Monday, April 30, 2012

JUDICIAL PERCEPTION OF THE RIGHT TO EDUCATION

JUDICIAL PERCEPTION  OF  THE RIGHT TO EDUCATION


By Dr. T. Padma., LLM., Ph D

Background

An independent judiciary, which protects the people against all inroads into their rights and cares for their wants and welfare, is the essence of a true democracy.  Democracy is designed for the welfare of all the citizens and an independent judiciary is one of the instruments to be used for that purpose. Independence of the judiciary is not a gift given to judiciary by the people but is a right which the people of India have given themselves to keep within bounds the legislature and the executive.   It is a protective   right which the people have given unto themselves .It is often said that the legislature makes the laws, the court interprets the laws, and the executive executes the laws. This is not wholly correct.  There is a large area for the creativity of judges in the process of decision making. The principles of public policy, the principles of natural justice, the principles of interpretation of the laws so as to lean in favour of the state or the state or the subject as considered necessary by the objects of the statute, the exploration and exploitation of the various kinds  of writs and in particular the writ of habeas corpus, the insistence on a reasonable order—almost the whole of administrative law, and environmental law, and public interest litigation have been created and nurtured by a judiciary truly independent. 

Independence of the judiciary is not a luxury, it is a constitutional necessity. It is necessary not merely to adjudicate upon the disputes between parties and settle their disputes, but it is a constitutional imperative to sustain and stabilize democracy by keeping the Parliament and the executive within the bounds of their constitutional authority and preventing Parliament from degenerating into an autocracy and the executive into a dictatorship.  It does not however mean that the judiciary is to become a judicial oligarchy. The people and the Parliament will take care of that.

Supreme Court: Custodian of the Constitution

The Supreme Court act as the custodian of the conscience of the Constitution,when occasion arises in the course of the exercise of its jurisdiction.  The Constitution of India contemplates the establishment of the Supreme Court for the entire country and a high court for reach of its constituent states.  As the custodian of the Constitution, the primary duty of the Supreme Court is the protection of the citizen against inroads into their Fundamental Rights by the state and for that purpose the power to issue necessary writs is vested in the Supreme Court. The right to approach the Supreme Court for the enforcement of Fundament Rights has itself been guaranteed as a Fundamental Right.  Apart from being the principal custodian of the Fundamental Rights the Supreme Court of India has also the right to entertain appeals from the judgments of high courts and tribunals upon the grant of a certificate of fitness by the high court or special leave to appeal by the Supreme Court itself.

Right to Education

The right to education is recognized as a human right and is understood to establish an entitlement to free, compulsory primary education for all children, an obligation to develop secondary education accessible to all children, as well as equitable access to higher education, and a responsibility to provide basic education for individuals who have not completed primary education. In addition to these access to education provisions, the right to education encompasses also the obligation to eliminate discrimination at all levels of the educational system, to set minimum standards and to improve quality.

The right to education is enshrined in Article 26 of the Universal Declaration of Human Rights and Article 14 of the International Covenant on Economic, Social and Cultural Rights.  The right to education has also been reaffirmed in the 1960 UNESCO Convention against Discrimination in Education, 1st Protocol of ECHR and the 1981 Convention on the Elimination of All Forms of Discrimination against Women.

 In the European Convention on Human Rights, Protocol 1, Article 2 and in several national constitutions, e.g. the Belgian constitution (former article 17, now article 24) and the Dutch constitution (article 23)

The right to education also flows from article 21. Article 21A was, however, inserted in the Constitution by the Constitution (Eighty-sixth Amendment) Act 2002 specifically making the right to education as a fundamental right. However, this is not an absolute right. Its content and parameters should be determined in the light of the directive principle contained in article 41 of the Constitution. The right to education in the context of the said directive principle means: (a) Every child has a right to free and compulsory education until the age of 14 years; (b) After the age of 14 years, his right to education is circumscribed by the limits of the economic capacity of the State and its development.

The realisation of the right to education on a national level may be achieved through compulsory education, or more specifically free compulsory primary education, as stated in both the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights.

