[eebill] FW: SJ article on education Bill 2005

[Gita Dewan Verma]

>From: "Social Jurist" <socialjurist at socialjurist.com>

>Subject: article on education Bill 2005 for publication, circulation,debate 
>and comments
>Date: Sun, 6 Nov 2005 18:43:14 +0530
>
>DRAFT RIGHT TO EDUCATION BILL, 2005
>
>
>
>PUNISHMENT FOR PARENTS AND IMMUNITY FOR STATE, TRAUMA FOR CHILDREN TAKING 
>ADMISSION UNDER 25% QUOTA AND FREE HAND TO PRIVATE SCHOOLS TO COMMERCIALISE 
>EDUCATION AND EXPLOIT CHILDREN/PARENTS
>
>                                                 ASHOK AGARWAL
>
>
>
>             In December 2002, Article 21-A has been incorporated in the 
>Constitution of India, which says "21-A. Right to Education-The State shall 
>provide free and compulsory education to all children of the age of six to 
>fourteen years in such manner as the State may, by law, determine."  By the 
>Constitution (Forty-second Amendment) Act, 1976, the subject "Education" 
>was brought in the concurrent list from the State list.  However, there is 
>no Central Legislation so far on the subject of education particularly in 
>relation to elementary education.  A follow up legislation in terms of 
>Article 21-A is a necessity.
>
>
>
>             As a step in the direction of the follow up legislation, the 
>Central Govt. sometime in July-August, 2003 prepared the first draft of the 
>"Free and Compulsory Education Bill" and the same was placed on the HRD 
>website.  The said Bill was widely criticized for being anti-child and 
>lacking in its objectivity and thereafter, on 10th December 2003, the 
>Central Govt. came up with 2nd Draft of the "Free and Compulsory Education 
>Bill".  This 2nd draft Bill was again widely criticized for the same 
>reasons and thereafter, on 8th January 2004, the Central Govt. came up with 
>a 3rd draft of the "Free and Compulsory Education Bill".
>
>
>
>             With the change of Govt. at the Centre, the UPA Government 
>reconstituted the Central Advisory Board of Education (CABE). The CABE in 
>its meeting on 10/11 August 2004 decided to set up as many as seven 
>committees to deal with different issues relating to education.  One such 
>committee was on the subject of "Free and Compulsory Education Bill and 
>other issues related to Elementary Education" under the Chairmanship of Sh. 
>Kapil Sibal, MOS Science and Technology.  The said Committee has now come 
>up with a draft of Right to Education Bill, 2005 and the same has also been 
>posted on the HRD website for public comments. This Bill is expected to 
>come up in the winter session of the Parliament.
>
>
>
>             On examination of this draft Bill, it has been found that 
>barring few provisions like neighborhood school, prohibition of screening 
>procedure, school management committee, certification of completion of 
>elementary education and prohibition of physical punishment, the rest of 
>the provisions are either far from the objectives underlying the Bill or 
>intent to legalize the commercialization of education and exploitation of 
>students/parents by the private schools. The government's approach behind 
>this and the earlier draft Bills is more or less the same.
>
>
>
>             Let us look at some of the provisions of this draft Bill.
>
>
>
>
>
>(1)            "Capitation fee" as defined in Section 2 (e) means any fee, 
>donation or contribution other than a fee or any payment that an 
>aided/unaided school publicly notifies at the time of announcement for 
>admission as being payable by all children in the event of admission to the 
>school. The Section 15 prohibits capitation fees. By reading Section 2 (e) 
>with Section 15, it is clear that these provisions give a free hand to the 
>private schools to commercialize the education and to exploit the innocent 
>parents who are sending their children in these schools. These provisions 
>legalize the fee structure decided by the school, how so ever arbitrary and 
>unjustified it may be, if the same is publicly notified at the time of 
>announcement for admission. There is nothing in the Bill as to what would 
>be the criteria and method of determining the fee structure and how the 
>same could be regulated. The powers and obligations of the State to check 
>commercialization of education by these private schools are totally 
>missing. It all goes against the law laid down by the Supreme Court in 
>Modern School case (2004) 4 SCC 583. The Bill has attempted to undo the law 
>laid down in the above case.
