educational Advisor to the government in India, Sir John Sargent). The Plan recommended a system of universal, compulsory and free education for all children 6-14 age group. It was a highly realistic plan; in view of the non-availability of teachers, the plan suggested that the plan would be implemented (i.e. all children 6-14 age-group would receive education) within forty years...

- RM Pal, Denial of the Right to Education: A Human Right's Violation, Social Action Vol 51 April-June 2001 [J.ELDOC.N00.01apr01SOA.pdf]

HISTORICALLY speaking in India, education and knowledge were owned by a very small section of the population. Little wonder, then, that an important part of the freedom struggle consisted of the demand for universal elementary education, which was later incorporated in the constitution. What was the raison d’etre for expanding education? There seem to be two arguments for this. The first can be called the ‘‘instrumentalist argument’’ which says that education should provide trained manpower so that lack of skills do not become an impediment in economic progress. The second can be called the ‘‘liberating force argument’’, which says that education for all is necessary for social and economic equality and improves the quality of life.

Without education, people are impeded from gaining access to employment. Lower educational acomplishment prejudices their career advancement. Lower salaries negatively affect their security in old age. Denial of the right to education triggers exclusion from the labour market and marginalisation into some form of informal sector, accompanied by exclusion from social security schemes because of the prior exclusion from the labour market. Redressing imbalances in life chances without full recognition of the right to education is impossible. Moreover, illiterate people in quite a few countries are precluded from political representation. Thus a large number of problems cannot be solved unless the right to education is addressed as the key to unlock other human rights.

- Katarina Tomasevski, Education Denied, pg 32 and 72, Zed Books 2003, [B.N00.T.1]

Notwithstanding the Philosophical doubts and cynical and selective use of human rights in international relations to further narrow personal and national interests, the embedding of human rights in international covenants has merit. They embody a code of ethics for influencing the behaviour of states. That ethics are often perceived as a set of empty platitudes which cannot definitively condition human conduct or that they are abused by the cynical and self-righteous is no argument against ethics. States, no less than frail human beings, require a set of norms which inflict a certain self-consciousness before public opinion.

- RV Vaidyanatha Ayyar, Basic Education and Human Rights, Journal of Educational Planning and Administration, Vol IX No1, January 1997

A year, long campaign by thousands of children and parents demanding free and compulsory education culminated at Shiksha Satyagraha at Delhi's Ramlila Maidan grounds last fortnight. Soon after, on November 28 the Lok Sabha passed the 93rd Amendment Bill to make educa-tion for children in the six- to 14-year age group a fundamental right. Even though the legislation was hailed as a 'positive move' to make India an illiterate-free country, experts say it contains several flaws making the task impossible to achieve in the coming decades.

This state of affairs is what prompted Swedish thinker Gunnar Myrdal to term our country, more than two decades ago, a "soft State" where lawlessness in the name of freedom is wide-spread, and in which, a re-fused to place "firm and specific obligations on its people" results in a lack of social discipline. He warned further that "there is little hope in South Asia for rapid development without greater social discipline, which will not appear without legislation and regulations enforced by compulsion" and con-demned the recourse to per-suasion, exhortation and incentives. He went so far as to say, "Nothing is more dangerous for democracy than lack of social disci-pline." Notwithstanding these constitutional require-ments, judicial directives, learned interpretations and the need for respecting and enforcing these if we are to be considered a society based on the rule of law, the number of those calling for a strict enforcement of compulsory primary edu-cation in the country is very limited.

Chief among the oppo-nents of compulsory pri-mary education are a sec-tion of child rights activists themselves, who may be called the "protagonists of structural change"...

The moment of birth of something good is always exciting. The massive rally being organized in New Delhi by the National Alliance for Funda-mental Right to Education in order to demand the right to education is the signal that pressure group activism is coming of age in India. Jaded by electoral rallies and empty rhetoric, people can now actually participate di-rectly in something that affects them concretely The draft bill proposing to make education a fundamental right is still hanging fire in Parliament, caught and for-gotten in the whirlwind of political disruptions. All those campaigning for universal and free elementary ed-ucation now have an influential forum, as do those whose prime concern is universal literacy It is possible, even if the public rally attracts 1,00,000 people, to remind the government that there are other priorities than the saving of politicians' skins.

...But its twice redrafted free and compulsory education bill, with two chapters, 47 sections and two schedules, is provoking more criticism than earlier inaction did. A New Delhi meeting organized by the group, Social Jurist, in association with organizations of educationists, lawyers, trade unionists, doctors, social workers and journalists roundly denounced the measure. It was not comprehensive, it did not provide equity in education and opportunities, and it perpetuated the growing segregation of rich and poor in a system that is rooted in Macaulay’s 169-year-old Minute. These and other criticisms will no doubt be reiterated at today’s meeting at the Academy of Fine Arts, called by the Vikramshila Education Resource Society, which wants loopholes plugged so that the bill realizes the goal of free and universal education for the young.

Currently, the 93rd Amendment is appearing before the Lok Sabha and Rajya Sabha. While some see this as a positive step in ensuring ‘Education for All’, others (like the National Alliance for Fundamental Right to Education-NAFRE) believe it is incomplete.We are writing to you in order to voice a very different perspective: the 93rd Amendment, either as currently written or even modified, is actually detrimental to real learning and empowerment. Indeed, any effort to make School Education a Fundamental Right will ultimately be counter-productive, wasteful and destructive...

You are perhaps aware that NAFRE is demanding more from the Amendment Bill. They want free and compulsory education, including Early Childhood Care and Education (ECCE), to be made a fundamental right, ensured by the State, in a definite timeline.They also want the State to ensure the ‘same’ education for everyone; i.e., there should be no ‘second-class’ alternatives for poor children and families.

However, on closer look, NAFRE’s seemingly reasonable demands are based on several questionable assumptions: a) pouring more money into the current model of schooling will mean better quality education; b) homogenization and standardization will lead to greater equality and democracy; and c) all children in school will mean healthy families and communities and a better future for India. In light of research evidence and practical experiences from many of the so-called ‘developed’ countries around the world (which have achieved 100% enrollment), these claims are highly suspect.

Furthermore, research and experiences from the grassroots also suggest that many parents and children do not want education in the form of schools. Oftentimes, when parents say they want ‘education’ for their children, they actually mean that they want ‘government jobs’; they send their children to school with these great expectations. However, we doubt whether the government or NAFRE is prepared to guarantee that they will meet these expectations of employment...

1. The various processes of schooling (competition, ranks, exams, rote knowledge, labels, hierarchies, orders, etc.) demean individuals’ full potential, their diversity, creativities, intelligences, learning styles, knowledges, languages, etc. To succeed in this cut-throat and sterile atmosphere, children must give up their sensitivity, honesty and compassion -- essential qualities for being human.

2. .Schooling degrades and demeans many other knowledge systems, wisdom traditions, ways and spaces of learning. Far from being ‘ignorant’ or ‘uncivilized’, these people form the heart and soul of India, and of the vast majority of your constituents. This amendment will force one way of knowing, one form of communicating and one type of knowledge down everyone’s throats. It will expand the monoculture currently being pushed through globalization and development. This is a serious threat to India’s greatest asset -- its diversity.

3. ‘Schooled’ children and graduates today are doing little to address the growing violence, inequity, environmental catastrophes, and exploitation in India today. If anything, the type of consumerism, fear, selfishness, and alienation cultivated in school are only adding fuel to this dangerous fire.

4. Making schooling compulsory takes power and choices away from children and families. Compulsion, centralization of authority and force by the State goes against the spirit of natural learning, community empowerment and Swaraj. Parents
should have the right to decide what kinds of educational opportunities they would like to have for their children. This may include opportunities for non-exploitative and non-hazardous work. This may also involve choosing not to send their children to school.

This Draft Bill stands out as one of the most alarming policy documents ever prepared by the ministry since Independence. It attempts to (a) legitimise low quality educational streams for under-privileged sections of soci-ety; (b) provide legitimate spacefor extra-constitutional authori-ties to introduce their ideological agenda in school education while keeping them outside the purview of the constitutional framework; (c) negate the role of panchayati raj institutions; (d) promote pri-vatisation and "corporatisation"of school education; (e) franchise parts or whole districts to corpo-rate or religious bodies for run-ning elementary schools; (f) shift the state's constitutional obliga-tion towards elementary educa-tion to the parents and local com-munities; (g) promote "special schools" for disabled children at the cost of inclusive education; and introduce a range of other dis-tortions.

The government has introduced the Constitution (Ninety-Third) Amendment Bill, 2001 in parliament to make free and compulsory elementary education for children of the age of 6-14 years a fundamental right. Earlier the United Front government had introduced the Constitution (Eighty-Third) Amendment Bill, 1997, on the same subject. The parliamentary standing committee had scrutinised the bill and made its recommendations. Unfortunately, it was not pursued. However, it is a good augury that a new bill has been introduced on the same subject.

The Amendment (93rd amendment for ‘Education as a basic right') in its present form was presented in the Lok Sabha on 28th November 2001. It was earlier discussed several times at various levels. But notes of dissent remained. Despite this the amendment was passed with 346 members for and none opposing it...

...Even large number of parents mobilized by NAFRE (National Alliance for Fundamental Right to Education) who participated in Protest March on the 28th itself wanted positive changes in the amendment. They urged that parents should not be vulnerable to exploitation and demanded free education to be clearly defined. They asked for participation of private schools and minimum quality of education to be assured.

- Amit Nikore, Right to Education- Implications and Implementation, Legal News and Views February 2002

My dream always has been to bridge the gap between theory and practice. I strongly feel that the policies on school education should be drafted in a remote habitation of a village or a habitation belonging to the most backward tribal community in the country. Our experts and education lovers must sit and listen to people and their unprecedented rich experiences to achieve the goal of universalisation of school education. A bottom-up process is the need of the hour to correct all our misdeeds and also to unlearn the class and colonial legacy of school education to respect people’s views as the bottom line for human development and success of democracy.

- Niranjanaradhya VP, Preface, Universalisation of School Education, Books for Change 2004 [B. N21. N3]

The Constitution (93rd Amendment Bill)...claiming to make education a Fundamental Right, was pushed successfully by the Union Government in the Lok Sabha's winter session despite serious objections raised...Proposals by individual MPs for amending the Bill in order to remove its various lacunae and distortions, were brushed aside. The statement made by the Minister of Human Resource Development while presenting the Bill was replete with internal contradictions. It revealed how the NDA Government has decided to extend the Structural Adjustment Programme of the IMF and World Bank into Indian education.

