*Kathyayini Chamaraj

Though the Right to Education has been made a fundamental right under Article 21A by the 86th Constitutional Amendment and operationalised by the Right to Education Act in 2010, free and compulsory elementary education (F&CEE) remains a dream for a large number of marginalised children. Providing F&CEE to all children is not only a Constitutional mandate, but also an important component of the Millennium Development Goals. As per official figures, the drop-out rate, i.e. proportion of children of the target group who do not complete eight years of compulsory schooling, is about 45 percent nationally. This represents a huge wastage of human resources. These children are trapped in the vicious cycle of illiteracy - child labour - poverty and grow into unemployable adults. It is essential to break this cycle to enable them to come out of poverty.

The Karnataka High Court has taken a pioneering step in this direction by initiating a suo motu PIL questioning the Karnataka government on the huge numbers of out-of-school children in the State despite the implementation of the RTE Act. This initiative was triggered by a report in the Bengaluru edition of `The Hindu' of April 30, 2013, according to which more than 51,000 children were out of school in the State. This writer, on behalf of CIVIC Bangalore, impleaded herself as party-in-person in the PIL and made substantive submissions to the Court on the issue.

Though it is accepted that F&CEE is a state responsibility, Karnataka's RTE Rules did not hold any official accountable for a child out of school. Nor was there a protocol laying down what the officials concerned should do to prevent children from dropping out. As a result, the Fundamental Right to Education remained only a guarantee on paper for a large number of children of the target group.

At the root of the problem was the definition of a `drop-out' under the Karnataka Rules: "Any child remaining absent in excess of 60 days in any academic year (excluding medical grounds) and not presenting himself to school thereafter". This seemed to suggest that a child can remain absent for 60 or more days out of about 210 school working days and that departmental officials need not do anything to bring the truant child back until the end of the academic year. This unconcern was in a large measure responsible for these children becoming child labourers, victims of trafficking or getting sucked into illegal activities and losing their childhood.

In their response to the questions posed by the Court, the Government dwelt on its `curative' approach to the problem of drop outs. The non-formal bridge courses run by the Government target the children who have become confirmed drop-outs. Nothing is done by way of prevention. This is like bailing out water from a leaky boat with a ladle. Unless the `leak' is first plugged by stemming the drop-outs, any amount of bridging programmes would be futile.

Need for a preventive protocol:

Studies were cited in the Court to show that a majority of parents and children had listed economic compulsions as the reason for children dropping out. Rule 4(9) of the Karnataka Right of Children to Free and Compulsory Education Rules, 2012, stated, "The CPI (Commissioner for Public Instruction) or Local Authority shall ensure that access of children to the school is not hindered on account of social and cultural factors". But there was nothing further in the Rules to clarify how the CPI or the Local Authority would achieve this.

The Court was apprised of the international best practices in this domain. According to Jaap E. Doek of the UN Committee on the Rights of the Child, when parents are poor, "the solution (in addition to compulsion on parents) is to make a sub-provision for mitigating factors". The mitigating factors can be listed and "the state should develop the criteria for eligibility upon which poor parents are to be assisted in fulfilling their duties to their child". Where the parents are poor, the state should consider a subsidy to parents on condition that their child comes to school. Parents should apply for the subsidy and the criteria for eligibility to the subsidy should be developed1.

This view receives support from Article 18(2) of the United Nations Convention on Rights of the Child (UNCRC), which requires the state, in case parents are unable to provide the rights of children for any reason, to "render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities" and to ensure the development of institutions, facilities and services for the care of children". Further, Article 19 of the UNCRC enjoins States parties to "take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child."

Article 41 of the Constitution of India also enjoins the state to make effective provision for securing the right to education. Article 46 calls upon the State to "promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the scheduled castes and the scheduled tribes and shall protect them from social injustice and all forms of exploitation".

This is the approach adopted in the most successful initiatives for ensuring universal education. An outstanding example is furnished by Brazil's `Bolsa Familia' programme of conditional cash transfers to parents to ensure regular attendance of their children in school. Having regard to the international best practices, one may conclude that the focus of state intervention should be on preventing drop-outs, and not on rehabilitating drop-outs-turned child labourers.

