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    GOVERNMENT MUST RE-LOOK AT THE FREE AND COMPULSORY
               EDUCATION BILL, 2004 (08.01.2004)

                                                             By Ashok Agarwal, Advocate

         The Free and Compulsory Education Bill, 2004 (08.01.2004) is the third version
of the Bill of the Government of India after the people rejected two earlier versions of the
Bill. It is unfortunate that the third version is no better than the earlier ones and needs the
same funeral. Article 21 A of the Constitution mandates the State to enact legislation to
determine the manner in which the Right to Education is to be provided. A central
legislation in this regard would be vital in determining the future of this country having
more than forty crores children out of which ten crores children in age group 6-14 yrs not
attending school. We need to have a child friendly legislation that creates an enforceable
right in favour of the child and against the State, covers children of 0-18 years age group,
ensures equal opportunities of conducive atmosphere for quality education to all the
children, clearly demarcates the powers, duties and responsibilities of the Central and
State/UT Governments keeping in mind the country’s federal character, ensures
decentralization of powers in the letters and spirit of 73rd and 74th Constitutional
Amendments and strict accountability of the State Officials responsible for
implementation of the legislation etc. These basics are totally absent in the Bill.

       In an attempt to analyze the Bill, the following things are noticed:

Preamble of the Bill

        The preamble of the Bill states “ A Bill to provide free and compulsory education
to all children from the age of six to fourteen years and for the matters connected
therewith and incidental thereto.”

         In the Statement of Objects and Reasons to The Constitution (Ninety-Third
Amendment) Bill, 2001, it has been explicitly stated that the ultimate goal of providing
universal and quality education still remains unfulfilled and in order to fulfill this goal, it
is felt that an explicit provision should be made in the part relating to Fundamental Rights
of the Constitution. It is, therefore, necessary to include words ‘universal and quality’
in the preamble of the Bill. The purpose of the Bill can be deduced from Statement of
Objects and Reasons to The Constitution (Ninety-Third Amendment) Bill, 2001 which
states “The Constitution of India in a Directive Principle contained in article 45, has
made a provision for free and compulsory education for all children up to the age of
fourteen years within ten years of promulgation of the Constitution. We could not achieve
this goal even after 50 years of adoption of this provision.”

        The Government of India has adopted National Charter for Children, 2003 by a
resolution published in Extraordinary Gazette of India dated 9th February 2004. The
clause 7 of the said Charter deals with ‘Free and Compulsory Primary Education’. It is
relevant to reproduce the said clause 7 here:
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“7     a.     The State recognizes that all children shall have access to free and
       compulsory education. Education at the elementary level shall be provided free of
       cost and special incentives should be provided to ensure that children from
       disadvantaged social groups are enrolled, retained and participate in schooling.

       b. At the secondary level, the State shall provide access to education for all and
       provide supportive facilities for the disadvantaged groups.

       c.     The State shall in partnership with the community ensure that all the
       educational institutions function efficiently and are able to reach universal
       enrolment, universal retention, universal participation and universal achievement.


       d.      The State and community recognize that a child be educated in its mother
       tongue.

       e.      The State shall ensure that education is child-oriented and meaningful. It
       shall also take appropriate measures to ensure that education is sensitive to the
       healthy development of the girl child and to children of varied cultural
       backgrounds.

       f.      The State shall ensure that school discipline and matters related thereto do
       not result in physical, mental, psychological harm or trauma to the child.

       g.     The State shall formulate special programmes to spot, identify, encourage
       and assist the gifted children for their development in the field of their
       excellence.”

S. 1. Short title, Extent and Commencement

        Section 1(3) of the Bill is required to be deleted completely. It has been left to
the discretion of the Central Government to fix the date of its enforcement, meaning
thereby, that even after the Bill becomes an Act, the Government can delay its
enforcement. It is interesting to note that words, “and for different parts of the country”
appearing in Section 1(3) of the Bill do not appear in the first version of the Bill.
Addition of these words has further increased the discretion of the Central Government to
delay the enforcement of the Act in various parts of the country. How long the children of
this country have to wait?

