Respected Prof. Mohan Gopal, Director National Judicial Academy,
Until not so long ago, lawyers had little or no role in school education, except perhaps in relation to cases regarding service matters of teachers and of cases of school managements against teachers, etc. The phenomenon of voluntary action by lawyers, acting on behalf of children too poor to afford either private schooling or lawyers, is a fairly recent trend, perhaps not more than 10 to 15 years old. However, as soon as education comes to be defined as a right of the child, the importance of lawyers in completing the circuit that will ensure the right to education becomes inevitable.
This lecture will trace the movement for defending the right to education from the advent of PILs to the present, before discussing some issues that can and have emerged in the context of right to education in schools. Some of these relate to - denial of admission in government schools; cruelty against children in the name of private school admissions; lack of basic amenities in schools, such as water, electricity, proper roofs and walls which can protect from harsh weather, etc; corporal punishment and other forms of humiliation; lack of connection between primary and upper-primary education; the dissociation between the aims of education and the goals of schools; the issue of unjustifiable fee hike in private schools; and issue of allotment of free land to private schools; and violation of educational rights of poor children.
This lecture will then discuss how in taking action on behalf of educational rights of poor children, one comes to the awareness that simply finding a case and fighting it is not enough. Unless public opinion and public anger are also not built up against such denials, these wrongs will continue. I will then discuss how I learnt to enlist the support of the media in creating awareness and opinion.
At the same time, however, I realised that going to the courts alone cannot and should not be an answer to all the ills in education. Mobilising public outcry is also important. Sometimes, when people come together to demand action, matters can be rectified without going to a court. I will discuss in my lecture how at this point, I learnt to make correct strategy to achieve justice for children’s right to education.
However, there is a limit to what one lawyer can do. There are many problems for one lawyer to cope with. Through my work so far I have merely demonstrated what lawyers can do and how to do it. But it cannot be denied that there needs to be an escalation of lawyer intervention on behalf of the child. Perhaps time has come to move from individual initiative to networked legal aid; to development of systems of case support to lawyers; to build NGO linkages with lawyers, to evolution of government schemes of lawyer involvement; for informational systems to be developed for orientation and briefing of lawyers and judges in right to education.
Maybe it is also time for including Right to Education (RTE) in the formal and informal curriculum of legal education. Students in law colleges should learn about child rights and their defence in the curriculum, just as they learn about contracts and criminal law. Universities should actively think about separate optional papers, diploma and certificate courses in RTE. Similarly there could be research on PILs in education
In closing, I would like to argue that legal intervention acts as a trigger to reform in education. Not only does it serve to highlight wrongs and rectify them, but ultimately, it will also build communities in schools who know their rights and duties, and hence there are fewer predispositions towards violations of children’s right to education. Already, the parents in private schools are no longer as timid as they once were, and already government officers are becoming alert to ensuring transparency and justice. Through the intervention of lawyers, I see a vision of future with mutual respect and improved provisioning of education from a rights-based perspective.
I am grateful for this honour of being chosen to deliver 4th Mahadevi Verma Memorial Lecture, which gives me an opportunity to talk to you about some matters related to the right to education that has been very dear to my heart and to which I have devoted most of my working life and will continue to do so I hope, for as long as I am needed and am able to serve. I am all the more grateful for this honour because we lawyers are seldom remembered at happy moments. Generally lawyers are seen as associated only with bad moments, and when you curse someone you wish them on your enemies, you would wish them to have trouble and to visit courts and lawyers. We lawyers seem to be associated with nothing but trouble, and therefore, I am all the more grateful that I have been remembered as a friend among this much respected community of educationists.
The fact that I have been remembered by educationists is in itself a sign of the change in the relationship between the world of education and the world of the courts. Until not very long ago, we lawyers had very little, if at all anything, to do with school education. May be these two worlds met in relation to cases regarding service matters of teachers and of cases of school managements taking action against teachers, etc. Other than that, to this world of educationists, a lawyer was either someone you hired, or someone who was an adversary – the lawyer was never a friend or a partner. The phenomenon of the lawyer as a friend of the educationist is of very recent origin, perhaps not more than 10 to 15 years old, and it is about this phenomenon, its evolution, its progression and its potential, that shall be the subject of my lecture today. Many consider me to be one of the pioneers in this area, that may or may not be true, but certainly because of the media reports of my cases, the positive role that lawyers can play in defending the right to education has become known to more and more people. In many ways, the evolution and progression of the new role of lawyers in education follows along the trajectory of my own career in fighting for the rights to education, and the rights in education.
