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School Bags And Family Baggage - School laws in India

Written by: Ishana Tripathi - IInd Year Student of Nalsar University of Law, Hyderabad
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  • "There is in our time no well educated literate population that is poor; there is no illiterate population that is other than poor." (John Kenneth Galbraith)

    While concern for universal education runs through the directive principles and the purposes of constitutional governance, the ends for the same could not be achieved. With expansive interpretation being given to Article 21 and increase in judicial sensitivity towards right jurisprudence in post Maneka Gandhi era, the conceptual undercurrents of right to education has undergone tremendous change.

    It crystallized in law when the Supreme Court in the case of Mohini Jain v. State of Karnataka held that “the right to education flows directly from the right to life” as “the right to life and the dignity of an individual cannot be assured unless it is accompanied by the right to education”. This was overruled in the case of Unni Krishnan v. State of Andhra Pradesh, the judgement held that “though Mohini Jain was right in holding that right to education was fundamental, it was not right in holding that the fundamental right extended at all levels of education... every child in the country has a right to free education until he completes the age of 14 years. After this age, the right would depend on whether the State has financial resources or not.” In light of this case the Supreme Court concluded that the right to basic education is implied by the fundamental right to life (Article 21) when read in conjunction with the directive principle on education (Article 41). The Court held that the parameters of the right must be understood in the context of the Directive Principles of State Policy, including Article 45 which provides that the state within a period of ten years from the commencement of the Constitution should endeavour to provide, for free and compulsory education for all children under the age of 14.

    As a consequence of the judicial precedents the 93rd Constitution Amendment Act came into place making education a fundamental right for children in the age group 6 to 14 yrs under Article 21A thereby making right to education a fundamental right. In addition, several states in India have passed legislation making primary education compulsory. There is a constitutional right, but there is no enabling legislation or concrete policy to give effect to that fundamental right, without which such right remains a dead-letter as it was.

    Individual Capability Versus Family Income

    In the present era the aim of education goes much beyond merely literacy. Education is necessary to build a society that is fair and just for all and for respecting universal values of democracy and human rights. Amartya Sen defined poverty in terms of capability deprivation and said that there are essentially two types of poverty; one that is due to lowness of income and the other which is due to incapability of an individual to get a job with a high income. He said that though it is necessary to distinguish between poverty due to lowness of income and poverty due to capability inadequacy the fact that income is a means to capabilities cannot be discarded. Sen also says that the more inclusive education and healthcare the more opportunity the poor can overcome poverty. In the present situation the fact that children with merit are deprived of quality education is capability deprivation as despite them having the caliber to secure admission in a particular school they were unable to do so by virtue of their family income being low.

    Through this deprivation inequality and discrimination arises as despite merit and some sort of affordability of the tuition and capitation fees which private schools demand admission of a child from a poor family still falls in the backdrop as opposed to the admission of a child from a rich and well to do family. Due to issues of affordability lower middle class and below income families are unable to send their child to the ‘star schools’ but the reason why they are perceived to be the best schools in the country is because of the talented youth which these schools produce. One would presume that while considering their admittance these schools would take into account their capabilities irrespective of their ability to pay the requisite tuition fees. Infact the scenario is such that only those who are upper middle class and above can afford the fees which these schools demand and preference is given to a child from a relatively more well to do background than a candidate from a comparatively poor household.

    One of the prime reasons for this is interviewing parents while admitting a child thereby testing the parent’s capability and income irrespective of the child’s merit. It proceeds on the assumption that smart parents are likely to have smarter kids, and thus an attempt during the interview is also to gauge a parent’s seriousness in policing the child for education. The aspect of interview has been discussed later in this project.

    Martha Nussbaum in her open-ended list of The Central Human Capabilities includes affiliation which inculcates being treated with dignity and with equality; however in this particular scenario income takes precedent over getting a fair chance to achieve education. Therefore, family income and background have a great bearing on the quality of education which a child will receive. Moreover, the reason for a child’s admission as of today is inclined more towards his/her parents achievements and status rather than on the basis of merit; thus, missing the element of equal opportunity.

