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I read with a great interest your September issue of Seminar, devoted to education. The editorial and the articles in the entire issue are most interesting: but it has been assumed that the amendment (inserted by the Constitution 86th Amendment Act 2002) making primary education a Fundamental Right under (Article 21A) was a progressive step. It was not! This has been a common misconception.

I was the only member slated to oppose the amendment because it took away what was already given to us by the judges in a reported judgment delivered eight years earlier. At the time of the debate on the Constitution Amendment Bill, however, I was not in India. But I had written out and sent to the Minister what I was to say. I was quite angry!

(1) ‘Sir, I am totally opposed to this constitutional amendment for various reasons. But first of all I am opposed to this constitutional amendment simply because, Sir, it is an insult to our intelligence. It says that it seeks to add a new fundamental right (under Article 21A) which reads –

"The State shall provide free and compulsory education to all children of the age 6 to 14 year in such manner as the State may by law determine."

We are expected to be pleased that what was a directive principle of state policy not enforceable by law is now made enforceable by making it a fundamental right. But this is not correct.

(2) A five-judge Constitution Bench of the Supreme Court had declared (in February 1993) in the Unnikrishan case that the right to life guaranteed under Article 21 includes the right to primary education – this had been declared without any ifs or buts.

The Supreme Court had said quite categorically in para 171 that:

(a) That this right to education which is implicit in the right to life guaranteed by Article 21 is not at all levels but encompasses only primary education upto the age of 14 years consistent with the Article 45 which is in the Directive Principles of State policy in Part IV of our Constitution (para 171).

(b) That a true democracy is one where education is universal, where people understand what is good for them and the people know how to govern themselves, and the three articles designed to achieve this goal are Articles 45, 46 and 41 (para 171).

(c) It is only Article 45 in Part IV (dealing with primary education) that speaks of a time limit – no other article does, and its significance is that the passage of 44 years (more than four times the period stipulated in Article 45), in the words of the Supreme Court itself, [now] "converts the obligation created by the article (Article 45) into an enforceable right" (mark the words).

(d) The allocation of available funds to different sectors of education in India (in the last 50 years) has disclosed 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 within 10 years and this was not subject to the limits of economic capacity and development (as in the case of higher education mentioned in Article 41).

(3) From all this the Constitution Bench of the Supreme Court speaking unanimously had held and I quote:

"Right to education, understood in the context of Articles 45 and 41 means that (a) every child/citizen of this country has a right to free education until he completes the age of 14 years and (b) after a child/citizen completes 14 years, his right to education is circumscribed by the limits of the economic capacity of the State and its development."

Finally, in para 175, the Court had said:

"We must say that at least now (they were speaking in 1993) that the State should honour the command of Article 45. It must be made a reality – at least now. Indeed, the National Education Policy 1986 says that the promise of Article 45 will be redeemed before the end of this century. Be that as it may, we hold that a child (citizen) has a fundamental right to free education up to the age of 14 years."

What can be more clear, forthright and demanding. In the year 2000 in University of Delhi vs. Vardhan, another Constitution Bench decision had reaffirmed the declaration of law as to the right to primary education (upto age 14) being a fundamental right. As we all know the law declared by the Supreme Court is binding – binding on all in this country.

(4) What is really done by now inserting Article 21A (a special provision regarding education) is to attempt to dilute this declaration of the law by the Supreme Court and substitute for it a watered down version – because first, under it the state is not bound to provide free and compulsory education to all children upto the age of 14 years, but only between the ages of 6 to 14 years: and second (and more important) even this right is conditional because the obligation of the state to provide free and compulsory education to children of the age of 6 to 14 is limited to whatever it chooses to provide by law ("in such manner as the State may by law determine"). This is not a fundamental right – it is not even a statutory right: it is only such right as the state by law chooses to give.

(5) There is another aspect. If one turns to clause (4) of the constitutional amendment one finds that the obligation of the state is being substituted by a clever expedient – it is now a fundamental duty for a parent to "provide opportunities for education" (mark the words) to his child between the ages six to fourteen years [see Article 51A(k)]. I should have thought that it is the fundamental duty of the state to provide opportunities for education and for the parent to avail of that opportunity if the parent had the means to do so.