>
>
>
>             It is submitted that if one goes as per the letters and spirit 
>of Article 21-A, every school, whether private or government, is 
>constitutionally obliged to provide free and compulsory elementary 
>education to every child. This argument is buttressed by the submission 
>that a recognized private school stands on the legal pillars like, 
>community service, philanthropic activity, public good, no 
>commercialization and no profit and therefore, such school could and should 
>not have any objection to provide free and compulsory elementary education 
>to the children in the same manner as government school is obliged to 
>provide. The Bill ought to have been drafted in the manner that could have 
>achieved this objective. Has it been done, it would lead to establish 
>Common School System (CSS), which has been recommended by the Kothari 
>Commission (1964-66) and envisaged in National Policy on Education, 1968, 
>1986 and 1992 and would also be in tune of constitutional goals of social, 
>political and economic justice to the people.  It is the time for the 
>government to rise to the occasion and to act firmly so to do justice to 
>the vast majority of people who are hitherto completely deprived of the 
>same.
>
>
>
>
>
>(2)            "Specified Category" in relation to State schools as defined 
>in S 2 (nn) means the State schools known at the commencement of this Act 
>as Kendriya Vidyalayas, Navodaya Vidayalayas, and Sainik Schools and such 
>other categories of State schools having a distinct character as may be 
>specified by notification by the appropriate Government, for the purposes 
>of this Act. In terms of the Section 14, such State schools of specified 
>categories shall not be obliged to provide free and compulsory elementary 
>education to children. These schools, as in the case of unaided schools, 
>however, would be required to admit children, to at least 25% to class I, 
>from among children belonging to weaker sections and for the continued 
>education of such children in the school thereafter till completion of 
>elementary education or till they seek transfer from the school, which ever 
>is earlier.
>
>
>
>             This provision is totally arbitrary and unconstitutional. The 
>government through these provisions has conferred upon it the power to 
>declare any category of State schools as "specified schools", meaning 
>thereby, that more and more State schools can deny free and compulsory 
>education to children. How a State school can be exempted from providing 
>free and compulsory education to any child? The State schools cannot be 
>legally sub- divided for the purposes of providing right to free and 
>compulsory elementary education to children. It would be absolutely 
>arbitrary and impermissible classification of State schools and would be 
>hit by Articles 14 (right to equality) and 21(right to life) and 21-A 
>(right to education) of the Constitution. Is it not the mockery of the 
>Constitution? If it were accepted, where the child would go for education? 
>It is an exclusion clause rather than an inclusion clause. If State itself 
>starts behaving like it, it would be the end of everything. Moreover, if 
>one believes on what is written in the Section 14, a child taking admission 
>in such schools under 25% quota would not be entitled to continue in the 
>such school after completion of elementary education, even if, such school 
>is up to senior secondary class and the child wished to study up to sr. 
>secondary class in the same school. If it were allowed to happen, would it 
>not lead to trauma for these children as well as their parents?
>
>
>
>(3)        Section 3 - Child's Right to Free and Compulsory Education of 
>Equitable Quality
>
>             It is submitted that there is nothing like " child's right" in 
>this entire provision. On the other hand, ways and means to deny admission 
>to child are writ large. In terms of Section 3 (1), any child with 
>disability can be legally denied admission in a neighborhood school on the 
>alleged ground that he is suffering from severe or profound disability. 
>Does such approach not violate the fundamental and human right of every 
>child with disability to education in the mainstream school?
>
>
>
>In terms of the provision, any child not having proof of residence can be 
>legally denied admission in a neighborhood school. The burden of proof of 
>residence lies on the parent/guardian. Is every parent/guardian  capable to 
>discharge this burden of proof? The destitute child who does not have 
>parent/guardian will have no scope to get admission in school because in 
>case of destitute child, there is no question of existence of proof of 
>residence. Similarly, crores of children of migratory labour would also 
>meet the same fate. It is submitted that, even if, the residence is the 
>criteria for admission in a neighborhood school, it must be the duty of 
>every school to admit the child first, without questioning anything, and 
>only thereafter, if required, it should again be the duty of the school 
>admitting the child to find out the appropriate neighborhood school for him 
>and then transfer him to that school. In other words, admission of child in 
>a neighborhood school must be the sole responsibility of the school and the 
>same cannot, in any manner, be shifted to the parent/guardian of that 
>child. This provision is more in a nature of exclusion than that of 
>inclusion.  Though the concept of neighborhood school sounds well and needs 
>to be effectively enforced but the provisions in the present form really 
>negates this concept.