At the last minute, while the Lok Sabha was still debating the Bill, the NAFRE leadership withdrew its declared programme of 10,000 people undertaking 'amaran anshan' (fast unto death) for persuading the government to atleast undertake a review of the Bill. No explanation in public was offered. This and other available evidence indicates that the government succeeded in co-opting the middle class leadership of the rally in the powerful agenda of the Structural Adjustment Programme under the policy of globalisation.

- Anil Sadgopal, Political Economy of the Ninety third Amendment Bill, Mainstream December 22, 2001

The Indian State adopted the ninety-third amendment to the Constitution, thereby conferring on education the status of a fundamental right. What was the constitutional status of education before this amendment? Why was this amendment required? How can the Indian citizens use this amendment to the best advantage of Indian education? These and similar questions merit examination. The Constitution of India provides for two types of rights: (a) civic and political rights and (b) social and economic rights. Articles 12 to 35 of the Constitution constitute the fundamental rights which are justiciable. Article 32 of the Constitution guarantees ‘Remedies for enforcement of civic and political rights’. The ninety-third constitutional amendment has transformed education from its status as a social and economic right to that of a civic and political right. Till now only articles 28, 29 and 30 among the fundamental rights addressed issues in education relating to religion and non-discrimination. Articles 36 to 51 of the Constitution of India constitute the social and economic rights. They fall under directive principles of state policy.

- FUNDAMENTAL RIGHT STATUS FOR EDUCATION: Opportunity or eyewash?, AS Seetharamu, Deccan Herald, 09/02/2002 [C.ELDOC.N20.09feb02dhx.htm]

Free India could not take Article 45 seriously as it was beset with a variety of overriding problems. Expansion of schooling facilities began in all earnestness only in the decade following 1960. By 1988, the Indian State could establish one school in every one of the six-lakh villages of India. In a large number of cases the schools so established were a euphemism for a school. Even this euphemism was absent till 1988. It was only after 1986, the year of adoption of the first-ever National Policy on Education, that a macro effort for strengthening of schools began. If the period 1960 to 1988 may be taken as a period of expansion of schooling facilities, the period following 1988 may be considered as the phase of consolidation of gains, through Operation Blackboard and other interventions.

- FUNDAMENTAL RIGHT STATUS FOR EDUCATION: Opportunity or eyewash?, AS Seetharamu, Deccan Herald, 09/02/2002 [C.ELDOC.N20.09feb02dhx.htm]

Under the wave of a massive demand, the United Front (UF) Government brought a bill (the 83 rd Amendment) in the Constitution in 1997, making education a Fundamental Right. However, the UF Government fell before the passing of the Amendment. As a result, after a brief lull, social action groups again started the campaign determinedly to force the present Government to bring the coveted Amendment Bill. At last the Government relented and brought the 93 rd Amendment in the Winter Session of the Lok Sabha in 2001 accepting the demand of making elementary education a Fundamental Right...

As per Article 45 of the Constitution, universal, free and compulsory elementary education should have become a reality in India by 1960. But the constitutional obligation was time and again deferred - first to 1970 and then to 1980, 1990 and 2000; and now the target has been shifted to 2010. Against this backdrop, social action groups, people’s organisations, development organisations, students, academicians and people at large have been campaigning to force the Government to fulfil the constitutional obligation of giving free and compulsory education for all.

As a result of continuous and persistent advocacy campaigns, the Parliament passed (Lok Sabha passed the Amendment in the winter session of 2001 and the Rajya Sabha in the budget session, 2002) the 93 rd Constitution Amendment Bill, 2001 to make education a fundamental right in India. The mere passing of the Amendment does not ensure that millions of unlettered children would get education automatically. The lack of political will of the policy makers, indifference of the administrative machinery, lack of budgetary commitment and complete disregard for the rights of the marginalised pose hurdles in realizing the right to education.

On the International Covenant on Economic Social and Cultural Rights Article 13. ‘No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, …and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.’

The Convention on the Rights of the child- “ Article28(1) States Parties recognize the right of the child to education and with a view to achieving this right progressively and on the basis of equal opportunity, they shall in particular:
(a) Make primary education compulsory and available free to all;…

- Free and Compulsory Elementary Education for Children in India, Legal News and Views, August 2004

It would be shortsighted to discuss the contents of this draft legislation without a brief discussion of the discursive context that has produced it at this particular historical juncture. One mode would be to trace the trajectory of the draft bill to Jomtien, and the resultant international pressure and civil society efforts at raising the awareness of governments to the rights of the child, the debilitating effects of child labour, etc, and its amelioration through formal schooling. The other mode would be to read this increased emphasis on elementary education as the human face of the neo-liberal state’s more debilitating structural adjustment policies and the expanding market’s attendant need for a literate and commodity-consuming populace.

- Sarada Balagopalan, Free and Compulsory Education Bill, 2004, Economic and Political Weekly August 7, 2004
[J..ELDOC.N00.07aug04EPW.pdf]

The Universal Declaration of Human Rights (UDHR), 1948, provides that elementary education shall be free and compulsory (Art 26). The International Convention on the Rights of the Child (CRC) (1989) enjoined all the countries in the world to give free and compulsory education to every child. During the World Conference on Education For All (EFA), held at Jomtien in Thailand, 1990, 155 countries including India made a joint declaration to provide primary education to everybody by the year 2000. In the Dakar Conference, held in Senegal in 2000, a framework of Action, popularly known as the Dakar Framework of Action, recognised the right to education as a fundamental human right and declared that every child, youth and adult should get education within 2015.

The World Bank's rationale for school fees in Malawi in 1982-83 became known as the Thobani rule. It posits that families and individuals ought to pay fees in order to access nominally available public services, otherwise these services would not be available or their quality would become unacceptably low. The importance of education for parents was assessed by through their willingness to pay for the education of their children. Thus determined, that willingness translated into the demand for education which was to be matched by an adequate supply. Education was subjected to the free market. However no matter how willing the parents, their lack of purchasing power could not create a demand. That excess demand stemming from those who might have been willing but were unable to pay, could not be met. Education was thereby converted from an entitlement into a commodity, and the rule of law was replaced by the power of the purse.

- Katarina Tomasevski, Education Denied, pg 32 and 72, Zed Books 2003, [B.N00.T.1]

Keeping in mind the present-day thinking of leaving more and more spheres of economic activity to private...initiative, it would be natural to leave the matter of universalisation of elementary education also to private educational bodies and other NGOs. However, the current experience is that by and large NGOs enter the field of education only when there are prospects of direct and immediate monetary returns. It is obvious that elementary education for the masses on the above scale holds no such prospects, so that if the country and its government are serious about the goal of universalisation of elementary education most of the necessary funding for it will have to come from public funds.

- JV Deshpande, Elementary Education as Fundamental Right, Economic and Political Weekly, September 20 1997

Many send (their children) to private schools...though it means a big hole in their small budget.This is because of their dissatisfaction with municipal or government schools nearby...This has led to commercialization of education, and proliferation of private schools in every neighbourhood.

- Syed Shahabuddin, Right to Education: Real or Farcical?, Mainstream December 22, 2001

In furtherance of this elitist agenda, private schools in India can now provide foreign qualifications at school level itself without any regard for the National Curriculum. This has been permitted by a circular from the Ministry of Human Resource Development dated January 14th 2001. Several such schools in Delhi and elsewhere have started providing such education on payment of fees of several lakhs per year.

Provisions in Part IV of the Constitution of India- Directive Principles of State Policy
“Article 45- Provision for free and compulsory education for children.
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.”
“Article 46- Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections. The State shall promote with special care the educational and economic interests of the weaker sections of the people and in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.”
It was the duty of the Central Government to implement Article 45 within 10 years of Independence.

- Free and Compulsory Elementary Education for Children in India, Legal News and Views, August 2004

The 93 rd Amendment Bill
Further to amend the constitution of India
Be it enacted by Parliament in the fifty-second year of the Republic of India as follows:
1. (1) This Act may be called the Constitution (Ninety- third Amendment) Act, 2001.
(2) It shall come into force on such date as the Central Government may, by notification in the official Gazette appoint
2. After article 21 of the Constitution the following article shall be inserted, namely:
“21A. 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.”
3. For article 45 of the Constitution, the following shall be substituted:-“
45. The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years”.
4. In the article 51A of the Constitution, after clause (j) the following clause shall be added, namely:-“(k) 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”.

The right to education is only a Directive Principle of State Policy but not a Fundamental Right. As it is not a fundamental right, it remains virtually a dead letter. Prof KT Shah had, as noted already, anticipated this development and had called the Directive Principle of State Policy on free and compulsory primary education a fraud on the Constitution. Now the situation has changed with the ruling of the Supreme Court in the case of Unnikrishnan J.P. vs. Andhra Pradesh that the right to elementary education…is a fundamental right. However, the probability that this ruling may in future be reviewed and reversed by the Supreme Court cannot be ruled out. Hence, there is a need to enact a constitutional amendment making the right to free elementary education a fundamental right. This will enable aggrieved citizens to approach the court, if the State fails to provide schooling facilities of reasonable quality at suitable locations. With the end in view, the previous United Front Government had introduced in the Rajya Sabha the Constitution (Eighty-Third Amendment) Bill 1997.

- Jayakumar Anagol, Ch 4 pg 43, Compulsory Primary Education- Opportunities and Challenges, Indian School of Political Economy, [R.N21.20]

Article- 41- Right to work, to education and to public assistance in certain cases - The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education...

Article 45- Provision for free and compulsory education for children- The State shall endeavour to provide within a period of 10 years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.
Thus after taking into consideration the various provisions of the Constitution and the expanding import of Article 21 the SC in Mohini Jain's case held " the fundamental rights guaranteed under Part iii of the Constitution of India including the right to freedom of speech and expression and other rights under Article 19 cannot be appreciated and fully enjoyed unless a citizen is educated and is conscious of his individualistic dignity. The 'right to education', therefore, is concomitant to the fundamental rights enshrined under Part iii of the Constitution. The State is under a Constitutional mandate to provide educational institutions at all levels for the benefit of the citizens!"

... If the State's duty to provide education at all levels is not recognised, then the private entrepreneurs are under no obligation to act either fairly or in accordance with larger goals of the Constitution and would be quite justified in having profit as the only motive in running educational institutions.