The Court also felt that it was preferable to incentivise parents to send their children to school by means of scholarships rather than to `compel' them to do so. The Court asked this writer to compile a list of the scholarships available and analyse their effectiveness. Her analysis showed that the selection of children for award of scholarships under many of the schemes was linked to the possession of a BPL ration card by the family. Such schemes were likely to be riddled with the inclusion and exclusion errors that plagued BPL ration cards. As a result, the genuinely needy child could get left out of the intended support.

The income criterion for BPL cards also tended to be very low. In contrast, some other schemes had very generous thresholds going up to an annual household income of Rs. two lakh. In spite of this, all eligible children could not be covered as the amounts allocated for the scheme were inadequate.

Meagre and differing amounts as scholarships:

In many of the scholarships, the amounts were as low as Rs.250 to Rs. 750 per year (SC/ST scholarship) and clearly not enough to retain a child in school. However, there also were schemes like the Central government scholarship for minorities that offered more substantial amounts, of Rs. 1,000 or more. This resulted in undue discrimination among equally vulnerable children. The need to redefine the eligibility criteria for scholarships under the RTE Rules and for placement in a free hostel or residential school taking into consideration the family's social, occupational and locational vulnerabilities was stressed before the Court.

It was suggested by this writer that the term "Child belonging to disadvantaged group" should be redefined to include orphan, migrant and street child, child with special needs, HIV affected/infected child; child from single woman-headed household, child belonging to landless labourer, rag-picker, domestic worker, street vendor, or other casual worker in the informal sector, child living in a slum, hut, tent without basic amenities, child with disabled parent or sibling, or belonging to a family headed by an elderly person with no other support. She also suggested that the term "Child belonging to weaker section" be redefined as a "Child belonging to a parent or guardian whose annual income is lower than the annual salary of a regular Class IV employee of the government as revised every year in keeping with the rise in the cost of living".

All the above categories of children had to be identified and granted the scholarship at the time of enrolment to ensure their continuous attendance and preclude the possibility of their dropping out. It was also submitted to the Court that the Education Department should devise a uniform scheme of scholarships exclusively under the RTE Act for all identified vulnerable children as per the criteria mentioned above. All departments should be asked to transfer their scholarship budgets to a common Head operated by the Education Department, from which the scholarships would be disbursed to all vulnerable children equitably. Regrettably, no action has yet been taken by the State to rationalize and harmonize the scholarships.

Children from destitute households as well as those who are unable to attend school due to other hardships ought to be placed in free government hostels, residential schools or other suitable institutions. The incremental outlay on education is more than justified by the benefit accruing to the state if each and every child attains a functional level of literacy and numeracy. It has been shown that investment in free and compulsory education is the best investment that a country can make.

This writer informed the Court that the analysis of the enrolment figures of the department showed that more than 6 lakh children had dropped out before completing the prescribed duration of education. The Court thereupon ordered a fresh survey of out-of-school. After surveying more than 1 crore households, the Education Department came up with the figure of 1.67 lakh out-of-school children. The Court directed the Department to bring this figure down to `near zero'. This writer submitted that it was not enough to rehabilitate the 1.67 lakh children; one had to address the root causes of dropping out and prevent future drop-outs.

The reasons for dropping out had been grouped under 11 categories under the survey. Out-of-school children had cited family labour, child labour, migration, girl children attaining puberty or being married off, distance to school and severe disability as the main reasons for dropping out. It is significant that the poor infrastructure or environment in schools or fear of teachers were cited by a very insignificant number as reasons for dropping out. This writer suggested solutions for addressing these root causes in order to prioritize prevention of future drop-outs.

As 29,491 children had cited migration as the reason for dropping out, it was submitted that the Rules should ensure that school authorities provided free hostel facilities for such children. Furthermore, the onus of placing the children of migrant parents in hostel should be put on the employers/contractors/parents, if the period of migration is less than one academic year, so as not to disrupt their schooling.

The government's response was that schools in tents were being run for migrant children. This meant that they were not getting education as per Article 28 of the UN Rights of the Child (UNCRC), which India has ratified, and which requires the States to make primary education compulsory and free, `on the basis of equal opportunity'. It also contravenes the UNESCO Convention Against Discrimination in Education, 1960. According to Jaap E. Doek, in many countries, parents, who take their children on holidays when school is on, can be prosecuted. This is further reinforced by Article 9(1) of the UNCRC, which states that a child may be separated from its parents, in accordance with applicable law and procedures, when such separation is necessary for the best interests of the child.

