Received this. Text of attached word document is included.
From: "Ashok" <[email protected]>
Subject: Article on education bill 2004
Date: Mon, 31 May 2004 17:46:21 +0530
Find enclosed hereto an article written by me on "Government
Must Re-Look at Free and Compulsory Education Bill, 2004 (08.01.2004). I
hope that this article may help in forming better public opinion on the
need of having a very good legislation on the Education as required in
terms of Article 21 A of the Constitution of India. I request you to send
your comments on this article. You are free to publish it or circulate it
to any one or every one without my permission provided my by-line is given.
Ashok Agarwal, Advocate
GOVERNMENT MUST RE-LOOK AT THE FREE AND COMPULSORY EDUCATION BILL, 2004
By Ashok Agarwal, Advocate
The Free and Compulsory Education Bill, 2004 (08.01.2004) is the third
version of the Bill of the Government of India after the people rejected two
earlier versions of the Bill. It is unfortunate that the third version is no
better than the earlier ones and needs the same funeral. Article 21 A of the
Constitution mandates the State to enact legislation to determine the manner
in which the Right to Education is to be provided. A central legislation in
this regard would be vital in determining the future of this country having
more than forty crores children out of which ten crores children in age
group 6-14 yrs not attending school. We need to have a child friendly
legislation that creates an enforceable right in favour of the child and
against the State, covers children of 0-18 years age group, ensures equal
opportunities of conducive atmosphere for quality education to all the
children, clearly demarcates the powers, duties and responsibilities of the
Central and State/UT Governments keeping in mind the country’s federal
character, ensures decentralization of powers in the letters and spirit of
73rd and 74th Constitutional Amendments and strict accountability of the
State Officials responsible for implementation of the legislation etc. These
basics are totally absent in the Bill.
In an attempt to analyze the Bill, the following things are noticed:
Preamble of the Bill
The preamble of the Bill states “ A Bill to provide free and compulsory
education to all children from the age of six to fourteen years and for the
matters connected therewith and incidental thereto.”
In the Statement of Objects and Reasons to The Constitution (Ninety-Third
Amendment) Bill, 2001, it has been explicitly stated that the ultimate goal
of providing universal and quality education still remains unfulfilled and
in order to fulfill this goal, it is felt that an explicit provision should
be made in the part relating to Fundamental Rights of the Constitution. It
is, therefore, necessary to include words ‘universal and quality’ in the
preamble of the Bill. The purpose of the Bill can be deduced from Statement
of Objects and Reasons to The Constitution (Ninety-Third Amendment) Bill,
2001 which states “The Constitution of India in a Directive Principle
contained in article 45, has made a provision for free and compulsory
education for all children up to the age of fourteen years within ten years
of promulgation of the Constitution. We could not achieve this goal even
after 50 years of adoption of this provision.”
The Government of India has adopted National Charter for Children, 2003 by a
resolution published in Extraordinary Gazette of India dated 9th February
2004. The clause 7 of the said Charter deals with ‘Free and Compulsory
Primary Education’. It is relevant to reproduce the said clause 7 here:
“7 a. The State recognizes that all children shall have access to free and
compulsory education. Education at the elementary level shall be provided
free of cost and special incentives should be provided to ensure that
children from disadvantaged social groups are enrolled, retained and
participate in schooling.
b. At the secondary level, the State shall provide access to education
for all and provide supportive facilities for the disadvantaged groups.
c. The State shall in partnership with the community ensure that all the
educational institutions function efficiently and are able to reach
universal enrolment, universal retention, universal participation and
d. The State and community recognize that a child be educated in its mother
e. The State shall ensure that education is child-oriented and meaningful.
It shall also take appropriate measures to ensure that education is
sensitive to the healthy development of the girl child and to children of
varied cultural backgrounds.
f. The State shall ensure that school discipline and matters related thereto
do not result in physical, mental, psychological harm or trauma to the
g. The State shall formulate special programmes to spot, identify, encourage
and assist the gifted children for their development in the field of their
S. 1. Short title, Extent and Commencement
Section 1(3) of the Bill is required to be deleted completely. It has been
left to the discretion of the Central Government to fix the date of its
enforcement, meaning thereby, that even after the Bill becomes an Act, the
Government can delay its enforcement. It is interesting to note that words,
“and for different parts of the country” appearing in Section 1(3) of the
Bill do not appear in the first version of the Bill. Addition of these words
has further increased the discretion of the Central Government to delay the
enforcement of the Act in various parts of the country. How long the
children of this country have to wait?