       Section 1(3) of the Bill when read along with Section 43 of the Bill (Power to
Exempt), assume greatest powers with the Central Government to discriminate a child in
one part of the country with a child in another part of the country and to deny to any child
the benefits of the Bill. Both Sections 1(3) and 43 of the Bill are open to abuse by the
Central and State Governments. The provisions of the Bill are opposed to the very
concept of ‘free and compulsory universal quality education’ underlying the Bill. Once
the government assumes power to deny any child the benefit of this Bill, the legal
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obligation of the State to provide ‘free and compulsory universal education, ends. It is
like giving something by one hand and taking the same by another hand. Where the
question of empowering State to discriminate and deny to a child arises when the
constitutional mandate to provide free and compulsory universal quality education to
every child exists?

S. 2 (1) (c) (iii). Approved school

        In the Ist and the 2nd version of the Bills, ‘any Education Guarantee Centre or
alternative school run under a scheme framed or approved of the Central Government or
State government’ was included but this is deleted in this Section of the Bill though
‘Education Guarantee Centre’ and ‘alternative school’ have been separately defined in
Section 2(n) of the Bill.

         It is very interesting to note that Sub-Section (iii) has been added in this Section
according to which the schools run by the Central Government, its organizations
including defence forces, and central public sector undertakings, either primarily for the
education of their employees, or for other special purposes, e.g. schools run by the
Kendriya Vidyalaya Sangathan, the Navodaya Vidyalaya Samiti, Sainik Schools will
remain outside the purview of the Bill. Not only this, the Central Government and State
Governments will have power to keep outside the purview of the Bill any such other
schools or category of schools as they may, by notification, specify. It is very dangerous
and deserves to be deleted outright. It is also arbitrary, discriminatory, unconstitutional,
hit by the provisions of Articles 14, 21, 21 A, 38, 41 of the Constitution of India, against
public interest and opposed to public policy, contrary to the National Charter for
Children, 2003, violative of National Policy on Education and UN Convention on the
Rights of the Child (1989).

        This provision of the Bill legalizes the hostile discrimination perpetuated against
the children of lower strata of society within the government schools system itself. An
unskilled labourer’s child can never even imagine to receive education in the Kendriya
Vidyalaya Sangathan or in Navodaya Vidyalaya Samiti or in Sainik School which have
been taken out of the purview of the Bill and also in any such school which may be taken
out of the purview of the Bill by the Governments. The Constitution mandates
egalitarian society whereas this provision assumes a non-egalitarian society. With
such an arbitrary and discriminatory provision, the object of the Bill to provide free and
compulsory universal quality education stands defeated. The Government of India
must understand that at least in the government school system there should be equal
opportunity for all the children to receive education in any school. This provision
denies right to equal opportunity to all the children and therefore, the same, if enacted,
would be open to challenge in the Court of Law on the ground being violative of Article
14 of the Constitution.
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S. 1 (d). Child

        Entire new concept of ‘child’ has been given in this provision. The provision as
framed is in the nature of exclusion. Even Article 21A of the Constitution is not at all in
the nature of exclusion. It simply says that ‘The State shall provide free and compulsory
education to all citizens of the age six to fourteen’. How excluding children below 6 years
and above 14 years can help in achieving objects underlying the Bill? On the other
hand, excluding children below 6 years and above 14 years would defeat objects
underlying the Bill. A 15-year-old girl who has never gone to the school is not entitled
to education under it. Is it the intention of the Bill? Children with disabilities who are
entitled to free education up to 18 years under the provisions of PWD Act, 1995 are not
entitled to receive education under it if they are less than 6 years or above 14 years. It is
totally unjust to define ‘child’ in this fashion. It appears that the Government of India
has not at all applied their mind while framing this provision. This provision is required
to be deleted completely or in alternative the definition of the ‘child’ as given in
Juvenile Justice (Care and Protection of Children) Act, 2000 is required to be
adopted. The definition of child as suggested herein would rather advance the object of
the Bill.

        Article 21 A of the Constitution does not negate the right of children below 6
years and above 14 years nor it restrict the right to education to the children of age six to
fourteen years. However, this provision in the Bill both negates the right of children
below 6 years and above 14 years and restricts to the children of age six to fourteen years.
If it is read in a narrow way, the consequences would be that not only the existing
legislations like Delhi School Education Act, 1973 and Haryana School Education Act,
1995 which provide right to education to every child up to class VIII or 14years, which
ever is earlier or Persons with Disabilities Act, 1995 which provides free education to the
children with disabilities up to 18 years will become unconstitutional but also article 45
which talks of providing early childhood care and education to the children below the age
of six years will come in conflict with Article 21 A of the Constitution. A harmonious
construction of Article 21 A could only be that every child would have a right to receive
education of class 1 to class VIII (Elementary Education). Any other construction would
only defeat the object underlying the Bill rather to advance the same. Article 21 A cannot
be interpreted saying the children below the age of 6 and above 14 have no right to
receive education much less the elementary education. Right to elementary education of
every child is required to be read in Article 21 A of the Constitution.

