Lessons in equity

Supreme Court of India


The Supreme Court enunciates the virtues of state intervention in ensuring equity in higher education.

THE Supreme Court, in a recent case, examined the question of equity in higher education in India and laid out certain principles that could be relevant in every field of education. The case, Indian Medical Association vs Union of India, related to the Army College of Medical Sciences (ACMS), Delhi Cantonment, devising in 2008 its own admission procedure for the first year MBBS course from a predefined source carved out by itself and its parent society, the Army Welfare Education Society (AWES). The college sought to admit only students who are wards or children of current and former Army personnel and widows of Army personnel.

Students who otherwise would have been eligible for admission challenged the policy in a slew of writ petitions. The Indian Medical Association (IMA) also challenged it. The ACMS is recognised as a private, unaided, non-minority professional institution. According to a judgment of the Supreme Court’s Constitution Bench in TMA Pai Foundation vs State of Karnataka, which was further explained in P.A. Inamdar vs State of Maharashtra, all admissions to private, unaided, non-minority professional institutions should be based only on merit, which is to be taken as inter-se ranking of all students who have taken a common entrance test.

The ACMS’ admission policy was based on the belief that the wards of Army personnel suffer educational disadvantages compared with the civilian population and that this affects the morale of Army personnel. And it reserved 100 per cent of the seats for the wards of Army personnel. The Delhi government erroneously approved this policy. The Delhi High Court, where the petitioners first challenged the policy, too found nothing wrong with it.

The Supreme Court Bench comprising Justices B. Sudershan Reddy and Surinder Singh Nijjar, however, found that the ACMS’ admission policy set at naught the legislative intent in the Delhi Act 80 of 2007 to ensure excellence by mandating that all admissions be made on the basis of inter-se merit within each of the categories of students. The Delhi government’s permission to the ACMS to admit students who may have scored lower marks than others, both within the general category and in the reserved categories, resulted in the defeat of this legislative intent, the court reasoned in its order of May 12.

The Bench held that neither the AWES nor the ACMS was protected by any constitutional provision that allowed it to choose to be an educational institution serving only a small class of students from within the general pool. If indeed Army personnel now constituted a “Socially and Educationally Backward Class”, then under Clause (5) of Article 15, it was for the state to determine the same and provide for reservation to wards of Army personnel, the Bench suggested.

In the case of minority educational institutions, the state can relax its concern for merit on account of Clause (1) of Article 30, provided minority educational institutions maintain their minority status by admitting mostly minority students except for a sprinkling of non-minorities. With respect to non-minority educational institutions, the state can relax such concern for merit only with respect to reservation of seats for the Scheduled Castes, the Scheduled Tribes and the Socially and Educationally Backward Classes (SEBCs) as enabled by Article 15(5). Consequently, the Bench held that the choice of students by non-minority educational institutions could only be from the general pool with respect to non-reserved seats. They could not make further distinctions of their own accord, it said.

In the Mandal II case (2008), the Supreme Court left open the question whether the newly inserted Article 15(5) of the Constitution applied to private unaided non-minority educational institutions. This provision, inserted in 2006 by the United Progressive Alliance-I government, enables the state to make any special provision, by law, for the advancement of the SEBCs or the S.Cs or the S.Ts in the matter of admission to educational institutions, including private educational institutions, whether aided or unaided, other than minority educational institutions. The court left this issue open because none of the private, unaided, non-minority institutions had challenged the validity of this provision.

Justice Dalveer Bhandari, however, dissented from the other four judges of the Bench, holding that the imposition of reservation on non-minority unaided educational institutions was an unreasonable restriction on the freedom granted by Article 19(1)(g) to practise any profession or to carry on any occupation, trade or business.

In the IMA case, however, the court had an opportunity to examine this issue because counsel for the ACMS challenged the validity of Article 15(5). The Reddy-Nijjar Bench differed with Justice Bhandari and considered the inclusion of Clause 5 of Article 15 by the 93rd constitutional amendment as of great significance. “It clearly situates itself within the broad egalitarian objectives of the Constitution. In this sense, what it does is that it enlarges as opposed to truncating an essential and indeed a primordial feature of the equality code,” the Bench explained.

The Bench justified reservation as it is social circumstances that prevent some individuals from performing to their full potential and thereby competing on a level playing field with those who might satisfy the “desert based” criteria. The Bench disagreed that the principles enunciated in the Mandal II case – that egalitarianism was an intrinsic part of our equality code with respect to the field of education – could be limited to public and aided institutions.

What followed in the judgment was a brilliant articulation of the dangers of LPG – liberalisation, privatisation and globalisation. Agreeing that the extent of the state’s involvement in the field of higher education had dramatically declined on account of its financial position, the Bench linked this fact to the increasing privatisation and liberalisation of the economy. One of the essential elements of privatisation has been the demand of the private sector that the state reduce its deficits, even as tax rates were cut, by reducing its involvement in various social welfare activities. This, according to the Bench, has had an impact on the ability of the state to invest as much as it should have in education, including higher education.

