[eebill] SJ Report on Lawyers meet on Education Bill

[Gita Dewan Verma]

(recommended also request to Bar Councils to open Social Jurist branches in 
all States!)




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

>Subject: Report-Lawyers meet on R to Edu Bill
>Date: Thu, 17 Nov 2005 08:56:42 +0530
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>REPORT ON
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>"LAWYERS MEET ON RIGHT TO EDUCATION BILL, 2005"
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>ORGANIZED BY SOCIAL JURIST
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>NOVEMBER 13, 2005
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>The Social Jurist, a civil rights group actively working in the field of 
>Education organized a "Lawyers Meet on Right to Education Bill, 2005" on 
>13th November 2005, at Indian Law Institute, New Delhi to discuss the 
>various shortcomings and lacunae in the fourth version of the draft "Right 
>to Education Bill, 2005' as proposed by MHRD, Govt. of India. The meeting 
>also aimed at formulating a plan of action to bring the desired 
>modifications in the provisions of the draft Bill.
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>The meeting was chaired by Prof.Abu Baker, Chairman, Delhi Minority 
>Commission. The panel of speakers comprised of Mr. Ashok Agarwal, Advisor, 
>Social Jurist, Prof. Babu Mathew, Country Director, Actionaid India, Mr. 
>O.P Sharma, Advocate and President, Faridabad Abhibhavak  Manch, Faridabad, 
>Mrs. Kusum Sharma, President ,Social Jurist. Mr. Anand Sarup, former 
>Education Secretary and Chairman, Task Force for improvement in the System 
>of Education was special invitee. The participants of the meeting were 
>various lawyers, law students, educationists, social workers, doctors 
>(pediatric) and journalists.
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>Meeting began with the inaugural address by the chairperson Prof.Abu Baker. 
>Prof. Baker stressed that our political system should progress towards the 
>formation of 'Federal State' system where the self-governing regions (often 
>referred to as "States") are united by a central ("federal") government. 
>This system, according to Prof. Baker is more relevant in education as 
>education is a subject whose transaction is locality specific, hence, it 
>can be best looked after by that particular State. The last tier of the 
>Federation i.e. Panchayati Raj should be given significant powers to 
>implement the education effectively keeping in mind the needs of the 
>locality. Hence, the education system should focus on 'proximal reality' 
>and gradually move towards 'distal reality' and this should be kept in mind 
>while formulating any Act concerning education. Prof. Baker emphasized that 
>Part III of Indian Constitution consists of Articles 12 - 35 on Fundamental 
>Rights and so far there is no Central Act is there on any of these Rights. 
>Therefore, if an Act has to be prepared for the Right to Education, then 
>Centre should only prepare a model Free and Compulsory Education Act and 
>based on the guidelines of this model Act, States can prepare their own 
>legislation keeping in mind their objectives and needs. Since Education is 
>a Concurrent subject, therefore, States should have equitable share in the 
>money distribution with the Centre.
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>The inaugural address by the chairperson was followed by the key address by 
>Mr. Ashok Agarwal, Advisor, Social Jurist. Mr.Agarwal stressed that there 
>are about 10 Crore children in the age group 6-14 years who are out of 
>school and are engaged in one work or the other, therefore, all these 
>children should be considered as child labours and it is the responsibility 
>of Government to put these children into school. He informed that the 
>private schools are just 12% of the total schools in the country out of 
>which only 7% are unaided schools. There is no denying the fact that 
>conditions of most of the aided and State schools is pathetic and further 
>deteriorating. Emphasizing the importance of public opinion, Mr.Agarwal 
>stressed that the present draft of the Bill is the fourth version and the 
>previous three versions had to be modified by the Govt. in light of the 
>severe criticism raised by the public. Since this draft is also full of 
>lacunae and its implementation by and large will keep several children out 
>of school instead of putting them into the mainstream, therefore, Mr. 
>Agarwal emphasized that common man should be aware of the consequences of 
>the Bill and a strong 'public consensus' should be formed to bring the 
>desired modifications in the Draft Bill.
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>Mr. Agarwal raised the following shortcomings in some of the provisions of 
>the draft Bill:
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>Ø      Capitation Fee as defined in Section 2(e) and when read with Section 
>15 legalizes the capitation fee instead of abolishing it. There are no 
>criteria in the Bill for determining the method of fee structure nor 
>regulations have been made to check the arbitrary and unjustified fee 
>structured of private schools. Schools have a social obligation to fulfill 
>and should have a philanthropic purpose but private and unaided schools are 
>being promoted at the cost of common man. Therefore, a clear and stringent 
>law should be there to keep a check on such unauthentic activities by 
>unaided schools.
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>Ø      State schools of specified categories, in terms of the Section 14 
>shall not be obliged to provide free and compulsory elementary education to 
>children. These schools, however, would be required to admit children, to 
>at least 25% to class I, from among children belonging to weaker sections. 
>This provision, Mr. Agarwal argued is totally arbitrary and 
>unconstitutional as no school should deny free and compulsory education to 
>any child. The 25 % quota is also very unthoughtful because it gives the 
>school power to deny the child to study further till senior secondary level 
>if the child desires so.