Section 1(3) of the Bill when read along with Section 43 of the Bill (Power
to Exempt), assume greatest powers with the Central Government to
discriminate a child in one part of the country with a child in another part
of the country and to deny to any child the benefits of the Bill. Both
Sections 1(3) and 43 of the Bill are open to abuse by the Central and State
Governments. The provisions of the Bill are opposed to the very concept of
‘free and compulsory universal quality education’ underlying the Bill. Once
the government assumes power to deny any child the benefit of this Bill, the
legal obligation of the State to provide ‘free and compulsory universal
education, ends. It is like giving something by one hand and taking the same
by another hand. Where the question of empowering State to discriminate and
deny to a child arises when the constitutional mandate to provide free and
compulsory universal quality education to every child exists?
S. 2 (1) (c) (iii). Approved school
In the Ist and the 2nd version of the Bills, ‘any Education Guarantee Centre
or alternative school run under a scheme framed or approved of the Central
Government or State government’ was included but this is deleted in this
Section of the Bill though ‘Education Guarantee Centre’ and ‘alternative
school’ have been separately defined in
Section 2(n) of the Bill.
It is very interesting to note that Sub-Section (iii) has been added in this
Section according to which the schools run by the Central Government, its
organizations including defence forces, and central public sector
undertakings, either primarily for the education of their employees, or for
other special purposes, e.g. schools run by the Kendriya Vidyalaya
Sangathan, the Navodaya Vidyalaya Samiti, Sainik Schools will remain outside
the purview of the Bill. Not only this, the Central Government and State
Governments will have power to keep outside the purview of the Bill any such
other schools or category of schools as they may, by notification, specify.
It is very dangerous and deserves to be deleted outright. It is also
arbitrary, discriminatory, unconstitutional, hit by the provisions of
Articles 14, 21, 21 A, 38, 41 of the Constitution of India, against public
interest and opposed to public policy, contrary to the National Charter for
Children, 2003, violative of National Policy on Education and UN Convention
on the Rights of the Child (1989).
This provision of the Bill legalizes the hostile discrimination perpetuated
against the children of lower strata of society within the government
schools system itself. An unskilled labourer’s child can never even imagine
to receive education in the Kendriya Vidyalaya Sangathan or in Navodaya
Vidyalaya Samiti or in Sainik School which have been taken out of the
purview of the Bill and also in any such school which may be taken
out of the purview of the Bill by the Governments. The Constitution mandates
egalitarian society whereas this provision assumes a non-egalitarian
society. With such an arbitrary and discriminatory provision, the object of
the Bill to provide free and compulsory universal quality education stands
defeated. The Government of India must understand that at least in the
government school system there should be equal opportunity for all the
children to receive education in any school. This provision denies right to
equal opportunity to all the children and therefore, the same, if enacted,
would be open to challenge in the Court of Law on the ground being violative
of Article 14 of the Constitution.
S. 1 (d). Child
Entire new concept of ‘child’ has been given in this provision. The
provision as framed is in the nature of exclusion. Even Article 21A of the
Constitution is not at all in the nature of exclusion. It simply says that
‘The State shall provide free and compulsory education to all citizens of
the age six to fourteen’. How excluding children below 6 years and above 14
years can help in achieving objects underlying the Bill? On the other hand,
excluding children below 6 years and above 14 years would defeat objects
underlying the Bill. A 15-year-old girl who has never gone to the school is
not entitled to education under it. Is it the intention of the Bill?
Children with disabilities who are entitled to free education up to 18 years
under the provisions of PWD Act, 1995 are not entitled to receive education
under it if they are less than 6 years or above 14 years. It is totally
unjust to define ‘child’ in this fashion. It appears that the Government of
India has not at all applied their mind while framing this provision. This
provision is required to be deleted completely or in alternative the
definition of the ‘child’ as given in Juvenile Justice (Care and Protection
of Children) Act, 2000 is required to be adopted. The definition of child as
suggested herein would rather advance the object of the Bill.
