A Comparative Discourse On Education Rights in India and Sri Lanka
Education has been regarded as an end in itself. It has been considered by societies from time immemorial as a means to grow for an individual as well as for the society as a whole. It has been recognised as a human right as it is an indispensable obligation to preserve and enhance the inherent dignity of an individual.
“Education is the movement from darkness to light.”
Right to education is a socio-economic right. These rights are formulated to protect the interest of the individuals. These rights entitle the individuals to have sufficient access to certain socio-economic resources. Cecile Fabre argues that these rights are not simple moral rights, rather they are worthy of being constitutionalized since the interest protected by these rights is significant enough, that it becomes important to legally incapacitate the members of the legislature to enact laws that violate such moral rights. Therefore, these rights are significant enough and should be given the colour of constitutional rights. Putting forward by David Bilchitz’s argument, there are two kinds of rights, socio-economic and civil-political rights. And it cannot be said that interest protected by socio-economic rights is any less than that protected by civil and political rights. It is important to respect both the set of rights in an equal manner thereby, treating individual lives as of equal importance. As argued by Frank Mischelman, the significance of socio-economic rights can only be realised in a political system when diverse individuals who are free and treated equal, assent to it.
For decades, the universal goal of national governments, civil society, intergovernmental organizations and civil society has been to gain educational attainment every year.This commitment has been exemplified by various human right treaties and global efforts such as the education for All movement and the Millennium Development Goals. As per the goal of human rights-based approach to education, every child should attain quality education, that enables him to promote his or her right to dignity and achieve optimal development. In last four decades, it has been observed that focus on education has resulted in huge gains; worldwide primary school enrolments have increased from 418 to 702 million pupils, secondary from 196 to 531 million, tertiary level enrolments have grown from 33 to 184 million. The International Covenant on Economic, Social and Cultural Rights was the first international treaty to create universal Right to Education for all the people. The most important feature of Article 13 is that “education shall be directed to full development of human personality.”As per Human Rights Council Resolution, education requires constant improvement and is never fully improved.
POSITION OF RIGHT TO EDUCATION
The Supreme Court of India, in Mohini Jain’s (1992) case held that “Right to Education is concomitant to the fundamental rights”. This brought a legal revolution, which was later reconsidered in Unnikrishnan, J.P. v. State of Andhra Pradesh, where it was held by the Supreme Court that right to education is an inherent part of Right to Life under Article 21. Though it is not explicitly stated but is implicit under Article 21 of the Indian Constitution. Thereafter, article 21-A was inserted, by 86th amendment, in the Part III of the Indian Constitution, making ‘right to education’ a fundamental right for children between age group 6-14. Prior to 86th amendment, FCE was only a part of the policies of the State, finding its place as a DPSP under Part IV of the Constitution of India. The amendment reformed the education provisions and lead to the insertion of Article 21-A (FCE, 6-14 years).
Also, Indian constitution lays down fundamental duty under Article 51-A(k). It also brought an amendment in Article 45 (DPSP).
RTE Act had a very ambitious nation-wide plan, but till date, the country is not able to fully implement it. Experts believe India is nowhere near of achieving its dreams of complete literacy. RTE Act has huge implications, it deals with issues like minimum standard of infrastructure in public and private schools, reservation of seats for economically weaker sections in private schools and at the other end of the spectrum, it talks about curriculum and teaching learning process in the schools. Some of these aspects are aspirational, they are about a vision and don’t seem to be about immediate implementation.
Sri Lankan Constitution
The Right to Education is not a fundamental right, enforceable under the constitution of the Sri Lanka. Article 27(2) (h) under Chapter IV of the constitution of 1978, provides for Directive Principles of State Policy, which states that State shall work for “complete eradication of illiteracy and the assurance to all persons of the right to universal and equal access to education at all levels.” But it does not lay down specifically for free education, nor the right to non-State education. Also, it doesn’t specify the content and quality of the education. But Article 27(13) states that State shall ensure ‘full development’ of children and youth, including education in its widest sense, ensuring reasonable quality of the same. Although, there’s a clear manifestation under Article 29 of the constitution of 1978 that these principles are not justiciable in nature, nor do they create any legal right or obligation. These rights are not enforceable in any court of law or tribunal.