Compulsory Education to all Children of the age of 6 to 14 years (Article 21 A)

The framers of the constitution realizing the importance of education have imposed a duty on the State under Art. 45 as one of the directive policy of State to provide free and compulsory education to all children until they complete the age of 14 years within 10 years from the commencement of the Constitution. The object was to abolish illiteracy from the country. It was excepted that the elected government of the country would honestly implement this directive.. The framers perhaps were of the view that in view of the financial condition of a new state it included it in Chapter IV as one of the directive principles of State Policy.  But the Politicians of our country belied the hope of the framers of the Constitution. It is unfortunate that it has taken 52 years from the commencement of the Constitution to initiate some measures by amending the Constitution to start with, although 40% of the population of the country is still illiterate.

Judicial Perception

In the meantime, the Supreme Court in Unnikrishnan case[1] declared that the right to education for the children of the age 6 to 14 is a fundamental right.  Even after this, there was no improvement.  A demand was being raised from all corners to make education a fundamental right.  Consequently, the government enacted Constitution (86th Amendment) Act 2002 which would make education a fundamental Right. The Constitution (86th Amendment) Act has added a new Article 21A after Article 21 and has made education for all children of the age of 6 to 14 a fundamental right. It provides that “ the State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may, by law, determine”.

The question whether the right to education was a fundamental right and enforceable as such was answered by the Supreme Court in the affirmative in Mohini Jain v. State of Karnataka[2].. The correctness of this decision was examined by a larger bench of five judges in Unnikrishnan J.P. v. State of Andhra Pradesh[3]. The occasion was the challenge, by private medical and engineering colleges, to state legislation regulating the charging of “capitation” fees from students seeking admission. The college management was seeking enforcement of their right to business. The court expressly denied this claim and proceeded to examine the nature of the right to education. The court refused to accept the nonenforceablity of the DPSP. It asked:

It is noteworthy that among the several articles in Part IV, only Article 45 speaks of a time-limit; no other article does. Has it no significance? Is it a mere pious wish, even after 44 years of the Constitution? Can the State flout the said direction even after 44 years on the ground that the article merely calls upon it to endeavour to provide the same and on the further ground that the said article is not enforceable by virtue of the declaration in Article 37. Does not the passage of 44 years—more than four times the period stipulated in Article 45—convert the obligation created by the article into an enforceable right? In this context, we feel constrained to say that allocation of available funds to different sectors of education in India discloses an inversion of priorities indicated by the Constitution. The Constitution contemplated a crash programme being undertaken by the State to achieve the goal set out in Article 45. It is relevant to notice that Article 45 does not speak of the “limits of its economic capacity and development” as does Article 41, which inter alia speaks of right to education. What has actually happened is more money is spent and more attention is directed to higher education than to—and at the cost of—primary education. (By primary education, we mean the education which a normal child receives by the time he completes 14 years of age.) Neglected more so are the rural sectors, and the weaker sections of the society referred to in Article 46. We clarify, we are not seeking to lay down the priorities for the Government—we are only emphasising the constitutional policy as disclosed by Articles 45, 46 and 41. Surely the wisdom of these constitutional provisions is beyond question.

The court then proceeded to examine how this right would be enforceable and to what extent. It clarified the issue thus: The right to education further means that a citizen has a right to call upon the State to provide educational facilities to him within the limits of its economic capacity and development. By saying so, we are not transferring Article 41 from Part IV to Part III—we are merely relying upon Article 41 to illustrate the content of the right to education flowing from Article 21. We cannot believe that any State would say that it need not provide education to its people even within the limits of its economic capacity and development. It goes without saying that the limits of economic capacity are, ordinarily speaking, matters within the subjective satisfaction of the State.

More caution followed. The court’s apprehension clearly was that recognition of such a right might open the flood gates for other claims. It clarified:

We must hasten to add that just because we have relied upon some of the directive principles to locate the parameters of the right to education implicit in Article 21, it does not follow automatically that each and every obligation referred to in Part IV gets automatically included within the purview of Article 21. We have held the right to education to be implicit in the right to life because of its inherent fundamental importance. As a matter of fact, we have referred to Articles 41, 45 and 46 merely to determine the parameters of the said right.