Article 21 A of the Constitution does not negate the right of children below
6 years and above 14 years nor it restrict the right to education to the
children of age six to fourteen years. However, this provision in the Bill
both negates the right of children below 6 years and above 14 years and
restricts to the children of age six to fourteen years. If it is read in a
narrow way, the consequences would be that not only the existing
legislations like Delhi School Education Act, 1973 and Haryana School
Education Act, 1995 which provide right to education to every child up to
class VIII or 14years, which ever is earlier or Persons with Disabilities
Act, 1995 which provides free education to the children with disabilities up
to 18 years will become unconstitutional but also article 45 which talks of
providing early childhood care and education to the children below the age
of six years will come in conflict with Article 21 A of the Constitution. A
harmonious construction of Article 21 A could only be that every child would
have a right to receive education of class 1 to class VIII (Elementary
Education). Any other construction would only defeat the object underlying
the Bill rather to advance the same. Article 21 A cannot be interpreted
saying the children below the age of 6 and above 14 have no right to receive
education much less the elementary education. Right to elementary education
of every child is required to be read in Article 21 A of the Constitution.
In order to legislate law as contemplated in Article 21 A of the
Constitution, it is necessary to understand the scope of Article 21 A.
Article 21 A has to be understood and to be interpreted in the light of
other provisions of the Constitution, UN Conventions, Courts decisions,
National Charter for Children, 2003, 165th report of the Law Commission of
India, National Policy on Education, Reports of Education Commissions,
Debates in Parliament on 93rd Constitutional Amendment Bill etc.
Article 21 of the Constitution, which still exists, has been interpreted by
the Supreme Court in J.P. Unnikrishanan case. The Unnikrishanan case makes
right to elementary education of every child up to 14 yrs age a fundamental
right. Article 21 A does not and cannot curtail the right to elementary
education as declared by the Supreme Court in Unnikrishanan case.
This provision is apparently misfit in the Bill, confusing the entire scheme
of the Bill and coming in conflict with so many other provisions of the
S. 1 (h). Competent Academic Authority
This provision has been added 1st time in the 3rd version of the Bill. This
provision is not at all required in the Bill. Section 30 of the Bill deals
with curriculum & essential levels of learning for approved and transitional
schools. These provisions are politically motivated, open to abuse and are,
therefore, very dangerous. Any political party in power through NCERT by
abusing these provisions will implement their hidden agenda to take
political advantage. By virtue of these provisions, the governments are
empowering themselves to appoint authority to prescribe syllabus. These are
against federal character of the State. How we can expect NCERT to know the
need of children living in every nook and corner of this country,
particularly, for early stage of curriculum. It should be better left to
community or local authorities.
S. 1 (s). Fee Charging Recognized School
Government intention behind this provision is not understandable. There
appears to be some nefarious motive behind it.
S. 1(t). Free Education
Why rules are required for freedom for the parent or guardian from liability
to incur expenditure on textbooks etc.? Why all these facilities depend on
rules or rule making authorities? All these facilities must be included in
the definition of free education without subjecting these to rules. However,
these facilities and other facilities like hostel facility, mobile schools
etc. should be left to the discretion of the School Managing Committee and
Government should make adequate finances available to meet the same. School
Managing Committee should be made responsible to ensure that whatever is
bonafide required to a child for receiving compulsory education must be made
S. 1 (v). Instructor
Entire provisions relating to transitional schools should be deleted. No sub
standard school is acceptable to the children of this country. There are
around 12 crore children in the age group 6-14 who have access to regular
schools. There are 3 crore children who study in government and municipal
corporation schools but they are non-functional schools due to lack of
accountability. Under the EGS Scheme, State Governments and Local Bodies
need not even open any more new schools. An EGS center without even a room
can be started and will be deemed as recognized. All the poor children in
the country will thus be condemned to inferior education. Education system
itself will now discriminate against children according to socio-economic
status. In the name of making education a Fundamental Right, we will be
taking away the very Right to Equality. As the Bill is enforceable, once
passed, poor parents will not even have any mechanism for redressal. This
will alienate the poor and will weaken democracy and pave the way for
becoming open to influence to criminalisation, fundamentalism and extremism
that will gravely threaten the security of the country.
This provision violates Right to Equality under Articles 14, 21 and 21 A of
the Constitution and UN Convention on Rights of the Child. It also violates
‘human rights’ as defined under “the Protection of Human Rights Act, 1993’.
