ANALYSIS ON 165TH LAW COMMISSION REPORT- FREE AND COMPULSORY EDUCATION FOR CHILDREN

This article is written by Aditya Gautam of LL.B (Hons.) of 3rd year of University of Lucknow, an intern under Legal Vidhiya

ABSTRACT

The 165th Law Commission Report underscores the constitutional mandate for free and compulsory education up to age 14 in India, emphasizing its pivotal role in national development. Delving into historical and international perspectives, the report addresses challenges like child labour and health concerns. A section on South Asia examines the region’s education challenges and strategies. The report concludes with recommendations, proposing central legislation, financial responsibility acknowledgment, and community involvement. Annexures feature the 1998 bill detailing responsibilities and penalties, reflecting a comprehensive approach to ensuring free and compulsory education for Indian children.

KEYWORDS

Law Commission Report, free and compulsory education, constitutional mandate, national development, historical perspective, international commitments, child labour, health concerns, South Asia, education challenges, strategies, recommendations, central legislation, financial responsibility, community involvement, 1998 bill, responsibilities, penalties.

The 165th Law Commission Report[1], focuses on the issue of providing free and compulsory education to all children up to the age of 14 years in India.

INTRODUCTION

Background and Importance of Education:

• The Law Commission addresses the constitutional goal of providing free and compulsory education to all children up to the age of 14.
• Emphasis is placed on the importance of education for national development, both material and spiritual.
• Education is seen as vital for national cohesion, scientific temper, independence of mind, and spirit.

Quotations on the Importance of Education:

• Various quotations and observations are provided to highlight the significance of education from classical economists, philosophers, and modern thinkers.
• The societal benefits of education are emphasized, including better health care, community and political participation, reduced income inequality, and poverty reduction.

Primary Education and Social Benefits:

• The benefits of education are outlined, including economic and social advantages such as higher productivity, lower mortality rates, better health, and slower population growth.
• The importance of achieving a critical minimum level of educational attainment across the population is stressed.

Present Scenario of Education in India:

• The World Bank’s observations on primary education in India are discussed.
• India’s education system is noted as the second-largest in the world, with substantial growth in enrollment at all levels since the 1950s.
  • Despite progress, there are still challenges, and the report projects delays in achieving universal primary education compared to other countries.

Concerns and Challenges:

• The National Human Rights Commission raises concerns about the state of health and education in India.
  • Issues include high illiteracy rates, lack of access to primary health care, inadequate sanitation facilities, child labour, malnourished children, and poverty.
  • The need for substantial investment in education and health is underscored.

Efforts to Address Child Labour:

• The Central Government is reported to have initiated a program to eliminate child labour in hazardous occupations by the year 2000, with a proposed allocation of Rs. 850 crores. The report emphasizes the constitutional mandate for free and compulsory education, underscores the broad societal benefits of education, discusses the current state of education in India, and raises concerns about associated issues such as child labour and health.

CAUSES OF DENIAL OF EDUCATION TO CHILDREN IN OUR COUNTRY

The various causes of illiteracy, focusing on child labour as a socio-economic phenomenon and a significant barrier to education.

Causes of Illiteracy:

• Prevalence of Child Labour: Child labour is identified as a root cause of illiteracy, driven by factors such as ignorance, low wages, unemployment, poverty, and social prejudices.
• Historical Context: The historical perspective highlights that a few hundred years ago, children, especially from privileged classes, worked alongside parents. The idea that children should attend school is relatively recent.
• Impact of Industrialization: Child labour transformed with industrialization, leading to exploitation, hazardous conditions, and long working hours for children. Early regulations were enacted to address these issues.

Evolution of Attitudes towards Child Labour:

• Transformation of Childhood: Over time, childhood evolved from valuable wage-earners to emotionally priceless objects, leading to debates about the role of children in the workforce.
• Shift in Perspectives: Attitudes changed in the 19th century when governments began regulating employment conditions for children, emphasizing the need for education. The idea of childhood as “priceless” gained prominence.

Debates in India:

• Current Socio-Political Debates: India is currently engaged in debates about child labour, education, and the role of the state. Arguments against compulsory education include the belief that child labour is essential for the well-being of the poor and concerns about the impact on certain industries.
• Endless Debate: The debate involves considerations such as family needs, industry dependence on child labour, views on education’s impact on manual work, state resources, children’s right to education, and society’s goal of training intelligent citizens.