>
>
>
>             Sub-Sections  (2) and (3) of Section 3 talks of enrolling 
>child who is in the age group 7-9 years within one year and in the age 
>group 9-14 years within three years. It is submitted that these periods of 
>one year and three years really make the mockery of the provision. Firstly, 
>in case of a child of 9 years, it is not clear, which period will apply? 
>This itself gives leverage in the hands of a school, to deny admission to 
>him at least for the next three years. Secondly, in case of a child of 14 
>years, if he was not admitted immediately, he would become 15 years next 
>year and then, he would be told that he was no longer a  "child" within the 
>meaning of the Act and was not entitled to admission as a matter of right. 
>If the analogy of this three years period as contemplated in the provision 
>is applied, all the children who are in the age group 12-14 years at the 
>commencement of the Act could be conveniently denied elementary education 
>all the time to come. These time periods, in any way, could be abused to 
>deny admission to a mass of the children in age group 7-14 years. This is 
>not the objective of the Act.
>
>
>
>             Sub-Section (4) of Section 3 provides that a child who, though 
>enrolled is not able to participate in elementary education, shall, in 
>addition to the right specified in sub clause (1), have the right to be 
>provided with suitable conditions, as may be decided by appropriate 
>government, to enable her participation. Is it possible for a child in need 
>of residential school or day boarding school or in need of any other thing 
>to approach the appropriate government and wait for their decision? Is it 
>appropriate to leave these things to be decided by the appropriate 
>government only? Why can't it be decided by the Head of the school or at 
>the most, at the level of the School Management Committee who are near to 
>the child and are in the best position to understand his need/needs? The 
>provision is only providing lip service.
>
>
>
>             Sub-Section (5) of Section 3 provides that no child shall be 
>held back or expelled from school until she completes elementary education, 
>except through an order of the School Management Committee, and in the 
>event of an SMC passing an order, it shall be required to bring such order 
>to the notice of the appropriate government, which will then give 
>directions regarding other neighborhood schools to which the expelled child 
>shall be admitted for purposes of her further education. What is logic 
>behind sending the expelled child to another school? What is the logic 
>behind expelling child at all? It is submitted that Rule 37 of Delhi School 
>Education Rules, 1973 allows disciplinary measures like, fine, expulsion or 
>rustication only in case the students who have attained the age of fourteen 
>years. It is totally unjustified to even think of expelling a child from 
>the school before he completes elementary education. The government by such 
>provision is only abdicating its constitutional obligations to provide free 
>and compulsory elementary education to every child.
>
>
>
>(4)     Section 5 - General Responsibility of State
>
>
>             Section 5 (ii) states that it shall be the responsibility of 
>the State to ensure that every child is provided free education in the 
>school provided that parents/guardians who choose to admit their children 
>to non-free quota in a school shall not have any claim on the State for 
>providing free education to their children. Firstly, the words, "general 
>responsibility" used in Section 5 are inappropriate, as these do not create 
>justiciable right in favor of child. It is required to be replaced by the 
>words, "mandatory obligations".
>
>
>
>Secondly, the provisions of Section 5 (ii) are arbitrary, discriminatory, 
>unconstitutional and hit by the provisions of Article 14 and 21, 21-A of 
>the Constitution. It overlooks the fact these Articles of the Constitution 
>mandate the State to provide free and compulsory education to every child 
>without exception. If it so, then how the State can legitimately deny claim 
>of parents/guardians for providing free education to their children merely 
>because of the fact that they did not choose to admit their children to 
>non-free quota in a school? It also overlooks the fact that the right of 
>every child to receive free and compulsory education in terms of Article 
>21-A is an independent right of every child and that does not, in any 
>manner, depends on the economic status of its parents/guardians. The 
>provisions of Section 5 (ii) are totally unwarranted and required to be 
>deleted.
