The Telegraph
Since 1st March, 1999
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- The gradual evolution of the right to education in India

I am talking of a long time ago, February 1948, when the first 'promises to keep' were recorded. The draft Constitution of India had just been published, though not made available to everybody. We knew the draft embodied the combined wisdom of a very distinguished drafting committee appointed by the newly reconstituted Constituent Assembly that served also as India's first sovereign legislature. B.R. Ambedkar was the chairman of the committee. I first saw the whole draft in cold print only later, after the Constitution was passed on November 26, 1949, and had come into full effect on November 26, 1950. That too was fifty-five years ago.

I can still recall the thrill of reading through the odd scraps of the draft that were coming out in the papers. There were many ambiguous but deeply moving passages, specially in the directive principles of state policy ' I quote one from the Constitution that came to be adopted in 1949, which remained the same, or almost so, as that in the draft:

'The state shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in case of unemployment, old age, sickness and disablement, and in other cases of undeserved want.'

But a related and a more tractable one I will mostly talk about today kept changing. The original Article 36 of the draft Constitution had read:

'Every citizen is entitled to free primary education and the State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.'

As the readers will recognize, this Article 36 of the draft became the famous Article 45 of the Indian Constitution (only the time constraint had to be taken out as the government would not meet that promise). The children of India had to live with it until 2002 when the 86th amendment came, truncating the age span and recognizing the fundamental right to education for children of 6 to 14 years of age.

Many of us did not think the directive principles were vacuous or just hypocritical, as did some of the rightwing British experts of the time (or, indeed, some of our own radical political thinkers). Though many were disturbed by the disclaimer in fine print ' 'The Provisions in this Part shall not be enforceable by any court' ' some of us had genuinely believed that the admonition in 'but the principles laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws' would be taken seriously enough by the rulers of the country. It has, however, taken a long time for our rulers too to believe that.

Strange as it may seem, actually it could be the spurt of so-called 'judicial activism' at the highest level in the Nineties that helped bring our political parties to their senses. Against almost all expert expectations, the Supreme Court had ruled that the directive principle referred to in Article 45 gave only the parameters within which the fundamental right to education existed, derived from the fundamental right to the protection of the life of the citizen. This right could not for the moment be stretched to the citizen's entire life span only on account of the economic constraint.

The 86th amendment can be said to have followed as a natural consequence. It leaves Article 45 to cover only the children upto six years of age. Education for children from 6 to 14 years of age is now made a fundamental right ' enforceable like all fundamental rights in a court of law.

It has been proposed by the Central government that the mandatory right to education bill be moved in parliament following up the 86th amendment after holding discussions on its clauses with the state governments and the public at large. This process has begun within the Central Advisory Board of Education.

CABE consists of all the state education ministers with a sprinkling of eminent educationists and is presided over by the Union education minister. It is obviously the most high-powered advisory body on education in the country. For the immediate present, CABE is going to consider the reports of its seven committees, including the Committee on the Right to Education Bill that were placed before it and I hope to come back to you when the CABE discussions and decisions are available. That is likely to happen soon enough, as the demand is growing among politicians, academics and, more importantly, a large body of social activists, for placing all these discussions in the public domain and even carrying on the debate in public view, as is done for parliament.

But today I wish only to recollect a small bit of nostalgic history of this famous unfulfilled promise to the children of India. Lakshmi Kanta Maitra, member from West Bengal (General) moved an amendment in the Constituent Assembly wanting to delete the clause 'every citizen is entitled to free primary education and' from Article 36. Naziruddin Ahmad, member from West Bengal (Muslim) wanted to move further to delete 'education' in Maitra's amended clause, inserting 'primary education' instead: Ambedkar accepted Maitra's substantive amendment straightaway without a word of explanation, but strongly opposed Ahmad's apparently innocuous one. The amended Article 36 in the draft henceforth would read as Article 45 of the Constitution:

'The State shall endeavour to provide, [within a period of ten years from the commencement of this Constitution,] for free and compulsory education for all children until they complete the age of fourteen years.'

Now listen to Ambedkar's reply refuting Naziruddin Ahmad: 'The Honourable Dr. Ambedkar: Sir, ' I am not prepared to accept the amendment of my Friend Mr. Naziruddin Ahmad. He seems to think that the objective of the rest of the clause in Article 36 is restricted to free primary education. But that is not so. The clause as it stands after the amendment is that every child shall be kept in an educational institution under training until the child is of 14 years. If my Honourable Friend had referred to Article 18, which forms part of the Fundamental Rights, he would have noticed that a provision is made in article 18 to forbid any child being employed below the age of 14. Obviously if the child is not to be employed below the age of 14, the child must be kept occupied in some educational institution. That is the object of article 36 and that is why I say 'primary' is quite inappropriate in that particular clause, and I therefore oppose his amendment.'

Ambedkar's farsightedness shown in specifying 'education' as the real target rather than 'primary education' and in linking it to the context of child labour was remarkable. This alone could make the child's right to education a fundamental right in the true sense. CABE will need that farsightedness again. But this time it has also to think of extending the definitions of the child's age and of her right to education as well as her right to work. To all this I will come back on another occasion.

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