       In order to legislate law as contemplated in Article 21 A of the Constitution, it is
necessary to understand the scope of Article 21 A. Article 21 A has to be understood and
to be interpreted in the light of other provisions of the Constitution, UN Conventions,
Courts decisions, National Charter for Children, 2003, 165th report of the Law
Commission of India, National Policy on Education, Reports of Education Commissions,
Debates in Parliament on 93rd Constitutional Amendment Bill etc.

      Article 21 of the Constitution, which still exists, has been interpreted by the
Supreme Court in J.P. Unnikrishanan case. The Unnikrishanan case makes right to
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elementary education of every child up to 14 yrs age a fundamental right. Article 21 A
does not and cannot curtail the right to elementary education as declared by the Supreme
Court in Unnikrishanan case.

        This provision is apparently misfit in the Bill, confusing the entire scheme of
the Bill and coming in conflict with so many other provisions of the Bill.

S. 1 (h). Competent Academic Authority

        This provision has been added 1st time in the 3rd version of the Bill. This
provision is not at all required in the Bill. Section 30 of the Bill deals with curriculum
& essential levels of learning for approved and transitional schools. These provisions
are politically motivated, open to abuse and are, therefore, very dangerous. Any
political party in power through NCERT by abusing these provisions will implement their
hidden agenda to take political advantage. By virtue of these provisions, the governments
are empowering themselves to appoint authority to prescribe syllabus. These are against
federal character of the State. How we can expect NCERT to know the need of children
living in every nook and corner of this country, particularly, for early stage of curriculum.
It should be better left to community or local authorities.

S. 1 (s). Fee Charging Recognized School

        Government intention behind this provision is not understandable. There appears
to be some nefarious motive behind it.

S. 1(t). Free Education

       Why rules are required for freedom for the parent or guardian from liability to
incur expenditure on textbooks etc.? Why all these facilities depend on rules or rule
making authorities? All these facilities must be included in the definition of free
education without subjecting these to rules. However, these facilities and other facilities
like hostel facility, mobile schools etc. should be left to the discretion of the School
Managing Committee and Government should make adequate finances available to meet
the same. School Managing Committee should be made responsible to ensure that
whatever is bonafide required to a child for receiving compulsory education must be
made available.

S. 1 (v). Instructor

       Entire provisions relating to transitional schools should be deleted. No sub
standard school is acceptable to the children of this country. There are around 12 crore
children in the age group 6-14 who have access to regular schools. There are 3 crore
children who study in government and municipal corporation schools but they are non-
functional schools due to lack of accountability. Under the EGS Scheme, State
Governments and Local Bodies need not even open any more new schools. An EGS
center without even a room can be started and will be deemed as recognized. All the
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poor children in the country will thus be condemned to inferior education. Education
system itself will now discriminate against children according to socio-economic status.
In the name of making education a Fundamental Right, we will be taking away the very
Right to Equality. As the Bill is enforceable, once passed, poor parents will not even have
any mechanism for redressal. This will alienate the poor and will weaken democracy and
pave the way for becoming open to influence to criminalisation, fundamentalism and
extremism that will gravely threaten the security of the country.

        This provision violates Right to Equality under Articles 14, 21 and 21 A of the
Constitution and UN Convention on Rights of the Child. It also violates ‘human rights’ as
defined under “the Protection of Human Rights Act, 1993’. The Bill creates four unequal
tracks of elementary education system – Fee Charging Schools where children have to
pay for education, Schools run by the Central Government, its organizations including
defence forces, and central public sector undertakings, either primarily for the education
of their employees or for other special purposes e.g. schools run by the Kendriya
Vidyalaya Sangathan, the Navodaya Vidyalaya Samiti, Sainik Schools and such other
schools, or category of schools as the Central Government may, by notification, specify
and also such other schools or category of schools as the appropriate government may, by
notification, specify which will remain out side the purview of the Bill, Regular School
where education is not necessarily free, EGS school where teacher qualifications are only
class VIII/X; only 30 days training as compared to two years training and class XII for
regular schools, only 4 hours teaching as compared to 1300 hours per year teaching in
regular schools. Regular schools will be for the well off, EGS for the poor.

