defining the right to education

7/29/2019 Defining the Right to Education

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ACKNOWLEDGEMENT

First of all,I would like to thank our very own Nirmala Madam for allowing

me to choose a topic on my area of interest. This helped me in choosing a

topic on my own and working on such a topic chosen by myself was worth it.

This has helped me in gaining long insight into this topic which will help me

further in my life.

I would also like to thank my parents for believing in me,supporting me in

each and every aspect I sought it.

I would also like to thank my friends for being on my side throughout the

whole journey of this project and giving me valuable ideas.

Last but never the least,without whom my work is incomplete,The Almighty

who has been a constant support till the end and throughout my journey of

this project saga


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CONTENTS

INTRODUCTION

DEFINING THE RIGHT TO EDUCATION

HISTORY OF RTE IN INDIA

Assessment of fulfilmentTHE 4A SCHEME

SUGGESTION FOR THE IMPLEMENTATION OF RTE

ACT

PROBLEMS WITH RIGHT TIO EDUCATION ACT

CONCLUSION

BIBLIOGRAPHY


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INTRODUCTION

The Right to Education Act (RTE), enacted in 2009, has ushered in hopefor school education in the country. It is the culmination of efforts madeby educationists, members of civil society and judiciary for the last manyyears. Free and compulsory education for all children had been debatedeven in pre-Independence years. It made its way into the Constitution asa Directive Principle of State Policy under the former Article 45, wherebystates were required to ensure provision of free and compulsoryeducation (FCE) to all children till the age of 14 years within a period of10 years of the formulation of the Constitution. There is enough

evidence to suggest that this goal has not been achieved even severaldecades after India became independent. With the RTE coming intoforce, there is an expectation that this will finally be translated intoprovision of quality school education for all children. It is the primaryresponsibility of the Government to ensure implementation of the Act.Being part of the concurrent list, the Central and state governments areboth responsible for ensuring effective implementation of the Act. Therehas been significant improvement in terms of the number of primaryschools, largely due to additional resources made available through theSarvShikshaAbhiyaan to bridge existing gaps. The scheme is now beingextended to the secondary school level as well. In addition to theGovernments initiative, the private sector has also played a role inimproving the state of education in the country and continues to do so.This study is an attempt to explore the role the private sector can play inimplementation of the RTE.

There are varied opinions on some sections of the Act from differentperspectives. The study includes some views and counters those onsome aspects of the Act. For instance, inclusion of a schedule to set up

norms and standards has by and large been welcomed, although thereis a strong opinion that it does not address quality issues adequately. Onthe contrary, some groups feel that it is not friendly toward smallorganizations that are making an attempt to reach out to disadvantagedgroups, but are not adequately resourced to meet the norms andstandards laid down in the Act. We hope this will make our readersunderstand some of the different perspectives.

The role of the private sector was recognized even in the 1960s when

the KothariCommission was assigned the task of preparing a road mapfor school education in the country. Over the years, there has been


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uneasiness in accepting the role of the private sector. The genesis ofthis perhaps lies in the ever increasing inequality in the educationsystem, which has shaped the two faces of the country India andBharat one for the elite and the other for the have-nots. This

perception is also impacted by civil societys resistance to globalization.According to the law of the land, education cannot be a means tomaking profit. This raises the question, then how will programs besustained. There is a demand for allowing reasonable returnson theinvestment the private sector makes toward education so that its effortsare sustained. On the flip side, if these reasonable returns are allowed,where will it stop? Will there be enough safeguards to ensure thatchildren from economically disadvantaged sections are not deniededucation because they cannot afford to take admission in schools? Is25% reservation in private schools the only answer to address issuesrelated to social inequality? We believe that while discussing the role ofthe private sector, it is important to define what the sector actually is. Wehave defined the private sector as nonstateplayers, including NGOs,INGOs, civil society groups, corporate foundations and resourceagencies. We believe it is possible for like- minded stakeholders tocome together and supplement each others efforts. Each stakeholderbrings a different set of skills, which can collectively help in effectiveimplementation of the RTE. If child rights are central to all planningefforts, there is a lot that different stakeholders can do collectively to

support the Government in achieving its national agenda. It is also ourbelief that universalization of quality education cannot be achievedwithout strengthening the public education system. Private and publicschools can co-exist, but can greater efforts be made to improve thepublic education system? We hope this study provides some ideas onhow this can be achieved. We owe it to the next generation to make itpossible for them to reap the benefits of the demographic advantage wehave today.