In line with the preventive and rehabilitative approaches, it was submitted by this writer that for every Gram Panchayat/urban ward, separate Attendance Authorities (AA) should be appointed under the State RTE Rules. These AAs should be made responsible for the implementation of Sections 3 and 4 of the RTE Act and elimination of child labour in the area by liasioning with the Gram Panchayat or Municipal Standing Committees on Education, Child Rights Task Forces and School Management Committees.

The lack of convergence between the Education Department and other departments, such as Labour and Social Welfare, was highlighted by this writer. The Court set up a High Power Interdepartmental Coordination Committee (IDCC) comprising the Chief Secretary, 17 senior functionaries of various departments and 4 experts to bring about convergence of services on the family of the vulnerable child and to monitor and review the implementation of various Court directives. This writer and the amicus curiae appointed by the Court were made special invitees to the Committee.

Duty of the state does not end with establishing a school.

The Government argued at the IDCC meetings that the duty of the state ended with providing a school within the neighbourhood and that the state could not do anything if a child still did not come to school. The Government also questioned whether an unwilling child could be forced by the state to attend school. This writer pointed out that the state is duty bound to ensure that every single child is in a formal learning situation, which alone would guarantee the equality of opportunity and treatment and quality education, as enjoined by the UNESCO Convention Against Discrimination in Education.

Article 1 of the said Convention states:

"For the purposes of this Convention, the term `discrimination' includes any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education and in particular: 

(a) Of depriving any person or group of persons of access to education of any type or at any level; 

(b) Of limiting any person or group of persons to education of an inferior standard; 

(c) Subject to the provisions of Article 2 of this Convention, of establishing or maintaining separate educational systems or institutions for persons or groups of persons; or 

(d) Of inflicting on any person or group of persons conditions which are in-compatible with the dignity of man."

The freedom to stay out of school is not given to any child under any law on free and compulsory education in any part of the world. Everywhere, `compulsory education' is understood as the `compulsion on a child to undergo education', as it is a public and social good. To enable a child to undergo education, both the state and parents have obligations to fulfil. It is universally accepted that a child has both `a duty and a right' to undergo education. This was the reason why a Directive Principle of State Policy had to be elevated to the level of a Fundamental Right. If India is lagging behind in the human development indicators, it is partly because of the fact that the Constitutional guarantee of universal education is yet to become a reality for millions of marginalized children.

Good schools alone will not ensure 100% UEE.

The Government's contention was that if the schools are good, children would attend them voluntarily, obviating the need for compulsion by the state. It was pointed out to the Committee that one could not wait for all schools to become perfect; the right to education has to be effectuated even if the schools are less than perfect. Moreover, three years after the expiry of the grace period allowed in the Act, the Government was not prepared to set a timeframe within which all government schools would be upgraded to comply with the RTE norms on infrastructure. Further, there is no empirical evidence to show that there are no out-of-school children in the neighbourhood of good schools. A good neighbourhood school does not address the economic conditions which compel the parents to keep their children out of school.

Persuasion of parents is not enough.

Certain sections of civil society had argued in the course of the hearings that the solution to out-of-school children lay only in persuading the parents to send their children to school. It was opined that coercive action by government officials, such as Attendance Authorities, would criminalize the parents and children, creating an environment of fear. This view overlooks the fact that the official machinery is vested with such powers to enforce other social legislations, such as that against child marriage. While one cannot discount the value of persuasion in changing the attitude of parents, safeguarding a child's fundamental right to education cannot be made contingent on it.

Need to prescribe a timeframe for ensuring that every child is in school

What should one do if a child does not want to go to school, or her parents do not send her to school even where there is a good school in the neighbourhood, or because her parents do not yield to persuasion? Can such children be allowed to forgo their fundamental right to education? Irrespective of the externalities, a child's fundamental right to free and compulsory education needs to be safeguarded by a protocol which ensures that by a certain date every child is in a formal learning situation, either as a day-scholar, or in a free residential school.

Cash incentive is not money down the drain.

It was also argued by some in the Government that payment of cash incentives/scholarships to keep children in school would be so much money down the drain. In fact, paying a conditional cash incentive to a vulnerable child now is the more economical option for the nation. A child who drops out of school will remain illiterate and unemployable and be a burden on the state and society. The outgo on subsidized food, shelter, doles, etc. will be much greater.