In fact, the court had broken new ground in the matter of justiciability and enforceability of the DPSP. The decision in Unnikrishnan case has been applied by the court in formulating broad parameters for compliance by the government in the matter of eradication of child labour. This it did in a PIL where it said:

Now, strictly speaking a strong case exists to invoke the aid of Article 41 of the Constitution regarding the right to work and to give meaning to what has been provided in Article 47 relating to raising of standard of living of the population, and Articles 39 (e) and (f) as to non-abuse of tender age of children and giving opportunities and facilities to them to develop in a healthy manner, for asking the State to see that an adult member of the family, whose child is in employment in a factory or a mine or in other hazardous work, gets a job anywhere, in lieu of the child. This would also see the fulfillment of the wish contained in Article 41 after about half a century of its being in the paramount parchment, like primary education desired by Article 45, having been given the status of fundamental right by the decision in Unnikrishnan. We are, however, not asking the State at this stage to ensure alternative employment in every case covered by Article 24, as Article 41 speaks about right to work “within the limits of the economic capacity and development of the State”. The very large number of child labour in the aforesaid occupations would require giving of job to a very large number of adults, if we were to ask the appropriate Government to assure alternative employment in every case, which would strain the resources of the State, in case it would not have been able to secure job for an adult in a private sector establishment or, for that matter, in a public sector organisation. We are not issuing any direction to do so presently. Instead, we leave the matter to be sorted out by the appropriate Government. In those cases where it would not be possible to provide job as above mentioned, the appropriate Government would, as its contribution/grant, deposit in the aforesaid Fund a sum of Rs.5000/- for each child employed in a factory or mine or in any other hazardous employment. M.C.Mehta v. State of Tamil Nadu [4]

The court, while recognizing the importance of declaring the child’s negative right against exploitation and positive right to education, chose a pragmatic approach when it came to enforceability. Earlier the court would have shrugged off the whole issue as not being within its domain. That has now changed as is clear from the recent trend of cases.

It is here the Supreme Court read into our Constitution several provisions of International Covenants. The Judges also considered DPSP and how the same could be read together with the Fundamental Rights. As stated in the case of Unnikrishnan v/s. State of AP[5] “In order to treat a right as fundamental right, it is not necessary that it should be expressly stated as one in Part III of the Constitution. The provisions of Part III and Part IV are supplementary and complementary to each other.” That is why very often the court reads the two together. There is no conflict between the two. It is wrong to assume that fulfillment of obligations relating to social and economic human rights would impair fundamental rights. That is why we incorporated Article 31-C (25th Amendment Act 1971) which says, “Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19.” As Glanville Austin says: “The core of the commitment to the social revolution lies in Part III and IV in the Fundamental Rights and in the Directive Principles of State Policy. These are the conscience of the Constitution.” This is what Bhagwati J. said in Minerva Mills case[6]  “The core of the commitment of the social revolution lies… in the Fundamental Rights and directive principles of state policy.” The Directive Principles also urge the nation to develop a uniform civil code and offer free legal aid to all citizens. They urge measures to maintain the separation of the judiciary from the executive and direct the government to organize village panchayats to function as units of self-government. This latter objective was advanced by the Seventy-third Amendment and the Seventy-fourth Amendment in December 1992. The Directive Principles also order that India should endeavor to protect and improve the environment and protect monuments and places of historical interest.

The Forty-second Amendment, which came into force in January 1977, attempted to raise the status of the Directive Principles by stating that no law implementing any of the Directive Principles could be declared unconstitutional on the grounds that it violated any of the Fundamental Rights. The amendment simultaneously stated that laws prohibiting "antinational activities" or the formation of "antinational associations" could not be invalidated because they infringed on any of the Fundamental Rights. It added a new section to the constitution on "Fundamental Duties" that enjoined citizens "to promote harmony and the spirit of common brotherhood among all the people of India, transcending religious, linguistic and regional or sectional diversities." However, the amendment reflected a new emphasis in governing circles on order and discipline to counteract what some leaders had come to perceive as the excessively freewheeling style of Indian democracy. After the March 1977 general election ended the control of the Congress (Congress (R) from 1969) over the executive and legislature for the first time since independence in 1947, the new Janata-dominated Parliament passed the Forty-third Amendment (1977) and Forty-fourth Amendment (1978). These amendments revoked the Forty-second Amendment's provision that Directive Principles take precedence over Fundamental Rights and also curbed Parliament's power to legislate against "antinational activities"