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Defining the right to education

The right to education has been universally recognised since the UniversalDeclaration of Human Rights in 1948 (though referred to by the ILO as early asthe 1920s) and has since been enshrined in various international conventions,national constitutions and development plans. However, while the vast majorityof countries have signed up to, and ratified, international conventions (such asthe UN Convention on the Rights of the Child) far fewer have integrated theserights into their national constitutions or provided the legislative andadministrative frameworks to ensure that these rights are realised in practice. Insome cases the right exists along with the assumption that the user should pay

for this right, undermining the very concept of a right. In others, the right existsin theory but there is no capacity to implement this right in practice. Inevitably,a lack of government support for the right to education hits the poorest hardest.Today, the right to education is still denied to millions around the world.

As well as being a right in itself, the right to education is also an enabling right.Education creates the voice through which rights can be claimed and

protected, and without education people lack the capacity toachieve valuablefunctionings as part of the living. If people have access to education they can

develop the skills, capacity and confidence to secure other rights. Educationgives people the ability to access information detailing the range of rights thatthey hold, and governments obligations. It supports people to develop thecommunication skills to demand these rights, the confidence to speak in avariety of forums, and the ability to negotiate with a wide range of governmentofficials and power holders.

History of RTE in India

15 December 2008, seventy one years since Mahatma Gandhi gave the call foruniversaleducation in 1937; sixty one years since independence; fifty eightyears since theConstitution, instead of making education a fundamental rightmade it part of the Directive Principles; fifteen years since the Supreme Court in1993 ruled on the right to education; six years after the 86th constitutionalamendment was passed by the Parliament in 2002 by inserting Article 21Amaking education a fundamental right for children in the restricted age group of6 to 14 years; and four years after the draft bill was prepared by the CABE


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committee, the Right to Free and Compulsory Education Bill was introduced inthe RajyaSabha on 15 December 2008. Though the delay on part of the state isdeplorable, the introduction is undeniably momentous .

The Supreme Court, in 1993 in the Unnikrishnan case, ruled that the right toeducation would be restricted by the economic capacity of the state only beyondage 14, the government ignored it. When the current draft was being preparedby the CABE in 2005, NUEPA made cost calculations in different scenarios,using the KendriyaVidyalaya salary scales and state government scales forteachers and all the provisions of the mandatory schedule. The amounts in eachcase fell well within the six per cent of the GDP norm promised by theCommon Minimum Programme of the present UPA government .

Yet, despite a much better economic situation than during Gandhijis time in1937, the response of the government was no different! The high level group setup by the prime minister to examine the economic and legal implications of thebill recommended that the states bring in their respective legislations for reasonsnot disclosed. Essentially it was felt that it was much too expensive for theCentre to fund the scheme as per the NUEPA calculations, and further that theCentre could be burdened with a plethora of court cases; so let the states withfinancial assistance from the centre assume both these responsibilities. The

phrase used was that states were flush with funds, and in any case they areprone to misuse central funding for freebies like cheap rice and colour TVs forbuying votes. Once the states rejected the recommendations and many of thecritics, in August 2007, questioned the prime minister on the quantum of fundsrequired (on the basis of reduced projections of child population figures by theRegistrar of Census in its 2006 corrections to the Census 2001figures), and

perhaps because of the political value of such a legislation on the threshold ofparliamentary elections, the central legislation was resurrected.