- D Nagasaila and V Suresh, Can Right to Education be a Fundamental Right?, Economic and Political Weekly, November 7 1992

The Supreme Court observed in Mohini Jain case in 1992 that the directive principles which are fundamental in the governance of the country cannot be isolated from the fundamental rights guaranteed under Part III of the Constitution.1 These principles have to be read into the fundamental rights. The two are supplementary to each other.The court further held that ‘right to life’ is the compendious expression for all rights which the courts must enforce “because they are basic to the dignifiedenjoyment of life...The right to education flows directly from right to life. The right to life under Article 21 and the dignity of an individual are not being assured unless it is accompanied by the right to education.

- Madhav Godbole, Elementary Education as a Fundamental Right: The Issues, Economic and Political Weekly, December 15 2001

The danger of declaring even right to primary education as a fundamental right is the same as that involved in declaring the right to shelter or the right to health care as fundamental rights. Unless the state pursues social and economic policies under which such rights could be secured, their mere judicial articulation would only widen the gap between the normative order and the social reality. This would cause erosion of the credibility of the court as an institution and ultimately adversely affect its social legitimacy. However, there cannot be any right to education at all levels.

- SP Sathe, Supreme Court on Right to Education, Economic and Political Weekly, August 29, 1992

In 1992 the Supreme Court in the case of Mohini Jain vs State of Karnataka held that right to professional education is a fundamental right. This was followed by a series of cases filed by private and state-aided medical and engineering colleges seeking review of this decision. Obviously their main source of Income, capitation fees were being threatened. The Supreme Court was constrained to constitute a special bench to hear the case of the private colleges. After four weeks of arguments, the apex court passed the judgement in Unnikrishnan and others vs State of Andhra Pradesh and others.

- Aparna Bhat- Human rights law network, Supreme Court on Children, A Combat Law Publication 2004

The apex court of our country has proved itself relevant and meaningful by illegalizing capitation fees and asserting the right of our citizens to educa-tion.
In its judgment dated 4/2/93 in the matter of J.P. Unnikrishnan and State of Andhra Pradesh the five-member bench of the Hon'ble Supreme Court by its majority judgment categorically declared that "the citizens of this country have a fundamental right to education."

The Hon'ble Judges together with a large num-ber of advocates for both sides had been toiling for days to reach to a solution to the problem of capitation fees prevalent in many private institutions of higher education especially that of medicine and engineering.

The Hon'ble Court and in a way the whole country were facing the threat by private educational institutions that the declaration of capitation fees as illegal or the recognition of right to education as a fundamental right will kill all their educational initia-tives and they will be forced to close down all such institutions. It is a pleasant surprise in the context of recent judicial developments of our country that the apex court courageously faced the threat and has come out with the most legal as well as humanitarian solution to the problem.

Ihe Constitution states
Part III: Fundamental Rights.
þArticle 28: Freedom as to attendance at religious instruction or religious worship in certain educational institution.
þArticle 29(2): No citizen shall be denied admission into any educational institution maintained by the state or receiving aid from the state on the grounds of religion, race, caste, language, or any of them.
þArticle 30: Rights of minorities to establish and administer educational institutions.
Part IV: Directive Principles of State Policy.
þArticle 41: Right to work, to education and to public assistance in certain cases.
þArticle 45: Free and compulsory education for children within a period of 10 years after the enforcement of the
Constitution.
þArticle 46: Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections.
The Education Commission (1964-65), popularly known as the Kothari commission, recommended 5 years of primary education for all children to be achieved within 10 years, and 7 years of elementary education within 20 years.
The National Policy on Education (1986) set the target of achieving universal primary education (age-group 6 -11 corresponding to classes 1-V) within 1990, and Universal Elementary Education (age-group 6-14 corresponding to classes 1-VIII) within 1995.

5. What legal action can a person take if the state does not provide educational facilities to children below fourteen years of age?
If a child is not receiving education due to the inability of the State to provide educational facilities, the following courses of legal action are possible. These actions are possible in the light of Supreme Court upholding education up to 14 years as a fundamental right in Unnikrishnan case.
i. A person can file a writ petition in the High Court or the Supreme Court in the case of violation of any fundamental right. This petition can be filed by the aggrieved person or any other person on behalf of the larger interests of the society. Such a petition which is filed by a person who had no locus standi in the case, and which is in the interest of public at large, is called a Public Interest Litigation (PIL). Thus a writ can be filed in the High Court against violation of the Fundamental Right (Article226).

- FAQs on the Fundamental Right to Education,Ch 4 Pg. 9, National Alliance for the Fundamental Right to Education, August 1998 [R.N21.11]

For the present, it can only be asserted that the 93rd amendment gives an opportunity to the conscientious, committed, zestful and questioning Indian minds to invoke Article 32 on the enforcement of Articles 41 and 45. There is an opportunity for a public interest litigation against the Indian State to question allocative efficiency in public expenditures, to demand just and fair attention to elementary education and to implore the State to allocate adequate funds for elementary education. The public can seek redressal through the judiciary. The print and electronic media can lend unstinted support to the questioning minds. Does it happen? Where are the questioning minds? Wait and see. But there are also several complex issues involved in such public interest litigations. Who shall be the defendant in such litigations? There are several points of power and patronage in the Indian polity today.

Education being a concurrent subject, the Union government bears responsibility. Articles 45 and 41 have placed elementary education under the responsibility of the states. The 73rd and 74th constitutional amendments have transferred responsibility for elementary education to the zilla panchayaths and urban local-self governments. Hence, the panchayaths and municipalities are responsible.

As such the State in India is in an advantageous position in regard to public interest litigations that try to invoke Article 32 for enforcement of Articles 45 and 41. There can be a ping-pong game of responsibility for universalisation of elementary education across the Union, the states and the local-self governments wherein the judiciary will function as a confused umpire among the helpless Indian citizenry.

- FUNDAMENTAL RIGHT STATUS FOR EDUCATION: Opportunity or eyewash?, AS Seetharamu, Deccan Herald, 09/02/2002 [C.ELDOC.N20.09feb02dhx.htm]

"There is one field... which does not appear to be in the priority list of human rights organisations— education and schooling of children. ... It was stipulated by our constitution makers that children upto the age of fourteen will be given free and compulsory education. ... The attempts made by Union and State Governments since the time India attained independence indicate that education is not a subject which deserves top priority. The government has, however,spent huge amount by way of setting up Commissions and Committees which in turn have produced voluminous reports. Some of these Commissions started with the assumption that anything that was recommended by any Commission during the British regime must be scrapped--for example, the Sargent Commission Report. ... The fact remains that an increasing number of children are growing as illiterates.." (PUCL Bulletin, September 1990).

"It is said that parents don't send their children to schools because of economic reasons-they want their children to add to the family income and therefore they either do not send their children to school, or children drop out after a year or two. This is at best only half-truth, and half-truth is more dangerous than falsehood.... Even where schools function, the physical condition is deplorable--there are no desks, no drinking water facilities, no lavatories. You visit any Corporation and Government schools in Delhi and you find that children in primary sections are not provided with desks; they are required to squat. Children from poor families do deserve better physical environment than in their places of residence where they have no amenities of life. Let them have some amenities at least in their school where they can feel happy, and if they are happy they may not drop out" (September 1990).

- RM Pal, Denial of the Right to Education: A Human Right's Violation, Social Action Vol 51 April-June 2001 [C.ELDOC.N00.01apr01SOA.pdf]

In view of the challenges posed by the policies of modernisation and globalisation, the Union Government and State governments need to formulate with a sense of urgency a comprehensive policy to improve the quality of education and to achieve an equal or similar level of educational facilities and standards in all the different States and regions. However, the Conference of the State Education Ministers, which is the mechanism for Centre-State consultations on this subject, has not been convened since 1998 nor has the Central Advisory Board of Education (CABE) where all the State governments are represented, been reconstituted in spite of repeated demands within and outside Parliament.

At present...the expenditure on education is less than four per cent of the GDP. Downward revision and non-utilisation of even the reduced amounts are abiding features of our budgetary performance.

Sponsored by the World Bank the Jomtien Conference laid the groundwork for intervention by the international funding agencies in national educational structures and processes of the developing nations... The Jomtien Conference marked the beginning of the phase of increasing abdication by the Indian state of its constitutional obligation towards education of the nation's children in favour of the forces of the global market.

- Anil Sadgopal, Political Economy of the Ninetythird Amendment Bill, Mainstream December 22, 2001

Article 45 which refers to primary education advises the State to endeavour to provide, within a period of ten years from 1950, for free and compulsory education for all children until they complete the age of fourteen years. The irony of the directive principle was that checks and controls on the endeavours were not envisaged... Article 41 reads as follows: “The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance”. It is under the escape route of ‘capacity and development’ that the State has all along justified its poor performance in regard to elementary education.

- FUNDAMENTAL RIGHT STATUS FOR EDUCATION: Opportunity or eyewash?, AS Seetharamu, Deccan Herald, 09/02/2002 [C.ELDOC.N20.09feb02dhx.htm]

The proposed consti-tutional amendment, which makes education a funda-mental right, is one such. The bill has been passed unani-mously in Parliament, because no party would like to be seen as opposing something that is so evidently political-ly correct. Making education a fundamental right actually makes the issue more problematic. As a directive princi-ple of state policy, the onus was on the state to oversee the spread of Education. The state has failed, not always un-willingly, since the political project often gains through the ignorance of the masses. Certainly negligence had a large part to play, because the nurturing of the educated to perpetuate the governing classes also meant a propor-tionate carelessness towards the uneducated. As soon as education becomes a fundamental right, however, ac-countability remains defined while the identity of the person or institution accountable is obscured.

Gail Omvedt connects the neglect of primary education to the develop-ment path India has followed since Independence. "Rapid industrializa-tion focusing on heavy capital goods, high technology, a scientific es-tablishment, nuclear power etc. was seen as the core of self-reliance, national prestige and economic growth. Investment and energy were directed to this end. Agriculture, agro-industries and simple manufac-turing such as textiles (which had upto then been India's strongest items of trade) were neglected. The majority of India's people were seen mainly as suppliers of cheap labour and as objects of poverty alleviation programmes - not as sources of energy, enterprise and capacities that were the country's real strength. Slogans of "socialism" meant mainly state control of industry, not popular control; they assumed an economy managed by the elite controlling the bureaucracy What did this mean for education? It meant not only a neglect of education as such, but that the funds for education were disproportionately directed at creating institutions of higher learning... The final result is the burgeon-ing crisis we see in all sectors of education today: widespread illiteracy, neglect of elementary education, failure rates of over 50 per cent in secondary education....