         The Supreme Court in Andhra Kesari Educational Society vs. Director of School
Eduation (1989) 1 Supreme Court Cases 392 held, “ Though teaching is the last choice in
the job market, the role of teachers is central to all processes of formal education. The
teacher alone could bring out the skills and intellectual capabilities of students. He is the
‘engine’ of the educational system. He is a principal instrument in awakening the child to
cultural values. He needs to be endowed and energized with needed potential to deliver
enlightened service expected of him. His quality should be such as would inspire and
motivate into action the benefiter. He must keep himself abreast of over changing
conditions. He is not to perform in a wooden and unimaginative way. He must eliminate
fissiparous tendencies and attitudes and infuse nobler and national ideas in younger
minds. His involvement in national integration is more important, indeed indispensable. It
is, therefore, needless to state that teachers should be subjected to rigorous training with
rigid scrutiny of efficiency. It has greater relevance to the needs of the day. The ill-
trained or sub-standard teachers would be detrimental to our educational system; if
not a punishment on our children. The government and the University must,
therefore, take care to see that inadequacy in the training of teachers is not
compounded by any extraneous consideration.”

         The Supreme Court again in L.Muthukumar vs.State of Tamil Nadu (2000) 7
Supreme Court Cases 618 held, “ Before teachers are allowed to teach innocent children,
they must receive appropriate and adequate training in a recognized training institute
satisfying the prescribed norms, otherwise the standard of education and careers of
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children will be jeopardized. In most civilized and advance countries, the job of a teacher
in a primary school is considered an important and crucial one because moulding of
young minds begins in primary schools. Allowing ill trained teachers coming out of de-
recognized or un-recognised institutes or licensing them to teach children of an
impressionable age, contrary to the norms prescribed, will be detrimental to the
interest of the nation itself in the sense that in the process of building a great nation,
teachers and educational institutions also play a vital role. In case like these, interest
of individuals cannot be placed above or preferred to the larger public interest.” It is
submitted that this law of the land is being violated by the proposed provision in the Bill.

        It is submitted that a Bill on the Common School System be passed along the
lines recommended by Kothari Commission (1964-66) reiterated by National Policies on
Education (1968, 1986, 1992) and also reiterated by Ramamoorthy Committee for
Review of National Policy on Education (1986). Under this system, all schools
irrespective of nature of management will admit children from all socio-economic strata
residing in the neighbourhood. This will ensure equality of educational opportunity. The
well-off parents presence in the school will ensure accountability. No EGS or such
inferior system must be allowed to exist. All teachers recruited must be trained according
to NCTE norms. There are huge numbers of qualified teachers in India who are currently
without jobs. Besides, the Bill must also stipulate that each State Government must, with
two or three years, conduct courses to train sufficient number of teachers. This will
provide job opportunities to lakhs of educated unemployed. The Bill must also stipulate
that the medium of instructions must be mother- tongue till class V, regional languages
from V-VIII, although Hindi and English will both be taught as languages from VI class.

S. 2. Words and Expressions

        It is totally illegal. As per this provision “words and expression defined in the
Bill” will have the overriding effect over the same words and expression if defined
differently in the Constitution. It is totally illogical and unconstitutional. It is required to
be completely deleted.

S. 4. Duty of appropriate government to establish facilities for free and compulsory
education

        Government will delay everything by taking advantage of this provision.
Otherwise also, it does not cast any legal obligation on the State to establish approved
school within a distance. Why still three years required? It exposes the Governments
that they have failed to provide even a school in a distance within all these 55 years
though claims to the contrary are made. The proviso clause dealing with the
transitional schools should be deleted completely.

        In the Schedule I, the ‘desirable norms’ for ‘approved school’ must be made
‘essential’. All the facilities enumerated in the schedule and termed as desirable are
actually essential facilities. All these things are required as a part of right to education
under Article 21 and 21 A of the Constitution. If these things are not made essential, the
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present undesirable and inhuman situation of school is not going to change. Courts have
repeatedly said that these things are most essential. There are other most minimum
essential things also which are required to be added in the schedule. Those are minimum
area for primary, secondary and Sr. Secondary School, electricity, fans, desks,
cleanliness, pucca building, blackboard, adequate number of trained teachers, separate
toilets for girls and boys etc.

