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


From: "Social Jurist" <[email protected]>

Subject: Report-Lawyers meet on R to Edu Bill
Date: Thu, 17 Nov 2005 08:56:42 +0530








NOVEMBER 13, 2005


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.


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.


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.


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.


Mr. Agarwal raised the following shortcomings in some of the provisions of
the draft Bill:


�      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.


�      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.


�      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.


�      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.


�      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.


�      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.


�      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 'cr�ches' for preschool children and this provision is totally
missing from present Draft.


�      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.


�      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.


�      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.


�      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.


�      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.


�      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


�      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.


�      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.


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.


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.


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


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.


Following points of shortcomings of the Bill were raised by other
participants who included lawyers, law students, educationists, doctors,


�  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


�  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.


�  Definition of 'child' should also be made clear, as many definitions of
child exist in different laws.


�  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?


�  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.


�  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.


�  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.


�  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.


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:


�   Creation of Public Awareness and Public pressure by means of publicity
and open discussion on the shortcomings and consequences of the Bill.


�   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.


�   Government will be asked to announce the exact date on which the Bill
will be introduced in the Parliament.


�   After identifying the lacunae in the Bill, a proposal on required
modifications and amendments in the Bill would be submitted to the


�   Bar Councils should be requested in writing to open the branches of
"Social Jurist" in other States of country as well.


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.

The Vote of Thanks, at the end was given by Mr. Ashok Agarwal, Advisor,
Social Jurist.