You must be very well aware that the whole concept of human rights is itself very recent. The term human rights came in after World War II with the birth of the United Nations, and the Universal Declaration of Human Rights. The very idea of a right, and an equal right to all humans simply by virtue of being human was itself a novel idea around that time. Some races were considered superior to other races, some castes higher than others and the males superior to females–many of these ideas still linger on in the minds of some people, but they have been more or less eradicated in the laws of nations. In such a context, there was hardly any space to even consider the question of children having rights of their own.
People had duties and responsibilities towards children, that much was there, but that a child should be having rights, may be even against parents, simply by virtue of being a child, in the same way that humans had rights simply by virtue of being human–that idea was perhaps too progressive for that period–as the world in that period had enough problems with accepting all humans as equal.
You may be surprised to know that it was only in 1989, that the rights of children came into being in international law, through the UN Convention on Rights of the Child (CRC), and
Most of us, who are present here today, have spent their childhoods without being the subject of rights. But the very fact that we are here today, shows that we were the lucky ones who received food, shelter, clothing, education etc. and everything else that made it possible for us to. Many children even today are not so lucky. They continue to be deprived of all those things that we have perhaps enjoyed and which have enabled us to reach where we are today. So if even after having these things called rights – if children are still no better off than before – then you will say – of what use are these things called rights if it makes no difference whether you have them or not? If ultimately everything is only going to depend on personal goodwill, and you may even say –the sweet will of others – then why talk of rights if they mean nothing at all?
When we say that someone has a right to something, or that children have rights today, it does not mean that with a magic wand, that thing that you have a right to, or that for all children, food, shelter, clothing education etc., will appear out of nowhere as if by magic. Then what does it mean to say that we have a right? To understand this, let us think back to those days when these rights did not exist even on paper. For example not so long ago, it was believed that the children are the property of their parents- they are owned by their parents, and that parents can do anything to them. While many still think in this way even today, the majority of us tend to believe that there are some things that even a parent has no right to do to a child and that children cannot be treated as wished by those in authority. In our time, our father’s words were taken as law- fathers (or grandfathers) decided for us- what we are to become, how we are to act, what we are to do or not do- and it was our duty to pursue that course and no other. Is that the case in our own homes today? Not at all – for my generation it seems that we were dictated to by our parents and now we are dictated to by our children. Certainly the ideas of a parent child relationship have changed in many homes. How did these ideas change?
I would say that that the ideas of rights have gained a lot of ground since then – just as we were first intrigued and then obsessed by the idea of gaining freedom. It is as though a wind blows and it changes what we think and how we do things. At one time, we used to think it was the parents wish whether to send their children to school or not – now we tend to think that any person who chooses not to send their child to school is doing something not good for the child, they are depriving the child of education and the child will suffer later. Nowadays we tend to regard as neglectful or ignorant any parent who does not send a child to school. People have now come to believe that children have a right to education; people now believe parents should not prevent them from getting that right. As I said our ideas change- these days hardly anyone will side with those who argue that it is the right of the parent to keep the child ignorant.
To me, this is what a right means - a right is first adopted by the mind, it makes our ideas change, and as our ideas change, society changes. It is the society that ensures that rights are achieved. Rights do not make things appear as if by magic out of thin air - as I said, by making or adopting something for example education as a right, that something does not appear out of thin air by magic – but certainly our ideas begin to change, we begin to recognise that all children can and should get education. The adoption of a right on paper- is merely a milestone. Some would say, it is a goal post- it gives us a point and a direction to work towards.
So Friends, to me, that is what changes when we say someone has a right to something- a standard is established, and gradually, attitudes, values and practices start to follow until real life, reality, or the norm becomes that situation what was aspired to by the right.
