Download Human rights and human development

EDUCATION - Human rights and human development
Although the 93rd Constitution Amendment proposes to give constitutional sanctity to the legally enforceable right to
free elementary education, it has invited criticism for having restricted the right to children between six and 14 years
of age.
C. RAJ KUMAR
This is the first of a two-part article
"A Constitution may indicate the direction in which we are to move, but the social structure will decide how far we
are able to move and at what pace,"
- Andre Beteille
THE passing of the 93rd Constitution Amendment Bill by the Lok Sabha unanimously has indeed resulted in the
development of a fundamental right to education as a guaranteed right. It is important to analyse and evaluate the
circumstances under which this Constitution Amendment has come to be passed and also the implications of the
amendment on human rights and human development policies in India.
The Constitution of India (Article 45) states that "the state shall endeavour to provide within a period of 10 years from the
commencement of this Constitution for the free and compulsory education of all children until they complete the age of
14 years". This commitment was made more than 50 years ago. The Supreme Court of India, in its hearings of two cases
in 1992-93 upheld the fundamental right to education. In Mohini Jain vs State of Karnataka, the Supreme Court, speaking
through Justice Kuldip Singh, held that the right to education was part of the fundamental rights to life and personal
liberty guaranteed by Article 21. In a subsequent case, Unnikrishnan vs State of Andhra Pradesh, the question came up,
"whether the Constitution of India guaranteed a fundamental right to education to its citizens". While it was agreed that
the right to education emanated from the right to life guaranteed by Article 21 of the Constitution, Justice B.P. Jeevan
Reddy observed that "...every child/citizen of this country has a right to free education until he completes the age of 14
years and after a child/citizen completes 14 years, his right to education is circumscribed by the limits of the economic
capacity of the state and its development". Thus, this was the legal position relating to the right to education within the
Constitution before the passing of the 93rd Constitution Amendment Bill.
The 93rd Constitution Amendment, with the insertion of a new article (Article 21 A) to say that "the state shall provide
free and compulsory education to all children of the age of six and 14 years in such manner as the state may, by law,
determine", enable any citizen to seek the enforcement of the right by way of resort to writ jurisdiction under Articles 32
and 226 of the Constitution. It is in this sense that the amendment has given an enforceable right to education. To have a
particular right is to have a claim on other people or institutions that they should help or jointly collaborate to ensure
access to that right or freedom. Thus, to assert a human right to free elementary education (as it is done through the 93rd
Constitution Amendment) is to claim much more than that it would be a good thing for everyone to have elementary
education - or even that everyone should have education. In asserting this right, the Constitution claims that all are
entitled to free elementary education and that if some persons avoidably lack access to it, there must be some culpability
somewhere in the social systems (Amartya Sen, 2000). This insistence on the enforceability of a right is the crucial
dimension of the concept of integration of human rights with human development. But it needs to be observed that the
Amendment in its present form illogically and unreasonably restricts the right to education for children between one and
five years of age, which was earlier guaranteed by the Supreme Court's decision in Unnikrishnan. While the 93rd
Constitution Amendment proposes to give constitutional sanctity to a legally enforceable right that already exists, it
should not have narrowed the existing law on this issue by restricting the fundamental right to education for children
between six and 14 years of age.
The inclusion of a fundamental right to education in the Constitution has indeed some parallels elsewhere in the world.
Most important, the Universal Declaration of Human Rights through Article 26 provides that elementary education shall
be free and compulsory, higher education shall be generally available on the basis of merit, and parents have a prior right
to choose the type of education. Additionally, the South African Constitution has a provision for adult basic education,
and further education, which the state will make available on a progressive basis (Article 29(1)). In France, there is no
right to education as such, but the preamble of the Constitution provides for equal access for children and adults to
education and training, including cultural education; providing free and secular public education is a duty of the state.
Further the Conseil Constituionnel has also recognised a limited "freedom of private education". The Constitution of
Argentina authorises Congress to ensure free and equitable public education (Article 75(19)); in Switzerland, the
Constitution provides for a provision whereby citizens can seek free elementary education in government schools as well.
In Japan, the Constitution provides for a fundamental right to education. All people shall be obligated to have all boys
and girls under their protection receive ordinary education as provided by law and such compulsory education shall be
free of cost (Article 26). In China, the Constitution provides for a fundamental right to education: citizens have a right as
well as duty to receive education (Article 46).