- Globalization and the Changing Ideology of Indian Higher Education, Ambrose Pinto, Social Action, 01/10/2000, [J.ELDOC.N00.01oct00SOA.pdf]

Although this legislation had been in the making for several years, it was the United Front (UF) government which had pushed ahead with it and introduced it in Parliament. However, the UF government did not last long enough to ensure the passage of the bill after tabling it. And since then, the issue has been placed on the backburner. In fact, this matter is not really among the priorities of the BJP-led government and the present human resource development minister (HRD) Murli Manohar Joshi is reported to be credited with the view that such a move will neither be practical nor feasible for implementing. HRD officials maintain the files on this issue have been pending and that there has been no move to revive it either.

As a token beginning, the UF government did allocate Rs 35 crore for this purpose but this money remained unspent. The BJP-led government has also made a similar provision for making elementary education a fundamental right but it is highly unlikely that these resources will be spent this time either. India has been under tremendous pressure from the international community, particularly donor agencies, to make elementary education a fundamental right since they believe that such a legislation would help check the growing problem of child labour.

A section in the HRD ministry believes that the country is not yet ready for such a legislation, which will make elementary education a justifiable right, as it will only give rise to endless litigation as the people will be liable to take the state to court if they feel they are being denied their right to education.

8. Duty of parents and guardians
1) It shall be the duty of every citizen who is a parent or guardian of a child, unless prevented by a valid reason specified in sub-section (2), to:
(i) enrol his child, or as the case may be, ward in a recognized school,
(ii) cause the child to attend such school with at least such minimum regularity as may be prescribed; and
(iii) provide the child full opportunity to complete elementary education.

In this draft bill the two-tier schooling structure compels parents to send their children to schools at the risk of being penalised rather than because they desire this particular type of school for their children. The ‘compulsory’ provisions in the draft bill thus serves to institutionalise a parallel system that poor parents have no recourse to reject. The reason that this idea of ‘compulsion’does not provoke more outrage is because the middle class strongly believes, and this is reflected in the draft bill, that the primary reason that children are not in school is because of parental encouragement of child labour. Within this point of view it is quite natural that ‘compulsion’ takes precedence over quality of schooling issues.

- Sarada Balagopalan, Free and Compulsory Education Bill, 2004, Economic and Political Weekly August 7, 2004 [J.ELDOC.N00.07aug04EPW.pdf]

The next question is whether the word ‘compulsory’ in the wording ‘free and compulsory education’ should remain in the proposed amendment. As brought out earlier, the word ‘compulsory’ appears in Article 45 of the Constitution as also in the UN Convention on the Rights of the Child. It is imperative that the word is retained to clearly indicate the ambit of the responsibility of the government and that of the society at large in the matter. It should not, however, be interpreted to cast penal liability on parents to send their children to schools as has been provided in certain state legislations which has led to prosecution of parents, particularly of low income and deprived sections of society. For the same reasons and based on the same logic, the proposal to amend Article 51 of the Constitution, pertaining to fundamental duties of the citizens, so as to cast the duty on the parent or guardian to provide opportunities for education to a child is sound and will go a long way to create a proper climate and mindset in the society for universalisation of elementary education. Over the last 50 years since independence, we, as a society, have got used to talking of the responsibilities of the government. It is time we talk equally eloquently of the responsibilities and duties of the citizens...Wherever a parent or a guardian is financially in a position to send his ward to a private school and bear the burden thereof, there is no reason why the state should subsidise such expenditure out of its own meagre and already over-stretched resources.
The Constitution (Eighty-Third) Amendment Bill, 1997, inter alia, referred to a clause as follows: “The right to free and compulsory education referred to in clause (1) shall be enforced in such manner as the state may, by law, determine” (emphasis added). The word ‘enforced’ is likely to be misconstrued and misinterpreted. It is also not appropriate in the context of the fundamental rights of citizens. As brought out by the parliamentary standing committee in its report on the Constitution (Eighty Third) Amendment Bill, 1997, “A right is not given in a spirit of enforcement”. It is proposed that the word ‘enforcement’ may be substituted by the words ‘given effect to’.

- Madhav Godbole, Elementary Education as a Fundamental Right: The Issues, Economic and Political Weekly, December 15 2001

The government has taken the view that a school of "satisfactory quality" is essential to encourage children to come to school regularly. This also implies that the parent is interested in making a rational choice about what is good for the child.

It is, therefore, recommended that it must be incumbent upon the state to provide educational opportunities as per established norms to every child in the country and that no penalty be imposed on the parents. Article 51A, which imposes a duty on the parents, with associated penalties may be dropped from the proposed constitutional amendment. This will eliminate any scope for harassment of parents (especially the illiterate ones) by the enforcement authority.

Also now judiciary will be so persuaded because of the addi-tion of a sub-clause (k) as a fundamental duty of such parents in Article 51A, as proposed in the Bill. Sub-clause (k) makes it a fun-damental duty of all parents not just to send their children to a school but, much worse, 'to pro-vide opportunities for education' which will be read by the courts as the provision of educational facilities being a fundamental duty of the parents, and not a compulsion on the state. Sanjiv Kaura of the National Alliance for the Fundamental Right to Education, (NAFRE), a coalition of 2,400 voluntary organisations working in the edu-cation sector, says, "It's disap-pointing several positive recom-mendations we had made weren't incorporated in the bill." For instance, "We suggested the removal of the clause burdening parents with the fundamental duty to 'provide opportunities for education'. But the clause has stayed and can be misused by local mandarins to harass the poor people."

The Leader of' the Opposition, Mrs. Sonia Gand-hi, has asked the Prime Minister, Mr. Atal Behari Vajpayee, to re-examine the Constitution (83rd amendment) Bill which aims to make education a fundamental right since there are certain as-pects which were touched upon by the Parliamentary Committee on Education but have been inad-equately covered in the proposed legislation.

Mrs. Gandhi has said the Bill in its enthusiasm to make education a fundamental right has ignored the need to enforce quality of education. Second, the word "compulsory" in the amended Article 21 does not go with the spirit of a fundamental right as it denotes enforcement. "A right is not given in a spirit of enforce-ment. The citizen of six to 14 years shall have a fundamental right to free education. The State shall have a corresponding obligation to provide that education. This perhaps needs clearer emphasis in the legislation," she observed in a letter to the Prime Minister.

Since the Bill proposes compul-sory education only till the child is 4 14 years old by then he would have passed eighth standard, the legislation should provide for a formal certificate for those pass-ing this class. Penal provisions on parents should be avoided be-cause the compulsion should be on states to provide essential fa-cilities rather than on parents ma-jority of whom struggle for survival.

...The quality of education does not find any mention in the bill making it illusory as to the nature of the right to be enjoyed in the future. The most draconian provision is article 21A which is an open-ended provision providing the government full discretion as to the manner of imparting education.

- Anindita Pujari, Right to Education: A Reflection, Legal News and Views November 2002

With what justification can one ask that the State provide all necessary finance for school infrastructure as is being demanded complete with one room per teacher per class, toilets, drinking water, free mid-day meal, uniforms, books, stationery, transport and now incentives and yet leave it to parents to decide whether or not they wish to make use of these facilities? Such investment if provided, without any guarantee that the child is going to be really sent to school will cause enormous wastage of resources.

Campaigning for Education to be a Fundamental Right is problematic for several reasons...it presumes that all Indians ...require a system of schooling in order to live with dignity. This assumption negates informal modes of learning, demeans contextually- sensitive conceptualizations of organising life, and binds freedoms and choices. The aggressive nature of campaigning ...restricts meaningful dialogue around the issue in question. Opportunities for deeply and critically inquiring into the rationale or implications of the demand are denied...Using propaganda to promote one vision as the only answer, it thus prevents the emergence of any other perspective on or understanding of the issue.

By focussing on the 'rights' aspect, the ...campaign effectively diverts attention away from more foundational questions around schooling, education and society. When analyzing and discussing the problems of education, there is very little exploration of what purposes education serves and very little reflection on what has been achieved in these many decades. For example, it does not question the rising incidences of suicide and depression in Kerala, despite its esteemed status of having achieved a literary status of 93%. Nor is there any discussion about why prevalent notions of education have failed; how education is connected to dominant notions of Development, Progress, Science/Technology, the Nation State ; who benefits from education and why; or any other seriously meaningful question. Not only is the landscape being ignored, but one wonders what lies at the end of the road.

The task of providing access to school, enrolling all the children of school going age and retaining them till they attain a reasonable level of literacy is a daunting one. The oft repeated claim that there is a school now for every child in the country is exploded by the Report of the Fifth All-India Educational Survey conducted by NCERT . Nearly three lakh habitats comprising 50 million people have no access to primary education is the shocking finding of the Survey...

...Of those who enrol, sixty per cent drop-out of school before completing five years of education. Various are the reasons for this high drop out rate and consequent waste. More than economic reasons the institutional and curricular inadequacies are said to be a major factor, according to some significant studies on this chronic problem. Here comes the question of not only what is being taught but also the way in which children are taught. Very poor physical environment of a large number of schools with no buildings, equipment, qualified teachers urinals and even drinking water...

- NA Karim, Education For All- A summit with high drop-out rate, Mainstream, December 25 1993

A specific provision in respect of the quality of education in the proposed Constitution amendment will makes it obligatory for the state to provide properly qualified manpower and adequate financial resources in terms of infrastructure, equipment, scientific aids, textbooks and so on. Thus, for example, considerable further work needs to be done to rewrite the textbooks which will make elementary education a rewarding and enjoyable experience for children. The large social, economic and cultural gap in the urban and rural settings from which the students hail must be suitably taken into account in the preparation of the textbooks. A categorical mention of quality in the proposed amendment will also, to some extent, deter the states from implementing low cost schemes for primary education.

- Madhav Godbole, Elementary Education as a Fundamental Right: The Issues, Economic and Political Weekly, December 15 2001

There is a fear that the much heralded Right to Education may prove to be a mirage, politically only a populist gesture. The constitutional amendment will then amount to throwing dust in the eyes of the masses who will have to remain content with third rate education, irrelevant to their needs and even to their rising goals in life.