The Bench explained that the burden of the state comprised not merely financial outlays. The burden of the state, it said, also comprised the positive obligations imposed on it on account of the egalitarian component of the equality code, the directive principles of state policy, and the national goals of achievement of an egalitarian order and social justice for individuals and amongst groups that those individuals are located in. “One cannot, and ought not to, deem that the ideologies of LPG have now stained the entire constitutional fabric itself, thereby altering its very identity,” the Bench observed.

Test of merit

The Bench’s reasoning against qualifying examinations or common entrance tests must wake society up. The test of merit, based on some qualifying examinations or a common entrance test, is prone to rewarding an individual who has a better family life, social exposure, and access to better schools and coaching classes, it suggested. The Bench cautioned that complete dependence on such tests would foreclose the possibility of individuals in the disadvantaged groups from gaining access to a vital element of modern life that grants dignity to individuals, and thereby to the group as a whole, both in this generation and in future generations. Therefore, the Bench held, the proper construction of Article 15(2) would in fact be to prohibit complete dependence on such context (social and educational backwardness) insensitive tests.

Under Article 15(2), no citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of state funds or dedicated to the use of the general public.

Reservation based on social and educational backwardness, the Bench said, would promote the selection of those who were truly meritorious in each group on account of their demonstrated ability to be in the higher rungs of achievement within comparable situations of life’s circumstances and disadvantages.

Therefore, it held that clause 5 of Article 15 strengthened the social fabric in which the constitutional vision, goals and values could be better achieved and served. The provision, the Bench suggested, could be likened to a necessary replacement and in fact an enhancement in the equality code so that it made the Constitution more robust and stable.

Pointing out that nearly 85 per cent or more of all engineering seats and about 50 per cent in the field of medicine are in the private sector, the Bench said the number of aided and government colleges in other fields had just not kept pace with the private sector. It asked: “If a vast majority of our youngsters, especially those belonging to disadvantaged groups, are denied access in the higher educational institutions in the private sector, it would mean that a vast majority of youngsters, notwithstanding a naturally equal distribution of talent and ability, belonging to disadvantaged groups would be left without access to higher education at all.” The Bench added that it would constitute a state of social emergency with a potential for conflagration that would be on an unimaginable scale.

The Bench concluded: “The rights of non-minority educational institutions to admit students of their choice, …if exercised in full measure, would be detrimental to the true nature of education as an occupation, damage the environment in which our students are taught the lessons of life, and imparted knowledge, and further also damage their ability to learn to deal with the diversity of India, and gain access to knowledge of its problems….”

The Bench thus held Article 15(5) and the provisions of Delhi Act 80, with respect to the various categories of reservation provided therein, to be constitutionally valid. The judgment, authored by Justice Reddy, reflects his judicial philosophy, which is also evident in his other judgments against globalisation and marketisation. Observers feel that the Supreme Court’s three-judge Bench currently hearing a case by some unaided private schools challenging the validity of the Right to Education Act will find the principles laid down by Justice Reddy relevant in deciding it.


Applicability to Minority Institutions Under Section 35(1) of the Right of Children to Free and Compulsory Education Act: HRD Ministry Issues Guidelines

The HRD Ministry has received representations from several minority organizations seeking clarification on the applicability of the provisions of the Right of Children to Free and Compulsory Education (RTE) Act, 2009 on minority institutions in light of the provisions of Article 29 and 30 of the Constitution.

The matter has been examined in the HRD Ministry. Wide ranging consultations have also been held to obtain views and opinion of various stakeholders on the subject, and the following guidelines are accordingly issued under sector 35(1) of the RTE Act, 2009. Institutions including Madrasa and Vedic Pathshalas especially serving religious and linguistic minorities are protected under Article 29 and 30 of the Constitution. The RTE Act does not come in the way of continuance of such institutions or the rights of children in such institutions.

Schools are defined in section 2(n) of the RTE Act. Sections or minority organizations covered within the meaning of section 2(n) of the Act, will be governed by the provisions of the RTE Act, 2009.

Appropriate Governments and local authorities shall ensure that the rights of Minority Institutions, guaranteed under Article 29 and 30 of the Constitution, are protected while implementing the provisions of the RTE Act.

(Release ID :67598)

Right to Education Act comes into force today- Becomes a Fundamental Right

The Right to Education Act came into force today with Doordarshan telecasting the Prime Minister Manmohan Singh’s address to the nation announcing the operationalisation of the Act. The law envisions to provide free and compulsory education for all children between 6 and 14 years of age. In his address to the nation Prime Minister Manmohan Singh announced the Right to Education becoming a fundamental right. He said that the Government of India pledges to provide education to every child in India. The PM said, “Right to Education Act will realize the dreams of many children across the nation.” Adding that education is the key to progress and will empower children to become better citizens of the nation. Manmohan Singh called upon state governments and teachers to join the effort, adding that parents and guardians have a major role to play too. He said, “Centre and the States wll work to make this Act a success.”