        The Delhi High Court in its order dated 03.10.2002 in Social Jurist case
(C.W.4400/2002) held, “Learned counsel for the Director of Education states that there
are only 19 schools which are being run in tin sheds. On the other hand, learned counsel
for the petitioner states that apart from 19 schools which are wholly run in tin sheds, there
are more than 50 schools where classes are partly held in tin sheds. It seems to us that
children are being subjected to inhuman treatment by making them sit in classes
made of tin sheets as during summer months tin sheets get unbearably hot. Learned
counsel for the Director of Education says that his client shall consider the feasibility of
providing porta cabins as substitute for tin sheds.”

        The Delhi High Court in its another order dated 02.09.2003 in Social Jurist case
(C.W.4400/2002) held, “ If the children who are attending the schools are not provided a
good class-room with sitting arrangements or a playground, it would not be possible for
the students to get proper education. Other facilities such as sanitation and pure water are
also required to be provided by the school authorities. In absence of adequate facilities,
if the children are sent to the schools, it means torture on them. They are not
expected to do any hard work at this age. But they are expected to be trained with love
and affection and by providing necessary infrastructure so that they can have love and
affection for the school/Institute and they attend the school regularly and drops out are
minimized. It is for this reason the government should provide adequate facilities.”

      Schedule II is required to be deleted, as no transitional school should be
allowed to exist.

S. 6. Child’s Right to Admission in a proximate approved school

        The last proviso to this provision is required to be deleted. If it is not deleted,
the Governments will not open approved school and compel a child to attend transitional
school. If there is no approved school, is a child supposed to study throughout in the
transitional school and complete his elementary education? As long as this proviso is
there, no one can compel the authorities to open an approved school. Section 6 goes
against what is said in Section 4 for establishment of approved school. No express
obligation has been imposed upon the State to even establish approved school. This
provision gives leverage to the government to only open transition schools.

S.7. Prohibition of causing obstruction to elementary education of a child

       (i)     This provision is legalizing child labour.
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       (ii)    The burden/responsibility to provide education is being shifted from State
       to the Parents.


       (iii) Penalties have been provided against the parents and not at all against the
       State.

       (iv)   Instead, there is need for enabling conditions for children to receive
       education and penalties for authorities failing in discharge of their duties.

       (v)     Instead of prescribing penalties on the government authorities, they have
       been granted immunities under Section 40. Where the concept of accountability
       has gone? Provisions for imposition of criminal and civil actions must be there
       against the government authorities in case of failure on their part to discharge
       their obligations.

       (vi)     All types of employment of children until they attain the age of 14 years
       must be completely banned. The ILO Minimum Age Convention, 1973
       (Convention No 138) that has come into force on 19 June 1976 should be
       implemented. In terms of this Convention read with UN Convention on the Rights
       of the Child (1989), the minimum age for admission to employment is 14 years
       i.e. age of compulsory education.

S. 8. Duty of Parents & Guardians

       (i)     This provision indirectly justifies non-attending of school by children with
       disabilities.

       (ii)   This provision also justifies non-attending of school, if school is not
       available within the prescribed distance, meaning thereby – It justify the
       government, if government does not provide school within a prescribed distance.

       (iii)   By targeting the parent, the government is justifying their inactions.


S. 10. Prohibition of deployment of teachers for non-educational purposes

        This provision is self-contradictory. On one hand, it says government can
deploy teachers for non-educational purposes and on the other hand, it says alternative
arrangement shall be made so as to make good the loss of teaching- learning time as the
result of order. How it is possible? Why the government at all deploying teachers for non-
educational purposes? Courts have repeatedly deprecated the practice of deploying
government schoolteachers for non-educational purposed, thereby causing, loss of
studies to the students. Government must ensure that deployment of schoolteachers
should not at all be at the cost of studies of the students. On the other hand, government
should ensure that schoolteachers must fully devote themselves to imparting quality
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education to the students for which they have been employed, and any negligence on
their part, should be seriously viewed.

