International Journal of Law and Legal Jurisprudence Studies

Right to free and compulsory education for the girl child between the age of 6 to 14 years-An Unfulfilled Dream Dr Sheeba Pillai:Assistant Professor, School of Indian Legal Thought ,Mahatma Gandhi University, Kottayam

Nearly two-thirds of children who are denied their right to education are female. At the World Education Forum, Dakar, 2000, countries agreed on ensuring that by 2015 all children, particularly girls, will have access to complete free and compulsory education of good quality. But it is quite sad to note that India is far behind in realisation of this goal.

When we look into the meaning of education etymologically, the first view is that the word `education’ is derived from the Latin word `Educare’ which means `to bring up’ or `to nourish’. The second view is that education which is `Educere’ – means to `find out’ or `to draw out’. Thus the second meaning provides a different opinion than the first wherein the process of education is an `effort to draw out’ rather than `to put in’. Third view is that the word education means the `act of teaching or learning.’[1] To put it simply, education being a lifelong process during which the best in the individual is drawn out, developed and moulded to face the various challenges of life.[2] The importance of education in moulding the future of the country was fully understood by the Courts in India. The Apex Court made an elaborate comment on the significance of education in the case of Maharashtra State Board of Secondary and Higher Education v K.S. Gandhi[3], wherein it was stated: education means a process which provides for intellectual, moral and physical development of a child for good character formation, mobility to social change including necessary awakening among the people. Education promotes intellectual, moral and social democracy. “Education lays foundation of good citizenship and is a principle instrument to awaken the child to intellectual and cultural pursuits and values in preparing the child for later professional training and helps him to adjust to new environment. Education therefore should be committed to the social, political or economic needs of our developing nations fostering secular values, breaking the barriers of casteism, linguism, religious bigotry and should act as an instrument of social change. Education kindles its flame for pursuit of excellence, enables and ennobles the young mind to sharpen his or her intellect more with reasoning than blind faith to reach intellectual heights and inculcate in him or her to strive for social equality and dignity of person.”

The constitutional status conferred on education was quite important and this can be reckoned from the articles that have been dedicated to it under the Indian Constitution namely Articles 41, 45, 46 under the Directive Principles of State Policy and Article 29 and 30[4] of the Fundamental Rights Chapter.

Article 21[5] provides a novel stature to right to education under its fold. The post Maneka[6] period has been one where Article 21 grew out of its bounds in creativity made possible primarily due to the integration of the `due process’ clause of the 5th and 14th Amendment of the American Constitution. Thus it was recognized that to live a life of human dignity, there are several rights that must be made available to man, one of them being `education.’ In Francis C. Mullin v Administrtor, Union Territory of Delhi[7], the Apex Court remarked `we think that the right to live with human dignity and all that goes along with it, namely the bare necessities of life such as adequate clothing and shelter overhead and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and co-mingling with fellow human beings.

In Bandhua Mukti Morcha v Union of India[8] Bhagwati J while affirming the proposition that Article 21 derives its life breath from Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39, 41 and 42 and at the least therefore “it must include protection of health and strength of workers, men and women and of tender age of children to develop in a healthy manner and in condition of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity[9].”

Further Justice Rama Jois of Karnataka High Court in Babuji Education Association v State[10] held that the right of an individual to have and or/to impart education is one of the most valuable and sacred rights ….. that among various types of personal liberties which can be regarded as included in the expression `personal liberty and life in Article 21, the education is certainly the foremost

.

It was in Mohini Jain[11] that the Apex Court brought out the nexus of right to education to Article 21. The Court affirmed that to live with human dignity, education was necessary. Right to education flows directly from right to life “Right to education is concommitant to fundamental rights enshrined under Part III of the Constitution[12].”  Further, the Court said that capitation fees creates a class bias; making education beyond the reach of the poor. Therefore the State action permitting capitation fees in the cloak of `tuition fees’ to be charged by the State recognized educational institution is wholly arbitrary and as such violation of Article 14 of the Constitution10. This decision clearly confronts the issue of whether right to education is a fundamental right and establishes the case. In doing so, it emphasises the concept of equal opportunity and elimination of discrimination on the basis of income and status, thereby, giving a definite dimension to this `right’.