    Equal opportunity is defined as a situation in which each individual’s chances of achieving his goals depend only on his own inherited ability and are unaffected by his parents’ income and education. In India the extent of discrimination on grounds of status and family income has reached new heights. This is evident from the recent indulgence of the judiciary through a judgment which makes it mandatory for the private schools to make 25% reservation for the poor claiming it to be a means of operationalizing the Right to Education Bill. To operationalise this scheme the Government proposed that during the first year of operationalisation the government would merely insist upon 25% of students from the disadvantaged sections to be admitted at the entry level; i.e., nursery.

    The Government says: “We are not saying that 25 per cent of the entire school should be from the disadvantaged sections in the neighbourhood in the first year of operationalisation itself. That might create a situation when a class could have just a couple of such students, resulting in their being bullied”.

    The government proposed that at the entry-level class in each private school there should be reservation for 25% students from the disadvantaged section thereby ensuring that there will be enough of such children in a class to be a group. This could eventually emerge as government’s response to practise of ‘separate but equal’: that is, even though all schools would embrace the Constitution ideals of equality but would actually do little create conditions that ensure equal treatment of all – schools fees being one them. By introducing this at the entry level, the assimilation of students begins at an early stage itself; “paving the way for a truly democratic and heterogeneous classroom”.

    During the past two years the Supreme Court has delivered several landmark judgments relating to self administration and government regulation of privately promoted, financially independent or unaided education institutions; however the fact that the Supreme Court had to make it mandatory for private institutions to accept poor children shows the unwillingness on part of administrators to negotiate with their funds. Rawl propounded that “Society is viewed as a fair system of cooperation between free and equal persons” . He concentrated on the concept of equal opportunity and liberty which should be strived for; in this case concentrating on education system.

    To demonstrate Rawls theory of ‘justice and fairness’ in the town of Kakkanad a school called Christu Jayanthi Public School in the year 2006 admitted students on the basis of draw of lots as they had numerous amount of recommendations to admit students and on account of being fair and just they opted for the method of draw of lots. However, despite this attempt to be fair applying Jonathan Glover’s principle ‘One person doing it makes an insignificant difference’ ; because despite the fact that there was an attempt to exhibit fairness it did not make any universal impact and interviewing parents and accepting recommendations for the admissions still continue. The side effects of one person’s attempt to make a change cannot be phenomenal as can be seen from the following illustration. Despite the take on being fair by the is particular schools so as to be able to impart education to all without any discrimination and irrespective of the child’s family background; status and income included. Therefore, the attempt of this school caused a source of news for a while without changing the educational system of other private schools.

    Interviewing Parents: Is It Necessary?

    In the recent Supreme Court case regarding the interview of parents the private schools argued that the aim of the interview with parents was only to gauge their interest in education, development of their child and whether the parents accepted the school's philosophy, values and role in the growth and grooming of their children. They also contended that the aim of the parent and child session with the administrator was not to test the academic skills of the young ones, but only to observe their basic age-appropriate skills. Another grievance exhibited by the school administrators was that the apex court in T.M.A. Pai Foundation case as well as according to the guidelines laid down in the Delhi School Education Rules empowered the Principal of the school to regulate the admission process and procedure; however the prohibition of interviewing parents as imposed by the Delhi High Court in the year 2005 deviated from the settled judicial precedents as well as the rules which have been set up for private schools in the Capital.

    The fact that an order by the Supreme Court would apply to private schools across the country needs to be taken into consideration and that it is not favoured by institutions on a large scale also cannot be disputed. The matter still being pending in the High Court the Supreme Court on Friday refused to entertain an appeal against the interim orders of the Delhi High Court restraining the unaided recognised private schools from calling the children or their parents for interview for kindergarten and nursery admissions and asked the petitioners to seek intervention in the High Court.

    A means to promote equity and justice in the existing education system has been sought as the liberty of the school administrators to set their own guidelines has proven backfire with respect to providing equal means of education to all.