Finally in last two months RTE got the momentum after KabilSibbal comingaboard as the Human Resource Cabinet minister in the new Manmohan SinghGovernment and it was quickly tabled and passed first in RajyaSabha and thenin Lok Sabha5 in August, 2009. So as of today Indians have one morefundamental right i.e Right to Education.


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Assessment of fulfilment

The fulfilment of the right to education can be assessed using the 4 As

framework, which asserts that for education to be a meaningful right it must beavailable, accessible, acceptable and adaptable. The 4 As framework wasdeveloped by the former UN Special Rapporteur on the Right to Education,Katarina Tomasevski, but is not necessarily the standard used in everyinternational human rights instrument and hence not a generic guide to how theright to education is treated under national law.

The 4 As framework proposes that governments, as the prime duty-bearer, hasto respect, protect and fulfil the right to education by making education

available, accessible, acceptable and adaptable. The framework also placesduties on other stakeholders in the education process: the child, which as theprivileged subject of the right to education has the duty to comply withcompulsory education requirements, the parents as the first educators, andprofessional educators, namely teachers.

The 4 As have been further elaborated as follows:

The 4-A scheme

The 4-A relate to availability, accessibility, acceptability and adaptability. Eachone of thesecharacteristics is extracted from the right to education and refers toobligations which should be undertaken by the government in order to fulfill itscommitments. It translates the juridical notions into comprehensive fragmentsof the substance of the right to education. Note, however, that all the criteria areinterrelated for there is no divisibility of the right and only a holistic view cangenerate the concept of the right to education.

Availability is the first component of the right to education in Tomasevski's(1999) framework. It relates to the possibility of education being obtained by allwithout any discrimination. It refers to existence of educational institutionswithin reasonable distance for pupils' attendance it refers to security within theeducational system, as well as to making entry into the educational systemavailable to all regardless of age or social condition. As far as infrastructure forschooling is concerned, it requires active employment of resources from thenation-states that can be a constraint to the realization of rights but, asTomasevskihighlights, others actors, like private investors, can assist on therealization of this aspect of the right to education. Another topic related to
http://en.wikipedia.org/wiki/Katarina_Tomasevskihttp://en.wikipedia.org/wiki/International_human_rights_instrumenthttp://en.wikipedia.org/wiki/Compulsory_educationhttp://en.wikipedia.org/wiki/Teacherhttp://en.wikipedia.org/wiki/Teacherhttp://en.wikipedia.org/wiki/Compulsory_educationhttp://en.wikipedia.org/wiki/International_human_rights_instrumenthttp://en.wikipedia.org/wiki/Katarina_Tomasevski


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availability is the insurance of free and compulsory education to all. Thefreedom, in economic terms, includes direct costs but also indirect andopportunity costs and other "invisible costs", as Ribeiro defines it. It has beenevident that in many countries it is those indirect costs which disable people to

effectively enjoy education. These indirect costs make education unavailable tomany. The assurance of free education, however, tends to create a link betweenpoverty and lack of education. Although in many cases, such as in the northeastof Brazil, better education can be translated into wealth, the problems withrealizing the right to education are not linked to poverty. Tomasevski arguesthat the matters lie on policy rather than poverty. In terms of ideologicalfreedom, the availability of the right to education aims to assure that noindoctrination occurs in the educational system and that tolerability of views ispractice. No discrimination for the entry into the schooling system due tocultural characteristics. However, even if all those aspects of the right toeducation are assured in practice, the right to education would not be complete.It requires other components to make it holistic to all. Therefore, whiteavailability of education refers to the existence of the schooling system,accessibility refers to the possibility of entering it and remaining in it.

Accessibility means governments must strive for the practical elimination ofgender and racial discrimination and ensure the equal enjoyment of all humanrights, and must not besatisfied with merely formally prohibiting discrimination.In addition, accessibility relates tothe primary, secondary and tertiary levels of

education in different ways; governments are only obliged to provide access tofree and compulsory education for all children in the compulsory age range. Theright to education should be realized progressively, ensuring allencompassing,free and compulsory education is available as soon as possible, and facilitatingaccess to post-compulsory education as circumstances permit. Accessibility alsorelates to gender and racial discrimination, complementing the cultural andethnic discrimination variable described in availability. Measures for preventingsuch discrimination should be in place to insure that all have access to theeducational system. Note, also that "discrimination is a moving target: in

addition to old forms of prejudice needing greater scrutiny, such as non-citizensbeing denied or offered low-gradeeducation, new issues continue to arises.