.

However, in J.P. Unnikrishnan[13], the Court affirmatively stated that education is a vocation, mission and not a profession, trade or business. Right to education has been treated as one of transcendental importance in the life of the individual and has been recognized not only in this country since thousands of years but all over the world. Though citizens had a right to free and compulsory education, its contents and parameters have to be determined in the light of Article 41 and 45[14]. Thus the Court defined the right in perspective of the Constitutional provision, which directs the State to provide free and compulsory education to children between the age group of 6 to 14 years. Further the citizen had the right to call upon the State to provide educational facilities within the economic capacity and development.

Finally ,largely due to the efforts and activism on the part of the Indian Judiciary ,in 2002, the 86th Amendment Act  was passed which inserted article 21A into the Indian Constitution making it obligatory for the States to provide free and compulsory education to the children between the age of 6 to 14 years in such manner as the State may by law determine. The Right to Free and Compulsory Act,2009 was enacted to give effect to this fundamental Right .The Act came into effect on 1st April 2010.  The original provision for free and compulsory education for children under Article 45 has been repealed and in its place the following provision namely “provision” for early childhood care and education to children below age of 6 years was added. Parents have also been made duty bound to provide opportunities for education to his child or as the case may be ward, between the age of 6 to 14 years[15]. The State is also required to promote the educational interests of Scheduled Caste/Scheduled Tribe thereby providing for an emphasis in equalizing the educational opportunities[16].

India’s journey towards achieving free and compulsory primary education had begun, a little more than sixty three years ago with the Constitution stating `The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for children until they complete the age of fourteen years[17].  The overall conditions were rather distressing then. The literacy rate was 18% and the female literacy was only 9%. The gross enrolment ratios at primary stages (class I – V covering the age group 6 – 11) was 43%, the corresponding figure for girls was only 25%. At upper primary stage (classes VI – VIII and age group 11 – 14) only 1 out of 8 children were enrolled in schools; among girls only 1 of 20[18]. However, over the years there has been tremendous growth in coverage.

Educational policy and progress have been renewed in the light of goal of national development and priorities set from time to time. The resolution on the National policy on Education in 1968 followed by the 1986 policy reconfirmed the emphasis on quality improvement, equitable expansion of educational facilities and a need to focus on education of girls. Currently, Sarva Shiksha Abhiyan (SSA) is implemented as India’s main programme for universalising elementary education.  Its overall goals include universal access and retention, bridging of gender and social category gaps in education and enhancement of learning levels of children. These policies were complemented by other schemes such as National Programme for the Education of Girls at the Elementary Level, Kasturba Gandhi Balika Vidyalaya Scheme, both ensuring inclusion and quality education for girls. The Mahila Samakhya programme was launched in 10 states targeting marginalised sections of rural women. Access to education was also facilitated by separate schools for girls, availability of open learning resources, residential schooling, coaching facilities; scholarships, textbooks, uniforms and transport including bicycles. The Right of Children to Free and Compulsory Education (known as RTE) Act, 2010, charted a new roadmap for gender equality in education in India.The Sarva Shiksha Abhiyan (SSA) Framework of Implementation and norms for interventions have been revised to correspond with the provisions of the RTE Act.

Though education is in the concurrent list of the Constitution, the State Government plays a major role in the development of education particularly in primary and secondary education sectors.

Status of education of the girl child in India

India is home to 19% of the world’s children. About one-third of its population (around 48 crore, according to the 2001 census) is below the age of 18, and around 74% of this population lives in rural areas. The population of people in the age-group 0-25 years is 56 crores, which in turn is 54% of the country’s total population. Indeed, India has the world’s largest number of youngsters.[19]

India’s education system over the past few decades has made significant progress. According to India’s Education For All Mid Decade Assessment, in just five years between 2000 and 2005, India increased primary school enrolment overall by 13.7 per cent and by 19.8 per cent for girls, reaching close to universal enrolment in Grade 1. Even with these commendable efforts, one in four children left school before reaching Grade 5 and almost half before reaching Grade 8 in 2005. Learning assessments show the children who do remain in school are not learning the basics of literacy and numeracy or the additional skills necessary for their overall development. [20]