The Bill creates four unequal tracks of elementary education system – Fee
Charging Schools where children have to pay for education, Schools run by
the Central Government, its organizations including defence forces, and
central public sector undertakings, either primarily for the education of
their employees or for other special purposes e.g. schools run by the
Kendriya Vidyalaya Sangathan, the Navodaya Vidyalaya Samiti, Sainik Schools
and such other schools, or category of schools as the Central Government
may, by notification, specify and also such other schools or category of
schools as the appropriate government may, by notification, specify which
will remain out side the purview of the Bill, Regular School where education
is not necessarily free, EGS school where teacher qualifications are only
class VIII/X; only 30 days training as compared to two years training and
class XII for regular schools, only 4 hours teaching as compared to 1300
hours per year teaching in regular schools. Regular schools will be for the
well off, EGS for the poor.
The Supreme Court in Andhra Kesari Educational Society vs. Director of
School Eduation (1989) 1 Supreme Court Cases 392 held, “ Though teaching is
the last choice in the job market, the role of teachers is central to all
processes of formal education. The teacher alone could bring out the skills
and intellectual capabilities of students. He is the ‘engine’ of the
educational system. He is a principal instrument in awakening the child to
cultural values. He needs to be endowed and energized with needed potential
to deliver enlightened service expected of him. His quality should be such
as would inspire and motivate into action the benefiter. He must keep
himself abreast of over changing conditions. He is not to perform in a
wooden and unimaginative way. He must eliminate fissiparous tendencies and
attitudes and infuse nobler and national ideas in younger minds. His
involvement in national integration is more important, indeed indispensable.
It is, therefore, needless to state that teachers should be subjected to
rigorous training with rigid scrutiny of efficiency. It has greater
relevance to the needs of the day. The ill-trained or sub-standard teachers
would be detrimental to our educational system; if not a punishment on our
children. The government and the University must, therefore, take care to
see that inadequacy in the training of teachers is not compounded by any
The Supreme Court again in L.Muthukumar vs.State of Tamil Nadu (2000) 7
Supreme Court Cases 618 held, “ Before teachers are allowed to teach
innocent children, they must receive appropriate and adequate training in a
recognized training institute satisfying the prescribed norms, otherwise
the standard of education and careers of children will be jeopardized. In
most civilized and advance countries, the job of a teacher in a primary
school is considered an important and crucial one because moulding of young
minds begins in primary schools. Allowing ill trained teachers coming out of
de-recognized or un-recognised institutes or licensing them to teach
children of an impressionable age, contrary to the norms prescribed, will be
detrimental to the interest of the nation itself in the sense that in the
process of building a great nation, teachers and educational institutions
also play a vital role. In case like these, interest of individuals cannot
be placed above or preferred to the larger public interest.” It is submitted
that this law of the land is being violated by the proposed provision in the
It is submitted that a Bill on the Common School System be passed along the
lines recommended by Kothari Commission (1964-66) reiterated by National
Policies on Education (1968, 1986, 1992) and also reiterated by Ramamoorthy
Committee for Review of National Policy on Education (1986). Under this
system, all schools irrespective of nature of management will admit children
from all socio-economic strata residing in the neighbourhood. This will
ensure equality of educational opportunity. The well-off parents presence in
the school will ensure accountability. No EGS or such inferior system must
be allowed to exist. All teachers recruited must be trained according to
NCTE norms. There are huge numbers of qualified teachers in India who are
currently without jobs. Besides, the Bill must also stipulate that each
State Government must, with two or three years, conduct courses to train
sufficient number of teachers. This will provide job opportunities to lakhs
of educated unemployed. The Bill must also stipulate that the medium of
instructions must be mother- tongue till class V, regional languages from
V-VIII, although Hindi and English will both be taught as languages from VI
S. 2. Words and Expressions
It is totally illegal. As per this provision “words and expression defined
in the Bill” will have the overriding effect over the same words and
expression if defined differently in the Constitution. It is totally
illogical and unconstitutional. It is required to be completely deleted.
S. 4. Duty of appropriate government to establish facilities for free and
Government will delay everything by taking advantage of this provision.
Otherwise also, it does not cast any legal obligation on the State to
establish approved school within a distance. Why still three years required?
It exposes the Governments that they have failed to provide even a school in
a distance within all these 55 years though claims to the contrary are made.