        The Delhi High Court in its orders dated12.02.2001 in Social Jurist case
(C.W.3507/2000) observed, “ Mr. Sanjeev, learned counsel appearing for the Directorate
of Census on instructions from Mr. Hari Kishan, Director, Census Operations, Delhi, says
that the Census work is required to be carried out by the teachers before and after the
school hours. He says that the education of the children shall not suffer because of the
Census work. The Director of Education and the Director, Census Operations shall
ensure that the Teachers who have been deployed for census work discharge their duties
as teachers during school hours and impart education to the children.”

S. 13. Procedure for computing age of a child

       (i)    It is totally absurd provision and deserves to be totally deleted.

       (ii)   The object of the Bill is not to determine the age of the child but to
       provide education to every child.

       (iii) It is difficult to see any nexus between the determination of age and
       education sought to be provided to child.

       (iv)    This provision is also ultra-vires of the Constitution as much as a destitute
       child having no parents will be unable to produce even declaration of his date of
       birth and will, therefore, not be entitled to get admission in the school.

       (v)    This provision will only result in keeping large number of children out of
       school on the excuse of non-determination of age or wrong determination of age
       or non-availability of parents.

       (vi)   This provision is anti-child friendly.


S. 14. All schools to seek recognition

       (i)    Section 14(9) will have the effect of keeping all out of school and dropout
       students out of school.

       (ii)    If the child is 9 years old and has never gone to school will not be able to
       get admission either in class I (on the ground of mis-match or overage) or in class
       3 or 4 (on the ground that he/she does not possess certificate of class II or III pass
       from the recognized school. Where he/she will go?

       (iii) Similarly, if a child is dropped out at class II at the age of 6 years and has
       now become 10 years old, he/she will neither be admitted in class II (on the
       ground of mis-match or overage) or in class 4 or 5 (on the ground of not having
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      certificate of class III or class IV pass from recognized school). Where he/she will
      go?

Chapter III (Sections 15 to 22) Bodies and Mechanisms for achieving Free and
Compulsory Education with People’s Participation

      (i)     This chapter was not in the 1st version. It deals with so called
      implementing authorities like HEEA, LEEA, DEEA, MEEA, SEEA, and UTEEA.
      The entire chapter is required to be deleted. The provisions of this Bill are
      required to be implemented through Panchayat Raj System in accordance with
      73rd and 74th Constitutional Amendment Act and provisions are required to be
      framed accordingly. Creating any machinery other than under Panchayati Raj
      System would be unconstitutional and unjustified. These provisions are also
      against the federal character of our Constitutional Scheme.

      (ii)    These provisions, if enacted, would rather hinder the smooth functioning
      of the process.

      (iii) Sections 25, which talks of promotion of voluntary support are also, open
      to abuse and misuse by the authorities. Forcible donations, which are hitherto
      prohibited in law, will now get legal sanction. Authorities will compel parents to
      part with money in name of voluntary support and if they do not do it, either
      admission will be denied to their children on some false excuse or the school
      authorities will harass their children.

      (iv)   Through Section 25, there appears to be deliberate attempt to privatize the
      elementary education. When elementary education is free and compulsory,
      where an occasion arises for so called voluntary contribution by the parents?
      This provision is totally politically motivated. It intents to legalize the substandard
      schools like Ekal Vidayalays run by the RSS. There is grave danger to the secular
      character of education of this country. Even government funding will be diverted
      to such sub-standard schools. This is required to be taken seriously. This
      provision is contrary to public interest and opposed to public policy. There is
      serious need to strengthen and improve the existing formal government school
      system.

      (v)     Section 26 (Grievance Redressal Mechanism) is also very interesting. It is
      nowhere mentioned that if the LEEA, MEEA, DEEA, do not decide and inform
      the decision to the complainant, then what will happen? Is any authority
      accountable or liable to punishment? If a complainant does not receive reply
      within the stipulated period, where he will go? The real objective of this so called
      grievance redressal mechanism appears is to prevent the complainant to directly
      approach the court for redressal of his grievance and he should be harassed by
      involving him in so called mechanism.
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S. 27. Transitional arrangements for education of children living in areas with poor
access and out-of-school children

       The transitional schools should not be allowed to exist at all. This provision is
       required to be deleted completely.