The percentage of out-of-school children in highly populated states like Uttar Pradesh, West Bengal, Orissa and Bihar remains a cause of concern. Although there have been significant improvements in the proportion of children from socially disadvantaged groups in school, persistence gaps remain. Girls are still less likely to enroll in school than boys; in 2005, for upper primary school (Grades 6-8) girls’ enrolment was still 8.8 points lower than boys, for Scheduled Tribes (ST) the gender gap was 12.6 points and 16 points for Scheduled Castes (SC).[21]

In addition, ST and SC children are less likely to access their right to 8 years of schooling; the drop-out rate for ST children being 62.9% and 55.2% for SC children compared to a national average of 48.8% leaving school before completing Grade 8.

If we look at the 2011 figures, 74.04% of people above the age of seven are literate. The male literacy level has reached 82.12%, while female literacy has touched 64.46% (the difference between male and female literacy level is 16%).[22] It’s worth mentioning, however, that in the period between 2001 and 2011, the increase in male literacy was just 6.88%. Similarly, the rate at which male and female literacy levels increased between 1991 and 2001 — male by 12% and female by 14.4% — has slowed down. Therefore, total literacy growth of 12.6% (from 1991-2001) has declined to 9.21%.[23]

According to government figures, 18.78 crore children are being taught by 58.16 lakh teachers in 13 lakh schools across the country.. But there are also hundreds of thousands of out-of-school kids involved in child labour or domestic work. In fact, of the children enrolled in school, 46% drop out before they complete their primary education. Most of them are girls. At least 26 crore children in the country today are of school-going age. Going by the government statistics, 18 crore children are in school. What about the remaining 8 crore?

So the female literacy rate is wadding behind the male literacy rate. This is certainly disheartening as we know that the lack of education is the root cause of women’s exploitation and negligence. Kerala has the highest literacy rate amongst female with 92% and Rajasthan the lowest with 52.7% preceded by Bihar 53.3%. There are many factors responsible for such low literacy rates amongst women and it is the combination of many factors-social, cultural, economic, geographical etc. According to reliable sources more than 50% of non starters are girls. According to the latest statistics every ten girls in the age group of 6-11 are still not enrolled in school.[24] Equality is an integral part of a ‘right’ and therefore ‘right to education’ too. Hence it is crucial that both boys and girls should get the benefit of free and compulsory primary education. The Court has reinforced the equality of opportunity aspect in various decisions by stating that “where the State has undertaken to provide, it is a right which must be made available to all on equal terms.”[25]

The dropouts amongst girls are especially high in rural, tribal and slum areas.[26]In rural areas the girl child often plays the role of the second mother to her younger siblings and hence is often   discouraged by her family from going to school.[27]Child marriages, poverty are other factors that effect the education of the girl child in India.

The enactment of RTE act,2009 was to bring about monumental change in the educational status of the children particularly the girl child. Though it has been only three years since it has come into effect, there were many criticisms that have been raised not only with respect to the Act but also its implementation .A discussion on the same follows.

 

A brief overview of the Act


All children between the ages of 6 and 14 shall have the right to free and compulsory elementary education at a neighborhood school.[28] There is no direct (school fees) or indirect cost (uniforms, textbooks, mid-day meals, transportation) to be borne by the child or the parents to obtain elementary education. The government will provide schooling free-of-cost until a child’s elementary education is completed.[29]

Schools shall constitute School Management Committees (SMCs) [30]comprising local authority officials, parents, guardians and teachers. The SMCs shall form School Development Plans and monitor the utilization of government grants and the whole school environment. The private unaided schools have been exempted from constituting SMCs.
RTE also mandates the inclusion of 50 per cent women and parents of children from disadvantaged groups in SMCs. Such community participation will be crucial to ensuring a child friendly “whole school” environment through separate toilet facilities for girls and boys and adequate attention to health, water, sanitation and hygiene issues. All schools must comply with infrastructure and teacher norms for an effective learning environment. Two trained teachers will be provided for every sixty students at the primary level. Teachers are required to attend school regularly and punctually, complete curriculum instruction, assess learning abilities and hold regular parent-teacher meetings. The number of teachers shall be based on the number of students rather than by grade. The state shall ensure adequate support to teachers leading to improved learning outcomes of children. The community and civil society will have an important role to play in collaboration with the SMCs to ensure school quality with equity. The state will provide the policy framework and create an enabling environment to ensure RTE becomes a reality for every child.

