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Report No. 165

6.2.1. The Department of Education has pointed out that most of these Acts have, however, remained unenforced due to various socio-economic and cultural factors as well as administrative and financial constraints. According to that Department, the compulsion contemplated in Article 45 of the Constitution is a compulsion on the State rather than on parents. As such a consensual approach to motivate parents and children is said to be more appropriate. The key elements of this approach are stated to be:

(i) community involvement;

(ii) decentralisation of planning and management of school education to Panchayati Raj Institutions;

(iii) motivation of children to attend schools regularly;

(iv) improvement of infrastructure and facilities in schools;

(v) development of locally relevant curricula;

(vi) improvement in quality of textbooks;

(vii) teacher training;

(viii) child centered learning; and

(ix) adoption of minimum levels of learning.

6.2.2. However, since the consensual approach alone has failed to yield results, it is the view of the Law Commission that it may be necessary to introduce some compulsion to supplement if not supplant the consensual approach and methods of persuasion.

6.3. It was brought to the Commission's notice that a committee of State Education Ministers (Saikia Committee) had in August, 1996 inter-alia, examined the need for a central legislation for elementary education and came to the conclusion that it was not strictly necessary to have a central legislation in view, the fact that elementary education was mainly the responsibility of the States and in a diverse federal polity such as ours with wide disparities, it was debatable whether a central legislation on compulsory education would serve much purpose. It was felt that since these State Governments are the main providers of elementary education, they should enact such legislation and be responsible for their proper implementation.

Noting that existing legislation was outdated and required to be in tune with later developments and the current social ethos, the Committee was of the view that States should either amend their prevailing legislations or enact fresh legislations for free and compulsory primary education. The Central Government should support and strengthen the efforts made by the States in this regard and issue guidelines providing a broad framework for enactment of fresh legislation on the subject. The guidelines should be finalised in consultation with State/Union Territory Governments.

6.3.1. The Law Commission finds it difficult to agree with the approach of the Saikia Committee for the reasons already stated. The spirit of cooperative federalism does not come in the way of central legislation, nor does the central legislation prevent the States from offering appropriate amendments (as may be called for in their local conditions) to such central legislation. Only when an inconsistent law or inconsistent provision (inconsistent with the central legislation) is sought to be enacted by the State Legislature that the requirement of President's assent is necessary to make it effective and valid as per Article 254(2).

In fact, the report of the Parliamentary Standing Committee on Human Resource Development has stated in paragraph 15.6 that the Central Government should consider working out the necessary legislation to provide for the universalisation of free elementary education. This law should be simple "with some skeletal framework which may also indicate the Central share in the financial burden. The details can be formulated by the respective States according to their requirements".

No such law is presently being worked out by the Central Government, which is awaiting the passing of the Constitution (Eighty-third Amendment) Bill, 1997 before taking action. As above noticed there does not appear to be any sense of urgency with regard to the Constitution (Eighty-third Amendment) Bill. Presently it lies in a state of suspended animation and one does not know if and when and in what form it will eventually be passed. We are fast moving towards the end of the century and Indian children cannot wait and remain ignorant. Their needs have to be dealt with Today. The Supreme Court has given them the right to elementary education "as part of their right to a dignified life, a life where they can make choices". This is the law of the land and must be implemented immediately.

6.4. On the issue of ramifications of compelling parents/guardians of every child to send their children to attend the school, the Committee of State Education Ministers appears to have examined the matter keeping in view the socio-economic conditions prevailing in the country. It pointed out that one of the major barriers in the effective enforcement of compulsory education laws had been the specter of large scale punishment by imposition of fines or imprisonment of defaulting parents, particularly those who ostensibly could not afford to send-their children to school. Another apprehension was that the defaulting parents would be subject to considerable harassment by the bureaucracy, resulting in widespread resentment among the general population against the implementation of compulsory education laws.

The Law Commission agrees that the request of compulsion on the parent/ guardian should not be allowed to become an instrument of harassment and penalties should be enforced only as a last resort; and that too in a humane and compassionate manner without losing sight of the objective of the exercise, that is, pressurising and persuading recalcitrant parents to send their children to school. The punishment may vary from State to State and could possibly include community service (Shrum Daan, Kar Seva etc.) and suitable disincentives as determined by Panchayati Raj Institutions.