THE Convention on the Rights of the Child (CRC) was adopted by the United Nations General Assembly on November
20, 1989, and it entered into force in record time on September 2, 1990. As of January 1, 2000, it had been ratified by 191
states. Only Somalia and the United States. remain outside the treaty regime. The Convention's coverage is considerable:
it applies to 'every human being below the age of 18 years unless, under the law applicable to the child, majority is
attained earlier' (Article 1), thus putting the burden on the state to justify instances in which a lower age limit is
prescribed. Article 28 of the CRC recognises the right of the child to education, and with a view to achieving this right
progressively and on the basis of equal opportunity, the states shall in particular make primary education compulsory
and available free to all. Thus, the 93rd Constitution Amendment partially fulfils the mandate of the CRC, but with its
relevance restricted to children aged between six and 14 years, it has a limited impact. The child's right to education is a
matter not only of access (Article 28, CRC), but also of content. An education with its contents firmly rooted in the values
of the CRC (Article 29 (1)) is for every child an indispensable tool for her or his efforts to achieve in the course of life a
balanced, human rights-friendly response to the challenges that accompany a period of fundamental change driven by
globalisation, new technologies and related phenomena. Such challenges include the tensions between, inter alia, the
global and the local, the individual and the collective, tradition and modernity, long-term and short-term considerations,
competition and equal opportunity, the expansion of knowledge and the capacity to assimilate it, and the spiritual and
the material (UNESCO, 1996).
Article 29(1) of the CRC has far-reaching importance. The aims of education that it sets out, which have been agreed to by
all states-parties, promote, support and protect the core values of the Convention: the human dignity innate in every
child and his or her equal and inalienable rights. The aims are: the holistic development of the full potential of the child
(29(1)(a)), including the development of respect for human rights (29(1)(b)), an enhanced sense of identity and affiliation
(29(1)(c)), and his or her socialisation and interaction with others (29(1)(d)) and with the environment (29(1)(e). Thus
Article 29(1) of the CRC not only adds to the right to education recognised in Article 28 a qualitative dimension which
reflects the rights and inherent dignity of the child; it also insists upon the need for education to be child-centred,
child-friendly and empowering, and it highlights the need for educational processes to be based upon the very principles
it enunciates (The Aims of Education: 17/04/2001, CRC/GC/2001/1, CRC General Comment 1, U.N.). Hence, the State
governments in India need to develop educational policies that are well in tune with the social realities.
Human rights and human development share a common vision and a common purpose - to secure the freedom,
well-being and dignity of all people everywhere - and hence both are about securing freedoms. Human rights
presuppose that all people have legitimate claims for social arrangements, which protect them against all forms of abuses
and deprivations, which entitle all people to the freedom for a life of dignity. Human development is a process of
expanding and enhancing capabilities by increasing choices and opportunities so that all people can lead lives of respect
and value. Thus, when human rights and human development progress together, they quite obviously support and
reinforce each other, thereby expanding all people's capabilities and protecting their rights and fundamental freedoms
(Human Development Report 2000, UNDP).
The "goal rights system" (Amartya Sen, 1982, 1985) liberates the system of rights from the narrow confines of
constraint-based obligation by demanding active steps towards the fulfilment of rights. The general formulation of the
goal rights system leaves open the question of what substantive rights needed to be included as part of societal goals.
Amartya Sen himself has argued for considering "capability rights" as the substantive content of goal rights. In this view,
societal goals should include the fulfilment of the people's right to capabilities. If one adopts this perspective in the
context of the 93rd Constitution Amendment, then the right to education is to be viewed as a proxy for the more
fundamental rights to the capabilities that derive from access to education, namely, the capabilities of being free from
ignorance, being educated and being able to avoid illiteracy and vegetative existence, being able to participate actively in
society, and so on. Thus, the extent to which the people's right to education is fulfilled will then be assessed by the extent
to which these capabilities are being attained. Also, the right to education will entail as obligation any action that others
can take to improve people's capabilities. This is because capability rights are perceived as goal rights, whose fulfilment is
supposed to be part of societal goals (Osmani, 2001).
The human rights and human development policies in India have acquired their meaning, relevance and significance
from the Constitution, which has for its credit provisions setting goals for a social revolution - such as the Directive
Principles of State Policy, the Fundamental Rights, the articles protecting minority rights, and those assisting the weaker
sections which have somewhat diminished the repression of hierarchy and the effects of the indifference among the
upper castes and classes to the conditions of the lower castes and classes (Granville Austin, 1999). All these developments
have undoubtedly affected the governance administration in India and would continue to do so in the years to come. But
the right to education as guaranteed by the new Amendment has a greater role to play, because education is the means of
self-realisation and self-expression and the physical, social, emotional and spiritual development of human beings.
Education is the only means to help Indian children escape from the infernal cycle of poverty and succeed in their
struggle for survival in the street, in servile jobs or in institutionalised ignorance.
THE Constitution has two specific chapters that broadly reflect the human rights and human development policies for
governance administration. They are the chapters on Fundamental Rights in Part III and Directive Principles of State
Policy in Part IV. The Constitution guarantees fundamental rights to all citizens. These rights are fundamental because
they are basic human rights and can be interpreted to mean civil and political rights. Articles 12 to 35 of the third chapter
of the Constitution elaborate on the fundamental rights and their importance in democratic life. The six fundamental
rights mentioned in the Constitution are: 1. Right to Equality, 2. Right to Freedom (of speech and expression, to
assemble peacefully and without arms, to form unions and associations, to move freely within the territory of India,
to live in any part of India, to practise any profession or occupation), 3. Right against Exploitation, 4. Right to Freedom
of Religion, 5. Cultural and Educational Rights, 6. Right to Constitutional Remedies.