There are approximately 92 lakh out of school children in the country.


“About a hundred years ago a great son of India, Gopal Krishna Gokhale, urged the Imperial Legislative Assembly to confer on the Indian people the Right to Education. About ninety years later the Constitution of India was amended to enshrine the Right to Education as a fundamental right. Today, our Government comes before you to redeem the pledge of giving all our children the right to elementary education. The Right of Children to Free and Compulsory Education Act, enacted by Parliament in August 2009, has come into force today. The Fundamental Right to Education, as incorporated in our Constitution under Article 21 A, has also become operative from today. This demonstrates our national commitment to the education of our children and to the future of India. We are a Nation of young people. The health, education and creative abilities of our children and young people will determine the wellbeing and strength of our Nation.

Education is the key to progress. It empowers the individual. It enables a nation. It is the belief of our government that if we nurture our children and young people with the right education, India’s future as a strong and prosperous country is secure. We are committed to ensuring that all children, irrespective of gender and social category, have access to education. An education that enables them to acquire the skills, knowledge, values and attitudes necessary to become responsible and active citizens of India.  To realise the Right to Education the government at the Centre, in the States and Union Territories, and at the district and village level must work together as part of a common national endeavour. I call upon all the State Governments to join in this national effort with full resolve and determination. Our government, in partnership with the State governments will ensure that financial constraints do not hamper the implementation of the Right to Education Act.

The success of any educational endeavour is based on the ability and motivation of teachers. The implementation of the Right to Education is no exception. I call upon all our teachers across the country to become partners in this effort.  It is also incumbent upon all of us to work together to improve the working conditions of our teachers and enable them to teach with dignity, giving full expression to their talent and creativity. Parents and guardians too have a critical role to play having been assigned school management responsibilities under the Act. The needs of every disadvantaged section of our society, particularly girls, dalits, adivasis and minorities must be of particular focus as we implement this Act. I was born to a family of modest means. In my childhood I had to walk a long distance to go to school. I read under the dim light of a kerosene lamp. I am what I am today because of education. I want every Indian child, girl and boy, to be so touched by the light of education. I want every Indian to dream of a better future and live that dream. Let us together pledge this Act to the children of India. To our young men and women. To the future of our Nation.”


Right to Education Act 2009


Right to Education Act 2009 MODEL RULES


Gazette Notification Right to Education Act 2009


Ravi Kant , Advocate Supreme Court of India

Just a few days ago five school girls died in a stampede in a Government school in Delhi. The reason may be a matter of discussion and investigation but it is very important that the basic minimum standards for safety need to be ensured in all schools across the country.

It is the administration which has the responsibility to keep a check on such schools which don’t adhere to the basic safety measures. All private schools need to be checked and those schools should be forced to ensure such standards. It is a national shame when young helpless children die due to the negligence of the school. It is a tragedy for the family and a shame for the administration.

In the present case the exit for the school was single and constricted.
The Supreme Court in May 2009 had given orders that the chief secretary should comply with all the guidelines laid down by the national building code of India in a span of one month of the order and ensure these standards. It is a fact that governments don’t care of such orders. If those guidelines had been ensured and complied with might be those children should have been alive today.

The Supreme Court bench of Justice Dalveer Bhandari and Justice Lokeshwar Panta had said in the case related to the Kumbakonam Fire tragedy Avinash Mehrotra Vs Union of India (Writ Petition 483 of 2004)

35. In view of what has happened in Lord Krishna Middle School in District Kumbakonam and other incidents which have been enumerated in the preceding paragraphs, it has become imperative that each school must follow the bare minimum safety standards, in addition to the compliance of the National Building Code of India, 2005, in particular Part IV ¬ Fire & Life Safety and the Code of Practice of Fire Safety in Educational Institutions (IS 14435:1997) of the Bureau of Indian Standards. The said safety standards are enumerated here in below:


i. Provision of adequate capacity and numbers of fire extinguishers of ISI marks to be provided in eye-catching spots in each block of the school.

ii. First Aid kits and necessary medicines should be readily available in the school.

iii. Provision of water tank and separate piping from the tank with hose reel to the ground floor and first floor.

iv. Fire fighting training to all teachers and students from X to XII standards.

v. Fire Task Force in every school comprising of Head of the institution, two teachers / staff members and one member from the Fire and Rescue Department should be constituted. The Fire & Rescue Department member shall monitor and make fire safety plan and conduct inspections once in every three months.