Sub-clause (k)1 added to the fundamental duties chapter is not only badly drafted but it now encourages states to make laws to enforce the fundamental duty against the parent, whereas the fundamental right conferred under the new Article 21A is only to provide free and compulsory education to children between the age of six and fourteen in such manner as the state may by law determine. Heads I win, tails you lose. The state wins and the parent loses even if the parent does not have the wherewithal to provide opportunities for education to the child.

(6) By the present constitutional amendment, the NDA government is taking away what has already been provided for by law authoritatively – by law already declared by the Supreme Court. That is why I object to this amendment and I am surprised that the government has had the temerity to introduce this Bill without taking the House into confidence; that it is in effect a dilution of the 1993 judgment of the Supreme Court: the fact that the Opposition has also not seriously opposed this in the other House (nor in this House) is a matter of greater pain and dissatisfaction to me. I would say to the Opposition, you sirs and madams have let the country down – all for a few political gains. All this shows us how low is the priority given by all political parties to primary education. The people at the polls may forgive you – but posterity will not.’

Fali S. Nariman

Member of Parliament (Rajya Sabha), Delhi



1. Article 51A: Fundamental duties: It shall be the duty of every citizen of India… ‘(k) – who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and 14 years’.



CONGRATULATIONS! Excellent issue on the Elusive Triangle. It has brought educational discourse closer to the ‘basics’ – I hope it would help educational researchers and ‘managers’ to shake off their reluctance to dwell on core issues.

The merits are obvious –

* It is well timed. The back page, which for me is always the first page, takes off on the NCERT books issue. It is very valuable, we intend using it in our discussions in the ‘Vimarsh’ forum.

* The wide spectrum of issues and positions in a forward looking framework is very reassuring.

* The idiom is serious but not abstruse.

* Rukmini’s piece is full of vitality – which lends freshness to the debate – just the right kind of food for thought... foreshadowing your next issue on food!

I am still in the process of going through the papers but I cannot resist a minor comment on the opening piece – The Problem. On the whole it reflects mature analysis, but lacks a sound information base, at least on one significant issue, i.e. the Shikshakarmi Project. This refers to (para 2 on page 13).

For the nth time, I must protest against clubbing the Shikshakarmi Programme and Education Guarantee Scheme. What is the justification for using a common category ‘parateachers’ for the SKs and ‘Guruji’? The two programmes were very differently conceptualized/operationalised. In a scenario where educationists have been fairly unanimous in rejecting the notion of parateacher and the schemes which support it as inequitable, it is unfortunate that we have been unable to learn from a valuable initiative. What is overlooked in our anxiety for speed and quick judgment is that the SKP was never designed for ‘at least this much’ but ‘the best that can be offered’ within the context. The design contained a very rigorous training and monitoring system. For the first time in Rajasthan (I dare say in India) an attempt was made to educate marginalised candidates to grow personally and become teachers. Simultaneously – over eight long years, slowly, steadily, with systematic monitoring and regular, predictable support by technical experts in pedagogy – the eternal bureaucratic lament over teacher absenteeism as well as ‘lack of motivation’ was fully addressed. It was well validated by a series of evaluations/achievement testing. Even two years after the programme was amalgamated in the ‘already infected’ state managed delivery system, the findings were that SKP schools performed better in all respects than other government schools. Interestingly, the reason why it was wrapped up was because it was a very expensive design of educational delivery. See the accompanying graphic from an earlier paper describing the training support in SKP.

Sharada Jain

Sandhan (Society for Education and Development)




Murlidharan’s Public-private partnerships for universal quality education (Seminar 565, September 2006) succinctly summarises a significant constituent of mainstream discussion surrounding primary education in India. While pointing to some chosen indicators such as government and private school teachers’ attendance, the author introduces us to the idea of vouchers and continues to weave a case for using these to improve education in India. By doing so, Murlidharan also comments strongly, though implicitly, on who should provide education in our country. While caveats such as ‘(we are not advocating to) give up, in any sense, on the public schooling system’ abound, the article itself points strongly towards the failures of the government system, and suggests a mechanism to sidestep these failures, putting forth the notion that government schools too will improve thanks to vouchers, just like MTNL or Indian Airlines did thanks to the opening-up of their respective markets.