>
>
>
>(5)    Section 7- Provision of Facilities of Pre-School Education
>
>
>
>Firstly, it is not mandatory and in no manner creates a justiciable right 
>in favour of child to receive pre-school education. It is interesting to 
>note that the Bill does not recognize a child as "child for purpose of this 
>Act" if he is below six years or above fourteen years of age. This 
>provision has been incorporated more as a matter of policy than that of 
>law. Secondly, it assumes that ICDS or any other government programme is a 
>substitute for pre-school education, which is not factually correct. The 
>government is not justified in providing pre-school education to few and to 
>deny the same to the others. In order to achieve the goal of UEE, it is a 
>must that every child is provided pre-school education as a matter of 
>right. It is submitted that the provision for pre-school education as a 
>matter of right of every child is a pre-condition to effectuate the right 
>to elementary education. Thirdly, ICDS, if it is available, must be merged 
>in pre-school education in the school. Fourthly, the pre-school education 
>must be in the school and not outside of the school. It is submitted that 
>the government has acted totally against the interests of the children, 
>when it did not include the children of age group 0-6 years in Article 21-A 
>of the Constitution.
>
>
>
>(6)            Section 12 - Responsibility of Local Authorities
>
>
>             In clause (iv) of sub-section (1) of Section 12, the Local 
>Authority is supposed to ensure sustained education of children of migrant 
>families through special steps, including bridge courses, remedial 
>teaching, and such other interventions as may be required. It is submitted 
>that this provision of the Bill gives an impression that regular schools 
>are not suitable for the children of migrant families and therefore, they 
>should be provided with facilities like bridge courses etc. The government 
>has miserably failed to address the educational rights of the children of 
>migrant families.
>
>
>
>(7)    Section 14 - Responsibility of Schools to provide Free and 
>Compulsory Education
>
>
>             The following are the characteristics of this provision: -
>
>
>
>A.     Specified schools and unaided schools have been placed at par so far 
>as the obligations under this Act are concerned. It is totally 
>unconstitutional to take away some State schools out of State schools and 
>classify them as 'specified schools' and allow them to abdicate obligations 
>to provide free and compulsory education to the children. It goes against 
>the basic constitutional philosophy of social justice.
>
>
>
>B.               The provisions for providing admission to the children of 
>weaker sections to the extent of 25% by the unaided schools in class I or 
>in pre-primary section for which the government will reimburse the 
>expenditure to the school at a rate equal to the per child expenditure in 
>State school/fully aided schools and State funded pre-schools, or the 
>actual amount charged per student by such school, whichever is less, though 
>sounds well in principle but a farce in reality. That such children of the 
>weaker sections, in terms of these provisions, would be entitled to 
>continue their education in these unaided schools only till completion of 
>elementary education or till they seek transfer from the school, whichever 
>is earlier. Has the government ever thought of what would happen to the 
>studies of these children on completion of elementary education? Would they 
>be entitled to continue their studies for higher classes in the same 
>school? These children would be thrown out of the school on completion of 
>elementary education and would not be entitled to continue in the same 
>school, even when the school is up to class 12 and the child wished to 
>study up to class 12. Would such situation not lead to trauma for such 
>children and their parents/guardians? It is submitted that no child would 
>dare to take advantage of the provision, if he is not assured by law that 
>he would be allowed to continue his studies up to the upper most class, 
>which is available in the school. The social objective behind the provision 
>is undoubtedly laudable, and therefore, the government must ensure that all 
>possible mischief is appropriately dealt with in the provision.
>
>
>
>C.             There is another aspect of this provision also. The unaided 
>schools which are charging fee per student less than what is the 
>expenditure per student in their counter part State school shall 
>immediately increase their fee per student in order to ensure that they 
>must get reimbursement from the government at the rate not less than that 
>of per child expenditure in State schools. Who will suffer? The innocent 
>students/parents who are already victim of commercialization of education 
>would suffer further. Is the State not an accomplice to perpetuate 
>commercialization of education? It is needless to say that the education is 
>the only sector in our country where commercialization of the same is 
>constitutionally prohibited and the State is obliged to check it.