vi. Display of emergency telephone numbers and list of persons to be contacted on the notice board and other prominent places.

vii. Mock drills to be conducted regularly. Fire alarm to be provided in each floor and for rural schools separate long bell arrangement in case of emergency.

viii. All old electrical wiring and equipment shall be replaced with ISI mark equipments and routine maintenance conducted by the School Management in consultation with the Fire and Rescue Department.

ix. No High Tension lines should run inside or in close proximity to the school. Steps must be taken to shift them if they are already there.

x. The Fire and Rescue Department shall frame guidelines with “DOS and DON’Ts’ for schools and issue a fitness certificate, which shall be renewed periodically.


i. The teachers along with other staff shall be trained to handle safety equipment, initiate emergency evacuations and protect their students in the event of fire and other emergencies by the Fire and Rescue Department.

ii. They shall also be trained in providing emergency first-aid treatment.

iii) There shall be a School Safety Advisory Committee and an Emergency Response Plan drafted by the Committee in approval and consultation with the concerned Fire & Rescue Department.

iv) Emergency Response Drills conducted at regular intervals to train the students as well as the school staff.

v) All schools to observe Fire Safety Day on 14th of April every year with awareness programs and fire safety drills in collaboration with the Fire and Rescue Department.


i. The school buildings shall preferably be a `A’ Class construction with brick / stone masonry walls with RCC roofing. Where it is not possible to provide RCC roofing only non- combustible fireproof heat resistance materials should be used.

ii. The nursery and elementary schools should be housed in single storied buildings and the maximum number of floors in school buildings shall be restricted to three including the ground floor.

iii. The School building shall be free from inflammable and toxic materials, which if necessary, should be stored away from the school building.

iv. The staircases, which act as exits or escape routes, shall adhere to provisions specified in the National Building Code of India 2005 to ensure quick evacuation of children.

v. The orientation of the buildings shall be in such a way that proper air circulation and lighting is available with open space all round the building as far as possible.

vi. Existing school buildings shall be provided with additional doors in the main entrances as well as the class rooms if required. The size of the main exit and classroom doors shall be enlarged if found inadequate.

vii. School buildings have to be insured against fire and natural calamities with Group Insurance of school pupils.

viii. Kitchen and other activities involving use of fire shall be carried out in a secure and safe location away from the main school building.

ix. All schools shall have water storage tanks.


i. Every School shall have a mandatory fire safety inspection by the Fire and Rescue Services Department followed by issuance of a `no objection certificate’ to the School as a mandatory requirement for granting permission for establishing or continuation of a School.

i. An Inspection Team consisting of experts like a Civil Engineer, a Health Officer, a Revenue Officer, a Psychologist, a Fire Officer, a local body officer and a development officer besides the educational authorities shall carry inspection and assessment of infrastructural facilities before the commencement of each academic year. The Team shall submit its Inspection Report to the concerned district Chief Educational Officer.

iii. The building plans for schools shall be prepared only by a Government certified engineer and the PWD Executive Engineer concerned should inspect the building and award a structural stability certificate. Stability Certificates shall be issued by the State or Central Government Engineers only and shall be mandatory for granting permission for establishing or continuation of a School.

iv. In every district, one Recognition Committee headed by a retired judge shall be constituted. Officials from Revenue Department, Public Works Department, Fire Service, Electricity Board, Health and Education Department, a reputed NGO shall be members. They shall visit the schools periodically or at least the erring institutions as listed by the Chief Education Officer.

v. Conditional recognition / approval shall never by resorted to for any school.

36. In this petition, we need not take any action contrary to government policy to fulfill the Constitution’s mandate. Union and State officials have already filed wide-ranging plans to improve school safety. Along with the National Building Code, a combination of the better parts of these plans would bring the nation’s schools to an adequate level of safety. States have also expressed enthusiasm for reform and some have asked this Court expressly for direction.

37. Many States have already begun implementation. The most forward thinking States have enacted and enforced the National Building Code in their schools. Often these States have also created, empowered and funded a state-wide emergency response office. The coordinated efforts and concentration of knowledge in these administrative units make States better able to prepare for emergencies, as much as to respond once the problem has started. For example, the State of Gujarat has established such an emergency management office. Having already settled building codes and other large issues, the State can focus on other aspects of emergency management. With the assistance of outside experts, Gujarat recently created a colouring book to teach children how to respond to emergencies. On a smaller scale, but no less vital, in the Union Territory of Pondicherry, administrators replaced all thatched roofs and allocated an additional Rs.500 lakhs to build pucca classrooms. Some States have counted their schools and know which require repairs; they provided these details in their affidavits along with detailed plans for improvement. We are encouraged by the agreement shared among States that safety must improve. Our order should provide additional stimulus for the general aims of the States’ already agreed policy.