And when rights get established in law – such rights can be claimed by well wishers on behalf of children. Even if a child is not so lucky as to have family and friends to fight for them, the fact of having a right works to ensure that some agency, or even the government, works for the child to ensure that the child’s care, shelter, food and education along with an identity, a birth certificate, nationality, dignity even at school, the right not to be beaten under the pretext of education etc., are all taken care of. All of these rights became accepted the world over with the acceptance of the CRC.
You might ask why am I talking about the CRC, which is an international convention, and which is not binding as a law in
A fundamental right is a justiciable right. Justiciable means that if the right as it is stated is not given, or if the government or anyone else who is bound by it defaults in some way, then one can turn to the courts for remedy. And even before the courts come into the picture, the lawyers have to be brought in, in order to complete this circuit of justiciability for which we amended the Constitution. Therefore, although we do not hear too much on this issue, and even the government has not taken steps in this direction, the right to education cannot be enforced without a lawyer coming into the picture. But you will surely see the irony of this situation - How can a child who is not even able to afford a school, or a teacher, can afford a lawyer? As you know, lawyers are private practitioners - we lawyers depend on the income from the practice, we depend on the fees. So on the one hand, we make free and compulsory education a fundamental right, and on the other, in order to enforce this right, we have to go through lawyers – who are by no means free and compulsory, then how is the child to get the right?
Therefore, if without a lawyer, it is not possible to seek to enforce the right in the courts, then it surely amounts to the right remaining where it is – on paper. The purpose of my talk today before this august audience is just this – to reflect on the role of the lawyer in the right to free and compulsory education.
You will ask – but I am a lawyer - why am I doing this? How am I fighting for the right to education? How does a child who cannot even afford a teacher, who does not even know that he has a right to a teacher, would come to me and expect me to fight for him in the courts? What are the problems that children face? In order to reflect on the role of the lawyer in education, I will tell you about my role as a lawyer fighting for the right to education, and then perhaps we can together reflect on whether a lawyer is enough, or we need more lawyers, and if we need more lawyers, where are they to come from? Why would they come? How to sensitise them about denials of rights in education? How to ensure that the lawyer finds the children, because surely, such children cannot find the lawyer?
My own initiation in the right of children to education was actually very conventional. I basically fought labour cases. My ideological leanings were also sympathetic to the right of the workers and the poor, but my first case in education came from a very typical route- some people known to me were concerned that the private school that their children were attending had again raised the fees and there seemed to be nothing that the schools were afraid of. My own education had been in a government school, and I told these people – ‘instead of complaining, you should send your children to a government school – there would be no question of fees.’ I told them, ‘you have come from a government school, I have come from a government school, and we are doing OK’. They told me- ‘when was the last time you saw a government primary school – go and see a government primary school’. So I went to a government primary school. When I saw the state of the school, and the attitude of the head master and the teachers, even the teachers were very few and they were not teaching, only minding the children so that they do not run around or make a noise.
After seeing the state of the government schools, I realised that the reason that parents are at the mercy of the private schools is that the government schools are in a very bad shape, and that the reason that the government schools are getting worse is because more and more people are leaving them for other kinds of schools, and the ones left have no power to make a demand for better schools and better management. Therefore, I came to realisation, that if the situation has to change, then both schools have to improve. Only when children in government schools get their due rights, then only will the children in private schools also get their rights and not be at the whims and mercy of the private managements. There is one system, one set of rights, one set of laws, so improvement has to be done in both kinds of schools.
Anyway, I was lucky to win the case of the fee hike in private schools, and it had the effect of enforcing the law in respect of other private schools. Because it was a private school case, the news was carried in many of the papers, and people came to realise that the private schools were making profits from one school, and using that profit to set up another school, and another, until they became more and more powerful as a chain of schools. Now Godrej and Reliance for example can set up chains of establishments- they are commercial organisations and are subject to the tax, the scrutiny, the quality standards, and consumer interest laws that all such commercial establishments are subject to. Now any philanthropist can set up any number of schools if he has the money- and make a chain. But one school cannot give birth to another school to make a chain.