>
>
>
>(8)  Section 17 - Recognition of Schools
>
>
>
>                         The provision empowers the competent authority to 
>withdraw the recognition of a school other than a State school for breach 
>of conditions and that while passing an order withdrawing recognition, the 
>competent authority shall also give direction regarding other neighborhood 
>schools to which children studying in the de-recognized school shall be 
>admitted for purposes of their education. Firstly, the Section does not 
>contain the provision for taking over of the schools though such provision 
>exists in the prevailing State Legislations. Secondly, the most fundamental 
>question arises is: why a recognized school is at all allowed to be closed 
>down?  The Hon'ble Delhi High Court in case of Delhi Abibhavak Mahasangh 
>AIR 1999 Delhi 124 observed, "There has to be an element of public benefit 
>or philanthropy in the running of the schools. The schools are to be run 
>for public good and not for private gain. The object has to be service to 
>Society and not to earn profit. The public benefit and not private or 
>benefit to a favoured section of Society has to be the aim". These are the 
>pre legal conditions of a recognized school. The closing down of a school, 
>unless such school is not needed for the education of the children, would 
>be opposed to the public policy and detrimental to the public interest. A 
>recognized school is a public property in law and no one except the 
>community is empowered to take decision about its continuance or closure. 
>Therefore, no school, after its commencement and recognition, should be 
>allowed to be closed down provided that the competent authority is of the 
>opinion that such school is not needed for the education of the children.
>
>
>
>(9)    Section 20 - Prohibition of Deployment of Teachers for 
>Non-educational Purpose
>
>
>
>It provides that no teacher of a State or fully aided school shall be 
>deployed for any non-educational purpose except for decennial population 
>census, election to local authorities, State Legislatures and Parliament, 
>and disaster relief duties. The objective of this Bill is to ensure free 
>and compulsory quality elementary education to all the children of this 
>country. By deploying the teachers for non-educational purposes, even the 
>routine education of the students is bound to be adversely affected and 
>what to talk of quality education. That most of the State schools are 
>already suffering from the shortage of teachers, absence of teacher as well 
>as teachers not taking interest in the education of the children. The State 
>schools, by and large, are failing in both retaining the exiting students 
>and enrolling out of school children. This provision in the present form 
>will only work against the objective of the Bill. The Hon'ble Delhi High 
>Court has repeatedly held that teachers of State schools cannot be deployed 
>for any non-educational purposes at the cost of the education of the 
>students. This provision in the present form takes away such rights of the 
>children, which they have secured through Court Orders.
>
>
>
>(10) Section 24 - Teachers Vacancies in State Schools and Fully aided 
>Schools Not to Exceed 10 % Of Total Strength
>
>
>
>This provision is unjust and makes the mockery of the entire exercise of 
>framing a legislation to provide free and compulsory quality elementary 
>education to every child. It virtually gives a license to the State to 
>perpetuate teachers' shortage in school.  One can understand the provision 
>for having some percentage of surplus teachers to take care of the 
>education of the children when regular teachers go on leave, but it is 
>absolutely inappropriate, unjust and unconstitutional to enact a provision 
>permitted the appointing authority to have, at least, shortage of teachers 
>to the extent of 10% of the total sanctioned posts of teachers. This 
>provision goes against the objectives of Article 21-A of the Constitution. 
>The Hon'ble Delhi High Court by orders have directed the Government of 
>Delhi to ensure that there must be zero teacher vacancy at the beginning of 
>each academic year so that the education of the students should not suffer. 
>  It appears that the government is more concerned to cover up its own 
>failures rather than remedying the same. The regulations are required and 
>made to enforce the rights but here, it is otherwise. This is most 
>unfortunate. The provision, therefore, requires to be modified accordingly.
