“This is a very, very good petition,” a bench headed by the then Chief Justice of India had said in 2018 while admitting a plea filed by Akhil Delhi Prathmik Shikshak Sangh, a registered society of primary school teachers.
The society had sought the implementation of the fundamental right to education of 3.5 crore poor children, aged between six to 14 years, who were out of school in the country, as per an India Today report on January 29, 2018.
In November 2018, another CJI of the Supreme Court heard the same case. However, he dismissed the plea, saying, “Don’t expect miracles. India is a huge, huge country. Priorities are many, and certainly, education is one of the priorities.”
So what happened to Article 32 of the constitution of India in the case of these 3.5 crore children who were denied their fundamental right to education? According to B.R. Ambedkar, Article 32 “is the heart and soul of the constitution” and rights given through it would always be exercised in the Supreme Court.
Before the 1970s, only the affected parties had the locus standi to file the case, which means that any one of the 3.5 crore children deprived of his/her right to education could have moved the court. However, this principle changed after the Emergency period.
Legal experts had opined that a public interest litigation need not be filed only by the affected person whose rights have been violated, but it can be filed by anybody for the benefit of the public at large.
In such cases, experts said that either the Supreme Court could take cognisance of the matter and proceed suo moto or hear a petition on behalf of an individual for the public benefit. It is obvious that none of the 3.5 crore out-of-school children would have had the necessary resources to move the court for restoration of their right to education. So, a public-spirited organisation moved the court on their behalf.
However, the outcome was no doubt a tragedy.
What is of greater concern is that the latest estimates put the number of out-of-school children even higher. The 2020-21 report by the Unified District Information System for Education (UDISE) Plus, available on the education ministry’s website, shows that the net enrollment ratio of classes 1 to 5 was 92.7% and it was 74.1% for classes 6 to 8 in the given period.
An analysis of the data says that about 7% of children aged 6 to 11 years and nearly 25% of children aged 12 to 14 years are out of school and will not have completed even eight years of compulsory education.
This means, as per the 2011 census figures, that almost 5.5 crore children, out of the approximately 23.3 crore children of compulsory school aged 6 to 14 years, are not enrolled in upper primary schools.
In 2002, the 86th constitutional amendment made the right to education a part of the fundamental right to life under Article 21A, and the Right to Free and Compulsory Education Act was passed in 2009.
But the question is, why 3.5 crore children, or 5.5 crore as per the latest UDISE data, remain out of school despite Article 21A and the RTE Act, 2009?
It appears that the elevation of the earlier Article 45 of the constitution on ensuring free and compulsory education within a period of 10 years, which was only a directive principle of state policy, to the status of a fundamental right, making it justiciable under a court, has not brought a difference in the state’s approach, ensuring that the child is compulsorily educated.
Section 4 of the RTE Act has a ‘curative’ approach of ‘rehabilitation’ rather than a ‘preventive’ approach of ‘compulsory retention’ of the child. It thus reads: “Special provisions for children not admitted to, or who have not completed, elementary education: Where a child above six years of age has not been admitted in any school or though admitted, could not complete his or her elementary education, then, he or she shall be admitted in a class appropriate to his or her age.”
The section further “provided that where a child is directly admitted in a class appropriate to his or her age, then, he or she shall, in order to be at par with others, have a right to receive special training, in such manner, and within such time-limits, as may be prescribed.”
The above provision presumes that a child has been out of school for a long period and will require bridge courses. The RTE Act has no statutory provision/protocol for preventing a child from dropping out.
Based on the above provision in the RTE Act, the definition of a ‘drop-out’, for instance, in Karnataka was: “Any child remaining absent in excess of 60 days in any academic year (excluding medical grounds) and not presenting himself to school thereafter.”
Most of the other states too define a drop-out in a similar fashion. With such a definition of a ‘drop-out’, a child could remain out of school for months together violating his/her inherent right to life under Article 21A, and concomitantly his/her right to education. Such children are being rehabilitated after they become drop-outs and child labourers over long periods of time.
Tent schools, bridge schools, non-formal schools, flexi-schools, etc., continue as parallel streams to rehabilitate them in violation of the UNESCO Convention on non-discrimination in education.
A preventive or a rehabilitative approach?
“Though most schools begin their academic year in May or June, the Ministry of Education has been recommending (MHRD Guidelines of 2009), and the states too have been conducting surveys many months later, mostly in December and January, to identify children who have never been enrolled or who have dropped out after the academic year started.
The surveys identify the out-of-school children months later, put them in remedial teaching courses during summer and place them back in formal school in the next academic year.