Child Labour in India:

• Varied Figures: Estimates of child labour in India vary from 17 million to 100 million, with children engaged in various sectors, including agriculture, domestic work, and construction.
• Constitutional Mandate: Article 24 of the Indian Constitution prohibits the employment of children below 14 years in factories, mines, or hazardous employment. Directive Principles emphasize protecting children from exploitation and ensuring their right to education.

International Commitments:

• Constitutional Right: Article 45 of the Directive Principles, providing free and compulsory education, has been elevated to a fundamental right. India has also made international commitments by ratifying the 1989 UN Convention on the Rights of the Child.

International Perspective on Child Labour:

• ILO[2] Framework: The International Labour Office defines child labour as a situation where children under 15 are engaged on a regular basis to earn a livelihood for themselves or their families.
• Causes Attributable to Child Labour: Poverty, low earning capacity of adults, unemployment, large families with low income, child labour as a cheap commodity, lack of compulsory education provisions, and parental ignorance are identified as causes of child labour.

The historical context of child labour, its evolution, current debates in India, the constitutional and international perspectives, and the underlying causes associated with child labour.

RIGHT TO EDUCATION IN INDIAN CONSTITUTION AND INTERNATIONAL COVENANTS

The constitutional provisions related to the right to education in India, court decisions, and international covenants on child rights.

Constitutional Provisions:

• Preamble: The Preamble of the Indian Constitution promises justice, liberty, equality, and dignity to all citizens. Relevant articles[3] include 21, 33, 39(a) and (f), 41, and 45.
• Article 21: Ensures protection of life and personal liberty.
• Article 33: Mandates the state to secure a social order for the welfare of the people.
• Article 39(a) and (f): Directs the state to focus on ensuring citizens’ right to an adequate means of livelihood and protecting children from exploitation.
• Article 41: Addresses the right to work, education, and public assistance.
• Article 45: Calls for free and compulsory education for children until the age of fourteen within ten years of the Constitution’s commencement.

Mohini Jain v. State of Karnataka[4]:

• The Supreme Court, in this case, emphasized that while the right to education is not explicitly a fundamental right, it is implied in the right to life (Article 21). The state is obligated to provide educational facilities for its citizens.

Unnikrishnan’s Case[5]:

• The Constitution Bench in Unnikrishnan’s case affirmed the fundamental right to education under Article 21. The right to free education is guaranteed until the child completes the age of fourteen, subject to the state’s economic capacity.

University of Delhi v. Shri Anand Vardhan Chandal[6]:

• The Constitution Bench reiterated the decision in Unnikrishnan’s case, confirming that the right to education is a fundamental right.

Bandhua Mukti Morcha[7]:

• The Supreme Court affirmed that the right to life under Article 21 includes “educational facilities.”

International Covenants:

• Historical Overview: Various international treaties and declarations, including the 1924 Geneva Declaration and the 1948 Universal Declaration of Human Rights, recognized the rights of children to education.
• Convention on the Rights of the Child (CRC): Adopted in 1989, the CRC is a comprehensive international statement on children’s rights. It recognizes civil, political, social, economic, and cultural rights.
• Four Sets of Basic Rights: The CRC emphasizes the right to survival, protection, development, and participation.
• Commitments: India ratified the CRC in 1992, reaffirming its commitment to protecting children’s rights.

Urgency in Addressing Child Rights:

• Development emergencies, both “loud” and “silent,” need attention. “Silent” emergencies result from poverty and deprivations like illiteracy and malnutrition.
• Pro-children development strategy must address both types of emergencies.

ATTEMPTS MADE FOR IMPARTING PRIMARY EDUCATION TO CHILDREN IN SOUTH ASIA

Education Challenges in South Asia:

• South Asia is identified as the most illiterate region globally, with 395 million illiterate adults and 50 million out-of-school children.
• The Human Development Centre (HDC) report suggests that the main obstacle is not financial resources but a lack of political commitment to address educational issues.
• Income poverty is not a decisive factor in spreading basic education, as evidenced by disparities in literacy rates among South Asian countries with varying per capita incomes.

Key Education Challenges Examined:

• The HDC report highlights three key challenges in South Asia’s education system: lack of access, low primary school completion due to dropouts and repetition, and low learning achievement.
• Countries like India, Bangladesh, Pakistan, Bhutan, Nepal, Sri Lanka, and Maldives face these challenges.