The Judiciary in Sri Lanka has played an indispensable role in the field of education, through judicial activism. This was first reflected in an important judgment delivered by Supreme Court in 2007, where Supreme court exercised the fundamental right to equality as guaranteed under Article 12 of the Constitution of Sri Lanka, to prove the violation of the child’s right to education by the State authorities, since there is no explicit fundamental right to education in present Sri Lankan constitution.
The achievement of the Judiciary in Sri Lanka can essentially be realized by its activism in demarcating new dimensions of the fundamental right of Equality. The provisions of right to equality as guaranteed under Article 12 of the Sri Lankan Constitution (1978) find their reflection in the provisions of Equality as guaranteed under Article 14 and 15 of the Indian Constitution, to a significant extent.
The initial phase of the Supreme Court jurisprudence of Sri Lanka was based on the traditional doctrine of ‘reasonable classification’ evolved by US Supreme Court. The Supreme court of India adopted the new doctrine on Equality which was subsequently embraced by the Sri Lankan Supreme Court, which brought new dimensions to equality, where right to public administrative justice is devoid of any executive or administrative action.
In E.P. Royappa v. State of Tamil Nadu. Bhagwati, J. held that:
“Equality is a dynamic concept with many aspects and therefore, it cannot be ‘cribbed, cabined and confined’ within the traditional and doctrinaire limits. Equality is antithetic to arbitrariness. Equality and arbitrariness cannot exist together, this is evident from the fact that where an act is arbitrary, it will be unequal both according to political logic and constitutional law and is therefore violative of Article 14.” Subsequently, this decision was unanimously approved by the Supreme Court in Ajai Hasia v. Khalid Mujib.
In Sri Lanka, the beginning of the Fundamental jurisprudence was marked by the Supreme Court in a landmark judgment, Palihawadana v. Attorney General & others, where the Supreme Court held that, Article 12 denotes equality before the law and equal protection of law. It has been stated by the Court that it is not possible to attain equality in strict sense. It is legitimate to have a reasonable classification, for application of law and for operation of an administrative scheme. What is outlawed is class legislation and not the Reasonable classification. The main principle on which Article 12 rests is that all persons in likewise situation shall be treated alike both in terms of privileges conferred and liabilities imposed. The cardinal rule is that classification must be reasonable and not arbitrary. The idea must be to establish a just and reasonable relation to the object that is required to be achieved.
Therefore, the Sri Lankan Supreme court held that any questions relating to admission of the students to Grade 1 in National and other schools fall under Article 12(1) of the 1978 Constitution of Sri Lanka.
As per Supreme Court of Sri Lanka, the limitation imposed by Article 29 cannot block the way of Article 27. Though the provisions laid down in Chapter IV are only the principles, non-justiciable in nature, but they shall be the source of directing the State for effective governance of the country in order to develop ‘free and just society.’ These principles are to guide the Parliament and Ministers for making the laws aiming progressive achievements in field of education and development for all the children of Sri Lanka.
In, Seneviratne v. University Grants Commission, (1978-80)
Wanasundera J. referred to Kesavananda Bharti v. State of Kerala, where the Supreme Court emphasized on the significance of the Directive Principles of State Policy, stating that “they hold a place of honour in the Indian Constitution and constitute the conscience of the constitution.”