Articles 36 to 51 outline an important part of the framers' vision for good governance administration, which
unfortunately was given scant regard to for many years by the state, either because of economic limitations or by
deliberate political choice. Together, these are known as the Directive Principles of State Policy. Here are some examples
of the Directive Principles:
Article 38: The state shall secure a social order for the promotion of welfare of the people; Article 39: The State shall, in
particular, direct its policy towards securing - a. that the citizens, men and women equally, have the right to an adequate
means of livelihood; b. that the ownership and control of the material resources of the community are so distributed as
best to subserve the common good; c. that the operation of the economic system does not result in the concentration of
wealth and means of production to the common detriment; d. that there is equal pay for equal work for both men and
women; e. that the health and strength of workers, men and women, and the tender age of children are not abused, and
that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; f. that children are
given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that
childhood and youth are protected against exploitation and a
gainst moral and material abandonment.
The provisions contained in this part are not enforceable by any court of law, but the principles laid down are
nevertheless fundamental in the governance of the country and it is the duty of the state to apply these principles in
making laws (Article 37, Constitution of India). The object of the Directive Principles is to embody the concept of a
welfare state (Kesavananda Bharati vs State of Kerala). Interestingly, the Directive Principles, according to later decisions
of the Supreme Court, have been held to supplement fundamental rights in achieving a welfare state. The contemporary
relevance of human development policies in India may be traced back to the debate of including the chapter on Directive
Principles of State Policy in the Constitution. Some critics received the idea of Directive Principles sceptically. Dr. K.C.
Wheare doubted "whether there is any gain on balance from introducing these paragraphs of generalities into a
Constitution". Notwithstanding this scepticism, experience has shown that the
Directive Principles have been a guide for Parliament and the State Legislatures. The balance between the two is now
considered part of the 'basic structure' of the Constitution (the Minerva Mills case).
IN addition to this, the Directive Principles of State Policy have been a great source of legal, jurisprudential and
constitutional support for the judiciary in making decisions, besides guiding governmental bodies in formulating human
development policies, thereby promoting good governance. The Government of India Fiscal Commission of 1949, for
example, recognised that its recommendations should be guided by the Directive Principles. "It is obvious," the report
said, "that a policy for the economic development of India should conform to the 'objectives' laid down in the Directive
Principles of State Policy." Thus, it may be inferred that the Constitution has the basic framework upon which the human
rights and human development polices of the country may be formulated for effective governance. But the integration of
these two policies involves an approach that is highly demanding and ambitious upon the judiciary and other wings of
government.
The Indian judiciary is mature enough to respond to this challenge of governance administration and hence need to play
a pro-active role, thereby guiding Parliament and the executive towards greater integration of human rights and human
development policies. The Supreme Court has already, through its creative interpretation of fundamental rights and the
Directive Principles of State Policy, given legitimacy to the argument. It remains to be seen how far the other sections of
the judiciary, including the High Courts and the lower courts, respond to the arguments of the Supreme Court and
whether they are able to use these judgments to influence governance administration at the local, district and municipal
levels. Also, the Supreme Court may itself adopt measures in the form of sanctions that would serve as enforcement
guidelines to the executive, in the event of its non-adherence to these judgments that affect governance administration.
Human rights are the rights possessed by all persons, by virtue of their common humanity, to live a life of freedom and
dignity. They give all people moral claims on the behaviour of individuals and on the design of social arrangements - and
are universal, inalienable and indivisible. Human rights express our deepest commitment to ensure that all persons are
secure in their enjoyment of the goods and freedoms that are necessary for dignified living. Human development is the
process of enlarging people's choices, by expanding human functionings and capabilities. Human development thus also
reflects human outcomes in these functionings and capabilities. It represents a process as well as an end. In the ultimate
analysis, human development is the development of the people, for the people and by the people (Human Development
Report 2000, UNDP).
The fundamental idea of human development, which believes in enriching the lives and freedoms of ordinary people, has
much in common with the concerns expressed by various declarations of human rights. Thus, the promotion of human
development and the fulfilment of human rights undoubtedly share a common motivation.
It would be interesting to examine as to how far this basic shared motivation between these two concepts to fulfil the
commitment to achieve equality and dignity for all lives may be actually transferred for the integration of these two
policies. An example of such a harmonious integration is the development of a fundamental human right to education
within the Constitution. It remains to be seen how far it has helped to implement the human development policy of
achieving literacy.
C. Raj Kumar, a Visiting Researcher at the New York University School of Law, New York, was a Rhodes Scholar at
the University of Oxford and a Gammon Fellow at the Harvard Law School.