A school is a philanthropic, non profit organisation in our country. So where is the question of profit, and that too so much profit that you can set up another and yet another school? And if there is profit, then where is the question of not being able to meet the costs, and of hiking fees? It was decided after that case that no school can use the fees from one school for the purpose of another school even under the same trust. And in order to establish profit, the rule regarding submission of audited balance sheets got highlighted. Thirdly, another rule regarding submission and approval of statement of fees before every term got known and enforced.
It was also during this case that I realised that the reason why the profits from one school can be used to set up another is because everywhere the governments were supporting the establishment of philanthropic effort such as educational institutions and hospitals for public purpose by giving them free land. So if the land is free, and the proceeds from another school are funding the building, then where was the problem in building chains of schools? Also, as with any private commercial enterprise, the ‘brand marketing’ exercise ensures that the school is seen to be better and more desirable than the existing government schools. So why should people who have more money not show they have the money? Private schools, far from serving a public purpose became status symbols and everyone wanted to be seen only in these schools.
We all know the story of Akhbar and Birbal in which one day Akhbar drew one line, and told Birbal to make it smaller without touching it. All Birbal had to do was to make another bigger line next the first line and the first line became the smaller one. Same is the case with the government school- If another school next to it, is seen as better, even if only because of the shiny building and the brand marketing, then automatically, the government school is seen as lesser and less desirable, and all those who would have attended it, want to go to the status symbol school – and the private school is placed in the powerful position of being able to select and reject the children of the rich. Other ancillary industries also develop - one industry is that of patronage, anyone who is anybody or knows anybody tries to use influence to get admission; and the rest go to the other industry- that of training the children like animals in a circus- even that is not allowed nowadays, but this is allowed to train children to perform in the admission interview. In all of this unfortunate activity, the school becomes more and more powerful, and even the government officers fear to oppose anything the school does. It seems that they cannot be approached twice even to secure the filling up of the DISE Information Performa- which carries individual report cards of 1.3 million schools in
You will find that I started from one case and it was not a case, it was a box- a Pandora’s Box. I have linked everything to everything else through it- actually that is exactly what happened. One thing just led to another. I also realised that when the government granted the free land to the schools, they attached a condition, that the schools would reserve 25% of its total pupil strength for poor children and provide free education. But the schools never bothered, and no one bothered to trouble the schools on behalf of the poor.
This realisation that served me well, because it set the basis for some of my future cases, for example the case about nursery schools admission, about the free seats in land grant schools, the poor condition of government schools and the fee hike in relation to the 6th Pay Commission. But after my first case, I wanted to do something about the government schools. But where to start?
I started visiting the government schools and meeting the teachers and the headmasters and the parents in order to see where the problems lie. Every Saturday when there was no court, I would take my car and go and visit some government schools. I noted the poor conditions, the apathy of the government towards the teaching staff, the apathy of the teaching staff to the children etc.
One of the first cases I filed was about the infrastructure facilities. Many schools were running in tents, in rooms with tin roofs which became unbearable in summer, and bitterly cold in winter, even the buildings were in dilapidated conditions. I took photographs, and filed them in the court in a series of cases. The courts were kind enough to issue orders banning the use of tents, the use of tin roofs, stating that only proper prefabricated structures may be used for temporary classes. Noting that the schools were running in old and insecure buildings, the courts ordered for the buildings to be replaced by new structures. Today, you will find the teachers working not under trees and in verandas, but in well constructed classrooms and people are surprised to see the new face of schools of the municipal corporation of
During this process, it came to my notice that one child had been run over by a truck just outside a municipal primary school. What was the child doing outside the school? And what had caused the child to run outside without looking? It came to light that the school had no facilities for drinking water. When this issue was raised in the courts, the officials quickly, practically overnight put in place the hand pump and water tap, and tried to explain to the inspection team of the court, even though they could see that the cement was still wet, that the school had facilities for water, but that the child had run out simply out of mischief.
The moment they pleaded in that direction, they got caught for not having a proper boundary wall with a gate and a guard. The people had trusted the schools with their children, and the schools were responsible for their safety and care. With this case, all the municipal schools became equipped with water, boundary walls, and security guard. In another case, it was also made the duty of the government to ensure that electricity of a school was never cut off for non payment of electricity bills. The fault was of the government, and the children were made to suffer.
