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Published : December 09, 2011 | Author : mini.anshuman
Category : Constitutional Law | Total Views : 4709 | Rating :

Mini Gautam, B.S.L LL.B from ILS Law College and currently pursuing LLM in International Financial Law from Kings College London. Anshuman Chanda, B.S.L LL.B from ILS Law College and currently pursuing LLM in Tax Law from Kings College London.

We Want Sarv Shiksha, not Sarv Bhiksha

The things taught in schools and colleges are not an education but the means of education - Ralph Waldo Emerson

It is disappointing to note that among the 200 million children in the age group of 6-14 years, around half do not complete elementary education. India is in the list of 28 countries which might not be able to achieve the target of universal education even by 2015. The situation is worse in the case of girls since idolization of the male child is prevalent in most parts of rural India. There are high dropout rates also, retention at primary level being only about 70%. The gross enrolment ratio (GER) for the schooling aged children in 2004-05 for the country as a whole was 93.5, which has risen from 32 in 1950-51 and 86 in 1990-91. The rate of dropouts from elementary schools in the same year remains as high as 50.84%. Even at the primary levels in 2003-04, the dropout rate was 31%. Children are forced to give up intellectual pursuits under the pressure of meeting more urgent demands like roti, kapada and makaan. When faced with the option of an empty stomach and an empty mind, how many of us would choose the stomach? Many Indian states have already passed legislations to make free and compulsory education available to children. However, enforcement has not taken place since the legislations generally leave implementation to the local authorities as optional. With the inclusion of education as a subject in the Concurrent List of the Constitution since 1976, the burden of making quality education available to all children is also required to be shared by the Centre. Besides, just having schools for namesake is not enough. Unless the teachers are competent and the facilities are adequate to foster the spirit of learning and education, there will continue to be high drop outs. The conditions in some of the Government schools are pitiable. Many of them don’t even have basic amenities like drinking water and clean toilet facilities.

Right of Children to Free and Compulsory Education Act, 2009
India is a signatory to the Universal Declaration of Human Rights, 1948, which recognises the right of children to free and compulsory education. The Convention on the Rights of Child, 1986, also stresses upon the importance of education for a brighter future of children. Right to free and compulsory education has been a part of the Directive Principles of State Policy enshrined in the Indian Constitution since the beginning in the form of Article 45. The Honourable Supreme Court granted free and compulsory education (between the age of six and fourteen years) the status of being a fundamental right in the cases of Mohini Jain versus State of Karnataka and Unnikrishnan versus State of Andhra Pradesh. Beyond that stage, the State obligation to provide education is subject to its “limits of the economic capacity and development.” Education was recognized as being fundamental to live a good and dignified life. In consonance with its international commitments and national objectives the Parliament enacted the 86th Constitutional Amendment Act, 2002, adding Article 21-A to the Indian Constitution which provides that every child between the age of 6 and 14 years has the right to free and compulsory education. The Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as the Act) seeks to give effect to this amendment. It received Presidential assent, was notified as a law on 3rd September, 2009 and was enforced on April 1, 2010. The Act applies to schools fully or partially owned by the Central or State Governments or schools receiving any kind of grant from the Central or State Governments. The expenses for carrying out the provisions of the Act have to be borne by both the Central and State Governments. The earlier draft of the Bill as made in 2005 could not make its place in the statute book because of severe disagreements over several of its provisions. Most developed countries have legislated free and compulsory education for all. UNESCO has calculated that in the next 30 years more people will receive education than in the whole of history thus far.

Key Provisions
The content of the Act is well meaning and flexible to say the least. 25% reservation is provided for in the private schools at entry level (Class I) for disadvantaged children. They will be reimbursed by the Government.

The Act also makes provision for no donation or capitation fee and no interview of the parent or child for admission. Capitation fees have become a nightmare for parents in recent years. It is becoming increasingly difficult to get one’s child admitted in a so-called good school without paying lacs of rupees as donation. When parents will hardly be able to afford good schooling for their children, how will they provide them with higher education? Simultaneously, competition has become so stiff that any number of degrees may not be enough for a student to get a decent job.

Children shall not be denied admission in a school due to lack of age proof. This is highly relevant in villages and other rural areas where many parents may not have the required and documented age proof ready.