However, there appears to be no guarantee that all the identified out-of-school children would undergo the rehabilitative programmes and that the rehabilitated children will not drop out again (more than 50% of them drop out again, as per studies).
The most glaring lacuna in the RTE Act is that no one in the government is held accountable for a child that is out of school for such long periods, though ensuring a fundamental right is the State’s responsibility. A law that holds no one responsible and foresees no punishments for its violation cannot be termed as an effective law.
A former labour minister of Karnataka indirectly exposed the futility of the ‘curative’ approach of conducting bridging programmes. Under the state’s child labour action plan, only 1.08 lakh child labourers were mainstreamed over a 12-year period. Children would have crossed 14 years of age before getting rehabilitated under this programme. This indicates the impossibility of rehabilitating through a ‘curative’ approach the lakhs of out-of-school children given at any time.
The ‘curative’ bridging programme is like bailing out water with a ladle while the boat is filling up through leaks. Unless the ‘leak’ is first plugged metaphorically, any amount of bridging programmes will be futile.
A study conducted by the Azim Premji Foundation in June 2012 found that a majority of parents and children have cited economic compulsions as the reason for children dropping out. However, the RTE Act merely says under Sections 8(c) and 9(c) that the appropriate government or local authority shall “ensure that the child belonging to a weaker section and the child belonging to a disadvantaged group are not discriminated against and prevented from pursuing and completing elementary education on any grounds”. But the RTE Act and most State rules do not say how this is to be done.
As per Karnataka’s RTE Rules, 2012, Rule 4(9) merely states: “The CPI (commissioner for public instruction) or local authority shall ensure that access of children to the school is not hindered on account of social and cultural factors.”
Though the Supreme Court failed to take suo motu action under Article 32 to restore the fundamental right of the 3.5 crore out-of-school chidlren across the country in 2018, as earlier mentioned, it is heartening that the Karnataka high court had taken up a suo motu PIL in 2013 itself (WP 15768/2013) to bring all these children back to school in the state.
A bench of then Chief Justice D.H. Waghela and Justice B.V. Nagarathna had issued a notice to the Karnataka government, saying: “Upon perusal of a report published in The Hindu on March 31, 2013 titled The Glitches that dog RTE implementation that about 54,000 students are still out of school in Karnataka, it is deemed appropriate to take suo motu proceedings with respect to the reported violation of fundamental right of children to primary education.”
This pioneering initiative of Karnataka through this still on-going suo motu PIL has moved away from the curative, rehabilitative approach and introduced a ‘preventive protocol’ into its RTE Rules for retaining children in school and ensuring that their fundamental right to free and compulsory elementary education is ensured continuously. This makes the rehabilitative bridging programmes unnecessary. Most other countries’ compulsory education laws mandate such a preventive approach.
The PIL brought about a change in the definition of a ‘drop-out’. The earlier definition of a ‘drop-out’ mentioned above was revised and was brought down to “a child with unexcused absence of seven days” so that action to prevent the child from becoming a long-term drop-out would be initiated immediately on the first signs of the child dropping out.
Next, Rules 6A to 6D, spelling out a protocol to be followed by a designated authority to bring the child back to school, were added to Rule 6.
In summary, the amended Rules say the following:
To overcome the lacuna in the RTE Act which fixes no accountability on a specific government official for ensuring that no child drops out, education coordinators (ECOs) at the cluster level were designated by Karnataka as attendance authorities to initiate action within seven days of a child dropping out and bring back every child to school within a time-frame to fulfil the state’s duty to protect the Fundamental Right of a child to education.
To address the lacuna in the RTE Act which fails to outline how the economic, social or cultural barriers faced by a ‘vulnerable’ child, which may be belonging to a disadvantaged section or to a weaker section should be addressed, the protocol addresses the root cause of a child dropping out in the following manner. If persuasion of parents to send their child to school fails, attendance authorities have to bring these children and their parents/guardians before the Child Welfare Committees (CWCs) set up under the Juvenile Justice Act at the district level.
The CWC has to conduct an enquiry as to the reasons for the child dropping out and provide suitable assistance to the family by converging any necessary assistance/benefits available from various departments on the family to enable them to send the child to school.
If a child still does not come to school even after parents receive suitable assistance, the CWC has to take charge of the child as “a child in need of care and protection” under the Juvenile Justice Act and admit her to a free government residential school; or send her to a fit institution, foster home, etc., to ensure her fundamental right to education, all within a time-frame.