    Right To Education Bill, 2005: The Unanswered Questions

    J. Dreze and A. Sen argue that “Literacy is an essential tool for self-defense in a society where social interactions include the written media. An illiterate person is significantly less equipped to defend herself in court, to obtain a bank loan, to enforce inheritance rights, to take advantage of new technology, to compete for secure employment, to get onto the right bus, to take part in political activity – in short, to participate successfully in the modern economy and society.” Education policies of undergone a lot of change since 1987 till the recent times. There has been considerable development in educational policies; however even with the modified Right to Education Bill, 2005 there a numerous of questions left unanswered. Concerns have been raised by the Parliamentary Research Service regarding the inherent defects in the Bill.

    The researcher has restricted the loopholes to the problem of admission procedures. The model bill has the potential of creating a parallel and discriminatory system of schooling which can result in stratification of the education system for children from disadvantaged communities and backgrounds, because it requires only provision of non-formal education in such cases, rather than mandating the provision of regular schooling. The Bill seeks to provide elementary education of “equitable quality” to all. However, the terms ‘equitable’ and ‘quality’ and their implications on elementary education have not been defined. The pre-primary stage is not covered under the right to education and the State is not obligated to ensure access to education at this level. However, partly aided and unaided schools with a pre-primary section are obligated to allocate 25% seats to weaker sections (with funding support from the government).

    This clause creates a distinction between those between children fortunate to obtain admission in such schools and others who have no access to pre-school at all. Another important observation would be to understand the grounds on which the reservation limit has be fixed at 25% and whether this policy has been implemented in the practicality and whether this attempt would impact the finances of parents from weaker sections and of unaided schools in a way desirable to all. These questions need to be taken into consideration and be looked into before forceful implementation of the Bill.

    “If you know someone on the board of a CBSE or ICSE school, and others know you know her/him, then, you scoot, come October. Or the doorbell will ring frequently, you will have visitors who call with their ‘cho chweet’, age three plus offspring, to find out ‘if you will put in a word’ for her/his kindergarten admission. And the upbeat tiny tot will keep chanting ABCD... and singing ‘Twinkle Twinkle Little Star’, to impress you. For, didn't Mama say `you have to be on your best behaviour, sing well and say 1... 2... 3... without missing a number?’ Though the courts of the land disapprove of interviews for kids or their parents, many schools still rely on this method for admissions.” This above illustration of the existing situation is indicative of the unfair conditions which prevail in the existing educational system in private schools. An attempt to curb this preferential treatment and biases which are depicted by the private school administrators should be sought.

    Nussbaum emphasized on human dignity being an essential factor of Sen’s capability development theory. It makes an “insignificant difference” if one child who has the merit and the caliber to attain admission in a particular school is deprived of the chance to do so but it will make difference if a whole section of children were denied a right to development and equal opportunity. Denial of access to education on the basis of one’s social baggage is against human dignity which in turn hinders capabilty enhancement. Nussbaum says that “capabilities approach is one species of a human rights approach and human rights approach and human rights have often been linked in a similar way to the idea of human dignity” Even with the Right to Education Bill which seeks to impart free and compulsory education to children between from the age of 6-14 years retention of treatment with dignity and equality seems to be a glaring issue in the present day context.

    According to Shue “a right is something that can be demanded or insisted upon without embarrasment or shame” . Every child has a right to education and by virtue of being a fundamental right education should be accessible to all children irrespective of their family status, income and background. Education can be construed as a secondary right and its pervasive inaccessibility to a particular section will amount to the violation of a basic right.

    A right needs enforcement; 25% reservation for children from the disadvantaged section of society is a step to achieve the goal of equal opportunity by the Government; however, its continuing effective implementation has to be sought. There has to be a beginning to reach an end. A hundred questions about what is going to happen after the 25% reservation in private schools falls in place cannot be answered till we go ahead and implement it. The base needs to be firm for a building to stand; a base has been found and with one step at a time a building can be created.

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