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Report No. 165

6.6. Constitution (Eighty-Third Amendment) Bill, 1997 proposing insertion and amendment of certain provisions in the Constitution of India.-

A Constitution amendment Bill being the Constitution (Eighty-Third Amendment) Bill, 1997, dated 9th July, 1997 was introduced in the Rajya Sabha on 28th July, 1997. The Bill provides for the insertion of a new Article 21A the omission of Article 45 and amendments to Articles 35 and 51A. The proposed Article 21A reads as under:

"21A. (1) The State shall provide free and compulsory education to all citizens of the age of six to fourteen years.

(2) The right to free and compulsory education referred to in clause (t) shall be enforced in such manner as the State may, by law, determine.

(3) The State shall not make any law, for free and compulsory education under clause (2), in relation to the educational institutions not maintained by the State or not receiving aid out of State funds."

6.6.1. In the Law Commission's view, the words "right to" in clause (2) of proposed Article 21A should be substituted by the words "obligation to provide". This is for the reason that there cannot be a fundamental "right to free and compulsory education". The fundamental right of citizens, until they attain the age of 14 years, is to "free education", whereas the State's corresponding obligation is to provide "free and compulsory education". The Chapter on fundamental rights contains several articles which are worded so as to create an obligation upon the State and yet those provisions have been understood and interpreted as creating a corresponding fundamental right for citizens. The foremost example of this type of legislative practice is Article 14 which says "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India".

So far as clause (3) is concerned, the Law Commission suggests that it should be totally re-cast in the light of the basic premise of the decision in Unnikrishnan, which has been referred to hereinabove. It would neither be advisable not desirable that the unaided educational institutions are kept outside the proposed article altogether. While the primary-obligation to provide education is upon the State, the private educational institutions, whether aided or unaided, supplement this effort.

6.6.2. The unaided institutions should be made aware that recognition, affiliation or permission to send their children to appear for the Government/ Board examination also casts a corresponding social obligation upon them towards the society. The recognition/affiliation/permission aforesaid is meant to enable them to supplement the effort of the State and not to enable them to make money. Since they exist and function effectively because of such recognition/ affiliation/permission granted by public authorities, they must and are bound to serve the public interest.

For this reason, the unaided educational institutions must be made to impart free education to 50% of the students admitted to their institutions. This principle has already been applied to medical, engineering and other colleges imparting professional education and there is no reason why the' schools imparting primary/elementary education should not be placed under the same obligation. Clause (3) of proposed Article 21A may accordingly be recast to give effect to the above concept, and obligation.

6.6.3. The aforesaid bill also provides that Article 35 of .the Constitution shall be renumbered as clause (1) of that article and after clause (1) as so renumbered and before the Explanation, the following clause shall be inserted, namely:-

"(2) The competent legislature shall make the law for the enforcement of right to free and compulsory education referred to in clause (1) of Article 21A within one year from the commencement of the Constitution (.Eighty-third Amendment) Act, 1997:

Provided that a provision of any law relating to free and compulsory education in force in a State immediately before the commencement of the Constitution (Eighty-third Amendment) Act, 1997 which is inconsistent with the provisions of Article 21A, shall continue to be in force until amended or repealed by a competent legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier."

6.7. Article 45 of the Constitution is proposed to be omitted by the same bill. Further, in Article 51A of the Constitution, after clause (j), the following clause is proposed to be added, namely:-

"(k) to provide opportunities for education to a child between the age of six and fourteen years of whom such citizen is a parent or guardian."

6.7.1. The reason given for this constitutional amendment is that it "would demonstrate the necessary political will and administrative resolve of the country to achieve universalisation of elementary education and to eradicate illiteracy". It was suggested that this historical amendment of the Constitution in the 50th Year of Independence would inspire the nation to meet the daunting challenge of achieving the goal of education for all by 2000 A.D.

6.7.2. As is apparent from what is set out above, the States and Union territories would be required to enact laws for the enforcement of the right to free and compulsory education within one year from the commencement of the Constitution (Eighty-third Amendment) Act, 1997.

