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4^th January 2009

To,

Dr. Vinod Raina

Sub.: On the �Right of Children to Free and Compulsory Education Bill, 2008�

On the �Right of Children to Free and Compulsory Education Bill, 2008� tabled in Rajya Sabha on 15^th December 2008: Focusing on deployment of government teachers on non-educational duties (Section 27).

Dear Vinod,

I have seen your response dated 3^rd January 2009 to my New Year call to the academia, activists and all other educated sections of the Indian society to take an unambiguous stand against the neo-liberal, anti-Constitutional and discriminatory character of the above �RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION BILL, 2008� tabled in Rajya Sabha in December 2008. Unless radically amended or freshly drafted, this Bill will do more harm to the children and the prevailing education system than any good. The grounds for this view have been stated by me in three articles last year viz. Tehelka (14 June), The Financial Express (09 November) and Dainik Bhaskar (30 December). All the three weblinks are given below:

http://www.tehelka.com/story_main39.asp?filename=cr140608cforcommerce.asp

http://www.financialexpress.com/news/education-bill-dismantling-rights/383177/

http://www.bhaskar.com/2008/12/30/0812301005_anil_sadgopal.html

I have noted the following issues raised by you in your above response:

(a) The �problems were with the Constitution itself.�

(b) Supreme Court�s Unnikrishnan Judgment (1993) and 86^th Constitutional Amendment along with the Article 21A were posing problems in drafting a more just and effective Bill.

(c) Regarding the private schools, the �Kothari Commission accepted their Constitutional validity and recommended that they be kept out of the Common School System.� In support of this you have cited Kothari Commission Report�s Section 10.77 on Article 19 of the Constitution.

(d) There are �some more impediments (like duties of Government servants for elections and decennial census, which includes school teachers appointed by the various Governments) as �per India �s Constitution�.

Some of these issues, particularly the one pertaining to the Kothari Commission in (c), have been raised by you earlier too. I promise to respond to each of these issues in detail in order to help build an informed debate in the country. In each case I will offer my constructive alternative, something many groups and teachers� organizations in the country have been doing for more than a decade. Of course, those representing the State and the neo-liberal forces not only ignored the analysis and the pleadings but also chose to confuse the debate and divert attention from the basic issues. My issue-wise response will be presented in the course of the next few days or may be a week.

Right now, I am confining myself to seeking a clarification regarding the fourth issue in (d) above. Apparently, this must have been with reference to Section 27 in Chapter IV of the Bill. I quote this Section below:

�27. No teacher shall be deployed for any non-educational purposes other than the

decennial population census, disaster relief duties or duties relating to elections to the

local authority or the State Legislatures or Parliament, as the case may be.�

You seem to be of the view that this provision in the Bill is as �per India �s Constitution�. You would recall that this matter came up prominently in the CABE Committee on �Free and Compulsory Education Bill and Other Issues Related to Elementary Education� (2004-05), popularly known as the Kapil Sibal Committee, of which you were a member too. I had then asked the Chairperson Shri Kapil Sibal what is the rationale for putting in this highly discriminatory provision which invariably denies the majority of India�s children studying in government/ local body/ state-aided private schools regular teaching. While the government school children suffer due to loss of education, the private unaided school children gain as a result of the availability of their teachers without break. Shri Sibal, an acknowledged judicial expert, responded by saying that the Constitution required that only public servants like government teachers be engaged in decennial census and elections (he did not say anything about disaster relief duties). I asked him to provide the precise reference to the Article in the Constitution. I did not get an answer. Now, almost three and a half years later you reiterate the same view. I have searched the Constitution (including Articles 324-329) and do not find any reference to this requirement. I seek your help in locating this requirement which has been the source of major discrimination against the government school children and shall, as far as one can ascertain, be legitimized once this Bill is passed.

Presently, several state governments have passed orders to the District Collectors not to depute school teachers as Presiding/Polling Officers at the polling stations or assign them other election duties. I understand that there is some ruling by the courts too to this effect. However, all this discretionary action in support of the children by some of the state governments will also be nullified after the passage of the Bill.

Let me also raise the question that I raised at the Kapil Sibal Committee too: If elementary education has become a Fundamental Right and is also accepted as being crucial to national development, why is it not possible to amend the Constitution to put a halt to the anti-child and, more importantly, discriminatory practice of deputing the government school teachers on election duty and using them for decennial census? Pray, our Constitution has been amended at least 104 times (the last time I can recall). Why can�t it be amended 105^th time in the interest of the nation�s children and the future of India ?

You have been closely associated with the central government in the process of finalizing the Bill. You also met the PM in this regard. The Times of India recently identified you as one of the co-authors (along with Prof. R. Govinda, NUEPA, New Delhi ) of the Bill. You are now widely, and justifiably, acknowledged as the most articulate advocate of the Bill, outside the government. This is precisely why I am seeking the above clarification and answers to my queries from you.

Depending upon your response, we would know what stand to take with respect to Section 27 of the Bill and its impact on the Fundamental Right to Education of Equitable Quality.

In the meantime, I am working on my response to the other three issues raised by you in your email of 3^rd Jan. 2009.

Regards,

Sincerely,

Anil Sadgopal

Cc.: Prof. R. Govinda, NUEPA.

3^rd January 2009

I thought the problems were with the Constitution itself.

It is the 86th amendment of the Constitution that restricts the age from 6-14. The Bill can not undo this till Article 21A of the 86th amendment, taking cognizance of the UN Child Rights Convention that defines a child up to 18 and to which India is a signatory, is re-amended (which is dependent entirely on the agreement of the fractured political parties; it must however happen at the earliest and get reflected in the amended bill/act at that stage). Problematically, even the 1993 Unnikrishnan judgement of the Supreme Court ruled the right after age 14 to be dependent on the economic capacity of the state.

As for private schools, even the Kothari Commission accepted their Constitutional validity and recommended  that they be kept out of the Common School System (which is part of the National System of Public Education as elaborated in the Report):

"The right to establish private schools for any purpose whatsoever has also been given to all citizens under clauses (c) and (g) of Article 19 which provide that all citizens shall have the right 'to form associations' and to 'practice any profession, or to carry on any occupation, trade or business' and which obviously covers the right of individuals and groups to establish and conduct educational institutions of their choice. Private schools may, therefore, be established under the provisions of the Constitution and, if they do not seek aid or recognition from the State, they will have to be treated as being outside the national system of public education." (Section 10.77 of the Report).

Trouble is, these and some more such impediments (like duties of Government servants for elections and decennial census, which includes school teachers appointed by the various Governments) are 'per India 's Constitution'.

Regards,

Vinod Raina

3^rd January 09

On the �Right of Children to Free and Compulsory Education Bill, 2008� tabled in Rajya Sabha on 15^th December 2008:

The only thing that will make the year 2009 meaningful for India�s children will be to give them Right to Education as per India�s Constitution, not the Bill tabled in Rajya Sabha which is designed to fulfill the requirements of IMF-World Bank Structural Adjustments and the dominant neo-liberal policy framework. Would the civil society care to appreciate this critical difference between the two contradictory conceptions in the New Year? Or have we found our individual solutions in elite private schools and don�t need to care any more? Does the Constitution matter? Or does it already stand replaced by the global market? Can there be a Fundamental Right to unequal and inferior education? Should we legitimize discrimination in and through education? Please read this Bill objectively and act before it is TOO LATE!

-        Anil Sadgopal

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Prof.. Anil Sadgopal

E-8/29, Sahkar Nagar

Bhopal 462 039, M.P.