>
>
>
>
>
>(11)            Section 33 - National Commission for Elementary Education
>
>
>
>Sections 19 and 33 to 45 are concerned with the constitution, functions and 
>powers etc. of the National Commission for Elementary Education (NCEE). It 
>needs to be noted that the government has already moved a Bill in the 
>Parliament for constitution of National Commission for Children (NCC). 
>Though it is too early to comment upon the NCC but one thing is clear that 
>the NCEE as contemplated in the Bill is totally toothless and very weak 
>body having no power to take any action against the State on its failure to 
>perform its duties assigned to it by the Bill. The NCEE is totally devoid 
>of powers in granting any relief to the aggrieved citizen, student or 
>parent against the State. The multiple bodies will only do more harm than 
>furthering the cause of the children. It is submitted that the NCEE is 
>neither required nor desirable. Instead thereof, some judicial forum ought 
>to have been created empowering it to pass appropriate orders and 
>directions and to enforce them. The body should be such that could be 
>easily accessible to an ordinary citizen of this country. Any forum other 
>than a judicial one would be unworkable. We are faced with a situation 
>where the State is totally insensitive to the educational rights and other 
>rights of the children. That all the District Judges of the country could 
>be authorized by law to act as a judicial forum to deal with the complaints 
>relating to violation of provisions of the Act.
>
>
>
>(12)              Section 46 - Redressal of Grievances Regarding 
>Non-Implementation of School-related Provisions of this Act, Section 47- 
>State-Level Regulatory Authority
>
>
>
>These Sections provide for three-tier machinery for redressal of the 
>grievances. The provisions give tiresome and ineffective mechanism. This 
>mechanism is there to frustrate the complaint and harass the complainant. 
>It is also there to  hamper the move of a complainant to approach directly 
>the Court of Law. The provisions are silent as to what is the mechanism 
>available to a complainant, if these authorities do not act within the 
>stipulated time. In fact, we need a quick remedial mechanism. We do not 
>need so many authorities and so much time to have to take an effective 
>decision in the nature of complaints that may be arising out of the 
>provisions of the Act. A complaint relating to violation of child's right 
>to education is not adversarial in nature, and, therefore, it needs most 
>immediate attention and quick solution. As submitted above, the appropriate 
>provisions may be enacted empowering all the District Judges in the country 
>to take cognizance of violations of right to education without there being 
>a need of a formal complaint, and to issue appropriate directions and 
>orders and non-compliance of the directions and orders should be viewed 
>seriously and should entail both civil and criminal liability.
>
>
>
>(13)     Section 48 - Ensuring Participation in Elementary Education
>
>
>
>This provision says that no person shall prevent a child from participating 
>in elementary education provided that notwithstanding anything contained in 
>the Child Labour (Prohibition and Regulation) Act, 1986, no person shall 
>employ or otherwise engage a child in a manner that renders her a working 
>child. That Section 2 (tt) defines "working child" means a child who: (i) 
>works for wages, whether in cash or in kind, or (ii) works for her own 
>family in a manner, which prevents her from participation in elementary 
>education.
>
>
>
>This provision takes us nowhere. That similar provisions exist in all most 
>all the existing compulsory education laws in various States and Union 
>Territories started with Delhi Primary Education Act, 1960. The experience 
>of last 45 years tells us that such a provision has never resulted in 
>bringing the mass of working children with in the folds of formal school 
>system. The situation has rather gone from bad to worse. The Article 21-A 
>mandates State to provide free and compulsory elementary education to every 
>child between six and fourteen years of age. It has been universally 
>accepted that both compulsory education and child labour cannot go 
>together. One has to give way to another. Therefore, the child labour has 
>to go completely to give way to compulsory education. The prevailing 
>practice of child labour is unconstitutional and is squarely hit by 
>Articles 14, 21 and 21-A of the Constitution. Unfortunately, the existing 
>legislations relating to child labour, instead of completely banning the 
>child labour in all its forms perpetuate the child labour.  You cannot 
>address the constitutional educational rights of 10 crores out of school 
>children without completely prohibiting the child labour in all its forms. 
>It is very much required that the government must show its will to bring a 
>clear cut provision in this Bill, thereby prohibiting completely the child 
>labour in all its forms and violations thereof must be viewed very 
>seriously. It is both the objective and the mandate of Article 21-A.