The governments invented 'proxy education' - one teacher school, one room school, no room-school, ...existing only on paper, aided school run by NGOs to line private pockets. On the other hand first rate schools came up for the elite, comparable to the best in the world...Of course the elite paid for them but whether the government will provide primary and secondary education of minimum quality under the new dispensation is the big question. Article 21 A already provides a backdoor for the state by subjecting the fundamental right to determine the manner of implementation to the States. This may well lower the level of education to the point of a formal irrelevance.

- Syed Shahabuddin, Right to Education: Real or Farcical?, Mainstream December 22, 2001

... There is also, in many instanc-es, the opportunity cost of earnings that those who go in for education forgo, though this is not taken into account in the figures that follow. It may not be widely known that even where schooling is 'free', households incur expenses. A sur- vey by the National Council for Applied Economic Research, conducted in the early 1990s... shows that household expendi-ture per student on free elementary educa-tion in rural India was Rs.378, with a high of Rs.842 in Himachal Pradesh and a low of Rs.253 in Orissa...

Though admission fees in government schools, says the report, are negligible or non-existent, other costs are prohibitive. In the states surveyed, a family spends, on an average, Rs 318 a year per child on fees, books, slates, uniforms etc. In one instance, a child dropped out of school because she did not have a uniform. Her younger siblings were more fortunate; by the time their turn to attend school arrived it was no longer compulsory to wear uniforms.

In a number of research studies done by our group — Educational Resource Unit — we noticed that schooling is not free, even in government schools and the schools meant for the poor. For example in a recent survey in Uttar Pradesh we found that the teachers collect `fees' — official and unofficial. Community members and students reported that teachers in government schools often asked children to get Rs. five to 10 during national festivals, for issuing of Transfer Certificates or for release of scholarship money. Parents we spoke to said: "If payment is compulsory, then we'd rather send our children to private schools, especially when our children learn very little in school!" Perceived poor quality and poor learning outcomes in government school is contributing to the emergence of these private schools. Collection of unofficial fees, compelling children to buy guidebooks, private tuitions are gradually becoming more common. What is worrisome is that such practices have become more widespread in the last decade, the period when community demand for perceivable good quality education has also grown.

The proposal for non formal schools will infact worsen the quality of education

On examination of the provisions of this Bill (Draft Free and Compulsory Education for Children Bill, 2003) the following drawback(s) have been noted:
It provides for two types of school, one is formal school and another is non-formal school...The non-formal school is totally a sub-standard school where unqualified teacher with no physical infrastructure may teach the children for few hours. The children of the marginalized sections of society can conveniently be asked to receive education in non-formal schools which is bereft of quality education. Why should there be two sets of schools?

- Ashok Agarwal, Free and Compulsory Education for Children Bill, 2003: Needs to be redrafted on the basis of good quality Common School System, Legal News and Views December 2003

The legitimation of a two-tier schooling system is perhaps the most glaring provision in the draft bill. The bill recognises two different grades of schools, namely, ‘approved schools’ and ‘transitional schools’. The schedule of the bill clearly delineates the hierarchy within which these two types of schools are being set up. The norms for the approved schools include at least two teachers in primary school, one room per teacher, 200 working days in the academic year, and four hours of teaching per working day in primary schools. In comparison to this the transitional schools get ‘instructors’ who have passed the 10th grade and have been trained for 30 days. There is no discussion within the transitional schools of the minimum hours of instruction per day, nor minimum number of days per year and nothing at all of the space within which this instruction will take place. To compound this farce of ‘norms’ is another listing of what is ‘desirable’ for each type of school. The common sense understanding of desirable, highlights its wishful elasticity and its constitutive ability to accommodate what ‘norms’ cannot. But even here the legislation reveals its underlying sense of panic in making available, even with this hyper-real ‘desirable’, equal amenities for both types of schools. As a result even toilet and water facilities while desirable for approved schools do not find any mention in the equivalent list for transitional schools!

Given this existing state of affairs, how then would the state’s efforts to create new transitional schools with even lower infrastructural facilities and less-qualified teachers lure in the poor? The answer lies less in the transitional schools than it does in the sinisterness that underlies the ‘compulsory’ provisions of the draft bill.

- Sarada Balagopalan, Free and Compulsory Education Bill, 2004, Economic and Political Weekly August 7, 2004

The Bill in fact makes a regressive reference to the issue of equity and quality. The new Article 21A promises the right to free and compulsory education for the 6-14 age group 'in such manner as the State may, by law, determine'

Instead of articulating a policy focus on ways of improving both the access and quality of the government school system, the policy declared that a non formal stream, parallel to the school mainstream, will be established for the out-of-school children. More than three lakh non-formal centres were started during the next four years. However, as the non-formal stream was rejected by the poor children and their parents alike...The policy of promoting the non-formal stream...is part of the globalisation agenda of gradual withdrawal of the state from from its constitutional obligation of providing education of equitable quality to all children. It is also an evidence of the State's willingness to co-exist with child labour.A Non formal centre, an adult literacy class, the so called 'alternative' school, a multigrade class...replacing the regular teacher with a para-teacher and now the NCERT's 'innovation' of replacing even the para teacher with a post man- all have been accepted as 'adequate' substitutes as long as the substitute concerns the education of the poor.

The CSS was a policy imperative in the first NPE 1968. Ironically however this commitment was violated twice by the 1986 policy itself...

It may be contended that the basic guiding principle for building up a Common School System is the commitment to promote and savour education of equitable (not uniform) quality in the entire school system.... Yet, the successive Union Governments, despite the Constitution's commitment to equality of all citizens continued to violate the Constitution and ignore the policy commitment to the Common School System.

- Anil Sadgopal, Political Economy of the Ninetythird Amendment Bill, Mainstream December 22, 2001

Sadly, the draft Free and Compulsory Education for Children Bill 2003 to be tabled soon in Parliament is another tool that will be used permanently to legalise this bonsaification. This Bill contravenes the core equality of opportunity principle enshrined in our Constitution. The only system of education sanctioned by our Constitution is the Common School System (CSS).

Even children in the six to 14 age group have been granted the fundamental right to education with certain conditions. As per the new Article 21A, free and compulsory education shall be provided "in such manner as the state may, by law, determine". This conditionality was introduced to legitimise the system of low-quality, low-budget parallel streams of education. The discriminatory multiple-track education has become the backbone of Sarva Shiksha Abhiyan in the Tenth Five-Year Plan. (`Back-to-school' camp is the latest addition to the multiple-track system.)

Soon, even the para-teacher will be replaced by a postman, as the government has decided to push correspondence courses for children in the six to 14 age group. This implies that the girl child will be denied the relatively more liberating atmosphere of the school rather than her home, which is still bound by patriarchal traditions.

- Education for too few, ANIL SADGOPAL, 05/12/2003 N00 [C.ELDOC.N00.05dec03frn6.htm]

The Centre is prepared to organise a non-formal education centre, allow the child in adult lit-eracy classes or provide a facility under the so-called Education Guarantee Scheme wherein a para-teacher will be appointed. The para-teacher scheme, already operating in a number of states like Madhya Pradesh, Rajasthan, Karnataka where the recruits appointed are under-qualified, untrained and under-paid youth as teachers on a contract basis. What is worse is the possibili-ty that the government might inform the court that it will do what the NCERT has recently pro-posed i.e., teach children in the six-14 age group through corre-spondence. "Not even a para-teacher will be appointed. Rather, a postman will do. Today, the court is likely to reject all of these government proposals for cheaper and low quality alternatives as these vio-late the principle of equality and justice enshrined in the Constitution," says Sadgopal. This would have also been the stand of the courts even if the 83rd amendment Bill, pending in the Rajya Sabha since July 1997, was passed by Parliament. But not after the 93rd amendment Bill. The dominant policy now is to provide various poor sections of society with cheaper and paral-lel streams of education under all sorts of euphemisms.

Consider another poor woman who petitions the court to order the state government to make a functioning primary school avail-able to her child with at least three teachers, three reasonably large rooms, essential learning materials and a school library. Such a prima-ry school was envisaged by the National Policy on Education (as modified in 1992) under its Opera-tion Blackboard. While agreeing to provide education to the child, the government has anything but a school in mind. It is prepared to organise a non-formal education centre, allow the child in adult liter-acy classes or provide a facility under the so-called education Guarantee Scheme wherein a para-teacher will be appointed. The para-teacher scheme, already operating in a number of states, ap-points under-qualified, untrained and under-paid youth as teachers on a contract basis. What is worse is the possibility that the government might inform the court that it will do what the NCERT has recently proposed (November 2000) i.e., teach chil-dren in the six-14 age group through correspondence. Not even a para-teacher will be appointed. Rather, a postman will do. Today, the court is likely to reject all of these government proposals for cheaper and low quality alterna-tives as these violate the principle of equality and justice enshrined in the Constitution...The 93rd amendment Bill proposes to give this right 'in such manner as the state may, by law, determine'. This addition of a qualifying phrase to the provision of fundamental right cannot be dismissed lightly, especially in view of the now established policy of instituting parallel streams of education for poor children.

The second most important issue that CMP is silent about is the government policy on para teachers and education guarantee scheme schools. In recent years there has been a significant growth of under-qualified and under-trained teachers, under different names, para teachers, shiksha karmis, gurujis, sahayaks, vidya volunteers, etc. Similarly there has also been a wide acceptance by union and state governments of the education guarantee scheme. Sarva Shiksha Abhiyan and even the proposed draft bill relating to free and compulsory education have accorded a status to these schools and teachers equivalent to normal formal schools, and fully qualified and trained teachers. Most state governments favoured the scheme of para teachers and the EGS schools, as they save huge resources on the one hand and avoid managerial problems of teachers on the other. At the same time, governments can claim to have marched a long way towards fulfilling the constitutional directive on universal elementary education. But the likely effects on quality of education can be too serious to bear in the long run, or even in the short run.

- Education in the UPA Government Common Minimum Programme, JANDHYALA B G TILAK, Economic & Political Weekly, 23/10/2004, [J.E.LDOC.N00.231004EPW4717.pdf]

The age of compulsory schooling should coincide with the age of permitted employment. Child labour below 14 years is prohibited in certain occupations and processes under The Child Labour (Prohibition and Regulation) Act, 1986. However the years of compulsory schooling terminate years before the child is 14 years old. If compulsory education laws have to be a strategy to eradicate child labour, the compulsory years of schooling necessarily coincide with the age at which employment is permitted, irrespective of the level of education achieved during that period.

