Friday, April 24, 2009

Constitutional obligations of the State: Quality of Education

Constitutional obligations of the State: Quality of Education

History in India:

Education occupies an important place in our Constitution and culture. There has been emphasis on free and compulsory education for children in this country for a long time. There is a very strong historical perspective. The Hunter Commission in 1882-83, almost 125 years ago, recommended Universal Education in India. It proposed to make education compulsory for the children. [Para 20]

The Government of India Act, 1935 provided that "education should be made free and compulsory for both boys and girls." While debating in a bill in Imperial Legislation Council in 1911, Shri Gopal Krishna Gokhale strongly advocated that elementary education should be both compulsory and free. [Para 21]

Our original Framers of the Constitution placed free and compulsory education in the Directive Principles. The un-amended Article 45 provided that:

"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." [Para 22]

The Kothari Commission on Education set up by the Government of India in 1966 strongly recommended free and compulsory education for children up to 14 years. The Commission observed that there is no other way for the poor to climb their way out of this predicament. [Para 23]

Education occupies a sacred place within our Constitution and culture. Article 21A of the Constitution, adopted in 2002, codified this Court's holding in Unni Krishnan, J.P. & Others v. State of Andhra Pradesh & Ors. (1993) 1 SCC 645, in which we established a right to education. Parliament did not merely affirm that right; the Amending Act placed the right to education within the Constitution's set of Fundamental Rights, the most cherished principles of our society. [Para 24]

As the Court observed in Unni Krishnan (supra), Para 8:

"The immortal Poet Valluvar whose Tirukkural will surpass all ages and transcend all religious said of education:

"Learning is excellence of wealth that none destroy;

To man naught else affords reality of joy." [Para 24]

Education today remains liberation - a tool for the betterment of our civil institutions, the protection of our civil liberties, and the path to an informed and questioning citizenry. [Para 25]

Then as now, we recognize education's "transcendental importance" in the lives of individuals and in the very survival of our Constitution and Republic. In the years since the inclusion of Article 21A, we have clarified that the right to education attaches to the individual as an inalienable human right. [Para 25]

We have traced the broad scope of this right in R. D. Upadhyay v. State of A.P. & Ors. AIR 2006 SC 1946, holding that the State must provide education to all children in all places, even in prisons, to the children of prisoners. We have also affirmed the inviolability of the right to education. [Para 26]

In Election Commission of India v. St. Mary's School & Ors. (2008) 2 SCC 390, we refused to allow the State to take teachers from the classroom to work in polling places. While the democratic State has a mandate to conduct elections, the mundane demands of instruction superseded the State's need to staff polling places. Indeed, the democratic State may never reach its greatest potential without a citizenry sufficiently educated to understand civil rights and social duties, Bandhua Mukti Morcha v. Union of India & Ors., (1997) 10 SCC 549. These conclusions all follow from our opinion in Unni Krishnan. Education remains essential to the life of the individual, as much as health and dignity, and the State must provide it, comprehensively and completely, in order to satisfy its highest duty to citizens. [Para 26]

Unlike other fundamental rights, the right to education places a burden not only on the State, but also on the parent or guardian of every child, and on the child herself. Article 21A, which reads as follows, places one obligation primarily on the State:

"The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine." [Para 27]

By contrast, Article 51A (k), which reads as follows, places burden squarely on the parents:

"Fundamental duties - it shall be the duty of every citizen of India who is the parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years." [Para 28]

The Constitution directs both burdens to achieve one end: the compulsory education of children, free from the fetters of cost, parental obstruction, or State inaction. The two articles also balance the relative burdens on parents and the State. Parents sacrifice for the education of their children, by sending them to school for hours of the day, but only with a commensurate sacrifice of the State's resources. The right to education, then, is more than a human or fundamental right. It is a reciprocal agreement between the State and the family, and it places an affirmative burden on all participants in our civil society. [Para 29]

This Court has routinely held that another fundamental right to life encompasses more than a breath and a heartbeat. In reflecting on the meaning of "personal liberty" in Articles 19 and 21, we have held that "that `personal liberty' is used in the article as a compendious term to include within itself all the varieties of rights which go to makeup the `personal liberties' of man." Kharak Singh v. State of U.P. & Ors. AIR 1963 SC 1295, para 16. [Para 30]

Similarly, we must hold that educating a child requires more than a teacher and a blackboard, or a classroom and a book. The right to education requires that a child study in a quality school, and a quality school certainly should pose no threat to a child's safety. We reached a similar conclusion, on the comprehensive guarantees implicit in the right to education, only recently in our opinion in Ashoka Kumar Thakur v. Union of India & Ors. (2008) 6 SCC 1. [Para 30]

The Constitution likewise provides meaning to the word "education" beyond its dictionary meaning. Parents should not be compelled to send their children to dangerous schools, nor should children suffer compulsory education in unsound buildings. Likewise, the State's reciprocal duty to parents begins with the provision of a free education, and it extends to the State's regulatory power. No matter where a family seeks to educate its children, the State must ensure that children suffer no harm in exercising their fundamental right and civic duty. States thus bear the additional burden of regulation, ensuring that schools provide safe facilities as part of a compulsory education. [Para 31]

In the instant case, we have no need to sketch all the contours of the Constitution's guarantees, so we do not. We merely hold that the right to education incorporates the provision of safe schools. [Para 32]

This Court in Ashoka Kumar Thakur's case (supra) observed as under:

"It has become necessary that the Government set a realistic target within which it must fully implement Article 21A regarding free and compulsory education for the entire country. The Government should suitably revise budget allocations for education. The priorities have to be set correctly.