38. In the end, we should need to do little but enforce existing laws and encourage States in their own well-intentioned safety programmes. However, in the years since the fire at the Lord Krishna Middle School, some States have moved slowly and safety standards have varied in quality across States. These delays and variations have subjected millions more school children to danger from fire, earthquakes and other causes, when simple enhancements could offer much greater protection. Articles 21 and 21-A of the Constitution require that India’s school children receive education in safe schools. In order to give effect to the provisions of the Constitution, we must ensure that India’s schools adhere to basic safety standards without further delay.

39. It is the fundamental right of each and every child to receive education free from fear of security and safety. The children cannot be compelled to receive education from an unsound and unsafe building.

40. In view of what happened in Lord Krishna Middle School in District Kumbakonam where 93 children were burnt alive and several similar incidences had happened in the past, therefore, it has become imperative to direct that safety measures as prescribed by the National Building Code of India, 2005 be implemented by all government and private schools functioning in our country.

We direct that:-

(i) Before granting recognition or affiliation, the concerned State Governments and Union Territories are directed to ensure that the buildings are safe and secured from every angle and they are constructed according to the safety norms incorporated in the National Building Code of India.

(ii) All existing government and private schools shall install fire extinguishing equipments within a period of six months.

(iii) The school buildings be kept free from inflammable and toxic material. If storage is inevitable, they should be stored safely.

(iv) Evaluation of structural aspect of the school may be carried out periodically. We direct that the concerned engineers and officials must strictly follow the National Building Code. The safety certificate be issued only after proper inspection. Dereliction in duty must attract immediate disciplinary action against the concerned officials.

(v) Necessary training be imparted to the staff and other officials of the school to use the fire extinguishing equipments.

41. The Education Secretaries of each State and Union Territories are directed to file an affidavit of compliance of this order within one month after installation of fire extinguishing equipments.

42. List this petition on 07.12.2009 to ensure compliance of this order.

In light of the above orders of the Court in which almost four months have gone by the Govt of NCT of Delhi did not care to implement the orders of the court and therefore a case of criminal negligence is made out against the Education Secretary and Chief Secretary. Until and unless such senior officials are not brought to book such tragedies will continue to happen. The Govt of NCT of Delhi should not be let off by paying simple ex gratia payment but they should be held accountable for criminal negligence and the Govt should pay a heavy compensation to the parents as it is the administration which is responsible for such an accident.


I came across a disturbing news today ( SC to reverse its own decision below) that the Supreme Court will reconsider the Lyngdoh Panel report and has said that it cannot regulate the Private Body election. Student Union are not private bodies. They exist under statutory provisions. Most student unions get funds from the University. They get offices from the University. They are for student welfare. They certainly need to be regulated so that  talented Individuals can get opportunity to become members of such esteemed bodies. If allowed the position as was earlier to Lyndoh committee then people having muscle power and money power will win such elections and will lead to worsening of the academic output.

The Lyngdoh committee had rightly regulated the elections and this had led to the disqualification of all type of illegal characters from the Student elections.

The present view taken by the SC on the Lyngdoh report is wrong and needs to be opposed. The Student Union cannot be allowed to become a breeding ground of Criminals.

SC set to annul its own earlier order

Abraham Thomas in The Pioneer

Almost four years after the Supreme Court directed the Centre to set up the Lyngdoh Committee to regulate student union elections, another Bench of the Supreme Court on Monday pledged to set aside the order claiming that the apex court’s intervention with regard to a private body election such as students’ unions was unwarranted.

A Bench of Justices Markandey Katju and AK Ganguly said, “We don’t agree with the appointment of the Lyngdoh Committee. Can the court do anything it likes? There are certain principles of exercise of writ jurisdiction. We don’t feel in everything the SC should interfere.” Castigating the apex bench headed by then Justice Arijit Pasayat for interfering with the student body elections, Justice Katju said, “No writ lies against a private body except the writ of habeas corpus. A student union is not a statutory body….how does writ petition lie in connection with its election?”

When counsel for the petitioner EMS Anam pointed out that the appeals filed by the Kerala University had become infructuous and need to be disposed of, the Bench took serious exception and directed to fix the matter on Friday for laying down guidelines for the apex court in future. “The law is above Supreme Court and not Supreme Court above law. Let the matter be listed on Friday.

We will lay down guidelines that the Supreme Court cannot interfere in private body elections such as of the students’ union.”  The direction by the court is certain to be welcomed by political parties and its students’ unions who were finding it extremely hard to canvass support through the lavish display of money and muscle power, courtesy the Lakshman rekha drawn by the Lyngdoh panel. It was in 2005, a committee under former Chief Election Commissioner JM Lyngdoh was constituted by the Union Human Resource Development Ministry after the apex court expressed concerns over the growing clout of money and muscle power in college elections.