- Archana Mehendale, Compulsory Primary Education in India: The Legal Framework, The Lawyers Collective April 1998

Though it is well established that the development of a child in the age-group of 0-6 is crucial to its further development and growth, this aspect has been totally neglected in our planning process so far. The record of work of aanganwadis is dismal. The Integrated Child Development Scheme (ICDS) has not even touched the fringe of the problem. It is therefore necessary that the education, nutrition and development of children below the age of six years is explicitly brought within the purview of the proposed amendment. It will be an empty gesture to cover the elementary education of children only in the age group of 6-14 years in the list of fundamental rights and to leave the education and development of children below the age of six years for mention in the directive principles of state policy.

- Madhav Godbole, Elementary Education as a Fundamental Right: The Issues, Economic and Political Weekly, December 15 2001

The Bill restricts the Fundamental Right to to the children in the 6-14 age group and thus 16 crore children in the 0-6 age group (including the disabled) lose the right given to them by the Supreme Court. The significance of early childhood care...nursery and pre-school education for the children upto six years of age cannot be overemphasized as its criticality for child for child development as well as the child's readiness for elementary education is fully recognised by the National Policy on Education 1986. By withdrawing this right the government is essentially disciminating between the rich and the poor since the former will be able to afford early childhood care and education for their children while the poor children will suffer throughout their education due to this handicap in early childhood.

In its lack of commitment to the children under six years of age, the Bill also reflects its inherent bias against the education of the girl child in the 6-14 age group as well. It is well established that a majority of the girls in the families dependent on daily wages are deprived of school education since they are invariably required to take care of their younger siblings...

The Acharya Ramamurthi Committee therefore recommended in 1990 that early childhood care and education ...must be made a Fundamental Right.A rough estimate of the financial requirement for this purpose was also given, again probably for the first time in the country. The government of the day got cold feet on seeing this and several other such recommendations of the Acharya Ramamurthi committee to give a truly egalitarian character to Indian education. The Narasimha Rao Government, within a week of announcing its New Economic Policy in July 1991, set up yet another Committee called the Janardhana Reddy Committee under the auspices of CABE...The CABE committee report (1992) went to great lengths to reject all those recommendations which would increase equity in education. This included the rejection of the recommendation to make early childhood care and education a fundamental right for the 0-6 age group.

It is being contended that education upto class VIII, as implied by Article 45, made sense when the Constitution was drafted. No more Without a Class X or XII certificate today, a young person stands little chance for either employment or admission in professional courses.
For the SCs and STs too, the benefits of reservation become available only after Class X and XII. It is further noted that India is a signatory to the UN Convention on the Rights of the Child which defines a child as a person upto the age. Hence the demand for making Fundamental Right to education available to all children upto 18 years. This demand was not even referred to by the Minister of Human Resource Development in his Lok Sabha speech.

- Anil Sadgopal, Political Economy of the Ninetythird Amendment Bill, Mainstream December 22, 2001

Policy-level recommendations to attach Early Childhood Care and Education (ECCE) to every school have been rejected. Integrated Child Development Services (ICDS), a poor substitute for ECCE, hardly covers 20 per cent of children in the age group of zero to six years. The situation is unlikely to change significantly since the 86th Constitutional Amendment, claiming to accord the status of fundamental right to education, has excluded 160 million children in the age group of zero to six years. Also, the amended Article 45 has withdrawn the previous constitutional obligation to provide free ECCE to all children below six years of age.

The amendment implies that the girls in the six-14 age group as well, especially those belonging to the deprived sections, will be denied their right to education as they will not be disengaged from sibling care. Human Resource Development Minister Murli Manohar Joshi made a shocking statement in Parliament on November 28, 2001, that amounted to transferring the government's obligation in the matter of ECCE to the NGOs and the corporate sector.

While it is understandable that the age group of less than three years does not necessarily come under the formal definition of "education", it is entirely within the gamut of the ministry of human resource development and existing government institutions to work on the pre-school age children of three to five years.

Can the lower age limit, therefore, be decreased to three years, which will include pre-school education for children between the ages of three to five years?
The proposed amendment envisages that the right will be valid for children up to the age of 14 years. It is well known that in order to pursue any further academic/vocational education, a minimum level of 10th standard (SSC/SSLC) is expected in most institutions.

Further, there is no formal certification of schooling until the 10th standard, in the current situation. The Convention on the Rights of the Child has been ratified by India, which obligates the country to provide education to all children up to the age of 18 years.

In the light of all this, it is strongly recommended that the upper age limit of the fundamental right be revised as follows — 'up to the age of 18 years or completion of 10th standard, whichever is earlier'.

Blasting the 93rd Amendment Bill, Anil Sadgopal, professor in education in Delhi University and senior fellow, Nehru Memorial Museum and Library, says it is designed to fulfill the dictates of the structural adjustment pro-gramme of the IMF and World Bank. "The legislation amounts to a withdrawal of the existing rights to education available to children. By excluding the 'upto six years age group', the bill annuls the commitment made by Article 45 to 'provide free and compulsory education for all chil-dren till age 14'. It also backtracks on the Supreme Court's 1993 judg-ment in Unnikrishnan J P versus state of Andhra Pradesh which held education to be a fundamen-tal right for all children till age 14." This implies that almost 16 crore children in the zero-six age group will lose the fundamental right to education already grant-ed to them in 1993 by the Supreme Court.

CONSIDER a poor woman who approaches a court with an appeal that her three-year-old child gets access to early childhood care and nursery education provid-ed by the government free of cost. She contends that 80 per cent of the human brain develops by age three and pre-school education through the playway method is critical for preparing the child for elementary education. If the courts are approached today with such a petition, it is highly likely that the government will be ordered to make these facilities available to the child immediately. The basis of such a favourable court order will be the now famous Supreme Court judgment given in 1993 in the Unni Krishnan, J P vs State of Andhra Pradesh wherein the court ruled that the Article 45 of Part IV of the Constitution must be read in conjunction with Article 21 (right to life and personal liber-ty) of Part III. This harmonious construction of Article 45 with Ar-ticle 21 gave fundamental right to education to all children (including the disabled) 'until they complete the age of 14 years'. However, the above plea is un-likely to be met if the proposed 93rd Constitutional amendment Bill is passed by Parliament in the winter session. The Bill proposes to give fundamental right to educa-tion only to those children who are in the six-14 age group. This implies that almost 16 crore children in the zero-six age group will lose the fundamental right to education al-ready granted to them in 1993 by the Supreme Court.

Contrary to popular belief, ECCE doesn't cater only to children under 6. In 1985, former prime minister PV Narasimha Rao, the then education minister, stated in Parliament that ECCE must incorporate prenatal care for a pregnant mother, immunisation and nutritional programmes for the newborn and its later access to a joyful anganwadi and pre-primary school. This, he argued, would ensure that the child is in all ways prepared for formal school. It's truly Ironic that such a positive initiative is being diluted.

But, in sub-stance, the Bill dilutes, whittles down and greatly weakens, the right to uni-versal elementary educa-tion - rather than give it clear legal expression and force.
The Bill achieves this astounding feat by adding a new Article (21 A) to the right-to-life Article 21 of the Constitution, which says: 1. The state shall pro- vide free and compulsory education to all "citizens" of the age of six to fourteen years;... Now, the very first clause removes, at one fell swoop, the 150 million-plus chil-dren in the age group 0 to 6 years from the purview of the right to free education. Educationists recognise this as a critical period in a child's development with immense implications for his/her future in the matter of intelligence and person-ality formation. Much of what the child does in later years - for example, school retention, performance and so on - is determined in this early period. Early Childhood Care and Education is a fun-damental right.

‘The Free and Compulsory Education Bill 2004’
Some of the fundamental problems with regard to the present Bill are highlighted below:
… The Bill, authorizes the ‘competent authority’ recognized by the government for recognition of schools and prescription of syllabus. This means that the State accords to itself the power to interfere in the syllabus of curriculum preparation and medium of instruction. The whole attempt will further marginalize the minorities from participating in school related issues…

- Jeebanlata Salam, Education policies and praxis: A reference to the Free and Compulsory Education Bill, 2004, Legal News and Views, August 2004 [J.ELDOC.N00.01aug04LNV.pdf]

The National Human Rights Commission’s (NHRC) resolution of 9 January, 2002 on a complaint… submitted by a group of educationists has added new dimensions to the on-going debate over text books and school education curriculum that the NCERT is all set to introduce from the next academic year beginning April 2002.

The resolution states, inter alia, that ‘Education is the most effective tool and medium for human development. Right to education has been judicially construed to fall within the guarantee of right to life in Article 21 and now it is being expressly included in Part iii of the Constitution as a fundamental right’.
The right to education of every child is clearly a human right and its proper direction a human rights issue, The revision of text books if not carried out in scientific manner is bound to adversely affect the development of children distorting their personality. Therefore, even though the formulation of policies remains within the domain of government, the NHRC states, when it is alleged that a policy or state action would adversely affect the development of children it becomes a human rights issue…

… Education is a medium of exposure for a child to different points of view based on depiction of established facts. Education changes the mindset through a continuing process involving research, experiment and innovation. Without such practices a nation cannot expect the future citizens of this country to be informed and creative.

- Somen Chakraborty, Education- A Child’s Human Right, Legal News and Views March 2002

Article 13 (2) (c) Acceptability- the form and substance of education, including curricula and teaching methods, have to be acceptable (e.g. relevant, culturally appropriate and of good quality) to students and, in appropriate cases, parents; this is subject to the educational objectives required by article 13 (1)...
(d) Adaptability - education has to be flexible so it can adapt to the needs of changing societies and communities and respond to the needs of students within their diverse social and cultural settings.
Article 13(2) (9) The Committee obtains guidance on the proper interpretation of the term "primary education" from the World Declaration on Education for All which states: " The main delivery system for the basic education of children outside the family is primary schooling. Primary education must be universal, ensure that the basic learning needs of all children are satisfied, and take into account the culture, needs and opportunities of the community" (art.5)
(9) As formulated in article 13(2) (a), primary education has two distinctive features: it is "compulsory" and "available free to all"...
Article 13 (3) and (4): The right to educational freedom
(29) The second element of article 13(3) is the liberty of parents and guardians to choose other than public schools for their children, provided the schools conform to "such minimum educational standards as may be laid down or approved by the State.

- Right to Education- Scope and Implementation, General Comment 13 on the right to education (Art 13 of the International Covenant on Economic, Social and Cultural Rights), Economic and Social Council and UNESCO

… The Bill does not provide for special provision for homeless and destitute children, girl children, children of migratory population, children of sex workers, children in situations of emergency and armed conflict and those facing genuine problems of attending formal systems of schooling.