Central and state governments shall share financial responsibility for RTE. The central government shall prepare estimates of expenditures. State governments will be provided a percentage of these costs. The central government may request the Finance Commission to consider providing additional resources to a State in order to carry out the provisions of RTE.[31]
The State government shall be responsible for providing the remaining funds needed to implement. There will be a funding gap which needs to be supported by partners from civil society, development agencies, corporate organisations and citizens of the country.

The National Commission for the Protection of Child Rights[32] shall review the safeguards for rights provided under this Act,[33] investigate complaints[34] and have the powers of a civil court in trying cases. States should constitute a State Commission for the Protection of Child Rights (SCPCR) or the Right to Education Protection Authority (REPA) within six months of 1st April 2010. Any person wishing to file a grievance must submit a written complaint to the local authority.[35]

Appeals will be decided by the SCPCR/REPA.[36] Prosecution of offences requires the sanction of an officer authorised by the appropriate government. National Advisory councils and State Advisory Councils may also be constituted to advise the Central Government or the State Government regarding the implementation of the Act.[37]

It requires all private schools to reserve 25% of seats to children from underprivileged families (to be reimbursed by the state as part of the public-private partnership plan).. It also prohibits all unrecognised schools from practice,[38] and makes provisions for no donation or capitation fees [39]and no interview of the child or parent for admission. The Act also provides that no child shall be held back, expelled, or required to pass a board examination until the completion of elementary education.[40] There is also a provision for special training of school drop-outs to bring them up to par with students of the same age.[41]Also prevents physical punishment or mental harrassment.[42]

The RTE act requires surveys that will monitor all neighborhoods, identify children requiring education, and set up facilities for providing it.

 

 

Drawbacks in the Act and its implementation

 

The Act came into force on April 2010. 31st March was the timeframe given for the implementation of its provisions. But one finds that the Act suffers from several loopholes .

The attendance of pupils in class rooms has declined. In 2007, 73.4 percent students enrolled for Standards I-IV/V were present in class, which has fallen to 70.9 percent by 2011.[43] Fayaz Ahmad came with the findings that despite lack of staff in government schools, teachers remain absent on rotational basis. He adds that due to vacancies for teacher, absenteeism of teachers and poor infrastructure in government schools classrooms are multi-grade, i.e. one teacher attending to children from different grades in a single classroom. The attendance of teachers and students in schools is directly related with the quality of education.[44]

 It has been observed that the Hindi-speaking states of Uttar Pradesh, Rajasthan, Madhya Pradesh and Bihar have been the most half-hearted when it comes to implementation of the RTE Act, despite the fact that 67% of out-of-school children are from these states. According to the Act every private school will now have to obtain certificate of recognition from the local authority and the State Government. A lacuna in the Act is that schools run by the local authority and the State Government are exempt from obtaining this recognition. So they can continue in whatever deplorable condition they are in. Previous studies have shown that amongst the State schools  Around 5% of primary schools do not have any classrooms at all and another 15 – 20% have only one. In about 40% schools children have no access to safe drinking water and separate toilets for girls are available in only 15 – 20% of schools. Further according to recent national evaluation of the Operation, Blackboard Scheme, if only 4 of the 15 items – 2 classrooms, 2 teachers basic learning kits and teacher training orientation for using the learning material specified under the Operation Blackboard Scheme considered, only 15% of government schools are provided with them[45].  About 40% of the total schools in the country did not have any boundary wall in 2003.[46]There are short falls to the act which is evident from the study below

In a study conducted by the National Law school of India University in a  gram panchayat in Ramanagar district of the Karnataka State, several drawbacks of the Act and its implementation was highlighted.[47] As per of the RTE Act, the GP is responsible for implementing the RTE Act in the territory within its jurisdiction.[48] The schools lack basic infrastructure facilities, and non-availability of drinking water, toilet facilities, are common problems. Teachers are often busy attending training programmes and preparing reports such that the children including  those who need special attention are often ignored. No senior person from Central or State authority has ever come to monitor the implementation of the RTE ACT in the schools after the implementation of the Act. The requisitions made by the SDMCs to the local self-government receive very little or no attention.[49]

One of the prime findings of the research is that the RTE Act is being violated at a very fundamental level. The essence of the Act is to provide ‘Free and Compulsory Education’ to all children in the country with “no  discrimination” whatsoever.[50] However, parents pointed out that they spend an average of `300 per month per child to sustain their children’s needs in school. This would influence the girl child to a large extent as history as shown that if there is any expense incurred in educating their child , the parents from lower income family would prefer sending only their male child to school.