The development came close on the heels of the Professor Sabharwal episode. Wondering if the students came to colleges to study or conduct politics, the apex court had then tasked the Lyngdoh panel to suggest measures for streamlining the students’ union polls. Espousing its concern, the Bench had noted, “Our idea of college election is that you must be a model student first and student leaders later. But what’s happening today is there are full-time leaders who are part-time students.”

The Lyngdoh panel had issued a slew of directions, important among which were putting a ceiling of Rs 5,000 on election expenses and use of hand-made posters and banners to be pasted at designated places. Further, eligibility criteria were fixed for the participating candidates: For undergraduate students (17-22 years) and postgraduate (24-25 years). The candidate was supposed to be a regular student, having no previous criminal record, should have fulfilled the attendance criteria and ought to have cleared all subjects in the previous terms.

Every candidate was required to submit an account of his expense within two weeks after declaration of result. The court had constantly monitored the compliance of the Lyngdoh panel’s directions and the Centre had informed the court that all the Central universities were asked to fall in line by submitting annual action taken reports.


The wrongs in the Right to Education Bill

By Renu Singh in Times of India on 6 July 2009

WHILE HRD minister Kapil Sibal’s 100-day plan has drawn mixed reactions — we need to congratulate him on taking such bold steps as scrapping of class X board exams and suggesting the setting-up of an accreditation board to rate schools. The minister’s promise to also enact the Right of Children to Free and Compulsory Education Bill, which seeks to make education a fundamental right of every child in the age group of six to 14 years, however, needs deep consideration. In its present avatar the Bill suffers from major anomalies which must be given due consideration, before its enactment. Some major flaws are:

Children in the age group 0-6 years not covered

The Supreme Court’s historic Unnikrishnan judgment in 1993, gave all children up to 14 years of age a Fundamental Right to Education. The court contended that the Fundamental Right to Life (Article 21) of the Constitution should be read in ‘harmonious construction’ with the Directive in Article 45 to provide free and compulsory education to children of 0-14 years, including those below six years of age. However, the 86 th Constitutional Amendment Act, Article 21A, limited the fundamental right to education to 6-14 years and this Act will further this huge mistake by not recognising the importance of the early years. This is in contradiction to India’s own commitment at the Jomtien Conference (1990), acknowledging expansion of early childhood care and development activities as an integral part of the ‘Education for All’ objectives. Globally, recognition exists that the early years are the most critical years for lifelong development. This recognition comes from various quarters, including evidence from brain research that ‘…neurological and biological pathways that affect health, learning and behaviour throughout life, are set in the early years…’ (Mustard, 2007). Research has noted that neglect during the early years can often result in irreversible reduction in the full development of the brain’s potential. On the other hand, research the world over has underlined the short and long term benefits of good quality early childhood care and development programming especially in contexts of deprivation, leading to improvement in children’s health, cognitive ability and performance at school.

How can a Bill be enacted six decades after Independence and make this major error? India cannot afford to deprive its youngest 16-crore population of a right to nutrition, health and early childhood education as enshrined in the Convention of the Rights of Children, to which India is a signatory. By not including 0-6 years in the Bill, the country is also furthering gender discrimination, since it is always the girl who is left to take care of the younger siblings, thus, depriving her of her right to education.

Bill does not promote a common school system and legitimises inequality through a multi-layered system

The Bill mentions in Chapter III 6(1) that it will be the responsibility of the state to provide free and compulsory education in a neighbourhood school within a period of three years from the commencement of the Bill. With the MDG goals set for 2015, India cannot afford to wait this long and it should be enforced in a maximum of two years by the states.

While 6(4) and(5) espouse that children should be given an equitable education as enshrined in the Constitution and economic, social, cultural, linguistic, locational, disability related barriers should not prevent a child from participating in and completing their education — there are no provisions to create an equitable infrastructure required for this task. Unless a common school system that encompasses all government, private and aided/unaided schools is envisaged with effective monitoring mechanisms to ensure quality of education, the Bill will not be able to meet its obligations. Also, the inequitable system of education within the government, eg Kendriya Vidyalayas, XI th Plan’s 6,000 model schools or the state governments’ Pratibha Vidyalayas (Delhi), Utkrishta Vidyalayas (Madhya Pradesh) or residential schools (Andhra Pradesh) — being allocated special funds needs to be investigated and equal funds made available to all existing schools to develop a common minimum standard. A schedule of norms for quality is missing from this Bill and must be given due importance.

Also, the Bill must strive to work against creating a parallel and discriminatory system of alternative, non-formal education, into which are enrolled children from most disadvantageous circumstances, eg street and working children, children with disabilities, etc. The Bill must be categorical in making schools flexible and ready for providing education for diverse needs of children — why should a ‘one-size-fits-all’ system persist for education.