The proviso clause dealing with the transitional schools should be deleted
In the Schedule I, the ‘desirable norms’ for ‘approved school’ must be made
‘essential’. All the facilities enumerated in the schedule and termed as
desirable are actually essential facilities. All these things are required
as a part of right to education under Article 21 and 21 A of the
Constitution. If these things are not made essential, the present
undesirable and inhuman situation of school is not going to change. Courts
have repeatedly said that these things are most essential. There are other
most minimum essential things also which are required to be added in the
schedule. Those are minimum area for primary, secondary and Sr. Secondary
School, electricity, fans, desks, cleanliness, pucca building, blackboard,
adequate number of trained teachers, separate toilets for girls and boys
The Delhi High Court in its order dated 03.10.2002 in Social Jurist case
(C.W.4400/2002) held, “Learned counsel for the Director of Education states
that there are only 19 schools which are being run in tin sheds. On the
other hand, learned counsel for the petitioner states that apart from 19
schools which are wholly run in tin sheds, there are more than 50 schools
where classes are partly held in tin sheds. It seems to us that children
are being subjected to inhuman treatment by making them sit in classes made
of tin sheets as during summer months tin sheets get unbearably hot. Learned
counsel for the Director of Education says that his client shall consider
the feasibility of providing porta cabins as substitute for tin sheds.”
The Delhi High Court in its another order dated 02.09.2003 in Social Jurist
case (C.W.4400/2002) held, “ If the children who are attending the schools
are not provided a good class-room with sitting arrangements or a
playground, it would not be possible for the students to get proper
education. Other facilities such as sanitation and pure water are also
required to be provided by the school authorities. In absence of adequate
facilities, if the children are sent to the schools, it means torture on
them. They are not expected to do any hard work at this age. But they are
expected to be trained with love and affection and by providing necessary
infrastructure so that they can have love and affection for the
school/Institute and they attend the school regularly and drops out are
minimized. It is for this reason the government should provide adequate
Schedule II is required to be deleted, as no transitional school should be
allowed to exist.
S. 6. Child’s Right to Admission in a proximate approved school
The last proviso to this provision is required to be deleted. If it is not
deleted, the Governments will not open approved school and compel a child to
attend transitional school. If there is no approved school, is a child
supposed to study throughout in the transitional school and complete his
elementary education? As long as this proviso is there, no one can compel
the authorities to open an approved school. Section 6 goes against what is
said in Section 4 for establishment of approved school. No express
obligation has been imposed upon the State to even establish approved
school. This provision gives leverage to the government to only open
S.7. Prohibition of causing obstruction to elementary education of a child
This provision is legalizing child labour.
(ii) The burden/responsibility to provide education is being shifted from
State to the Parents.
(iii) Penalties have been provided against the parents and not at all
against the State.
(iv) Instead, there is need for enabling conditions for children to receive
education and penalties for authorities failing in discharge of their
(v) Instead of prescribing penalties on the government authorities, they
have been granted immunities under Section 40. Where the concept of
accountability has gone? Provisions for imposition of criminal and civil
actions must be there against the government authorities in case of failure
on their part to discharge their obligations.
(vi) All types of employment of children until they attain the age of 14
years must be completely banned. The ILO Minimum Age Convention, 1973
(Convention No 138) that has come into force on 19 June 1976 should be
implemented. In terms of this Convention read with UN Convention on the
Rights of the Child (1989), the minimum age for admission to employment is
14 years i.e. age of compulsory education.
S. 8. Duty of Parents & Guardians
(i) This provision indirectly justifies non-attending of school by children
(ii) This provision also justifies non-attending of school, if school is not
available within the prescribed distance, meaning thereby – It justify the
government, if government does not provide school within a prescribed
(iii) By targeting the parent, the government is justifying their
S. 10. Prohibition of deployment of teachers for non-educational purposes
This provision is self-contradictory. On one hand, it says government can
deploy teachers for non-educational purposes and on the other hand, it says
alternative arrangement shall be made so as to make good the loss of
teaching- learning time as the result of order. How it is possible? Why the
government at all deploying teachers for non-educational purposes? Courts
have repeatedly deprecated the practice of deploying government
schoolteachers for non-educational purposed, thereby causing, loss of
studies to the students. Government must ensure that deployment of
schoolteachers should not at all be at the cost of studies of the students.