The most important fundamental right may be Article 21A, which, in the larger interest of the nation, must be fully implemented. Without Article 21A, the other fundamental rights are effectively rendered meaningless. Education stands above other rights, as one's ability to enforce one's fundamental rights flows from one's education. This is ultimately why the judiciary must oversee Government spending on free and compulsory education." [Para 33]

In view of the importance of Article 21A, it is imperative that the education which is provided to children in the primary schools should be in the environment of safety. [Para 34]

Duty of State:

The State is duty bound to protect and secure lives of students across the country by ensuring the minimum safety standards. The State is liable to promulgate policies, which ensure the implementation of the safety laws and procedures laid down. The State must ensure that the government-certified engineer visits each and every school at least once in two years and issued a ‘stability certificate’. If the building is found to be in good condition and all safety precautions are met. [Para 11]

There should be strict supervision on those engineers who can issue these kinds of certificates.

Current scenario:

It is alleged that most of the Indian private schools in district towns are dull, claustrophobic, cramped and often have derelict structures with no fire safety systems, playgrounds or libraries. Most of these private schools in the district towns are located in a warren of congested lanes and school authorities often lock the gates when classes are on to keep children from slipping out of the school. Most of the schools in the villages and small towns are still made of thatched roofs made from coconut leaves or other cheap and easily available materials to avoid the cost of construction in flagrant violation of the building laws. [Para 11]

Prayer:

It is prayed in the petition that a committee of jurists, legal experts and lawyers be constituted to formulate a comprehensive report in a time bound plan for carrying out reforms in the safety standards as prescribed in the schools and to direct all the schools to implement the plan, alternately to come forward with their own plan for providing safety measures in the schools. [Para 12]

Fundamental Rights violations:

It is further prayed that this Court should evolve model safety standards as a part of Article 21 and for free and fair exercise of fundamental rights under Articles 14, 15 and 19 of the Constitution of India. [Para 12]

Accountability:

In this petition, we are called upon to determine what, if any, safety standards schools should have and how, if at all, schools have not met those standards. [Para 13]

Standards for quality:

The National Building Code of India, 2005, promulgated by the Bureau of Indian Standards, provides detailed instructions on how to construct fire-safe buildings. Tables and drawings set standard for schools particularly, including number and type of fire extinguishers, quantity of water necessary for a proper fire suppression system, and many more, providing an engineer-tested, nationally applicable set of standards that our schools could follow. In the introductory materials for the Code, the Bureau of Indian Standards affirms the petitioner's claim in this case:

"The hazards of fire in educational building can be considerably lowered by adoption of certain predetermined fire safety measures with regard to proper planning of buildings, choice of proper materials and components, electrical equipments and making suitable provisions for fire detection and suppression system." [Para 14]

Respondents: who are duty bound?

This Court issued notice to the Union of India, State Governments and the Union Territories. Replies and counter affidavits have been received from almost all the State Governments and the Union Territories and also the Union of India. This Court appointed Mr. Colin Gonsalves, learned Senior Advocate as Amicus Curiae. He also suggested some guidelines which need to be followed by all schools in the country. [Para 15]

27 States and Territories have filed affidavits in this Court detailing the current safety of their schools and plans for improvement The States admit that many schools do not meet self-determined safety standards, let alone the more rigorous standards of the National Building Code. The affidavits generally focus on plans for improvement, rather than schools' current conditions, because much work remains. [Para 16]

Where States have provided detailed counts of schools and installed safety features, it emerges that thousands of schools lack any fire suppression equipment. Thousands more schools do not have adequate emergency egress or non-inflammable roofs. Unfortunately, most States failed to provide any quantitative data in their affidavits. [Para 16]

Instead these States filed vague plans for future renovations and piecemeal schemes to improve schools safety. Little technical advice informs some of the plans, and few have any admitted force of law or fail-safe or follow-up mechanism from the State Government. [Para 16]

While we applaud States' efforts to improve schools, we find that States have done too little, too late. With the guidance of the National Building Code and affidavits in this case, we view Mr. Gonsalves's brief as crystallizing a minimum set of safety standards for schools. By their own admission, States have not met these standards and they have welcomed this Court's guidance in achieving improvement. We will consider in more detail the exact standards required and relief sought later in this view. It is clearly borne out from the affidavits filed by the respondents that even the basic fire extinguishing equipments have not been installed in most of the schools. Majority of the schools do not have emergency exits. The schools must realize and properly comprehend the importance of the fire safety equipments, but unfortunately most of the schools do not have fire extinguishing equipments and consequently, the schools are not following the minimum safety standards prescribed by the Building Code, the Bureau of Indian Standards. [Para 17]

Despite best intentions and frequent agreements, these codes and safety standards rarely bind builders in law or practice. State or local governments must enact Building Codes before any may have the force of law. Some Building Codes exist in law, but few states or municipalities have enacted a standard as rigorous as the National Building Code. [Para 18]

Weak enforcement often then moots the enacted code's effectiveness, no matter the Code's intent, whether fire safety officials, routinely speak to the need for meaningful standards with real enforcement. [Para 18]

In the petition, the petitioner does not seek damages or court's finding on culpability. The main intention of filing this petition is to protect against similar future tragedies by improving the conditions of the schools in our country. [Para 19]

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