Conclusions Based on South Asian Studies:

• Strategies for expanding educational capacity include upgrading existing school facilities, flexible timings, community and parent participation, and private sector involvement in textbook production.
• Local monitoring, decentralization, and educational decision-making based on educational rather than political grounds are crucial.
• Achieving universal primary completion is as important as universal primary enrolment.
• Better education data are needed for efficient planning.

Case Study: Zimbabwe’s Achievements in Universal Primary Enrollment:

• Zimbabwe’s key reforms for enrolling students included compulsory primary schooling, abolishing tuition fees, and providing an option for four years of secondary schooling.
• Building expansion strategies involved ‘hot seating’ (double shifts), automatic promotion, and increasing teacher supply through innovative training schemes.
• Lowering unit costs included standardizing classes, reducing the curriculum, and localizing examinations.
• Financing strategies focused on devolution to local communities and households, with government and community financing.

Recommendations for Achieving Universal Basic Education:

• The HDC report proposes a five-point strategy for universal basic education, including a concrete five-year plan, compulsory education laws, cost-effective implementation, realistic financial strategy, and innovative funding methods.
• Emphasizes adopting radical features/strategies from successful cases of achieving universal primary education elsewhere.

NATIONAL POLICIES AND PROGRESS MADE IN REALISING THE OBJECTIVE

An overview of the state of education in South Asia, focusing on challenges and strategies to improve the situation.

South Asia’s Education Challenges:

• Illiteracy Statistics: South Asia is identified as the most illiterate region globally, with 395 million illiterate adults and 50 million out-of-school children.
• Financial vs. Political Commitment: The report suggests that the main obstacle is not the lack of financial resources but the absence of political commitment.
• Income vs. Literacy: Income levels do not necessarily correlate with literacy rates. For instance, Kerala with lower per capita income outperforms Punjab in literacy.

Key Education Challenges Examined:

• Access to Schooling: Challenges include insufficient access to schooling, low primary school completion rates, and poor learning achievements.
• Strategies Proposed:
• Upgrade existing school facilities for quick capacity expansion.
• Non-formal schools are cost-effective.
• Flexible timings benefit girls and rural children.
• Active community and parent participation increase education demand.
• Private sector involvement in textbook production and distribution.
• Local monitoring for school sustainability.
• Decentralization is vital for education administration.
• Primary education decisions should be based on educational, not political, grounds.
• Improved education data are crucial for planning.

Zimbabwe’s Success in Achieving Universal Primary Enrollment:

• Reforms Introduced: Zimbabwe’s key reforms included compulsory primary schooling, abolishing tuition fees, eliminating repetition, providing options for secondary schooling, and increasing public spending on education.
• Teacher Supply: Increased teacher supply through various means, including a low-cost teacher training scheme.
• Lowering Unit Costs: Implemented strategies like standardizing classes, reducing curriculum topics, and introducing vocational subjects.
• Financing Strategy: Focused on devolving responsibility to local communities and households.

Educational Plans in South Asia After Independence:

• Initial Enthusiasm: Educational plans were formulated with enthusiasm and high expectations after independence.
• World Bank’s Role: The World Bank played a crucial role in detailing national policies, central schemes, and state projects to achieve Universal Elementary Education.

Achievements and Programs in India:

• National Policies: The report discusses the 1986 National Policy on Education and subsequent schemes like Operation Blackboard, District Institutes of Education and Training (DIETs), Total Literacy Campaign, and Minimum Levels of Learning.
• Decentralization in 1992: The 1992 constitutional amendments decentralized education management to local governments, emphasizing a district-specific approach.

State of Education in India:

• Achievements in 1998: The passage mentions achievements, increased expenditure on education, and a shift from higher to elementary education in budget allocations.
• District Primary Education Programme (DPEP): The DPEP aimed at universalizing elementary education and involved external funding from sources like the World Bank and European Community.
• Challenges: Despite achievements, challenges remain, such as a lack of schools in certain villages and insufficient teachers.

Recommendations on Making Elementary Education a Fundamental Right:

• Committee’s Formation: A committee, chaired by Muni Ram Saikia, examined the implications of making elementary education a fundamental right.
• Recommendations:
• Proposed a constitutional amendment for the right to free elementary education.
• Recommended state-level legislation on compulsory elementary education.
• Outlined provisions for exemption, punishment, infrastructure, and responsibility delegation.
• Recommended a state-wise approach to free education and the continuation of existing policies.
• Emphasized public opinion building and involvement of local communities through a National Elementary Education Mission.