On the other hand, government should ensure that schoolteachers must fully
devote themselves to imparting quality education to the students for which
they have been employed, and any negligence on their part, should be
The Delhi High Court in its orders dated12.02.2001 in Social Jurist case
(C.W.3507/2000) observed, “ Mr. Sanjeev, learned counsel appearing for the
Directorate of Census on instructions from Mr. Hari Kishan, Director, Census
Operations, Delhi, says that the Census work is required to be carried out
by the teachers before and after the school hours. He says that the
education of the children shall not suffer because of the Census work. The
Director of Education and the Director, Census Operations shall ensure that
the Teachers who have been deployed for census work discharge their duties
as teachers during school hours and impart education to the children.”
S. 13. Procedure for computing age of a child
(i) It is totally absurd provision and deserves to be totally deleted.
(ii) The object of the Bill is not to determine the age of the child but to
provide education to every child.
(iii) It is difficult to see any nexus between the determination of age and
education sought to be provided to child.
(iv) This provision is also ultra-vires of the Constitution as much as a
destitute child having no parents will be unable to produce even declaration
of his date of birth and will, therefore, not be entitled to get admission
in the school.
(v) This provision will only result in keeping large number of children out
of school on the excuse of non-determination of age or wrong determination
of age or non-availability of parents.
This provision is anti-child friendly.
S. 14. All schools to seek recognition
(i) Section 14(9) will have the effect of keeping all out of school and
dropout students out of school.
(ii) If the child is 9 years old and has never gone to school will not be
able to get admission either in class I (on the ground of mis-match or
overage) or in class 3 or 4 (on the ground that he/she does not possess
certificate of class II or III pass from the recognized school. Where he/she
(iii) Similarly, if a child is dropped out at class II at the age of 6 years
and has now become 10 years old, he/she will neither be admitted in class II
(on the ground of mis-match or overage) or in class 4 or 5 (on the ground of
not having certificate of class III or class IV pass from recognized
school). Where he/she will go?
Chapter III (Sections 15 to 22) Bodies and Mechanisms for achieving Free and
Compulsory Education with People’s Participation
(i) This chapter was not in the 1st version. It deals with so called
implementing authorities like HEEA, LEEA, DEEA, MEEA, SEEA, and UTEEA. The
entire chapter is required to be deleted. The provisions of this Bill are
required to be implemented through Panchayat Raj System in accordance with
73rd and 74th Constitutional Amendment Act and provisions are required to be
framed accordingly. Creating any machinery other than under Panchayati Raj
System would be unconstitutional and unjustified. These provisions are also
against the federal character of our Constitutional Scheme.
(ii) These provisions, if enacted, would rather hinder the smooth
functioning of the process.
(iii) Sections 25, which talks of promotion of voluntary support are also,
open to abuse and misuse by the authorities. Forcible donations, which are
hitherto prohibited in law, will now get legal sanction. Authorities will
compel parents to part with money in name of voluntary support and if they
do not do it, either admission will be denied to their children on some
false excuse or the school authorities will harass their children.
(iv) Through Section 25, there appears to be deliberate attempt to privatize
the elementary education. When elementary education is free and compulsory,
where an occasion arises for so called voluntary contribution by the
parents? This provision is totally politically motivated. It intents to
legalize the substandard schools like Ekal Vidayalays run by the RSS. There
is grave danger to the secular character of education of this country. Even
government funding will be diverted to such sub-standard schools. This is
required to be taken seriously. This provision is contrary to public
interest and opposed to public policy. There is serious need to strengthen
and improve the existing formal government school system.
(v) Section 26 (Grievance Redressal Mechanism) is also very interesting. It
is nowhere mentioned that if the LEEA, MEEA, DEEA, do not decide and inform
the decision to the complainant, then what will happen? Is any authority
accountable or liable to punishment? If a complainant does not receive reply
within the stipulated period, where he will go? The real objective of this
so called grievance redressal mechanism appears is to prevent the
complainant to directly approach the court for redressal of his grievance
and he should be harassed by involving him in so called mechanism.
S. 27. Transitional arrangements for education of children living in areas
with poor access and out-of-school children
The transitional schools should not be allowed to exist at all. This
provision is required to be deleted completely.