The degree to which accessibility of education should be made available,however, changes as the schooling cycle progresses. Special importance isgiven to primary education in all of the international legislation concerning theright to education. All treaties establish that primary education shall becompulsory and available free to all. Ribeiro considers that such a

compulsoriness and freeness compose the minimum standards of the obligation


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towards the right to education which should be observed "immediately, with nodelay".

As far as secondary education is concerned, the progressive realization of the

substance of the right is what the international treaties require. Availability andaccessibility are the key words for this level of education, which should take theform of formal, technical and vocational education, for, as Ribeiro continues tosay "there is no compulsory requirement nor there is a guarantee that it will bemade available and free to all". This is a hindrance in the international systemfor education but it reflects a compromise which would suit states capacity inthe supply of education.

Higher education is, yet, less assured than secondary for it should be madeaccessible on the basis of state capacity and with progressive introduction offree education. As seen, the right to education varies according to the level ofeducation being examined however availability is not automatically translatedinto the realization of the right to education. Therefore, we follow on theanalysis of the next criteria for understanding and assessing the right toeducation.

Acceptability requires minimum guarantees regarding the quality of education,for example in terms of health and safety or professional requirements forteachers, but it is much wider in scope than this. These guarantees have to be

set, monitored and enforced by the governmentthroughout the education system,whether the institutions are public or private. Acceptabilityhas beenconsiderably broadened through the development of international human rightslaw: indigenous and minority rights have prioritized the language of instruction,while the prohibition of corporal punishment has transformed methods ofinstruction and school discipline. The emerging perception of children assubjects with the right to education and with rights in education has furtherextended the boundaries of acceptability to include the contents of educationalcurricula and textbooks, which are increasingly considered from the perspective

of human rights.

Acceptability is one of the very important themes that guide discussionsregarding the right to education for the people that might have educationavailable and accessible but with poor quality which does not lead to the desiredoutcomes. It involves curricula setting and respect for parents' views on theeducation of their children, the language of education and the culture ofeducation, for example. As Tomasevski says, there are very few guidelinesgiven by international treaties and national legislations on this matter. In theory,

however, international organizations such as UNESCO should be available toassist states in the formulation of technical expertise to develop a coherent


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curriculum which would enable students to learn skills to match the goals ofeducation. It would also be part of the same groups of institutions to assistcountries on the formulation of indicators to measure the quality of theeducational system.

Another aspect of acceptable education lies in the bridge between theeducational system and the labour market. "Achieving an acceptable level ofquality education also demands that attention be paid to the opportunitiesschool-leavers can expect to enjoy when finishing education and entering the

job market. One important aspect of this involves close participation betweeneducation and the labour sectors, and this is another example of how educationmust develop a balanced, mutual relationship with all other areas of society tomaximize its effectiveness" .Making education acceptable also means attending to other actors, such asteachers and parents for instance, who become plaintiffs of better educationalpolicies as well as demand for collective rights. The International LabourOrganization (ILO) conventions have been instrumental in assuring this aspectof the right to education as they handle issues such as the right of teacher toorganize for better working conditions, training and salaries. Concernsregarding discrimination also figure within ILO rulings.

Adaptability requires that schools respond to the needs of each individualchild, in keepingwith the Convention on the Rights of the Child. This reversesthe traditional approach in which schools expected the children to adapt towhatever form of education the school provided. As human rights do not existin isolation, adaptability involves safeguarding all human rights withineducation as well as enhancing human rights through education. Thisnecessitates cross-sectoral analysis of the impact of education on thewholerange of human rights, to monitor, for example, graduate employment byensuring integrated planning between the relevant sectors .