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>Ø      The draft seems to be totally unfriendly towards the differently 
>abled children. Persons with Disability Act, 1995 has a chapter on 
>Education but ironically, the Bill for education has no chapter for 
>disability and neither does it mention any provisions for differently abled 
>children. Moreover, it denies right to admission to a child suffering from 
>severe or profound disability though the criteria or profoundness is not 
>mentioned in the Draft.
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>Ø      The Draft denies right to admission to child in neighborhood school 
>if parent/ guardian fails to bring residential proof. This implies that a 
>destitute child who cannot procure the proof will be always out of school 
>and similar will be the case with several migratory labour children. Thus, 
>admission of child in a neighborhood school must be the sole responsibility 
>of the school and should not be shifted to the parent/guardian of that 
>child. This provision, it seems aims at excluding children out of school 
>instead of including them into the system.
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>Ø      From the provisions dealing with the children of age group7-9 years, 
>which period will apply for a 9 year old child is not clear. Similarly, if 
>a 14 year old child becomes 15 next year, he will be debarred from taking 
>admission as he won't be 'child' any longer as per the Act.
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>Ø      The Bill talks of expelling a child and sending it to another school 
>though Rule 37 of Delhi School Education Rules, 1973 prohibits expulsion of 
>any child before the age of 14. This Act though much older (32 years 
>behind) than the draft is far more forward looking than the provisions of 
>2005 draft Bill.
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>Ø      The Bill does not recognize the need for preschool education. In 
>fact 'child' is not recognized as 'child' if he /she is below 6 years of 
>age. Bill assumes that ICDS or any other government programme is a 
>substitute for pre-school education, which is incorrect and unjustified on 
>the part of the government. It is ironical that the previous draft talked 
>about 'crèches' for preschool children and this provision is totally 
>missing from present Draft.
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>Ø      Section 12 of Bill reflects that regular schools are not suitable 
>for the children of migrant families and therefore, they should be provided 
>with facilities like bridge courses etc. Hence, the educational rights of 
>the children of migrant families have not been taken care of.
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>Ø      The provision of Section 17 enables the closure of school by 
>competent authority.  Recognized school should not be allowed to close down 
>as school is a public property and closure of school will harm several 
>children studying in it.
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>Ø      There is no denying the fact that most schools are already suffering 
>from shortage of teachers and absenteeism of teachers. So the provision of 
>the Bill (Section 20) for deployment of teachers for non-educational 
>purposes will hamper the routine teaching in schools.
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>Ø      The Section 24 of the Bill permits the concerned authority to have, 
>at least, shortage of teachers to the extent of 10% of the total sanctioned 
>posts of teachers. This provision is unjust as schools are already having 
>fewer teachers than required, and many teachers esp. in Government schools 
>go on a long leave and there is no provision of substitute for such 
>teachers. Therefore, Mr.Agarwal suggested that 'Leave Substitute' vacancies 
>should be created.
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>Ø      The Section 46 of the Bill which deals with the redressal of 
>grievances regarding non-implementation of school-related provisions of 
>this act is totally ineffective and tiresome as it provides three-tier 
>machinery for redressal and will not work in a complaint relating to 
>violation of child's right to education because it needs most immediate 
>attention and quick solution.
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>Ø      The Section 48 of the Bill deals with the prohibition of Child 
>labour is again a futile provision because similar provisions exist in all 
>most all the existing compulsory education laws in various States and Union 
>Territories .The past experience tells us that such a provision has never 
>resulted in bringing the 10 crores out of school children in the formal 
>school system. He emphasized the need of clear provision in the Bill 
>prohibiting completely all forms of child labour in order to enable them to 
>go to school. Compulsory education and child labour cannot go together, he 
>submitted.
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>Ø      The provision of Section 49 which deals with the entry Age for 
>Elementary Education 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 and hence, needs to be modified.
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>Ø      The provision of Section 50 penalizes the parents failing to send 
>their children to school. The State, by providing such provision is 
>shifting its responsibility upon the parents. On the contrary, the Bill 
>should provide provision for penalty against the State / competent 
>authority failing to discharge their responsibility.
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>Mr. Agarwal ended his address by strongly advocating that the Government 
>has to be pressurized to modify the present form of Bill, which is severely 
>flawed and totally fails to achieve the desired objective.
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>Agreeing with Mr. Agarwal on the limitations of the Bill, the next speaker, 
>Mr. Anand Sarup, former Education Secretary and Chairman, Task Force for 
>improvement in the System of Education added that for the Government 
>urgency of task is more important than its value judgment. He maintained 
>that the Bill will not be presented in the parliament as neither Centre nor 
>State will be willing to share the financial responsibility for the 
>enactment of the Bill. Since Supreme had already made Education as 
>Fundamental Right so the order of the Supreme Court is as good as Law, 
>therefore, Mr. Sarup urged the lawyers to file a PIL in the court against 
>Government for failing to provide Free and Compulsory Education to 
>children. He strongly emphasized the formation of a 'Pressure Group', which 
>will pressurize the government to modify the Bill accordingly.