 The SDMCs are supposed to create a School Development Plan (SDP) which is to be funded by the State or Local Government. Despite being an entitlement, funds are seldom received. No doubt, the Panchayat receives an annual grant of `6 lacs, but a sum of `3 lacs is directly deducted as charges for electricity and `2.7 lacs for water. The remaining `30,000 is hardly sufficient to meet the rest of the needs including implementation of the RTE Act.[51]

Bachpan Bachao Andolan, an NGO, conducted a study across 9 states last year to understand the impact of the Right to Education Act and discovered some disturbing trends.The names of a large number of students were enrolled but they were not in schools.[52]

What is most crucial is that the Act does not refer to the problem of lagging education of the girl child. Keeping in view the historical background and the various studies after which the act was drafted and implemented, should have encouraged the drafters to consider the problem of girl education in a more practical manner. The foundational problems as to why a girl child is unable to access educational need and the economic , cultural factors that prevented her from accessing the same are not going to disappear with the enactment of the law but has to be closely monitored and worked upon. Just like attention has been given to the weaker sections by reserving 25% seats in the private unaided schools whether for good or bad, similarly some kind of attempt may have also been made for the girl child. Without removing the problems at the root no legislation can provide this right to a girl child in an adequate manner.

Suggestions

  • The teaching faculty must be participate actively in focusing on families  with girl child  and making them aware of the importance of education
  • Special assistance should be given to families with girl child to motivate them to send the child to school.There are schemes in place but it is not reaching the beneficiaries.
  • The Act should introduce measures to facilitate more participation of the girl child. At present there is no specific mention of this in the Act.
  • Enrollment alone is not enough. Statistics showing increasing enrollment does not spell success as it is the dropouts that is more of a permanent problem. The system is not able to retain children particularly the girl child.So it is not the enrollment data that should be continously monitored but the dropouts should be monitored consistently.
  • In order to address gender and equity issues with regard to RTE, the system must develop a strong conceptual understanding on these issues.
  • Girls are not a homogenous or singular category and gender does not operate in isolation but in conjunction with other social categories resulting in girls’ having to experience multiple forms of disadvantage. The dimensions of location (rural-urban), caste, class, religion, ethnicity, disabilities etc. intersect with gender to create a complex reality. Curriculum, textbooks, pedagogic practices, need to capture the entire web of social and economic relations that determine an individual’s location in the social reality and shapes her living experiences. Developing such an understanding is necessary if improving classroom practices, curriculum, training and strategies for reaching the remaining out-of-school children is to be achieved.[53]
  • With regard to access and retention the focus should be on older girls, where     the need is the greatest. Support measures that address economic, academic             and social dimensions that lead to dropout would need to be planned as a            cohesive intervention. At present the approach is fragmented. Measures could            include transport, escorts, counseling, helping them negotiate domestic work              burdens, community support mechanisms, and academic support depending on the nature of the problem
  • Social audits should also report on the practices inside the school and classrooms regarding and gender based discrimination should become an integral part of social audit processes

*Assistant Professor, School of Indian Legal Thought ,Mahatma Gandhi University, Kottayam.

[1] Pahuja N.P., Theories and Principles of Education, (Anmol Publication Pvt. Ltd., New Delhi, 2003), p.3

[2] In a limited sense, education is confined to a school and the University instruction. In the broader sense, education means the totality of experience gained by an individual from birth to death; when formal education becomes necessary, in order to fit the individual for his place in the social order, there arises a need for reflection on the aims and purposes of education and of life. Many aims have been proposed, but if we view intelligence from the standpoint of development, the conclusion is indicated that aims are constantly changing and that the most significant clue for education lies in the concept of growth. See Boyd H. Bode, The Modern Teacher’s Services – Fundamental of Education, (McMillan & Co., New York, 1928), p.20; Education is a matter of fact, the liberation of capacity or in Bagley’s phraseology it means training for achievement – see Bagley W.C., Educational Process, (McMillan and Co, London, 1905), p.14

[3](1991) 2 SCC 716 , p.120

[4] Cultural and Edudacational rights or popularly called the Minority Rights.

