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DECCAN HERALD Saturday, February 9, 2002

FUNDAMENTAL RIGHT STATUS FOR EDUCATION

Opportunity or eyewash?

By A S SEETHARAMU

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

Checks and balances
Article 45 which refers to primary education advises the State to endeavour to provide, within a period of
ten years from 1950, for free and compulsory education for all children until they complete the age of
fourteen years. The irony of the directive principle was that checks and controls on the endeavours were
not envisaged. In the absence of such checks and balances, article 45 resembled a wishful thinking of
the founding fathers of the nation which became weak and suspect in the hands of the floundering sons,
grandsons and great grandsons. Even the credibility of this wishful thinking was lost because of a
provision under article 41. Article 41 reads as follows: “The State shall, within the limits of its economic
capacity and development, make effective provision for securing the right to work, to education and to
public assistance”. It is under the escape route of ‘capacity and development’ that the State has all
along justified its poor performance in regard to elementary education.

National policy
Free India could not take Article 45 seriously as it was beset with a variety of overriding problems.
Expansion of schooling facilities began in all earnestness only in the decade following 1960. By 1988,
the Indian State could establish one school in every one of the six-lakh villages of India. In a large
number of cases the schools so established were a euphemism for a school. Even this euphemism was
absent till 1988. It was only after 1986, the year of adoption of the first-ever National Policy on Education,
that a macro effort for strengthening of schools began. If the period 1960 to 1988 may be taken as a
period of expansion of schooling facilities, the period following 1988 may be considered as the phase of
consolidation of gains, through Operation Blackboard and other interventions.
There were 350 million persons in India in 1950 of whom 16 per cent were literate. By 2000 AD the
number of illiterate persons in the country stood at 350 million while literacy rate stood at 65 per cent.
Large proportion of non-enrolled children and drop-outs from primary schools joined the illiterate
battalions every year. The tap was leaking (non-enrolment and drop-out in primary schools) just as the
floor was being mopped (literacy campaigns) in a half-hearted way. Post-liberalisation India (after June
1991) witnessed considerable investments in primary education, specifically after 1993 through the
District Primary Education Programme.
Strategic interventions did not directly contribute to attainment levels of children. Poor attainments of
children in schools have been revealed even in national level surveys beginning from 1995 onwards. In
most parts of the country, including Kerala, the pride of India in regard to literacy, a child who had
completed IV standard could perform upto only II standard competencies. In this process value for
money as well as time are lost.
The funding efforts for universalisation of elementary education are observed to be far below the
estimates from several agencies including the Planning Commission. An additional spending of Rs
60000 crores spread over ten years from 2000 AD is needed for universalisation of primary education.
Realising the enormous need, the government of India has initiated a new scheme in partnership with the
states since 2000 AD known as Sarva Shikshana Abhiyan, a crusade for education for all.

Opportunity
Does the 93rd amendment help mend matters? Is this amendment one more exercise in tomfoolery of
the gullible Indian public 350 million of whom are non-literate? Time alone can answer these questions.
For the present, it can only be asserted that the 93rd amendment gives an opportunity to the
conscientious, committed, zestful and questioning Indian minds to invoke Article 32 on the enforcement
of Articles 41 and 45. There is an opportunity for a public interest litigation against the Indian State to
question allocative efficiency in public expenditures, to demand just and fair attention to elementary
education and to implore the State to allocate adequate funds for elementary education.

Complex issues
The public can seek redressal through the judiciary. The print and electronic media can lend unstinted
support to the questioning minds. Does it happen? Where are the questioning minds? Wait and see. But
there are also several complex issues involved in such public interest litigations. Who shall be the
defendant in such litigations? There are several points of power and patronage in the Indian polity today.
Education being a concurrent subject, the Union government bears responsibility. Articles 45 and 41
have placed elementary education under the responsibility of the states. The 73rd and 74th constitutional
amendments have transferred responsibility for elementary education to the zilla panchayaths and urban
local-self governments. Hence, the panchayaths and municipalities are responsible.
As such the State in India is in an advantageous position in regard to public interest litigations that try to
invoke Article 32 for enforcement of Articles 45 and 41. There can be a ping-pong game of responsibility
for universalisation of elementary education across the Union, the states and the local-self governments
wherein the judiciary will function as a confused umpire among the helpless Indian citizenry.