S. 29. Children with special needs

       (i)     By saying that in absence of normal schools, children with disabilities will
       go to special school, is really taking away the right to education of children with
       disabilities. It does not say if even special schools are not there, what will happen
       to the education of the children with disabilities. Salamanca Statement (1994) is
       required to be looked into by the Government. Clause 2 of the Salamanca
       Statement states, “ We believe and proclaim that: -

                     Every child has a fundamental right to education, and must be
                      given the opportunity to achieve and maintain an acceptable level
                      of learning,
                     Every child has unique characteristics, interests, abilities and
                      learning needs,
                     Education systems should be designed and educational
                      programmes implemented to take into account the wide diversity
                      of these characteristics and needs,
                     Those with special educational needs must have access to regular
                      schools which should accommodate them within a child-centered
                      pedagogy capable of meeting these needs,
                     Regular schools with this inclusive orientation are the most
                      effective means of combating discriminatory attitudes, creating
                      welcoming communities, building an inclusive society and
                      achieving education for all; moreover, they provide an effective
                      education to the majority of children and improve the efficiency
                      and ultimately the cost-effectiveness of the entire education
                      system.


       (ii)   No less than a normal school is acceptable for children with disabilities.

       (iii) There is nowhere in the provision that it is obligatory for the State to bring
       every child with disabilities in the main stream.

       (iv)   Only less than 1% children with disabilities are in school. Crores of
       children with disabilities are kept out of school system.

       (v)    Provision should be made that no formal school shall refuse admission to
       the children with disabilities and the school shall provide them barrier free
                                           13

       environment for education. All other enabling facilities should also be made
       available to such children.
       (vi)    Provision should be made that education to the children with disabilities
       shall be dealt with by HRD/Education Department and not dealt with by Social
       Justice Ministry/Social Welfare Department.


S.31. Process of elementary education

      This is very dangerous provision. Any party in power through NCERT will
implement their hidden agenda to take political advantage. This is required to be deleted
completely.


S. 33. Penalty for contravention of Section 7

   Necessary amendments are required to be made in the provision.

S. 35. Obligation of fee-charging recognized schools to provide free education to
children from poor families

       (i)    This provision is only a fraud on the poor masses of this country.

       (ii)    The ‘power’ to fix the percentage of free education is given to
       HEEA/MEEA. Can any body imagine that the strong lobby of the public schools
       will allow these authorities to ever exercise this power?

       (iii) The ‘manner’ in which education to such children may be given is left to
       the authorities to decide. The non-formal system will be the manner in which
       education will be given to these children. In absence of specific provision to
       receive education by sitting with other paying children, these children cannot
       receive equitable education as a matter of right.

       (iv)    No minimum limit has been prescribed, however, maximum has been
       prescribed as 20%. It will always be open to the authority to even not to give one
       percent free seats to these children.

       (v)     According to the provision, the eligible child has to be “below poverty
       line”. In metro cities, the minimum wages prescribed under Minimum Wages
       Act, 1948 is above poverty line and therefore, no child will be found eligible for
       admission to these fee charging recognized school. It is a different matter that in
       practice, more than 80 % workers are not even paid minimum wages in this
       country.

       (vi)  In Delhi where lands have been given to hundreds of schools by
       government on free/concessional rates with condition that at least 25% seats will
                                           14

       be given to the children of the weaker sections, no school has been complying
       with this condition of land allotment. Delhi High Court on 20.01.2004 has passed
       orders on the PIL filed by Social Jurist in this regard. The High Court has
       directed the government to take action against the erring schools.

       (vii) Clause 4(4)(b) of National Policy on Education says “To promote social
       cohesion and national integration the Common School System as recommended
       by the Education Commission should be adopted. Efforts should be made to
       improve the standard of education in general schools. All special schools like
       Public Schools should be required to admit students on the basis of merit and also
       provide a prescribed proportion of free-studentships to prevent segregation of
       social classes. This will not, however, affect the rights of minorities under Article
       30 of the Constitution.

S. 40. Protection of action taken in good faith

       This provision is required to be deleted. In a democratic country like India,
   every authority is accountable to the people. Therefore, there is no scope to provide
   immunities to the authorities as given in this provision. Unless we make the
   authorities accountable for their actions/inactions, the scheme under this Act will not
   work. This is totally a colonial provision. Penalties both civil and criminal should be
   prescribed for each and every authority, in case of their failure to discharge their
   duties/functions. Unfortunately, the authorities have not at all made accountable and
   on the other hand, immunities have been granted to them. This also raises serious
   question on the real intention of the government to implement the provisions of this
   Act to achieve Universalisation of Elementary Education in this country.



                                              (The author is the Convener of Social Jurist)
                                                                              31.05.2004

				
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