However, none of the above aspects of the right to education would be completewithout the adaptability of education to the best interest of each student. Theideal that education only regards children permeates the literature regarding thisaspect of the right to education but adaptability should concern every student,regardless of age, sex, ethnic origin or whichever other circumstance. Thecharacteristic of adaptability directly deals with methods of teaching and withmaking education responsive to the immediate reality facing children in theirown community" . Participation becomes a valuable resource in this context as

it enables the children to voice their experiences and demand for responsivenessof the schooling institutions towards their individual education process.


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Williams (2005) narrates the importance of the participation of children in theshaping of their scholar needs and of other rights related to their sphere ofactivity; she highlights how the opening of innovative ways for participationenhanced their right to live in equity, dignity and in freedom. Adaptability

means to do that, to adjust education to peoples changing realities.

Suggestions for implementation of theRTE Act

Suggestions given by respondents maybe categorized under four broad areas:

Awareness

Awareness among communities about the Act is one of the key aspects for itsuccessful implementation. At present, awareness among people about the Actis low. Unless people understand its contours, there will be limited initiative andownership on their part. Civil society can play a much larger role in creatingthis awareness..

Capacity development

Capacity development is required at various levels to operationalize the Act. At

the community level, SMCs and Panchayat Raj Institutions (PRIs) need to betrained about their roles and responsibilities; strengthening of systems andhuman resource development is also needed to make efficient use of availableresources, and most importantly, teachers should be trained to impart child-centered education.

ManagementManagement functions should be reviewed and bottlenecks in implementationof the Act identified. Planning and monitoring of programs is as important as

improving the quality of education imparted. Both require different set of skills.

Four tiers in the management structure need to be strengthened and empoweredto make implementation of the Act more effective.i. The Centre should also address state-specific concerns and provide support,if required. If some states are dragging their feet in implementing the Act, theCentre can demand its implementation by linking it with the SSA and otherdevelopment grants.

ii. The State Commission for Protection of Child Rights (SCPCR), which is the


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monitoring agency for implementation of the Act in different states, has notbeen effective in many of them. It is therefore important to ensure that aneffective SCPCR is in place.

iii. Local authorities need to play a crucial role. Effective implementation of theAct will depend on how effective Gram Panchayats (GPs) and Nagar Palikasare. They need to be given sufficient resources to implement the Act.

iv. There should be a bottom-up approach and more autonomy given to schools.These should then be monitored through independent mechanisms.

Innovations

There have been many innovations in the area of classroom transactions anddistribution of entitlements from which one can learn. Today, technology can beput to good use to collect information and make planning more need-based. Forexample, the Delhi Government has initiated online attendance of teachers. Theregister closes at a specified time and teachers who do not mark their presenceup to that time are marked absent. Similarly, teachers desirous of seekingtransfers can make online requisitions and even give their preference for theschools to which they wish to be transferred. This helps to streamline theprocess of attendance and transfers.

Problems With The Right to Education Act

After Indias Independence, one of the foremost concerns in acknowledging a

fundamental right to education had been the problem of economic capabilities

of the State. Indeed, subsequent Governments have chosen to hide under the

garb of unavailability of resources in implementing National Policies onEducation. Several high-level Committee Reports have debunked the myth offinancial constraints and shown that the provision of free and compulsoryeducation at the elementary level is well within the wherewithal of the State. Itis this aspect that has, for the first time in over 60 years, been tacitly acceptedby the Government in passing the Act of 2009. The Act clearly mandates aresponsibility upon appropriate authorities to establish and maintaininfrastructural mechanisms to facilitate the guarantee of this right.

The mere proclamation of a right cannot tantamount to its fulfillment, and itsactual enjoyment is possible only when effective institutions are in place to
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guarantee that right. A right to education is ineffective in the absence of aschool to ensure the enrollment of a child and to impart free, elementaryeducation. By taking on the duty to establish a school in every neighbourhood,and stipulating conditions to aid the functioning of such schools, the

Government has taken the first step in the right direction. Having stated that,there exist a number of problematic areas which need redressal in the scheme ofthis legislation.