The Act is liberal in approach while allowing children to get admission in schools even in the middle of the academic year.

The education system in India is considered pressurizing and stressful as compared to other countries. It is not an uncommon sight to see children carrying bags loaded with books heavier than themselves. An extremely encouraging step in the Act provides that no child shall be held back or expelled up to class VIII.

Another positive feature of the Act is that children are protected from physical and mental harassment. Though it seems that physical punishment is extinct in the modern times, news reports prove otherwise. Stray cases of physical harassment are reported every now and then even in well-reputed schools. If this is the case in well-developed and aware metropolitan cities, one shudders to think what it must be like in villages and smaller towns where the press and media still haven’t reached.

Schools will be given recognition under the Act only when they meet the norms prescribed in the Schedule. The schools are obligated to meet the norms specified in the Act within 3 years.

The Act provides that teachers must obtain the necessary academic qualifications within 5 years or else they will lose their jobs.

The Act imposes responsibility on the appropriate Government and local authority to ensure within six months from the date of commencement of the Act that the required pupil-teacher ratio as stipulated in the Schedule is maintained.

Training will also be provided to the teachers and they will be forbidden from squandering away their time in non-educational purposes other than decennial population census, disaster relief duties or duties relating to elections.

Teachers are directed to not be engaged in private tuitions and private teaching activity. This is another welcome provision since many teachers use their position of power over students to force them to take private tuitions.

Every child completing elementary education shall be awarded a certificate.

The Act, if implemented properly will completely revolutionize education in India.

Hurdles En Route
Although the Act is an honest attempt to universalize education and make it available to the socially and economically disadvantaged, implementing it will prove very challenging due to lack of infrastructure and resources. Only six states and seven Union Territories have notified the Act and made rules thereunder. Estimated costs are Rs.55, 000 crore every year. The object should not be to provide education for all but to provide quality education.

Besides, there is shortage of competent teachers. According to the District Information System for Education report, some major states like Madhya Pradesh, Himachal Pradesh, Assam, Orissa, etc. have three or less than three teachers in majority of the schools. Teachers should be made accountable. It will be all the more important now to give teachers adequate compensation so that an increasing number of educated youth will enter the teaching profession. The remuneration given in Government schools specially is so low that teachers don’t have an incentive to give in dedicated service.

The National Commission for Protection of Child Rights along with the State Commissions is the monitoring agency under the Act. The Act also provides for the establishment of School Management Committees comprising of parents, guardians, teachers and representatives of the local authority to oversee the implementation of the Act.It shall be seen in the course of time whether these committees will prove to be effective and corruption free.

Reservation of 25% seats for backward children has come into much criticism. There are no criteria laid down for selecting such children. Private schools look upon it as encroachment on their autonomy. Some of them have already challenged the law in the Supreme Court.

Bleak Future or Promises of a New Beginning
Ask a poor labourer why he doesn’t want to send his children to school and the reply will be that he tried repeatedly only to fail. Reserved seats are already full and the waiting list is never-ending. Laws have meaning only if they are implemented and acted upon. Schools should be accessible for the students in rural areas. Many children have to drop out due to huge distances between home and school. There is also some ambiguity regarding who would be made liable if children do not go to school even after free education has been provided for. Many people are panicking thinking that the word compulsory implies that parents would have to go to jail if children are not sent to schools. The fact is that parents will face no legal penalty if they fail to send their children to schools. We would like to conclude by saying that we need Sarv Shiksha and not Sarv Bhiksha. Education is a child’s birth right and not some charity being dropped into his lap.
# UNESCO’s Education for All Global Monitoring Report: Is the World on Track, 2008
# Food, Clothing and Shelter
# Article 26
# Article 28
# AIR 1992 SC 2100
# AIR 1993 SC 2178
# Section 12(1)(c)
# Section 12(2)
# Section 13 (1)
# Section 14(2)
# Section 15
# Section 16
# Section 17(1)
# Section 19(2)
# Section 23(2)
# Section 25(1)
# Section 27
# Section 28
# Section 30(2)
# Section 31(1)
# Section 21(1)
# Education for All
# Charity for All

Authors contact info - articles The  author can be reached at: mini.anshuman@legalserviceindia.com

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