Funding Gap:

• Funding Gap Projection: The Saikia Committee projected a funding gap of approximately Rs. 40,000 crores for achieving Universal Elementary Education in five years.

It highlights the challenges, reforms, and recommendations related to education in South Asia, with a focus on India, and emphasizes the importance of political commitment, community participation, and decentralized approaches.

IMPLEMENTATION OF THE RIGHT TO EDUCATION: RECOMMENDATIONS OF THE LAW COMMISSION

The report is discussing the need for compulsory education for children in India. It covers various aspects, including the legal framework, the role of private unaided institutions, the constitutional aspects, and the proposed Constitutional (Eighty-Third Amendment) Bill, 1997.

Legal Framework:

• The Law Commission prepared a detailed note on free and compulsory education for children.
• A draft Bill for central legislation was considered, taking into account suggestions from various conferences and consultations.

Central Legislation:

• A proposed Central Legislation would not require ratification by State Legislatures.
• Private unaided institutions may initially be required to admit and provide free education to a percentage of students.

Financial Responsibility:

• Emphasis on the Union of India’s primary responsibility for free and compulsory education.
• Acknowledges the financial burden and the need for substantial additional finances from the Centre.

Compulsion and Universal Elementary Education (UEE):

• Recognizes the need for compulsion to achieve Universal Elementary Education.
• Dispelling the notion that compulsory education encroaches on fundamental rights.

State Legislation:

• 19 States/Union Territories had enacted legislation making primary/elementary education compulsory.
• Acknowledges the challenges and non-enforcement of such legislation.

Saikia Committee and State Initiatives:

• Saikia Committee’s view questioned, emphasizing the need for a central legislation.
• Urgency stressed, given the Supreme Court’s recognition of the right to elementary education.

Ramifications and Enforcement:

• Concerns about compulsion on parents and potential harassment.
• Suggests community service and suitable disincentives as alternatives to fines or imprisonment.

Community Involvement and Social Mobilization:

• Acknowledges the importance of social mobilization and community involvement.
• Recommends involvement of NGOs, Panchayati Raj Institutions, and the establishment of a National Elementary Education Mission.

Constitution (Eighty-Third Amendment) Bill, 1997:

• Proposed constitutional amendments, including Article 21A, aimed at providing free and compulsory education.
• Suggested changes to the proposed bill, emphasizing the State’s obligation and incorporating private institutions.

Financial Considerations and Resources:

• Acknowledges the significant expenditure required for compulsory education.
• Suggests possible resources, including an “education cess.”

Vocationalization and Transparency:

• Highlights the need for vocationalization of education without neglecting primary/elementary education.
• Emphasizes transparency in fund allocation, utilization, and handling complaints of misuse.

Immediate Central Legislation:

• Urges immediate central legislation without waiting for constitutional amendments.
• Recommends a draft bill, considering laws in various states and other recommendations.

ANNEXURE OF FREE AND COMPULSORY EDUCATION FOR CHILDREN BILL, 1998 AND ACTS PERTAINING TO COMPULSORY PRIMARY EDUCATION/ELEMENTARY EDUCATION

The Act related to free and compulsory education for children up to 14 years of age in India. This legislative framework outlines various provisions, definitions, and responsibilities concerning education. Here’s a breakdown of some key points in the Act:

Title and Commencement:

– The Act is titled “Free and Compulsory Education for Children Act, 1998.”

– It extends to the whole of India.

– The Act comes into force on a date specified by the Central Government, not later than one year from the date of the President’s assent.

Definitions:

– Various terms are defined, including “approved school,” “appropriate government,” “attendance authority,” “child,” “compulsory education,” “free education,” “guardian,” “parent,” “prescribed,” “recognised school,” “school,” “school age,” “special school,” and “year.”

Compulsory Education:

– Education is compulsory for every child of school age.

– The government must ensure the establishment of at least one school within a certain distance of all centers of human habitation.

Responsibility of Parents:

– Parents or guardians are obligated to ensure their child attends an approved school, with exceptions outlined in Section 5.

Reasonable Excuse for Non-Attendance:

– Circumstances such as the absence of an approved school within the prescribed distance, attendance at a recognized school, physical or mental defects, or other prescribed grounds are considered reasonable excuses for non-attendance.

Duties of Teachers and Parent-Teacher Association:

– Teachers are responsible for ensuring the continued attendance of children and must report to the attendance authority if efforts to bring a child back to school are unsuccessful.

– Parent-Teacher Associations are mandated to ensure quality education and proper standards in schools.

