Joginder Singh Toor

HISTORIC documents in the Central Library of Toronto have letters written by a prominent person during 1830 to 1840. One particular letter from a father   to the authorities objects to the requirement of the permission of the clergy for admission of a student in a school. He says Canada being a multicultural country and Toronto a cosmopolitan city, the permission of the clergy is unreasonable.  This conscious father had the rule deleted. An year later the school fee is raised from 2 dollars to 3 per month. He writes another letter saying 50 per cent rise in the fee is intolerable and burdensome on the wallet of an earning hand. The parents here also are equally conscious and worried about the recently passed Right of Children to Free and Compulsory Education Bill.

In the Directive Principle of State Policy, Article 45 provided “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.”

Thirty six years passed when in 1986 the National Policy of Education [NPE] was evolved to fulfill the goal enshrined in Article 45.  Other eleven years  to introduce in 1997 the  83rd amendment bill to insert Article 21-A to make right to education a fundamental right. The bill lapsed. Another bill to the same effect the Eighty Sixth amendment of the Constitution, stating in the statement of objects  “Article 45, has made a provision for free and compulsory education for all children up to the age of 14 years within a period of 10 years of the promulgation of the Constitution. We could not achieve this goal even after 50 years of the adoption of this provision”.

The 86th amendment inserts Art. 21-A providing “Right to free and compulsory education of all children of the age six to 14 years in such manner, as the State, may by law determine”. The original Article 45 was amended so as to make the State to “endeavour to provide early childhood care and education for all children until they complete the age of six years.”  Newly inserted Art. 51-A casts “a duty on the parent or guardian to provide opportunities for education to his/her child between the age of six and fourteen years”.  The amendment was not notified and Art. 21-A did not become a fundamental right for want of a separate legislation for the purpose.

Free and Compulsory Education Bill, 2005 was introduced but did not mature. The present bill having been cleared by the Rajya Sabha, when introduced in the Lok Sabha on July 31, 2009 Mr. Kapil Sibal claimed, “This bill guarantees the right of children to education and underlines the obligation of the State to provide it.” It has been passed on August 4.  After assent of the President it would become law and the way for notifying 86th amendment would be cleared. Let us have its view.

Under the Act there are four categories of schools, (i) established owned and controlled by the Central or State government or U.T. or by a local authority. (ii) aided schools receiving whole or part of its expenses from appropriate government or local authority; (iii) schools belonging to a specified category i.e. known as Kendrya Vidalaya, Navodaya Vidiyalaya, Sainik school etc.;  (iv) unaided schools.

Every child of the age of six to fourteen years has been given right to free and compulsory elementary education i.e. 1st to 8th class in a neighborhood school to which it is the duty of every parent to cause to be admitted his or her child. The responsibility to impart free education is primarily on Central/State/local authority run schools.  It is specifically mentioned in section 8 that where a child is admitted in a school other than run by appropriate Govt. or local authority, such child or parents shall not be entitled to make a claim for reimbursement of the expenses incurred in the other school.  Specified schools like kendriya vidayalaya are also excluded from giving free education except upto 25% seats for unprivileged.   Unaided schools, however, are obliged to admit 25% of the strength of the class, children from the neighborhood and children belonging to weaker section or from disadvantaged group and they shall be reimbursed the expenditure so incurred to the extent of per child  incurred by the state or the actual amount charged from the child which ever is less, in such manner as may be prescribed that too if it has not received from the state any building, land, equipment or facility.

The prohibitive measures under the Act ordain that no capitation fee is to be charged, violation attracts fine up to ten times of the capitation fee charged.  No private school can be established after the passing of the Act without obtaining a certificate of recognition from a competent authority after satisfying the norms and standards.  Failure to do so attracts fine up to Rs 1 lakh and continued failure further Rs 10,000/- each day, on a complaint filed in a criminal court after obtaining permission from competent officer who of his own shall not take action but shall only grant permission.

The law prohibits teachers from shall engaging themselves in any private teaching activity. Teachers have been obliged under section 24 to maintain regularity and punctuality, conduct and complete curriculum in time, assess learning ability of each child, hold regular meeting with parents.  Teacher committing default is to face disciplinary action, which is already there but ineffective and inoperative.

The question still remains as to how to have the law implemented. The offences committed by charging capitation fee and establishing school without prior recognition entail the sentence of fine not imprisonment. It is not even a cognizable offence.  The criminal proceedings cannot be initiated without prior sanction from the officer concerned and that too not by the officer suo motto but left to third parties.

Article 51-A requiring the parents to have their children or wards admitted in a neighbouring school tending to make the education compulsory is a conception grossly misconceived.  The state of Punjab passed The Primary Education Act, 1960 obliging parents to have their children admitted in government primary schools. It yielded no results. Nobody in Punjab even knows about this Act.

We have government run schools in rural areas without teachers, roofs, toilets, drinking water sometimes even students. The standard of education poor, results low, extra curical activities absent, forcing the parents to opt for private schools which are not obliged to impart free education except 25% seats for the weaker and disabled section. The governments responsibility is directory not imperative. The elementary free education is only up to 8th class, after the age of 6, not even up to matriculation much less Plus two.

Without sound measures the law cannot be implemented. The present Act lacks this. It is likely to meet the fate of the Punjab Act. Right to free elementary education though made a fundamental right would need to be enforced in an effective manner. The parents are worried and anxious about the success of the law.

[The writer, a senior lawyer and a commentator on public affairs is currently visiting Canada Jogindersingh_toor@yahoo.com]

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