Further various sections, sub-sections, clauses and sub-clauses of the Bill clearly oppose basic premises of the Education Commission 1964-66, the Education Policies 1968/1986, Programme of Action, 1992 etc. on which the main foundation of the national school system is formulated. These policies emphasize need based considerations on the education of rural populations with special focus on the deprived masses. The government has proposed the Bill without referring to state level school committees, CABE, National Policies on Education, Constitution of India and UN Convention on the Rights of Child to which India is a party.

- Jeebanlata Salam, Education policies and praxis: A reference to the Free and Compulsory Education Bill, 2004, Legal News and Views, August 2004 [J.ELDOC.N00.01aug04LNV.pdf]

Now that the enabling legislation, ‘‘The Free and Compulsory Education Bill’’, is ready and has been circulated for opinion, it appears that what is being created in the process is a nationwide maze of red tape.

Section 3 (1) of the Bill is creating a new body to come up in every local body area whether it be municipality or village panchayat. It will be called the Basic Education Authority. Three months before the beginning of a financial year, they will have to submit plans to their respective local authorities and outline the ‘‘strategies to be followed to get all children to school’’.

Now, the Basic Education Authority is not the only agency at the grassroots level. Section 9 says that there is need for ‘‘a village education committee or a parent teacher association or a school management committee or a ward education committee’’. This will be set up by the local body and it will be the duty of this committee to ‘‘ensure that quality education, as prescribed, is imparted and proper standards are maintained in the school.’’

The bill allows for a grievance redressal authority. It will be headed by the district magistrate and will have four others as members, two of whom have to be educationists from the district. The grievance redressal authority will take action against basic education authorities if there are complaints that they are lagging behind in their schedule of setting up schools.

...But the passage in Parliament and Presidential assent does not mean that the law would be enforced. In the very first section, the Government, aware that the rural infrastructure to guarantee the exercise of this fundamental right is far from ready, has inserted some escape routes.

For example, Section 1(3) states: ‘‘It (the Act) shall come into force on such date as the Centre by notification in the Official Gazette appoint and different dates may be appointed for different provisions of the Act.’’ Allowing different provisions of the Act to be enforceable on different dates implies the Government does not want to come under pressure.

Section 4(3) also insists: ‘‘The government (could be either the Centre or the state) shall provide the school facilities ... at the earliest and, in any case, not later than one year after the notification of the Act.’’

- Red tape binds right to basic education, DIPTOSH MAJUMDAR, Indian Express, 26/10/2003 N20 [C.ELDOC.N20.26oct03ie1.html]

Dr. Joshi and his ministry seem to have evolved a new scheme (reminiscent of former Prime Minister IK Gujral's scheme of making it mandatory for all fresh graduates to teach at least five children before conferring the Bachelors degree). It is called the National Reconstruction Corps...Girls and boys having +2 certificate are not equipped to teach students ...upto the age of 14. So that the NRC cannot be a substitute for compulsory basic education as a fundamental right. NRC can be introduced in addition to regular schooling with full-time teachers, proper class rooms and other educational equipments.

- RM Pal, Language of Deceit and Arrogance-Compulsory Basic Education, Legal News and Views September 1998

The Prime Minister has gone on record proposing that every aspirant of the HS certificate (after the 12th standard) should be required to teach five students. A proposal such as this only shows two things: 1) The PM and his advisors are not aware of the trauma which the 12th standard students are already undergoing while preparing for their examinations...2) The PM and his advisers are evidently not aware of the ease with which a determined person can procure a certificate...

- JV Deshpande, Elementary Education as Fundamental Right, Economic and Political Weekly, September 20 1997

The Government of India's Department of Elementary Education and literacy has assessed that Rs. 60,000 crore will be required from the budget of central and state Governments from 2000 to 2010.

The Indian government must invest the required amount of money for meaningful and full scale realization of universal free elementary education by at least 2010 AD. It is only then India can stand as a completely educated nation and realize the Fundamental Right to Education.

- Free and Compulsory Elementary Education for Children in India, Legal News and Views, August 2004

For many years now the educational planners are proposing that atleast 6 per cent of the GNP should be earmarked for education every year and of that at least half should be reserved for elementary education...Two budgets of the UF government have come and gone and yet the actual figure still hovers around 3.7 per cent...

- JV Deshpande, Elementary Education as Fundamental Right, Economic and Political Weekly, September 20 1997

We may now decipher the meaning of the Financial Memorandum attached to the 93rd amendment Bill according to which an additional sum of Rs. 9800 crores per year will be provided for the next ten years in order to implement the Bill. Since the Union Budget allocation for the current financial year for Elementary Education is Rs 3800 crores, the Bill actually provides for an additional allocation of only Rs 6000 crores per year which is merely 0.35% of GDP. This is in contrast to the estimate made by the Tapas Majumdar Committee, constituted by the Central Government, whose report in 1999 stated that an additionality of about Rs 14,000 crores per year on an average will have to be spent for the next ten years to provide school education...This additional investment works out to be 0.78 per cent of the GDP merely 78 additional paise out of every out of every hundred rupees of the GDP- merely 78 additional paise out of every hundred rupees of the GDP. What the new Bill is willing to provide is less than half of what is required to be spent at the existing level of the quality of education.

- Anil Sadgopal, Political Economy of the Ninetythird Amendment Bill, Mainstream December 22, 2001

The Union Government is already pleading paucity of financial resources to meet the cost of implementation which is estimated at Rs 9800 crores every year. This is not an unmanageable amount, if one considers the total budget of the Union and the States and sees the outlay on education as an essential investment in the future of the nation with long tern multiplier effects.

- Syed Shahabuddin, Right to Education: Real or Farcical?, Mainstream December 22, 2001

The Budget has allocated to Sarva Shiksha Abhiyan for universalisation of elementary education the same amount as last year. The increase from Rs 1512 crores to Rs. 1951.25 crores is fictitious and has been obtained by cancelling very important schemes such as Operation Blackboard (Rs. 58.50 crores), Central Plan for the North Eastern areas (Rs 388 crores) etc. It is most regrettable that these important projects should have been cancelled.

The Tapas Majumdar Committee appointed by the government in 1999 had assessed the additional requirement of Rs 13,700 crores per year for universalisation of elementary education. The financial memorandum of the 93rd Constitutional Amendment scaled down the requirement to Rs 9008 crores. The government never explained on what basis this was done. Now the budget allocates for universalisation of elementary education (SSA) the grossly inadequate amount of Rs 1951 crores only.

In a recent letter addressed to all members of the Rajya Sabha, the Union Minister of Human Resource Development has urged them to allocate at least 10 percent of funds under “Member of Parliament Local Area Development Scheme” (MPLADS) towards the improvement of primary schools. The minister states in his letter that “primary/elementary schools are the foundation of the education system but they are woefully short of funds. We have made provision for certain annual grants under SSA but much more is needed”. Indeed, while the 86th Constitution Amendment provides for the fundamental right to education there has been no effort to increase the budgetary allocation. There was not even a mention of this law nor any specific proposal towards its enforcement in the Union Budget 2003.

...Each Member of Parliament may endorse projects up to Rs 2 crore per year for his or her constituency. The funds are disbursed directly by the Union Government to the concerned district collectors. Members of the Lok Sabha may utilise the funds within their own parliamentary constituencies while the Rajya Sabha MPs may select one or more districts within their state for this purpose. MPLADS has contributed significantly towards fulfilling some of the needs of the people. However, the objectives of the scheme cannot to be said to have been fully achieved.

The government is not prepared to spend the amounts required for universalisation of primary education. Indeed, the budgetary allocation this year for the Department of Elementary Education is marginally lower than last year before enactment of the Constitution Amendment. The Tapas Majumdar Committee in 1996 had assessed the demand for universalisation of elementary education at Rs 13,700 crore each year for a period of 10 years. The 93rd Constitution Amendment Bill in its financial memorandum mentions a much reduced requirement of Rs 9,800 crore per year and finally the budget provides for the project Education for All, “Sarva Siksha Abhiyan” an allocation of Rs 1,500 crore. The allocation for Sarva Siksha Abhiyan bears no resemblance to the requirement assessed. The Finance Ministry and the Planning Commission are unlikely to respond favourably to the pleas of the Ministry of Human Resource Development. Our economic reforms have focused on integrating markets but have neglected the development of human resources; yet the emergence of the “knowledge society” in the new millennium makes universal literacy a must.

Seventy per cent of the expenditure on universalisation of primary education is to be borne by the State Governments. The State Governments, however, are not likely to do so as they are markedly short of resources. Furthermore, the States are not being consulted either on this or other policy matters regarding education.

The first Bill was introduced in 1997 by the then minister for human resource development S R Bommai. At the time, it was estimated that nearly Rs 8,000 crore per year additional expenditure would be required to implement education as a fundamental right.

The numbers have been reviewed more recently, and the estimate is that the additional requirement of funds is close to Rs 14,000 crore per year for the next 10 years. The state must make whatever financial resources are necessary to implement education as a fundamental right.

- Help India's Children Make the Grade, Azim Premji, Times of India, 07/11/2001 N00 [C.ELDOC.N00.india%27s-children.htm]

Union Human Re-sources Develop-mentMinisterMurli Manohar Joshi looks set to spark another controversy with his proposal for a tax surcharge to fund universal schooling in the country. The human resources development ministry has drawn up a draft Bill to en-able the Centre to levy the surcharge. The Bill, Free and Compulsory Education Bill 2004, will be a priority for Joshi if the National Democratic Alliance returns to power.

Although the draft Bill had enough provisions for resource mobilisation at the local level for funding uni-versal schooling, sources close to Joshi said the surcharge would be imposed on corporate houses.

The clause in the draft Bill that enables the government to do this says, "The central government may, by notification, levy a surcharge on an existing tax levied by it, at a rate not exceeding 5 per cent of such tax, for rendering fi-nancial assistance to state governments." Officials said the nature of the sur-charge would be explained in a notification after the law was enacted.

The sources said the money raised would be set aside for creating an infra-structure for free schoolling. The draft Bill also has a provision for central mon-itoring of the progress of the programme, which re-quires private schools to set aside 20 per cent of their seats for free schooling un-der the direction of local authorities.