S. 29. Children with special needs
(i) By saying that in absence of normal schools, children with disabilities
will go to special school, is really taking away the right to education of
children with disabilities. It does not say if even special schools are not
there, what will happen to the education of the children with disabilities.
Salamanca Statement (1994) is required to be looked into by the Government.
Clause 2 of the Salamanca Statement states, “ We believe and proclaim that:
Every child has a fundamental right to education, and must be given the
opportunity to achieve and maintain an acceptable level of learning,
Every child has unique characteristics, interests, abilities and learning
Education systems should be designed and educational programmes implemented
to take into account the wide diversity of these characteristics and needs,
Those with special educational needs must have access to regular schools
which should accommodate them within a child-centered pedagogy capable of
meeting these needs,
Regular schools with this inclusive orientation are the most effective means
of combating discriminatory attitudes, creating welcoming communities,
building an inclusive society and achieving education for all; moreover,
they provide an effective education to the majority of children and improve
the efficiency and ultimately the cost-effectiveness of the entire education
(ii) No less than a normal school is acceptable for children with
(iii) There is nowhere in the provision that it is obligatory for the State
to bring every child with disabilities in the main stream.
(iv) Only less than 1% children with disabilities are in school. Crores of
children with disabilities are kept out of school system.
(v) Provision should be made that no formal school shall refuse admission to
the children with disabilities and the school shall provide them barrier
free environment for education. All other enabling facilities should also be
made available to such children.
(vi) Provision should be made that education to the children with
disabilities shall be dealt with by HRD/Education Department and not dealt
with by Social Justice Ministry/Social Welfare Department.
S.31. Process of elementary education
This is very dangerous provision. Any party in power through NCERT will
implement their hidden agenda to take political advantage. This is required
to be deleted completely.
S. 33. Penalty for contravention of Section 7
Necessary amendments are required to be made in the provision.
S. 35. Obligation of fee-charging recognized schools to provide free
education to children from poor families
(i) This provision is only a fraud on the poor masses of this country.
(ii) The ‘power’ to fix the percentage of free education is given to
HEEA/MEEA. Can any body imagine that the strong lobby of the public schools
will allow these authorities to ever exercise this power?
(iii) The ‘manner’ in which education to such children may be given is left
to the authorities to decide. The non-formal system will be the manner in
which education will be given to these children. In absence of specific
provision to receive education by sitting with other paying children, these
children cannot receive equitable education as a matter of right.
(iv) No minimum limit has been prescribed, however, maximum has been
prescribed as 20%. It will always be open to the authority to even not to
give one percent free seats to these children.
(v) According to the provision, the eligible child has to be “below poverty
line”. In metro cities, the minimum wages prescribed under Minimum Wages
Act, 1948 is above poverty line and therefore, no child will be found
eligible for admission to these fee charging recognized school. It is a
different matter that in practice, more than 80 % workers are not even paid
minimum wages in this country.
(vi) In Delhi where lands have been given to hundreds of schools by
government on free/concessional rates with condition that at least 25% seats
will be given to the children of the weaker sections, no school has been
complying with this condition of land allotment. Delhi High Court on
20.01.2004 has passed orders on the PIL filed by Social Jurist in this
regard. The High Court has directed the government to take action against
the erring schools.
(vii) Clause 4(4)(b) of National Policy on Education says “To promote social
cohesion and national integration the Common School System as recommended by
the Education Commission should be adopted. Efforts should be made to
improve the standard of education in general schools. All special schools
like Public Schools should be required to admit students on the basis of
merit and also provide a prescribed proportion of free-studentships to
prevent segregation of social classes. This will not, however, affect the
rights of minorities under Article 30 of the Constitution.
S. 40. Protection of action taken in good faith
This provision is required to be deleted. In a democratic country like
India, every authority is accountable to the people. Therefore, there is no
scope to provide immunities to the authorities as given in this provision.
Unless we make the authorities accountable for their actions/inactions, the
scheme under this Act will not work. This is totally a colonial provision.
Penalties both civil and criminal should be prescribed for each and every
authority, in case of their failure to discharge their duties/functions.
Unfortunately, the authorities have not at all made accountable and on the
other hand, immunities have been granted to them. This also raises serious
question on the real intention of the government to implement the provisions
of this Act to achieve Universalisation of Elementary Education in this
(The author is the Convener of Social Jurist)
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