In this connection, it may be noticed that in the United Kingdom, the defaulting parents who fail to send their children to the schools, are forced to do so through the State agencies. Under sections 37(5) and 40(1) of the Education Act, 1944 in that country, any person who fails to comply with a school attendance order served upon him is guilty of an offence unless he proves that he is causing the child to receive efficient full-time education suitable to his age, ability and aptitude otherwise than at school.

On a summary conviction for the offence, a person is liable in the case of a first offence to a fine not exceeding pounds 10, on a second conviction of the same offence to a fine not exceeding pounds 20 and on a third or a subsequent conviction of the same offence to a fine not exceeding pounds 20 or imprisonment not exceeding one month or both [Education (Miscellaneous Provisions) Act, 1948, section 9(1) (UK); Criminal Justice Act, 1967, section 92(1), Schedule 3, Part I (UK)].

The court by which a person is convicted of failing to comply with a school attendance order or before which a person is charged with failing to cause a child of compulsory school age to attend regularly at the school at which he is a registered pupil, may direct the local education authority which instituted the proceedings to bring the child in question before a juvenile court [section 40(3) of the Education Act, 1944 (UK) and Children and Young Persons Act, 1969, section 72(3), Schedule 5, para 13 (UK)].

6.4.1. Many existing State Legislations in our country on the subject also provide for imposition of punishment on the parents who fail to send their children to school. In the Commission's view, it would not be conducive to realising the objective of compulsory education to provide a punishment which may vary from State to State.

6.5. The Department of Education has rightly emphasised the need for social mobilisation and involvement of the community to build up public opinion in favour of UEE which is crucial to implementation of the proposal. The Saikia committee recommended, inter-alia, that NGOs should be provided larger assistance and support in their efforts to promote UEE; and Panchayati Raj Institutions should be given greater responsibility in planning, management and implementation of programmes of elementary education. The committee also recommended that a National Elementary Education Mission (NEEM) should be operationalised in the Ninth Five year Plan to monitor and supervise programmes of elementary education, assist State Governments in area specific programmes fol.- equality and equity in UEE and to launch a national media and advocacy campaign for UEE.

6.5.1. The Law Commission is in agreement with the view that social mobilisation and involvement of the community to build up public opinion in favour of UEE is crucial for the implementation of the proposal. Besides, the increasing role of village education committees and parent-teacher associations also needs to be acknowledged. However, these provisions can hardly be operationalised through incorporation in the proposed legislation. This will need to be dealt with and enforced at the executive levels through the machinery of Centre and the States. However, a specific provision enabling parent-teacher associations to monitor the functioning of the schools and the quality of education imparted therein would be in order.

6.5.2. In addition to the Non Governmental Organisations, the Panchayats and Municipalities should also be involved in this effort. Articles 243G and 243W in Chapters IX and IXA of the Constitution of India introduced by the Constitution (Seventy-Third Amendment) Act, 1992 w.e.f. 1-6-1993 provide the necessary basis for this purpose. Article 243G contemplates the State Legislatures enacting laws conferring upon Panchayats, such powers and authority as may be necessary to enable them to function as institutions of self-government. It is further provided that such law may contain provisions for the devolution of powers and responsibilities on Panchayats at the appropriate level subject to such conditions as may be specified therein with respect to:

(a) the preparation of Plans for economic development and social justice, and

(b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule. Items 17 and 18 of the Eleventh Schedule read:

"17: Education, including primary and secondary schools; 18: Technical training and vocational education": To the same effect is Article 243W which places upon the Municipalities a similar obligation read with items 3 and 13 of the Twelfth Schedule. It is appropriate that State Legislatures should enact legislation as contemplated by the aforesaid provisions of the Constitution, if they have not already done so.

6.5.3. It is essential that legislation should also contain a provision to ensure that good schools are established at reasonable distances so that quality education is available for all children.



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