- Joshi plans school tax Surcharge may be imposed on India Inc, AJAY SINGH, Business Standard, 27/03/2005, [C.ELDOC.N20.27feb05bsb1.pdf]

Given the eagerness with which the Government introduced the 93rd Amendment to the Constitution making the Right to Education a Fundamental Right for all children in the six-to-14 age-group in the winter session of Parliament, the delay in placing the Bill before the Rajya Sabha is being questioned as is the current dispensation's commitment to the professed goal of `Education for All'.

Critical of the Government for reducing the budget for education — the actual expenditure on education in 2000-01 was 2.43 per cent of the budget and the estimated expenditure for this year had been pegged at 2.38 per cent — the Parliamentary Forum for Education & Culture on Thursday listed several instances were actions did not match lip-service.

As for the 93rd Amendment Bill, Mr. Faleiro said it was unnecessary as the Fundamental Right to Education up to the age of 14 years was implicit in Article 21 of the Constitution — a view upheld by the Supreme Court in the Unnikrishnan case — and accused the Government of acting with "unusual alacrity'' on this issue in the winter session with an eye on the Assembly elections in Uttar Pradesh, Punjab, Uttaranchal and Manipur.

Briefing mediapersons here, Mr. Faleiro backed up his charge with the fact that the Government chose to ignore the Bill for four years — it was first introduced in 1997 by the then Government — and resurrected it only on the eve of the Assembly elections.

"And, now that the elections are over, they seem to have forgotten about the Bill while some new Bills have been brought in.'' That the Government had lost interest in the Bill, according to the Forum, was evident from the fact that no allocation had been made for implementation of the 93rd Amendment in this year's budget.

Though the Government had projected the annual additional budgetary allocation for it as Rs. 9,008 crores in the Bill itself, the allocation for universalisation of elementary education this time round was only Rs. 1,512 crores.

Conceding that a considerable portion of the Rs. 9,008 crores had to be generated by the States, Mr. Faleiro said the ground reality was that most of the States were facing a financial crunch and would not be able to chip in. "As a result, when the Bill is passed by the Rajya Sabha and becomes law, there will be no financial support to implement its provisions.''

Apprehensive of cash-strapped States diver-ting money meant for the Sarva Shiksha Abhiyan (SSA), the Hu-man Resource Development (HRD) Ministry plans to ap-proach the Cabinet for an amendment that would allow the funds to be sent directly to the implementing agency so that the programme for univer-salisation of elementary educa-tion progresses as per schedule.

Seeing the prescribed proce-dure for transfer of funds to the State Government as a potential bottleneck, the Ministry is now in favour of reverting back to the District Primary Education Programme (DPEP) model of funding where the money is transferred directly to the im-plementing agency in each State. Despite the success of the DPEP model of funding, the Ministry had decided to send SSA funds to State Governments in view of the preference for such an arrangement expressed by them.

Now with more and more States facing a financial crunch, the Ministry wants the money to be sent directly to the State Implementation Society to en-sure that SSA is not derailed due to procedural delays. Another area of concern is the proviso that States will pick up part of the bill for imple-menting SSA; particularly as the State share will go up from 15 to 25 per cent with the onset of the X Five Year Plan. As per the scheme, the Centre can release new instalments on-ly after the previous instalments of both the Central and the State Government have been transferred to the State Imple-mentation Society. Given the fi-nancial situation of most States today, there is a growing con-cern within the Ministry that SSA could fall prey to this ech-nicality.

...According to Article 45 they ought to have been getting 'free and compulsory education.' Yet, in 1993-94, more than thirty years after the outer limit envisioned by the framers of our Constitution, the Indian expenditure on primary to higher education, research and development was only Rs 279 per capita per year or about 3.5% of the GNP (Gross National Product). The contemporaneous corresponding figure for USA was 10% of GNP. Small wonder then that the illiteracy rate in India in 1990 was 52% as against less than 5% in developed countries.

(The Bill is) Cheap for the following reasons. The fi-nancial implications of the draft Bill pre-pared by Mr. Bommai were calculated by the Saikia committee and estimated as Rs. 40,000 crores for a five-year period. Sub-sequently, the Tapas Majumdar commit-tee set up by the MHRD estimated the figure to be about Rs. 63,000 crores for the same period. It is not clear which estimate Mr. Murli Manohar Joshi will present when he introduces the Bill in the Parlia-ment. The Government talks of a "new policy" called the Sarva Shiksha Abhiyan, but a closer look reveals that it is not really a policy but an accounting and adminis-trative measure at the Ministry level to combine and use interchangeably various education heads. How that can raise the required amount is anybody's guess. But what seems likely is that the implementa-tion will depend more and more on ex-ternal funds and follow the path of the cheap Education Guarantee Scheme-based non-formal mode, further reducing the quality of Indian school education.

When the Constitution was en-shrined. Article 45 specifically di-rected the state to endeavour to provide free education for all chil-dren up to the age of 14 by the year 1960. Unfortunately, Article 45 was in the directive principles of state policy section of our Constitution, which is non-justiciable in the courts of law. Therefore, over the last four decades, we were given reasons like resource crunch and lack of political will for non-achievement of UEE.

The oft-repeated resource crunch problem was demystified when the Union cabinet appointed a group of experts to estimate the financial re-quirement for UEE in India. In ab-solute terms, the figures quoted in this recent 1999 report may appear gigantic (Rs 1,36,822 crore to be precise for the age group six-14 )...However, when expressed as a per-centage of national income, the fig-ures become achievable. For e.g., this figure means spending an aver-age additional only 0.7 per cent of the GDP over the next 10 years. Financial resource (like legisla-tion) is a necessary condition for UEE, not a sufficient one.

While successive governments at the centre and the state have cited resource crunch as a major deterrent in universalising edu-cation, there is ample proof to the contrary. In a 1999 report prepared by a group of experts, 60 per cent of whom were IAS officers, said Rs 1,36,822 crore would be needed over a period of 10 years to educate children between 6-14 years of age. The amount seems astro-nomical, but in terms of the na-tional income, it represents an additional expenditure of only 0.7 per cent of the GDP over the next 10 years, the report con-cluded.

Over the same period, the government proposes to spend Class Act about five times as much on salary increases in the public sec-tor(GOI, 1998). If current spending patterns continue, it will also spend more than 20 times as much on 'non-merit sub-sidies' or subsidies that serve no clear social goals (GOI 1997). "The government does not want to change its spending habits," says Sanjiv Kaura, na-tional coordinator of the Na tional Alliance for the Funda-mental Right to Education-( NAFRE).

On the requirement of financial re-sources, it is reported that accord-ing to a World Bank study published in 1997, no radical increase in expenditure is needed and the present rate of growth of expenditure may be sufficient for uni-versal elementary schooling. This study has been criticized by Madhura Swami-nathan and Vikas Rawal. They point out that the World Bank sets a target of 12 years for the achievement of universal enrolment. This is not acceptable. There are also problems of estimates of chil-dren out of school. "According to the World Bank", write Swaminathan and Rawal, "32 million children in the age group 6-10 years were out of school in 1995. According to our estimates based on NSS data for 1993-1994,47 million chil-dren in the age group 6-11 were out of school in 1995-1996". They also specify the requirement of an expenditure of about six per cent of the GDP on educa-tion, of which at least 45 per cent need to be spent on elementary education.

It is, indeed, relevant in this context to look at what it would take in money terms to achieve the objective of eradicating illit-eracy and ensuring free and compulsory education to all citizens aged between six and 14. The 1997 Constitution Amend-ment Bill, in its Financial Memorandum, had estimated the total money required to achieve universal primary education to be Rs. 40,000 crore over a period of five years; an annual commitment of Rs. 8,000 crore.
This is about the same amount (according to conservative estimates) that will have to be spent — between Rs. 7,000 crore and Rs. 8,000 crore — every year on building and maintaining a nuclear arsenal of the size that the Government proposes to pos-sess. And this expenditure will be in addi-tion to the spending on conventional weapons. In other words, the financial 'burden' of ensuring primary education for all is only as much as that of building and maintain-ing weapons of mass destruction. It is an-other aspect of the irony that even those who decided to build these weapons insist that they do not intend to use them.

- Not a Class Act Education Fail's to Make a Mark, SANJIV KAURA, Times of India, 24/04/2001, [C.ELDOC.N21.24apr01toi1.pdf]

- Delhi focus on child education, Monobina Gupta, The Telegraph, 5 August 2001, [C.ELDOC.N21.05aug01tel1.pdf]

- Government must re-look at the Free and Compulsery Education Bill, 2004, Ashok Agarwal, Radical Humanist, 01/09/2004, [C.ELDOC.N21.01SEP04.pdf]

- Experts feel quality of education may suffer, Deepak Razdan, Hindustan Times, 23/11/2003, [C.ELDOC.Education.231103.pdf]

- A new right for the poor, MANISHA PRIYAM ,SADHANA SAXENA, KRISHNA KUMAR, Frontline, 07/06/2002, [C.ELDOC.N21.new_right_poor.html]

For more articles Type a combination of the following words into our search systems "ED1 Bill Fundamental Right to Education Free Compulsory"
***********************************************************************************************

1. Exposing the illusion... shikshantar, 2. Critique of FRE- Ch2 The Destructive Nature of the Campaign pg 23- 27
- still to index

7. Aparna Bhat- Human rights law network, Supreme Court on Children, A Combat Law Publication 2004

8. Right to Education Teaching Shops Privatisation Sale of Education, Trade, Profession, Occupation or Business, H., Suresh, India Centre for Human Rights,Mumbai, 01/01/2004, R.N00.29

9. Report of the 1st Open House on ‘Fundamental Right to Education: Whose Responsibility?’, Avehi Abacus, 23/12/2004 FRE, SSA, R.N21- Put CED Code

10. Report of the 2nd Open House on ‘Fundamental Right to Education: Whose Responsibility?’, Avehi Abacus, 12/03/2004 FRE, SSA, Common School System, Enrolment, Government Schools (good report), R. N21- Put CED Code

*************************************************************************************************

1. Report on National Colloquium on Right to Education as a Fundamental Right, UGC & Association of…, 01/09/1992, B.N00.U1

2. Education Denied - Costs and Remedies, Tomasevski, Katarina, Zed Books, 01/01/2003, B.N00.T1,
- “Why the Right to Education” Part 1

*************************************************************************************************

************************************************************************************************

1. Report of the 2nd Open House on ‘Fundamental Right to Education: Whose Responsibility?’ Avehi Abacus, 12/03/2004, R. N21 Tape 11 (1) N21 (report also available)