6.8. The aforesaid bill was referred by the Chairman, Rajya Sabha to the Department-Related Parliamentary Standing Committee on Human Resource Development. A press communique inviting suggestions/views was issued on 18th August, 1997. The Committee considered the Bill in four sittings and heard oral evidence. It adopted the draft report at its meeting held on 4th November, 1997. The report was then presented to the Rajya Sabha on 24th November, 1997 and laid on the table of the Lok Sabha on the same day. Unfortunately, the Lok Sabha was dissolved soon thereafter and elections were called.

6.8.1. The Budget Session after the new Lok Sabha was constituted is over. There is, however, no indication whether the Government is inclined to pursue the pending bill.

6.9. The question is debatable whether it is at all necessary to amend the Constitution when there is an explicit recognition of the right to education till the age of fourteen years by the Supreme Court in Unnikrishnan's case. As the said judgment can be overruled by a larger Bench in another case, thus making this right to education vulnerable, it would appear advisable to give this right constitutional sanctity.

6.10. In the view of the Law Commission, the obligation to enforce the right to education should not be shifted to the State Governments. A uniform Central legislation underlining certain minimum parameters for implementing this right, would be clearly desirable. In that view of the matter, amendments to Article 35 as proposed in the Constitution (Eighty-Third Amendment Bill), 1997 would be unnecessary for the reason that even if the law is made by Parliament, the State Legislatures are competent to effect local amendments" thereto inasmuch as the subject of "education" is in the Concurrent List.

Indeed, according to the Constitution, a State Legislature can also substitute a provision in the Parliamentary legislation or enact an inconsistent provision wherever necessary - of course subject to the requirement of obtaining the assent of the President. Similarly the Commission does not favour the proposed amendment under clause (3) of Article 21A seeking to bar enactment of any law against educational institutions not maintained by the State or not receiving aid out of State funds for the reasons indicated by us in paragraph 8.6.2. above. The Commission does not see any harm if the other-amendments are retained.

6.11. The Commission is not unaware of the fact as also stated in the Financial Memorandum to the Constitution (Eighty-Third Amendment Bill), 1997, that huge expenditure is involved in providing compulsory education to all citizens of the age of six to fourteen years. The annual expenditure estimated in this regard is said to be forty eight thousand nine hundred fifty crore rupees. However, it is not in the domain of this Commission to dwell on resources to be found for providing free education to the children.

This aspect has been the subject-matter of discussion in the report of the Committee For Review of National Policy on Education (1986). The suggestions in this regard include levying of "education cess". It would be for the Centre and the States/Union Territories to raise necessary resources to achieve the goal of providing free education. We may incidentally point out that mopping up of resources through levying of "education cess" has been upheld by the Supreme Court of India in Goodricks Group Ltd. case1.

1. Goodricke Group Ltd. v. State of West Bengal, 1995 Supp (1) SCC 707.

6.12. Vocationalisation of the education as a means of meeting the demand of skilled manpower and as an alternative to higher education is another area on which the Government may have to pay attention. However, this cannot be a substitute for free primary/elementary education. It is important that the people at large should know how much money has been allocated for ensuring free primary/elementary education. The State Governments concerned may be required to publish necessary details in this respect in local newspapers which are widely circulated in the area.

The District education authorities concerned should be also under an obligation to publish quarterly details as to how the funds were utilised. There should be an appropriate mechanism for dealing with complaints of misuse of funds. In case of any lapse or negligence in executing the project, the NGOs or the PTAs or local residents (of a group of 100 persons) may approach the appropriate authorities which shall be bound to take immediate action thereon and inform the complainant of its decision.

6.13. Finally, the Law Commission would like to emphasize the need for immediate Central legislation to give effect to the right to education without waiting for the constitutional amendment to go through in Parliament. Accordingly, a draft bill has been prepared and annexed to this report (Annexure A). While drafting the bill, the Commission has taken into consideration laws enacted in certain States in India as also recommendations or suggestions made by other bodies, committees or conferences in the field of education. The Commission commends the draft bill for its adoption by the Government of India.

Mr. Justice B.P. Jeevan Reddy (Retd.), Chairman.

Ms. Justice Leila Seth (Retd.),Member.

Dr. N.M. Ghatate, Member.

Dr. Subhash C. Jain, Member-secretary.

Dated: 19th November, 1998,

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