Special Schools and Attendance Orders:

– Special schools may be required for children with physical or mental defects.

– Attendance orders may be issued if a child fails to attend an approved school without reasonable excuse.

Prohibitions:

– Employment or engagement of a child that prevents attendance at school is not permissible.

No Fee to be Levied:

– No fee shall be levied for attending an approved school receiving aid from government funds.

Obligations of Recognized Schools:

– Recognized schools must impart free education to a specified percentage of students from economically disadvantaged backgrounds.

Penalties:

– Penalties are prescribed for parents or guardians failing to comply with attendance orders or violating the prohibition on the employment of children.

Delegation of Powers, Rules, and Protection of Action:

– Powers can be delegated by the appropriate government.

– Rules may be made to carry out the purposes of the Act.

– Protection is provided for actions taken in good faith.

Acts Pertaining to Compulsory Primary/Elementary Education:

– A list of Acts from various states and union territories related to compulsory primary/elementary education is provided in Annexure B.

This Act reflects the commitment to ensuring free and compulsory education for all children and outlines mechanisms for enforcement and compliance.

CONCLUSION

In conclusion, the 165th Law Commission Report meticulously addresses the imperative of providing free and compulsory education to all children up to the age of 14 in India. The report emphasizes the constitutional mandate, historical context, international commitments, and prevailing challenges, including child labour.

It delves into the causes of education denial, particularly focusing on child labour. It examines historical perspectives, international views, and constitutional provisions, advocating for a central legislative framework to combat child labour effectively.

It explores constitutional provisions, court decisions, and international covenants related to the right to education in India. Notable cases and commitments underscore the urgency of protecting child rights.

It analyses education challenges in South Asia, offering recommendations for capacity expansion and universal primary completion. The case study of Zimbabwe provides valuable insights.

It provides an overview of education in South Asia, emphasizing challenges, strategies, and successes. It discusses illiteracy statistics, political commitment, and achievements in the region.

It focuses on implementing the right to education, offering Law Commission recommendations. It covers the legal framework, financial responsibility, and the proposed Constitutional (Eighty-Third Amendment) Bill, 1997.

In essence, the report navigates constitutional, historical, and regional dimensions, emphasizing the need for urgent legislative and policy interventions to ensure every child’s access to transformative education in India.

REFERENCES

• Law Commission Report No. 165- Free and Compulsory Education for Children

https://www.cdjlawjournal.com/file/lawcommissionpdf/law15/Report165.pdf

• 165th Law Commission Report
• The Constitution Of India
• Care and Education (1) | Law Commission of India Reports

https://www.advocatekhoj.com/library/lawreports/earlychildhooddevelopment/25.php?Title=Early%20Childhood%20Development%20and%20Legal%20Entitlements&STitle=Care%20and%20Education%20(1)#:~:text=The%20165th%20Law%20Commission%20Report,the%20age%20of%2014%20years.

• Report No. 259, Chapter – VI, Care and Education

https://www.advocatekhoj.com/library/lawreports/earlychildhooddevelopment/25.php?Title=Early%20Childhood%20Development%20and%20Legal%20Entitlements&STitle=Care%20and%20Education%20(1)#:~:text=The%20165th%20Law%20Commission%20Report,the%20age%20of%2014%20years.

• Law Commission of India

https://lawcommissionofindia.nic.in/https-cdnbbsr-s3waas-gov-in-s3ca0daec69b5adc880fb464895726dbdf-uploads-2023-06-2023060150-pdf/

• Free and compulsory Education for Children (Law Commission of India Report No. 165)

http://www.bareactslive.com/LCR/LC165.HTM

• https://www.scribd.com/document/317674123/Law-Commission-Report-No-165-Free-and-Compulsary-Education-for-Childern#from_embed
• https://indiankanoon.org/doc/63090012/

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[1] 165th Law Commission Report, 1998

[2] International Labour Organization

[3] Constitution of India.

[4] Mohini Jain v. State of Karnataka, 1992 AIR 1858; 1992 SCC (3) 666; 1992 SCR (3) 658

[5] Unni Krishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors. Cited as: 1993 AIR 217, 1993 SCR (1) 594, 1993 SCC (1) 645, JT 1993 (1) 474, 1993 SCALE (1)290

[6] Anand Vardhan Chandel v. University of Delhi, AIR 1978 Del 308 (314).

[7] Bandhua Mukti Morcha v. Union of India & Ors. (1997) 10 SCC 549

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