Conclusion

Much of the conflict between the Supreme Court and the Parliament in the early days of the Constitution arose out of the failure of the court to appreciate the true nature, significance, and role of the Directive Principles.  The Directive Principles specify the programme and the mechanics of the State to attain the constitutional goals set out in the Preamble.  They are the mandates of the people of India to the state in making laws and the principles laid down therein, though not enforceable by any court, are nevertheless fundamental in the governance of the country (Article 37).  The word  ‘State’ in Article 37, ofcourse means all the three constituents of the state, namely , the legislature, the executive and the judiciary.  It is true that Article 37 says that the provisions of the Chapter are not enforceable by any court. The Statement that they are not enforceable in any court merely means that courts cannot issue directions to the parliament and the legislatures of the states to make laws. It does not mean that the court is not bound to take into account the Directive Principles in the discharge of its duties as a court in the matter of interpretation of the Constitution and the laws.  Article 38 expressly directs the state, echoing the determination proclaimed in the Preamble to the Constitution, to strive to promote the welfare of the people by securing and promoting as effectively as it may, a social order in which justice -social, economic, and political- shall inform all the institutions of national life.  By the forty fourth amendment a further clause was inserted in Article 38 by which the state was, in particular  directed to strive to minimize the inequalities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.  Article 39 to 51 elaborate the other directives to the state to attain the constitutional goals. For example Article 39(a) vests in the citizens the right to an adequate means of livelihood. Article 39(b) directs that ownership and control of the material resources of the community are so distributed as best to subserve the common good.  Article 39(c) provides that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.  Article 39(d) prescribes that there shall be equal pay for equal work for both men and women.  Article 39(e) provides for the care of the health and strength of the workers.  Article 39(f) provides for opportunities and facilities to be given for the development and growth of children in conditions of freedom and dignity.  Article 41 secures the right to work, to education, and to public assistance wherever necessary.  Article 42 makes provision for just and humane conditions of work and maternity relief. Article 43 provides for a living wage for workers. Article 45 for free compulsory education for children; Article 46 for the promotion of educational and economic interests of weaker sections of the people; Article 47 for raising the level of nutrition and standard of living; Article 48 for the organization of agriculture and animal husbandry; Article 50 for the separation of judiciary from executive; and Article 51 for the promotion of internal peace and security. The chapter on Directive principles of State Policy is therefore a comprehensive code providing an apparatus for the realization of the objectives set out in the Preamble.


As justice Bhagwati has rightly quoted “the child is a soul with a being, a nature and capacities of its own, who must be helped to find them, to grow into the maturity, into fullness on physical and vital energy and most breadth, depth and height of its emotional, intellectual and spiritual being”. Children require guidance and support. They do not know the technicalities of life. It is for citizens like us to take their hand and show them the right way. The social workers play an important role in eradicating social evils and thus they is need for stricter analysis on their qualification and professional capacity.

Although there is much legislation by the government to curb many social evils against children, the governments are not taking any enough steps to ensure that children, the future citizens of our country are protected. These are the children that would lead our country to a healthy and prosperous nation. The final affirmation on child rights is possible only if there is international cooperation and implementatition of the right to development.

In the words of Justice V.R. Krishna Iyer, what is guaranteed by this fundamental right is not mere animal existence nor vegetable survival but rightful opportunity to unfold the human potential and share in the joy of creative living.
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[ Published in Supreme Court Journal  / Weekly
September, 2011]

[1] Unni Krishnan v State of Andhra Pradesh (AIR 1993 SC 2178)
[2] Mohini Jain v. State of Karnataka; (1992) 3 SCC 666
[3] Unnikrishnan J.P. v. State of Andhra Pradesh; (1993) 1 SCC 645.
[4] M.C.Mehta v. State of Tamil Nadu; (1996) 6 SCC 772, para. 31
[5] Unnikrishnan v/s. State of AP; [(1993)1 SCC 645, para 165]
[6] Minerva Mills case; (AIR 1980 SC 1789 at 1846):

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