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>Brief Remarks on the Bill by Mr. Sarup were followed by the address by 
>Prof.Babu Mathew, Country Director, Actionaid India. Prof. Babu Mathew 
>stressed that Article 21 A was brought in haste by the Government to 
>prevent gathering of strong public opinion against Child Labour. He 
>stressed that the cause of child labour and education are deeply 
>interlinked and have to be seen in unison. Though India has largest number 
>of Government Schools but the network of these schools fails to work. Even 
>the 3% GDP sanctioned for the Education is not utilized fully. Hence, the 
>first priority should be to make the existing Government schools function 
>properly. He agreed with the Chairperson that Centre can prepare a 
>'skeletal legislation', minimum standards of which should be complied by 
>every State and each State may come out with their own Act. Prof. Babu 
>Mathew proposed that the Act should be made more humble and modest in 
>approach.
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>In the Open session, several participants gave their reactions and comments 
>on the shortcomings of the Bill. Mr. Karan Tyagi, National Convener, 
>National Alliance for Right to Education and Equity (NAFREE) expressed his 
>concern for commercialization of Education. He said that the present system 
>of education is bearing the adverse consequences of severe shortcomings of 
>the 86th Amendment and failure of the Government to implement CSS inspite 
>of Government's repeated promises. He strongly advocated that most of the 
>policies of government are against the benefit of common man and hence the 
>intention of the government behind this Bill has to be understood well and 
>voice has to be raised against it.
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>Following points of shortcomings of the Bill were raised by other 
>participants who included lawyers, law students, educationists, doctors, 
>etc.
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>Þ  Definition of 'School' as given in the Section (ll) of the Bill is 
>diluted, lose and unoperational. By this definition various Non Formal 
>education Centers such as Alternative Schools and EGS centers will be 
>continued to be called as Schools though it is well known that the 
>education imparted in such NFE centers is very substandard. So it was 
>suggested that School should be defined in terms of various norms and 
>standards as given in Section 18. For that matter, the term 'Education' too 
>has to be defined in the draft Bill
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>Þ  Similarly, the definition of 'Teacher' {Section 2(pp)} is also very lose 
>and ambiguous as it does not specify any educational and professional 
>qualifications required to work as a teacher.
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>Þ  Definition of 'child' should also be made clear, as many definitions of 
>child exist in different laws.
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>Þ  Various schemes for the achievement of same objective i.e 
>Universalisation of Elementary Education are being run by MHRD such as 
>Sarva Siksha Abhiyan (SSA) and District Primary Education Programme 
>(DPEP,Phase III).Under SSA several Alternative Schools and Learning Centres 
>have been opened which impart very low quality education. The Bill does not 
>specify the status of these schools. It dose not mention how will Govt 
>bring these centres at par with other 'regular' schools and will there be 
>any legislation for these schools as well?
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>Þ  It was emphasized that existing schools should be made children friendly 
>so that not only enrolment but also retention of these children into the 
>schools is also enhanced. Many participants agreed that basic amenities in 
>schools should be ensured.
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>Þ  The age group of 6-14 years is not conducive for differently abled 
>children because the period of 'crisis management' among these children is 
>very large. It was pointed out by many participants that provisions for 
>children of age group below 6 years and above 14 years should also be 
>mentioned in the draft. Therefore, provisions for both preprimary education 
>and vocational training should have been taken care of.
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>Þ  It was pointed out by one of the participants that Bill provides the 
>formation of a School Management Committee (SMC) for State school and aided 
>school. However, Bill does not talk about SMC in unaided schools. 
>Therefore, it was urged in the meeting that such SMC should be formed in 
>unaided schools as well and 50% of members should be parents, so that 
>parents too have a say in the functioning of school.
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>Þ  Most of the participants agreed that in order to improve the education 
>system and to reduce the gap between unaided and government schools, 
>radical changes in the system are needed.
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>After the Open Session discussion, the Chairperson asked for the 
>recommendations and measures taken to improve the draft Bill and following 
>recommendations and measures were given and agreed upon:
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>§   Creation of Public Awareness and Public pressure by means of publicity 
>and open discussion on the shortcomings and consequences of the Bill.
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>§   In order to create public pressure on government, a peaceful yet firm 
>"Protest March" will be conducted which will include lawyers, educationists 
>and all stakeholders. The date, venue and time of the protest march will be 
>notified shortly.
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>§   Government will be asked to announce the exact date on which the Bill 
>will be introduced in the Parliament.
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>§   After identifying the lacunae in the Bill, a proposal on required 
>modifications and amendments in the Bill would be submitted to the 
>Government.
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>§   Bar Councils should be requested in writing to open the branches of 
>"Social Jurist" in other States of country as well.
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>The meeting ended with a consensus among the participants that focal point 
>of the protest should be improvement in the conditions of existing 
>Government (fully aided) schools and the same should be demanded from the 
>government as the future of 93% children and hence, of the country is 
>dependent on these schools.
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>The Vote of Thanks, at the end was given by Mr. Ashok Agarwal, Advisor, 
>Social Jurist.
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