The Hindu : Education as a fundamental right

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Monday, May 06, 2002

Opinion

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Education as a fundamental right

By V. Krishna Ananth

The right to education, if implemented wholeheartedly, would help build a society where bigots and fundamentalists would find it more difficult to manufacture consent.

THE UNION Minister for Law and Justice, Arun Jaitley, takes his brief seriously while participating in a debate on the floor of the House. Mr. Jaitley indeed was in his elements when he defended the Bill replacing POTO (the Prevention of Terrorism Ordinance) in the "historic" sitting of the two Houses of Parliament recently. Making light of the argument that the proposed Act was likely to be abused (and Mr. Jaitley was right when he argued that this logic could apply to several other penal provisions and should it mean that all those laws be repealed), the leading lawyer explained that a resolution by the United Nations after September 11, 2001, had rendered a law of this kind imperative.

Mr. Jaitley's argument rested on the presumption that after the United Nations passed the resolution, it was mandatory for India to pass a Bill and that too on the lines of POTA (the Prevention of Terrorism Act). Mr. Jaitley did try to convey that there was no other option; as if the existing laws in India were not good enough insofar as the scope of the U.N. resolution — to declare terrorism and support to groups indulging in it a penal offence — was concerned. This certainly is not correct. It is also only too well known that the U.N. as such does not prescribe the articles and clauses of the desired law as conveyed by Mr. Jaitley to Parliament while defending the Bill.

Mr. Jaitley knows all this better than anyone else. But then, his brief in Parliament was not that of a lawyer; instead he was wearing a different hat. His brief was political. And the Law Minister, himself a victim of such emergency provisions (he was among those picked up and detained under MISA, the Maintenance of Internal Security Act, from the University of Delhi when Indira Gandhi and her police felt he was becoming a `threat to democracy'), did not show any compunction in doing what H. R. Gokhale did then. Mr. Jaitley decided to follow the same path that Gokhale walked (Gokhale too was a leading member of the Bar who was revered by one and all then) and allowed himself to be guided by his political brief. Be that as it may, the Government managed to send across a clear message about its commitment to "international" public opinion and that a resolution of the kind passed by the U.N. would be put into effect in India even if it warranted an emergency measure, which in this case was to convene a joint session of the two Houses. But then, it is also clear that such commitment to "governance" will be displayed only on a selective basis.

Take for instance the need for a constitutional amendment that would ensure education for those in the age group of 6-14 years as a fundamental right. Mr. Jaitley (for all his knowledge on rights and freedom) and the NDA Government (for all its enthusiasm to follow U.N. resolutions) need to be reminded that an amendment to the Constitution to make education a fundamental right is what is expected of the signatories to the U.N. Covenant on Economic, Social and Cultural Rights (ICESR).

Apart from the fact that every state that is party to this agreement considers universal education as an inalienable right, Article 13 of the ICESR declares that primary education be made compulsory and free. And Article 14 of the covenant states in no uncertain terms that "states are bound to work out a comprehensive plan to provide free, compulsory primary education" and even underlines the need to implement this in a time-bound manner. In this sense, it is imperative for the Government, in India, to legislate in such manner that every child between the ages of six and 14 is guaranteed the right to education and such a right is enforceable.

In other words, the need for passage of the 93rd Constitution Amendment (now before the Rajya Sabha after its passage in the Lok Sabha in the winter session) should have appealed to Mr. Jaitley and his colleagues in the Union Cabinet at least as much as POTA.

In addition to the fact that the Bill is an imperative in the context of the ICESR, the Supreme Court, in its verdict in the J. P. Unnikrishnan vs the State of Andhra Pradesh case had even formulated the contours of such an amendment; that Article 21 of the Constitution be amended in such a manner to include a separate clause (Article 21-A) specifying the Right to Education as a Fundamental Right.

With such a clear-cut interpretation (that the right to life shall include the right to education too) based on an earlier ruling in the Olga Tellis vs Bombay Municipal Corporation and the principle that the right to life cannot be restricted to animal existence and that it shall include the right to livelihood, the task before the Executive and Parliament has been simplified to the extent possible; to simply amend the Constitution on the lines prescribed by the apex court.

Yet, it has taken so long and the idea that all children between the ages of 6 and 14 be guaranteed the right to a meaningful life remains a dream and hopes of such an amendment in this session are indeed faint.

All this after the parties cutting across the spectrum "agreed" on December 14, 2001, to show the world their unity and determination against forces opposed to the Republic by agreeing to adjourn the winter session of Parliament sine die.

They could have conveyed the same message in a better fashion if only they had agreed to display their unity by way of passing the 93rd Constitution Amendment.

Similarly, the Opposition in both Houses had managed to force the Treasury Benches to agree to a substantive motion on the Gujarat issue. Why did it not occur to them to do something that could have forced the Union Minister for Human Resources Development, Murli Manohar Joshi to place the 93rd Constitution Amendment Bill in the Upper House too in this very session?

The right to education, if implemented wholeheartedly, would help build a society where bigots and fundamentalists would find it more difficult to manufacture consent to a socio-economic order that is inegalitarian and prone to fratricidal conflicts arising out of divisive and majoritarian campaigns.

Such a measure would also be in tune with the various U.N. covenants (to which India is a signatory) in general and the ICESR in particular.

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