Despite of not having ‘Right to Education’ as a fundamental right in 1978 Constitution, through whole of the South Asia, Sri Lanka is having the exceptionally highest literacy Rates worldwide. The statistics of 2012 and 2013 shows that the literacy rate of children aged 6 years and over was 95.6% (2012) and for adults, i.e., 15 years and over, it was 91.8% (2013). Despite being in lower group countries, Sri Lanka has achieved considerable developments in the field of education in a span of 60 years. In 1946, just when Sri Lanka got Independence from Britain, the literacy rate was only 57.8%. Almost 20% of the country’s population fall below poverty line, still it has succeeded to achieve such higher rate of literacy. The prevailing circumstances in the country did not affect the imparting of education process in the country. While the global adult literacy Rate is 86.3%, the Rate is higher in Sri Lanka. And Sri Lanka had been successful in bringing down illiteracy rate from 43% to 8%. Despite of the fact that the country had undergone a civil war that began in 1983 and sustained till 2009, by the Liberation Tigers of Tamil Eelam (Tamil Tigers) demanding an independent Sate for Tamils in the north and East of the country, more than 2500 people died and more than half a million Tamils left the country to seek refuge in India and other countries. However, there is lack of discussion about the impact of civil war on the education system in Sri Lanka due to its shift on dominant global neo-liberal ideology. Institutions like world bank, aim at implementing neo-liberal ideologies as universal norms. Whereas the understanding of education should always be the central focus within the socio-political context as what is formed is a social right.
When we compare things such as military, technology, space exploration and geo-political influence, India stands head and shoulders above rest of the South Asian Countries. But when it comes to Standard of living, Sri Lanka has proved itself far better than its SAARC peers. Sri Lanka’s per capita income is 12,262$, which is more than every south Asian Country, including India (7153$). Sri Lanka also has the highest literacy and the lowest poverty rate. Sri Lanka and Maldives are the only South Asian Countries with high Human Development. There are many reasons for success for Sri Lanka, first being high rate of literacy. Researchers have found a direct co relation between women’s literacy and the number of children in the country. Female literacy in India is only 65% compared to 92% in Sri Lanka. Therefore, family planning has been much more successful. India will keep growing its population till 2070. Smaller populations are easier to manage and the resources get split among fewer people.
As asserted by Harsha Aturupane, Senior Economist at the South Asia Region of the World Bank, the world bank finds the education system in Sri Lanka ideal. As claimed by Aturupane, the education system in Sri Lanka, now, is the most complete and advanced form of what it has been in the history, if taken as a whole. He says that the country must compete with more advanced and developed education systems as he appreciates the leaning outcomes of Sri Lankans in Math and English.
With the growing literacy, there had also been some shortcomings in the education system of Sri Lanka. It has been reported, that although there is a National Policy on disability, a high number of disabled persons are not given priority for special needs in government schools, whereas in India, government schools and colleges grant “reasonable accommodations” to documented disabled students. Disabilities Act, 1995 provides a right to free education to every disabled child, till the age of 18 years in integrated and special schools.
In the aftermath of independence, the government deemphasised the teaching of English and stressed on a system of ‘vernacular education’ by beginning with educational reforms in 1956. These reforms made education accessible for all, irrespective of race, gender, religion or caste. The Kannangara reforms introduced ‘Swabasha’ which made it mandatory for all the school systems to impart education in ‘mother-tongue’. As a consequence of which, the Sri Lankans lack English Language skills which are required for qualifying exams for various government as well as private jobs. Apart from this, English has served as a ‘link language’ between Tamils and Sinhalese, the decline in the learning of English language has been one of the reasons for ongoing conflicts between both the ethnic groups. Therefore, in 1983, the President Jayewardene announced to take steps, which a special focus on English language. The President Jayewardene government also established a system of free education in government schools which continues to exist even now. There have been several demands of right to education being made a fundamental right. A Draft Constitution has been prepared and was released in 2000 by the government. The chapter of fundamental rights has been drafted making considerable improvements as compared to 1978 Constitution. It includes Right to access to free education for children between 5 to 14 years of age. It also confers the power of Judicial Review, which was first inferred under the Soulbury Constitution of 1947.
In this changing and challenging world, it should be the goal as well as the responsibility of the State to provide children with best quality of education as it is one of the most significant governmental domestic function. As we’ve gone through the entire setting of Right to education in India and Sri Lanka, we can conclude that standing provisions with no practical implementation subsist only as bare meaningless letters of law.
(The author Anushka Gupta is student of LL.M.,(2017-2018) National Law University, Delhi)