The Bill continues to propogate discrimination against government school children as their teachers will still be deployed for census, elections and disaster relief duties(Chapter IV, 23). This is a complete abrogation of rights of children, particularly in times of disasters, when they are in urgent need of education to provide them a routine and ‘normalisation’. Moreover, the shutting down of schools during emergencies and disasters is a strong correlate to trafficking and ‘missing’ children.

Equitable quality of education

RTE bill includes ‘provision of equitable quality of education’ as one of its objectives, but fails to define the term ‘equitable’ unequivocally. The term ‘equitable’ quality should refer to fulfilling certain minimum infrastructure, administrative (including those relating to teachers, library), financial, curricular, pedagogic, linguistic and socio-cultural norms. The Bill specifies norms for physical infrastructure (number of rooms, teachers, toilets, etc) but does not outline expectations on learning outcomes. Some of the mandates like ‘A child cannot be held back in any grade or expelled from a school till class 8 th ,” emphasise a no-detention policy, but makes no mention of the learning levels of children. In light of current learning levels as indicated in ASER Report (2009), the Bill must have provisions for a database to capture learning levels of children, with a special emphasis on first generation learners.

Child Labour

Though the Bill prohibits any person from preventing a child from participating in elementary education, it does not adequately address the issue of child labour. The Bill refers to the Child Labour (prohibition and regulation) Act, 1986 (number 61 of 1986), and emphasises that no person shall employ or otherwise engage a child in a manner that renders her a working child. However, the Bill ignores the reality of majority of poor children who are employed in agriculture and who bear the burden of housework and sibling care. The Bill needs to categorically state that all forms of employment and engagement, which hinders the development of the child, should be banned and made a cognisable offence.

Children with disabilities

The Bill says children with ‘severe or profound disability, (who) cannot be provided elementary education in a neighbourhood school, shall have the right to be provided education in an appropriate alternative environment as may be prescribed.’ This is against the principle of ‘inclusion’ and does not put the onus on the education system to meet individual needs of children. Whereas, the Bill has detailed the norms required of a school (teacher-pupil ratio, buildings etc), it is silent on the facilities needed to enable children with disabilities to attend school (such as ramps, Braille readers, etc). In this Bill, ‘disability’ has the meaning assigned by the Persons with Disabilities Act, 1995, which does not include such other disabilities as defined by the National Trust Act, 1999 (autism and cerebral palsy).

While the enactment of a law making Right to Education a Fundamental Right has become necessary since the goal of universal elementary education has remained elusive despite being a Directive Principle for more than five decades, it is important that the Bill finds remedies for all the above glaring lacunae.

(The writer is director, policy & technical support, Save the Children, India)


With new man at helm, will govt schools get a fresh lease?

NEW DELHI: Intention matters a lot in everything we do. When Arjun Singh was at the helm of affairs in the HRD ministry, he perceived giving 27% reservation to OBCs to be of greater importance than even free and compulsory education for children upto 14 years of age, as guaranteed under Article 21-A of the Constitution.

Nothing, not even the abysmal condition of government schools in Delhi, could waver him from his single-minded devotion towards OBC quota. A fresh breeze appears to be sweeping the corridors of HRD ministry. Kapil Sibal, who within a few days of taking charge went after bogus deemed universities in the wake of an expose on capitation fee, now wants implementation of Article 21-A in letter and spirit and has brought in the Right to Education Bill.

Article 21-A, inserted in the blue book through 86th constitutional amendment on December 12, 2002, had promised free and compulsory education to children between the age group of 6 and 14 years.

The amendment came 10 years after the Supreme Court ruled in 1992, “The right to education flows directly from right to life. Right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education.” [Mohini Jain vs State of Karnataka, 1992 (3) SCC 666].

A year later came the judgment in Unni Krishnan vs State of Andhra Pradesh [1993 (1) SCC 645]. A Constitution Bench of the apex court said, “Having regard to the fundamental significance of education to the life of an individual and the nation, right to education is implicit in and flows from the right to life guaranteed under Article 21.” It even warned that the Constitution would fail if education was not provided to citizens.

Sibal, being an eminent lawyer and a great votary of education, must have been aware of these splendid rulings of the apex court and was probably waiting for an opportunity to put things in implementational context. He now appears to be on course having got the opportunity he was looking for.

He must also have kept abreast with the rulings and orders of the apex court in the last two years. Last year, the SC in Ashoka Thakur case (OBC quota) had stressed on the importance of primary education. And he must be knowing that today, an estimated 100 million children do not attend any school. Once education becomes compulsory and free, government schools are most certain to accommodate additional children.

Forget the additional burden, even at present are they equipped? Are there enough teachers? Do they have basic amenities like water, toilet and electricity? Do they have playgrounds?