The above protocols are in line with an earlier Karnataka high court ruling by Justice V.P. Mohan Kumar in 1997 in A. Sriram Babu v/s Chief Secretary [June 6, 1997 in W.P. 1351 of 1997]. This judgment stated: “….. the guardianship of a minor vests in the sovereign, i.e., the State…… The Sovereign had entrusted the guardianship to the parents. If they fail, the Sovereign can resume the right.”
So far, this judgment that the State should take charge of minors who are denied rights by their parents had never been implemented. The court intervention in WP 15768/2013 implemented this ruling, reinforcing the State’s responsibility.
A unique model
Karnataka has also formulated a policy for the education of children of migrant workers – one of the first in the country. The state’s RTE protocol on out-of-school children is also the first in the country. It has incorporated the provisions of the following Articles of the United Nations Convention on the Rights of the Child (UNCRC) into its own Rules:
Article 28: Free and compulsory elementary education ‘on the basis of equal opportunity for all children’. This means that a child has to attend formal school, and evening classes, flexi-schools, tent schools to accommodate child labourers is not acceptable.
Article 18(2) and 19: When parents are unable or unwilling to provide the rights of children, the state should assist them in fulfilling their child-rearing responsibilities.
Article 9(1): A child may be separated from its parents, in accordance with applicable law and procedures, when such separation is necessary for the best interests of the child.
Inclusion of the above UNCRC provisions into Karnataka’s RTE Rules on out-of-school children is unique in the whole country. Since a high court ruling in any state applies to all other states, the changes brought about through WP 15768/2013 were submitted by CIVIC Bangalore as recommendations for adoption across India through the New Education Policy (NEP).
However, no positive response was received from the Education Secretariat or the committee drafting the NEP on this matter. If it had been adopted by the NEP and built into the Central RTE Act through amendments, it could have been replicated and upscaled to the entire country to ensure the right to free and compulsory elementary education of the almost 5.5 crore children currently out of school in the country.
Below are the details of the ‘preventive protocol’ for retaining all children in school through the amendments made to Rule 6 of Karnataka’s RTE Rules
- Rule 6A (1): Education Coordinators (ECOs) in every cluster designated as Attendance Authority (AA) (government official) to be accountable for ensuring 100% UEE.
- Rule 6A (2): To prepare VER/WER one month before school opens. The Attendance Authority to issue Attendance Notice to all parents whose children are eligible to come to school.
- Rule 6B(1): If child fails to join or come to school for 7 days, within next 3 days, HM to make enquiries and if no reasonable excuse for non-attendance exists, to inform AA within next three days.
- Rule 6B(2)- Attendance Notice: AA to make enquiries and if no reasonable excuse for non-attendance exists, to issue Attendance Notice to parents and take acknowledgement
- Rule 6C: Reasonable excuses for non-attendance – child enrolled elsewhere, or disasters, riots, etc. preventing child from coming to school.
- Rule 6D(1): Measures to ensure compulsory attendance – AA to work in conjunction with Grama Panchayat members/municipal Standing Committees on Education, School Development & Monitoring Committees, NGOs to conduct enquiry and persuade parents.
- Rule 6D(2): Attendance Order – If child fails to come to school even after persuasion of parents (time-frame fixed at two weeks), AA to issue Attendance Order to parents to appear before Child Welfare Committee at district level under JJ Act on specific date.
- Rule 6D(3): AA’s to take SJPU’s help, if necessary to bring these children and their parents/guardians before Child Welfare Committees (CWCs).
- Rule 6D(4): CWCs to conduct enquiry with parents and find out reason for non-attendance of child.
- Rule 6D(5): CWC to provide suitable assistance to the family by sanctioning conditional scholarships based on eligibility criteria and /or converging benefits of various departments on the family and ensure attendance of child in school.
- Rule 6D(6): The mitigating factors under which assistance is to be given to the parents to be circulated to CWC.
- Rule 6D(8): If child still does not come to school, CWC to take charge of child and admit it to free government hostel/residential school (seats in free hostels are vacant); or Sending them to shelter home, fit institution, foster home, etc. under JJ Act.
Note: The case WP 15768/2013 was taken up suo motu by then Chief Justice D.H. Waghela of the Karnataka high court on April 1, 2013. The author impleaded herself in the case. A high-powered inter-departmental coordination committee under the chief secretary was set up by the high court to listen to her suggestions.
The case is still ongoing to monitor the implementation of these amended rules and ensure that all children are in school in Karnataka.
The writer is executive trustee of CIVIC Bangalore and a party-in-person in the suo motu WP 15768/2013 in the Karnataka high court.