Discussion Meet on Supporting Justiciability of the Right to Education

February 22-23, 2016, NUEPA New Delhi

Background

Better provisioning of education could have been made without amendment of the Constitution. Therefore, the true gift endowed by the Constitution 86th Amendment Act 2002 on elementary education, in moving it from the Directive Principles to the list of fundamental rights, was the gift justiciability in order to ensure that it is never thereafter neglected.

A matter is considered to be justiciable if it can be properly brought before a court and is capable of being disposed judicially. Indeed, a right is meaningful only if it is also enforceable by those deprived of it. According to the U.N Special Rapporteur on the Right to Education, the ability to enforce a right is considered to be an essential element of a right and for rights to have meaning; effective remedies must be available to redress violations.1

In fact the fear of being flooded with litigation was a very real fear of the government in 1997, when the Constitution 83rd Amendment Bill was seeking to make education a fundamental right. The Sixty-third Report of the Department Related Parliamentary Standing Committee on Human Resource Development which had considered this Bill had counseled the Government thus- “the possibility of increased litigation cannot be denied. The citizens would have every right to go the courts of law if their fundamental right is violated. The Committee, therefore, urges upon the Government to find out ways and means to face this challenge.”

Ironically, two decades later, despite its status as fundamental right, violations of the RTE Act continue unchallenged. Only 9.46 percent of 14.5 lakh elementary schools/sections have all the 10 parameters in the Schedule of the RTE Act 2009 that are reported on by DISE in its annual report on the status of education in India. Even though it is mandatory for each school to have two teachers, about 1.19 lakh single-teacher schools, still exist unchallenged, while 27.11 percent primary schools have adverse pupil teacher ratios, and a similar number have adverse have Student-classroom ratios. All primary schools with enrolment above 150 required also to have a Head master in charge of running the school, yet only a little more than half of such schools do so. In such a situation, the right amounts to naught. A number of hurdles stand between the rights-holders and their ability to exercise the right to education, let alone enforce it.

The National and State Commissions for Protection of Child Rights, which were charged by the RTE Act 2009 with the duty of monitoring the right to education; and the grievance redress mechanisms instituted therein, have yet to win the confidence of the people. The nongovernmental and the Academic organizations engaging with the right to education either do not perceive it as their role, or for reasons of inability or choice, opt not to fight for these rights in courts of law.

There exist however, other bodies charged with defending the rights of vulnerable citizens. In 1976, the same 42nd Amendment to the Constitution which had placed school education in the list  of Concurrent subjects in the Constitution of India, had also added to it Article 39 A which made the provision of free legal aid, a duty of the State:

39A: Equal justice and free legal aid.—The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

The Legal Services Authorities Act 1987 subsequently established Authorities and Committees at the National, State, District and Taluka levels, and also at the Supreme Court and High Court levels for providing free legal aid to the vulnerable and destitute. Unfortunately, even these mechanisms are not as effective as they could be, as reported by a recent study of these services2. It was found that these facilities are by and large, not known to people and that the general populace was largely unaware of the existence of LSAs, much less their functions and how to approach them. Also, in setting up legal aid clinics, and on training of paralegals, these services were found to be spending an insufficient amount. While improvement in the services of these Legal Aid services might be imminent, the fact also remains that these authorities are little acquainted with the issues and problems related to the right to education.

Similarly, since 1997, the Bar Council of India has mandated that each law school in the country teach clinical legal education (legal aid) as a compulsory course. The Concept of a legal aid clinic is to provide a platform for students to gain practical work-experience, to equip them with the skills necessary to provide legal support to poor communities on the one hand and to create a secure space for discussion and information-sharing for the purpose of promoting and protecting the rights of vulnerable groups on the other. The Bar Council of India Rules 2008 specifies that:

“11. Legal Aid Centre: Each institution shall establish and run a Legal Aid Clinic under the supervision of a Senior Faculty Member who may administer the Clinic run by the Final year students of the Institution in cooperation with the Legal Aid Authorities with list of voluntary lawyers and other Non-Government Organizations engaged in this regard in the locality generally from which the student community of the Institution hail from.”

With 1200 law schools under the Bar Council of India, there appears to be great potential in this scheme to use it for the benefit of the right to education. The energies and legal capabilities of thousands of young and enthusiastic students could be motivated to work for the children and their right to education. Unfortunately, in the case of such legal aid clinics of law schools too, a study3 found that very few colleges and universities are able to conduct legal aid clinics lacking not only the financial resources necessary to carry out Legal Aid activities in an effective manner, but also lacking “consistency, direction and purpose”.

The same study however, also pointed to a silver lining in the gloomy picture it presented, by highlighting some successful models of legal aid clinics of law schools from which this Discussion Meet draws its inspiration.

These successful models give hope that it might be possible to revitalize the Legal Aid Clinics of Law schools through attracting them to the cause of the right to education. A number of community and National level NGOs have been engaged for many years in supporting the right to education.

These NGOs could make available to these clinics the community linkages and the background information and knowledge about the education system that is needed by Legal Aid clinic students for community outreach. The students could in turn provide legal awareness, and legal consultation to the community and case document support to the pro bono lawyers listed with Legal Services Authorities.

If a successful model of working relationship could be designed and established, it has the potential to recharge 1200 law school clinics and provide support to legal aid services, NGOs and as many communities. It is an idea worth exploring if by combining their efforts, all these separate organizations might be able to find both greater enthusiasm and success towards realization of the RTE, using even the courts if necessary to enforce it. To this end therefore, the National University of Educational Planning and Administration, (NUEPA) is organising a Discussion Meet on Supporting the Justiciability of the Right to Education, with the following objectives:

Objectives

• To explore ways and means of building symbiotic linkages between diverse actors

working for the right to education

• To evolve a ‘model of practice’ for RTE groups/clinics to support justiciability of the

RTE, combining synergies, resources and tools

• To Identify plans of action, and next steps in institutionalizing such a ‘model of

practice’ for supporting justiciability of the right to education

Dates and Venue

The Discussion Meet will take place on February 22-23, 2016, at NUEPA, New Delhi in

Hall 113 (1st Floor).

Participants

This Meet will bring together Legal Aid Clinics of law schools, Legal services authorities, representatives of monitoring bodies, NGOs, and agencies engaged in information dissemination, monitoring and reporting on the implementation of right to education. About 30- 40 participants from all over India are expected to attend.

Expected outcomes

• A vision, a ‘model of practice’ and an activity template for a networked group that would support

each other in supporting children’s right to education

• A Plan of Action, and identified ‘next steps’ in institutionalizing such a model of practice for

networked ‘RTE groups / Clinics’

1 A/HRC/23/35 : Report of the Special Rapporteur on the right to education, Kishore Singh on “Justiciability of the right to education” to the UN General Assembly on 10 May 2013 p 9

2 Marg (2012) Needs Assessment Study Of Selected Legal Services Authorities. Department of Justice,

Government of India and UNDP India 2012

3 http://www.undp.org/content/dam/india/docs/

a_study_of_law_school_based_legal_services_clinics.pdf (2011)