One of the major concerns that the Act has left unanswered, is that of freeand compulsory education for children till the age of six years. WhileUnnikrishnan emphatically proclaimed the right of all children toelementary education till the age of 14, subsequent legislations and eventhe Constitutional Amendment have diluted its ambit and confined freeand elementary education to children between six and fourteen. Theextensive body of research (from State and civil society) on theimportance of education at a pre-primary stage, our commitments tointernational obligations, and the rising percentage of Indias population

under the age of six, further corroborates the necessity to guarantee sucha right.

In failing to realize the right of children to free and compulsoryeducation, the State has not taken on board the acute social milieu whichhas hitherto presented problems in ensure elementary education. In orderto cope with the burgeoning problem of child labour, it is important to

ensure that children below the age of six are also brought within thetargets of the Act. It is a social reality that children are employed from avery early age, in various circumstances within and outside their homes.Therefore it is not sufficient that the right be guaranteed only from theage of six, and must widen its scope to ensure the mitigation of childabuse in formative years. In fact, the Act makes no reference to the ChildLabour (Prohibition and Regulation) Act, 1986 and there is no categoricalstatement which prohibits the employment or engagement of children,which might hinder their prospects of education.

Significantly, there is no effective mechanism to enforce the rightguaranteed under the Act. As provisions stated in the preceding segmentsindicate, a local authority having jurisdiction may take up the complaint.The provisions fail to identify the correct authority or State agency thatwill hear grievances and enforce the right a lesson is to be learnt fromsuccessful legislations such as the NREG Act and the RTI Act, whichclearly provides for the responsible officer/agency to seek recourse under.The State and National Commissions for Protection of Child Rights maynot be institutions accessed by all at the ground-level, and it is therefore

important to ensure the effective and speedy redressal of concerns.


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Further, the provisions result in a situation where the local authorities areboth the implementing functionaries (in school management, curriculumdevelopment etc) and grievance redressal institutions. Clearly, therewould be several instances where interests conflict, which might result in

an inappropriate enforcement of the right. Consequently, the Statescorrelative duty to guarantee the enjoyment of the right is considerablyaffected in the absence of effective enforcement mechanisms.

The Act stipulates that the State must establish a school within the limitsof neighbourhood, in order to ensure free and compulsory education.However, there is no attempt made to define what a neighbourhood

constitutes.Incidentally, the right of child to free and compulsoryeducation is limited to a neighbourhood school, except in the twoinstances specified under S.5 of the Act. What the Act has done is to

borrow the erstwhile American concept of a neighbourhood school,which was implemented in the US to bring about community harmony.The onus in the West today is on (parental) choice, and it is important toensure that the lack of qualitative yardsticks does not impediment in theexercise of this right.Thus we are confronted with a problematic situationwhere parents would like to send their children to a private school X,under the 25% quota provided to them by virtue of the Act, but wouldprobably be refused, since a Government school Y is established andoperational in the neighbourhood, even if the conditions there areabysmal. This unfortunate situation ties in with the lack of qualitativerequirements under the Act.


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CONCLUSION

As is evident from data and feedback from respondents, there areseveral issues that need to be addressed for effective implementation ofthe RTE Act. Some of these can be resolved through legal recourse orpolicy changes; others will need to be addressed as the Act is rolled out.While the ultimate responsibility of providing education rests with theGovernment, as enshrined in the Constitution, it is evident that theGovernments efforts alone will not be sufficient to provide good qualityeducation to all. There are several pilot initiatives that have been takenup by nonstateplayers. These initiatives are improving certain aspects of

education at some of the places where they are being implemented. Theformulation of the RTE Act has provided an opportunity to convergedifferent efforts by using it, with the National Policy on Education 1992as the backdrop.


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BIBLIOGRAPHY

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defining the right to education

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