As you can imagine, I became fairly well received in the schools. Even the senior officials in the Municipal corporation, surprisingly did not resent me- they saw that I had managed to bring about the orders for the improvement in the schools, which they had wanted but were not able to bring about.
Alongside the improvement in the structures, I had noted that a number of processes also needed improvement. I realised that in the school there was a regular turnover of teachers- some joined the secondary schools, some got married and left, some retired, etc. But there seemed to be no regular system to take note of this need for teachers or to ensure that there were enough teachers in the schools. So the matter was taken to court to say that if the government was indeed serious about ensuring education, then the process of recruitment of teachers should have began, but not even the vacancies have been advertised to date. The court eventfully ordered that a regular calendar of recruitment be prepared and followed every year to stream line this process.
Another example, the schools were saying they wanted universal enrolment, but they themselves were hampering this process, due to their demand for this or that certificate. So a court order was obtained (after a PIL) that the parents could admit the child without birth certificate or affidavit. But what about the children without parents- i.e. the children on the streets. We took this issue to the courts and there was great drama, because we had brought some street children into the court, and the judge asked the director of education, who is the parent of these children? The media also had a great moment reporting cases like these, and I realised that in the right to education, the greatest battle is that of realisation- once people become aware and realise what is a right and they also begin to recognise the violation of the right. So I realised that the media can play a big role in creating that awareness.
By this time the internet had also come into being, and I learnt how to use it. I learnt how to use the email, and kept the media and a few friends and well wishers aware of my cases, and they in turn gave publicity in the papers. I created a website, and kept some important background information on the website for ready reference.
I gradually made friends in education among the educationists also, and through them also I became aware of some of the issues. Many times, they would be useful to me in discussing the different aspects of a case. What I am trying to say, is that there is very little that I can take sole credit for, and indeed this battle requires teamwork and team support. If I had anything, it was my persistence, and the support of my family that did not complain that I could have earned more or had a better standard of living if I had devoted this time to paid cases. If you think I am rare, I think my family is rare. But if lawyers who are to fight for children are not to be rare, then we must do something that will enable the average person to join as a lawyer in the right to education. I will return to this issue later, and let us first discuss the ways in which children are denied the right to education, and how there is need for support in little, little ways.
Along with the removal of document barriers to admission, I supported the ‘Dakhila Abhiyan’. This was a process that had the support of the SCERT of Delhi, and was instrumental in generating awareness about school enrolment. Similarly, I found through my friends and unofficial team members that some fees (not exactly fees but some amount for some fund or the other) was being collected at the time of admission in the municipal schools. We first asked the MCD how the schools were colleting anything without receipt. So they issued an order to give receipt. The moment we had a receipt, we produced it in the court saying that here is proof that contrary to the stated policy the schools are charging money, and that free and compulsory education is not free. After that court judgment, now admission is truly cashless and paperless.
Another barrier to the right to elementary education in
You can see therefore, that although when I started out, I neither knew about education, or about the ways in which children are deprived of their rights in the schools and outside the schools, I slowly began to gain awareness of what is happening. My only guide was the law, the Constitution of India, and the International Conventions. These gave me a frame of reference to judge whether what is happening is right or not.
However, I still go the schools, especially the schools in the outlying areas in
When I took this case to the court, suddenly, a large number of schools in
The schools which had all along been claiming to give quality education. Now when the time came for them to prove it, their behaviour gave away the truth, that the ‘quality’ they professed to be manufacturing in the schools, actually lay in the selected and handpicked batch they admitted every year to the school. Children of professionals, who may be expected to be genetically endowed with this thing called intelligence, and by the success achieved by their parents, they may be expected to have the right attitudes and home circumstances to foster good grades- their indicator of ‘quality’. Of course they also had a good mix of children of business class parents. Very reluctantly, these schools gave admission to only those children who were assisted by some NGOs or whom they could not manage to push away. Some schools of course truly embraced their obligation and are educating the children of the poor and of the rich, but such schools are rare. Although schools all over
Admission to a private school of choice is an annual affair marked with a lot of tension for both parents and children, but for the schools themselves, it is said it is like the harvest festival. I hear that money is made, and people are ‘obliged’. Children who ‘fail’ the admission test and interview recognise early in life, for the rest of their lives that they are somehow ‘less’ than those who were ‘clever’ enough to make it to a particular sought after school. A case regarding this admission process of private school was taken by me to the Court. The court naturally spoke on behalf of the child, but recognising the need to have some criteria other than the present ad hoc tests and interviews, appointed a committee to be headed by then CBSE Chairman, Mr. Ashok Ganguly to develop some criteria. The Ganguly Committee debated and evolved a method to restrict admission to children who live within a certain radius of the school, and also gave ‘points’ for other criteria such a sibling in the same school, parents being alumni of the school etc. Although even now the system is far from perfect, the fact remains that an evil in education and its vicious effects on children was recognised as such and an effort made to induce transparency into a system that had so far resisted all interference into a domain that gave it great power and privilege.