The choice of these two public sector companies is rather illustrative of the author’s notions and understanding of education. Like many who engage with education and hand-wave towards easy solutions without building an understanding of what education constitutes, and therefore what processes need to be sustained, nurtured and grown to improve education for every child, the author too focuses his problem-analysis on accountability, or rather the lack of it. Indian Airlines may well have improved greatly due to opening-up the domestic aviation market, but are we really suggesting that the functioning of this (for-profit) company – its clients, the services it offers, and the problems it suffered from – are comparable to education? One could commence to point out stark differences between the two, but rather than delving into the specific nature of the aviation industry (or telecom, for MTNL), it would perhaps do us better to examine briefly the fundamental reasons why education is so different.

Democratic countries like India depend, for their democratic existence, on the decision-making capabilities of their citizens, and not just whether they hold jobs and are trained in certain vocations. Trying to make sure that communal harmony survives and grows, that the caste system influences power relations less and less, are two of many key reasons why the state has a keen interest in educating its children. Undoubtedly the Indian state has done pathetically on many aspects of providing quality education to its children, but largely because education, like health, has always played second fiddle to the more ‘important’ issues like defence. While there is a growing focus on education in government circles, a lot remains to be done, though the recent (on-going) recruitment of 1.5 lakh teachers in Bihar, and various curriculum and textbook reformulation processes being undertaken by different state governments in light of the new National Curriculum Framework 2005 (such as in Chhattisgarh) are two of the many bright examples of recent initiatives. At this stage it is crucial to ensure the nurturing of initiatives such as these and make sure that they can broaden in their type and coverage. But let us not lose sight of what suggestions such as Murlidharan’s imply in this context.

Vouchers are an old idea, and different agencies have campaigned for their use for many years now, though India has been relatively free of such attempts. While no developed country uses these, or exclusively private schools for that matter, to educate the majority of its children, such schemes have indeed been experimented with and the evidence they produce is mixed. Developing, especially South American, countries have been the testing-ground for these ideas as well, and again, the evidence has not been conclusive. Vouchers do nothing to address the fundamental issues of teacher training, academic support or planning and management and therefore school quality – all of which are key to the quality of education, as documents like the National Curriculum Framework 2005 point out.

In light of the above discussion on the importance of education, making education respond to market demand through vouchers will, predictably, lead to what parents demand – be it same-caste schooling, emphasis on rote learning, or job-market skill development. And if the Public Distribution System, or BPL-card distribution is anything to go by, the Indian state will need to revolutionise itself to make sure that vouchers reach the parents who actually need them, and not fall prey to yet another thriving corruption-based market. Vouchers try to address the problems of Indian education tangentially, ignoring not only the ground realities which will impact their possible implementation, but more importantly and frighteningly, they ignore the reasons why education is important, what its aims are, and what ‘quality’ in elementary education should imply. Were vouchers to be rolled out, it is the quality of education that would ultimately suffer, once the market for education smoothens out and starts responding efficiently to parents’ demands.

At this stage it would do us well to remember that developing countries are (also) the testing grounds for a large number of initiatives in different fields – medical, developmental and educational. India has always tried to maintain its own understanding and action-plans in different fields, and education is no exception, even as the recent Planning Commission’s approach paper to the eleventh plan on education is not indicative of such conclusive thought by suggesting vouchers as a possible way to improve elementary education. Recently, the MHRD wholly rejected the ‘One Laptop Per Child (OLPC) scheme – a scheme proposed by a group of MIT Media Lab faculty under which $100 laptops are being developed with the aim of distributing them to school-going children. It is indicative of current Planning Commission thought that it submitted this same scheme for comments and possible implementation to the MHRD. This proposition included funding the scheme through Indian government funds. It is commendable that the MHRD rejected this scheme on a variety of grounds including the welfare of children and pedagogic appropriateness. Again, characteristically, OLPC is not being suggested to any developed country (the MHRD response highlights this), and not because every primary school child in these countries has a laptop – far from it, many developed countries strongly control and limit the way and extent to which children use computers at school. South American and South Asian countries are the chosen experimentation grounds for OLPC, irrespective of the known implications on children’s learning, growth, and indeed the pedagogical relevance of computers.

Murlidharan’s illustrative piece should be recognised for its relevance to the current discussions on Indian education, and understood well to unravel its various assumptions and prescriptions, both implicit and explicit, and where these come from. Indian education on the other hand, needs informed policy prescription, increased funding, and amplified momentum in reform efforts to make sure that every Indian child can make use of her fundamental right under Section 21 (A) of the Indian Constitution.

Sunil Mitra Kumar

Social Initiatives Group

ICICI Bank, Mumbai


* The views expressed are personal and not representative of the institution I work for.