[5] ‘No Person shall be deprived of his life or personal liberty except according to the procedure established by law’

[6] Maneka Gandhi v Union of India, AIR 1978 SC 597

[7] Francis Coralie Mullin v Administration, Union Territory of Delhi, AIR 1981 SC 746

[8] AIR 1984 SC 802

[9] Id at pp 811 – 812.

[10] AIR 1986 Kar. 119

[11] Mohini Jain v State of Karnataka, AIR 1992 SC 1858. In this case the petitioner was denied admission to a Medical College as she was unable to pay the exorbitant annual fee of Rs.60000. A Writ Petition was filed before the Karnataka High Court challenging the notification of the Karnataka Government permitting private Medical Colleges to charge any amount as fee from students other than those admitted to Government seats

[12] Id at p.1864

[13] J.P. Unnikrishnan v. State of Andhra Pradesh, AIR 1993 SC 2178

[14] Id at p. 2232

[15] Article 51 A (k) of Part IV A

[16] Article 46

[17] Previously guaranteed under Article 45 of the Indian Constitution.  Now it finds place under Article 21A

[18] Indian Education Report, 2003, p.1

[19] Ramakant Rai, Challenges in the implementation of RTE Act.available at www.udayindia.in visited on July 2012.

[20] www.unicef.org

[21] Ibid

[22] Census of India,2011

[23] Supra n.17

[24] Dr Zubair Ahmed Khan and Hina Varshney, Social empowerment of women through education: The Indian Experience, Indian Human Rights Law Review,VolII,No1,June 2012,p.56

[25]Mohini Jain v. State of Karnataka, AIR 1992 SC 1858.

[26] Ibid.p.57

[27] N.L Gupta, Women’s education through ages, Concept Publication Co, New Delhi,2003.

[28] See Section 6 of the Act

[29] See Chapter II of the Act

[30] See Section 21 and 22

[31] The budget for implementation of the RTE Act throughout the country is just half of the amount spent on the 2010 Commonwealth Games, so funds are scarcely the problem.

[32] The NCPCR was set up by the Government of India on 5th March 2007 under the Commission for protection of Child Rights Act,2005.

[33]Section 31(1(a))

[34] Section 31(1(b))

[35] Section 32(1)

[36] Section 32(3)

[37] Section 33 and 34

[38] Section 18

[39] Section 13

[40] Section 16

[41] Section 4

[42] Section 17(1) and (2)

[43] “The Right to learn: Two Years after the Right to Education Act, the government needs to focus on quality”, Economic and Political Weekly 16 April, Vol XLVII No 16.(2012)

[44] Ahmad, Fayaz (2009) “ A Sociological Study of Primary Education Among Girls: With Special Reference to Block Hajin of District Bandipora” Dissertation, Barkatullah University.
Annual Status of Educational Report (2010): “Annual Status of Educational Report ( Rural) , accessed on 21April 2012: http://www.pratham.org/aser08/ASER_2010_Report.pdf

[45]Indian Educational Report, 2003,p12

[46] Mehta C. Arun, Elementary Education in India – where do we stand Analytical Report 2003, (NIEPA, New Delhi, 2004), p.17

[47]Dr Niranjanaradhya V P,Abhinav Jha, Right of Children to Free and Compulsory Education ACT –Miles to Go…A Case Study of a Gram Panchayat, Centre for Child and the Law, National Law School of India University,International publishing house, Karnataka,2013.

[48] Section  9

[49] Supra n.45,p.6

[50]Under Section 3 of the RTE Act, it is stated, “No child shall be liable to any kind of fee or charges or expenses which may prevent him or her from pursuing and completing the elementary education”.

[51] Supra n.45,p10

[52] www.ndtv.com

[53] SSA final repot .pdf

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