Whether rich or poor, children suffer equally from corporal punishment. They suffer disproportionately when they have disabilities. All types of schools try to hide the fact of child abuse by terror and torture, and all try to keep the disabled out. Even the so called schemes of the education of disabled children are not able to identify the disabled through household survey. I do not know what kind of survey is conducted, because when I went into a basti, I was surprised to find a large number that were there and known to all to be there, but were unable to access schooling. If you keep only the face of the child in your mind, it might occur to you, if you had been that child what would have been your fate? They deserve better, and a society that calls itself civilised should look after its people especially those who cannot look after themselves.
This brings me to the role of the lawyer in education. It is for you to decide, whether a lawyer is the last mile link to the seeking remedy from a court of law or not. I also wish that a lawyer is never needed and that no child or parent needs to enforce their right to education through a court of law. But I have seen that the real world is not like that and if you have reached the same conclusion after hearing about some of the types of issues that I have had to handle through courts, you will also wonder how to bring about situations in which lawyers seek opportunities to serve free of charge for the cause of education. I have no doubt that many more lawyers would like to serve but they do not know where to start or what kinds of issues need their attention.
I have made a start in my community by sensitising more and more of my colleagues, but they will be confined to
I realise my own example may not be that easy for everyone to follow, but what if NGOs who are already sensitised to serve, were also sensitised to rights to education, rights in education, and how to enforce them. It could happen that these NGOs could work in coordination with lawyers, I am sure there will be enough lawyers who would be happy to provide free service, or like any other service that NGOs pay for, the cost of a lawyer and court charges could be built into their plans. NGOs in the education sector, use many strategies - the legal route could one of the strategies that the NGOs could learn to use, and in the process train the lawyers who work with them.
NGOs could also link with legal service authorities that are there in every state. So far these authorities are fairly understaffed and over worked, so they do not actually go looking for instances where the rights have been violated. They are not used to dealing with situations in which even the victim does not realise they have been wronged. NGOs could link with them as well.
There is a need I think for a centralised resource - maybe through websites where information about cases related to the right to education could be collated and made available. Such sites would serve to sensitise all, NGOs, lawyers, Judges about the types of problems encountered by children in the field. Such a site would be essential especially for a state subject such as law, because the cases would be limited to the district or the High Court of a state. Cases in one state would create awareness about issues and inspire other states to get the same or similar situation remedied. The fee hike following the 6th pay commission for example is an issue that many states have in common. For the first time, an All India Parents Association has been formed and is informing other states about issues and rights. What is needed perhaps is a less partisan and more stable informational resource.
I would say, even sensitisation lectures are useful. There may be some among you, who did not know about the many of the rights or how they are violated even by governments or schools. It is my suggestion that organisations like NCERT, RIE, SCERT, NUEPA etc should give lectures even in law colleges and judicial academies. They could even run courses on right to education and its defence. They could in collaboration with law colleges run course in public legal education and even train children to know their rights recognise its violations.
Friends the possibilities are endless. Now that we have amended the Constitution and made education into a justiciable fundamental right, the role of lawyers in making that connection with the court of law becomes inevitable. Children have been denied their right to education for far too long. I envisage a day in the not too distant future, when speaking softly but carrying a big stick, we will build a future of mutual respect and improved provisioning of education from a rights-based perspective.
With these words I thank you for listening to me so patiently, and for giving me this honor of speaking to you.
483, Block-II, Lawyer’s Chamber,