Let’s not talk about the hinterland or rural areas. Just a few years ago here in Delhi, a student was crushed to death while attempting to cross the road to get some drinking water as his school did not have provision for it. A PIL by advocate Ravindra Bana informed the SC about the woeful conditions of the municipal and government run schools in the national capital. They had no drinking water, toilet or fan. The SC is still dealing with the PIL.

If this is the state of affairs in Delhi, which had to be forced by the SC to provide basic amenities, then what would be the condition of schools in remote areas?

Well, Sibal also knows and understands the grief of hundreds of parents who are still mourning the death of their young children killed in fires in schools at Kumbakonam in Tamil Nadu and Dabwali in Haryana. These schools had no fire-safety equipment. Advocate Avinash Mehrotra filed a PIL in SC seeking to make fire-safety norms mandatory for schools.

The Supreme Court, delivering its judgment on April 13 this year, said, “Children cannot be compelled to receive education in an unsound and unsafe building… Article 21 and 21-A of the Constitution requires that India’s school children receive education in safe schools. We must ensure that India’s schools adhere to basic safety standards without further delay.”

So, Sibal has to ensure not only free and compulsory education for children but also that the schools have basic amenities and conform to safety norms.



Thousands protest for rights over India’s forests

By Nita Bhalla
NEW DELHI, Nov 29 (Reuters) – Thousands of India’s poorest and most marginalised people gathered in the heart of New Delhi and other cities on Wednesday demanding rights over the remote forest land where they have lived for centuries.
Women in brightly coloured saris and men in turbans from far-flung rural areas waved banners and punched their fists in the air calling on the government to quickly pass a law recognising their rights.
“Who will look after the forests? We will. We will,” they chanted. “Who do the forests belong to? They belong to us.”
More than 40 million people live in India’s resource-rich forest areas including protected wildlife reserves and dense woodland, eking out a meagre living from simple farming, picking fruit and collecting honey.
For generations they have had no legal right to the land or the use of forest resources.
They say they have been treated as “encroachers” and “criminals” on their own land and forced to leave it by forestry officials, mining and logging companies.
“Millions of impoverished people ironically live in the richest lands in India, but they have not been able to benefit from the land,” said Shankar Gopalakrishnan from the Campaign for Dignity and Survival, a union of forest community groups.
“Every year, hundreds of thousands are forcefully evicted, beaten, tortured and their homes are demolished by officials and businessmen who want to use the land for their own purposes.”
Similar protests took place in the eastern cities of Bhubaneswar and Ranchi, where thousands of forest dwellers gathered, beating drums and chanting slogans. Fifty-four-year-old Rambati Bai said despite spending more than 60 years living in Sunabeda Wildlife Sanctuary in the eastern state of Orissa, she and her family were not allowed to call the forest home.
“Last year, the forest officials came to my village and told us to leave the forest. Is it that easy? How can we live in another place?” said the woman, clad in a shabby, crumpled white sari.
Others said they had been jailed for months for refusing to leave the land that they and their forefathers had cultivated for generations.
The government is expected to pass a new law — the Recognition of Forest Rights Bill 2005 — before the end of the year which would, for the first time, give forest dwellers the right to own the land they have been using.
But some wildlife groups have voiced concern about the bill, saying it would give too much protection to forest people and would threaten efforts to save endangered tigers.
Activists for the forest dwellers say the bill has already been watered down to give people little power after pressure by green groups and powerful logging and mining companies.
“The government is using conservation as an excuse not to give us rights,” said S.R. Hiremath of Samaj Parivartana Samudaya, a local charity working with forest communities in the southern state of Karnataka.
“We are not a threat to the environment and not a threat to animals. For centuries, we have lived in co-existence with the environment and its destruction is because of the mining and paper companies.”

Delhi HC tells Centre to file reply in Sanskriti School case

New Delhi, Dec 05: The Delhi High Court today asked the Centre to file a detailed reply on a government proposal to grant Rs 10-crore to the capital’s elite Sanskriti School and if it was a one-time grant or paid on a regular basis. A division bench headed by Justice Swatanter Kumar has sought clarification from the government if there was any specific policy for the release of such a one-time grant by the different arms of the government.The court also wanted to know if the government was planning to release any other grants soon while giving the latter four weeks’ time to file its reply.The court had taken suo moto cognisance of news reports that the government was planning a Rs 10-crore grant for Sanskriti School set up by wives of top bureaucrats.It had taken up the matter as a PIL in which the question was debated as to why the government was routing large public resources to a school not accessible to children belonging to the weaker sections of the society.Arguing on behalf of the school, its counsel Arun Jaitley challenged the court’s powers to examine a budgetary provision by Parliament.”Any grant made under the budgetary provision was beyond the scope of the judiciary,” he contended.Claiming that the school provided 20 per cent reservation to children from weaker sections of society, he questioned the illegality of receipt of government grants by it.Meanwhile, the court has issued a notice to the journalist based on whose report a PIL was filed.

Bureau Report