>
>
>
>(14) Section 49 - Entry Age for Elementary Education and Procedure for 
>Computing Age of a child
>
>
>
>This provision does not address the problem of a destitute child who may 
>not at all be in the position to produce any type proof of his age as 
>required. Therefore, the provision needs to be modified accordingly.
>
>
>
>(15).  Section 50 - Responsibility of Parent/Guardian
>
>
>
>This provision says the if a parent/guardian persistently defaults in 
>discharge of his responsibility to enroll his child in a school and to 
>facilitate her completion of elementary education, SMC may direct such 
>parent/guardian to perform compulsory community services by way of child 
>care in the school.
>
>
>
>This provision is pernicious in nature. It is based totally on misconceived 
>and irrelevant premise that parents do not wish to send their children to 
>school and the State is innocent. It provides punishment for the poor and 
>marginalized parents only and no punishment for the mighty State. The 
>scheme of the Bill grants complete immunity to the State from any penalty 
>or punishment in any nature. The State has very cleverly attempted to shift 
>its own responsibility on the innocent parents. Article 21-A mandates State 
>to provide education to the children and the "parent" does not figure 
>therein. Moreover, the words, " free" and "compulsory" education used in 
>Article 21-A also refer to the State and to none else. Therefore, this 
>provision is hit by Article 21-A.
>
>
>
>
>
>. Moreover, it is also in breach of the pious statement of the then Hon'ble 
>Union Education Minister on behalf of the government during the debate on 
>86th Constitutional Amendment Bill in the Parliament that no parent would 
>be punished in the process of enforcement of the right to free and 
>compulsory education. This provision needs to be deleted completely.  It is 
>totally ironical that the poor and innocent parents who are not sure of 
>earning even two times meal a day are being asked to face punishment on the 
>pretext that they are responsible for children not going to school.
>
>
>
>
>
>(16)   Section 51 - Penalty for contravention of Sections 15, 17 and 48
>
>
>
>The provision does not at all provide any penalty against the State in the 
>event of State's failure to discharge its constitutional and statutory 
>obligations as contemplated under various provisions of the Bill. It only 
>penalizes the innocent citizens for the faults of the State. Moreover, the 
>power to make complaint completely rests with the State.  This provision is 
>a farce and mockery of the Constitution. The requirement was to empower the 
>people to prosecute the State and not the other way round.
>
>
>
>
>
>In the conclusion, it is said that the Bill in its present form is 
>completely lacking in its vision and objectives. It does not address the 
>educational rights of 10 crore out of school children who are engaged in 
>one or the other work and are child labour. The objective of Article 21-A 
>is that all out of school children must be in school and all the children 
>must receive quality elementary education. It is not at all possible 
>without prohibiting completely the child labour in all its forms. No 
>attempt has at all been made to completely ban the child labour in all its 
>forms. On the other hand, the Bill permits the child labour to perpetuate 
>and grow further. It also does not address the educational rights of 
>children with disabilities and other children of weaker sections of 
>society. It attempted at furthering the cause of the private schools at the 
>cost of government school system. It tends to legalize commercializing of 
>education and exploitation of innocent citizens by the private schools. The 
>provision of providing admission to children of weaker sections under 25% 
>quota, in the present form, would only lead to trauma for such children as 
>well as to their parents. It has also attempted at punishing the parents 
>and granting absolute immunity to the State. Law needs to empower citizens 
>to prosecute the State for its failure to implement the right to education, 
>but unfortunately, it has attempted otherwise. It empowers the State to 
>prosecute the innocent citizens for its own criminal negligence. The Bill 
>in its present form, if legislated, would do more harm than to serve the 
>interest of children for whom it is enacted. Therefore, the Bill in its 
>present form needs to be rejected by the people. It needs to be modified 
>urgently. This article is a contribution to the ongoing debate on the Bill 
>all over the country.
>
>
>
>(Ashok Agarwal is a lawyer and civil rights activist and can be contacted 
>at ashokagarwal1952 at hotmail.com)
>