Moreover, an illiterate adult will be unable to access the government services and benefits and will be dependent on middlemen, opening up the possibilities of corruption. She will also be subject to exploitation by employers and other economic operators. An active citizenry which engages with the political system is a sine qua non for democracy. An illiterate person is ill-equipped to engage with the political system and is easily persuaded by flattery and favour to vote for corrupt or criminal elements. This weakens the very foundation of democracy in the country.

According to the UNESCO, if all women were educated, there will be a sharp drop in the mortality rate of children under 5 years. The number of child brides would also be reduced, resulting in fewer early births and maternal deaths2. 

In short, cash incentives for retention of children in school should not be seen as doles, but as investment towards national development, economic growth and poverty alleviation with a high rate of return. Such incentives need to be provided only for the first generation of children to break the vicious cycle of illiteracy and poverty, as educated parents are more amenable to sending their children to schools without being compelled by the state.

A soft state fails to enforce F&CEE.

Gunnar Myrdal, writing way back in the sixties, has underlined the lack of will to enforce F&CEE in India and other South Asian countries3.

"The responsibility of parents for keeping their children in school has not become a firm part of the mores in most South Asian countries...and no country has an administration prepared to enforce laws that could radically change these mores. Until discipline becomes the general pattern in government and in the life of the people, it is doubtful whether this particular evil can be combated by means of legislation. At the same time, `the tardiness in enforcing compulsory primary education in most areas and a minimum school-leaving age fails to inject urgency into the community'. Unfortunately, the South Asian countries - being `soft states' - are not yet prepared to meet this problem."

Half a century later, the suo motu PIL initiated by the Karnataka High Court has injected a sense of urgency into the bureaucracy and as a result of the proactive measures taken the number of out-of-school children in the state has reduced from 1.67 lakh to about 37,000, out of which about 20,000 have migrated out of the state and are yet to be traced.

Changes effected through the intervention of CIVIC

As a result of CIVIC's interventions in the Court, the following changes have been made by the Education Department.

• The responsibility to ensure infrastructure in government schools as per the RTE Act has been placed on the local bodies Grama Panchayat Civic Amenity Committee and Municipal Education and Social Justice Committees.

• These committees are to keep a database of all the target group children and ensure F&CEE.

• Municipalities, taluk and district-level committees of rural local bodies have been made responsible for the implementation of Sections 3 and 4 of the RTE Act for ensuring F&CEE and elimination of child labour in the area.

• Grievances are to be addressed by taluk and district- level committees of local authorities before one approaches the State Commission on Protection of Child Rights, which is designated as grievance authority in the RTE Act.

• The definition of a drop-out has been changed from that of a "child that does not attend school for a continuous period of sixty days" to "a child that has unexcused absence of seven working days".

• A `preventive' protocol proposed by CIVIC for the Education Department to bring every child back to school within a timeframe has been incorporated in the RTE Rules by inserting the following Rules.

Rule 6A designates the three Education Coordinators in the Block Education Office in each cluster as `Attendance Authorities' ("AA"). They are to issue Attendance Notices to the parents of children in the age-group of 6-14 years one month before the beginning of the academic year for the information of respective parents that they are under obligation to send their child to the recognised neighbourhood school from the beginning of the next academic year.

Rule 6B provides for the issuance of an Attendance Notice by the Attendance Authority to a parent who fails to send his child to school even seven days after commencement of the academic year or the child remains absent for seven days without reasonable excuse for non-attendance.

Rule 6C enumerates the "Reasonable excuses for non-attendance", such as the child is enrolled elsewhere, is receiving instruction in a recognised institution, etc.

Rule 6D outlines the measures to be taken by the AA if the parent fails to send the child to school despite Attendance Notice. The AA shall, along with the SDMC, NGO, and the local authority, counsel and persuade the parents, failing which it shall issue an Attendance Order

directing the parent to appear before the district-level Child Welfare Committee. The CWC shall go into the reasons for non-attendance of the child and sanction suitable economic assistance to the family, if found eligible for the same. If these measures fail, the CWC shall treat the child as "a child in need of care and protection" under the Juvenile Justice Act and enrol the child in a hostel linked to a school or a residential school or fit institution.

The Labour Department has issued a Government Order asking all Deputy Labour Commissioners to ensure that employers/contractors ferry all 0-6 year olds and 6-14 year olds at their work-sites to the nearest anganwadi and school, respectively.

Thus, a preventive approach has been institutionalized in place of the earlier curative approach of rehabilitation. The responsibility for ensuring that every child is in school has been placed on government officials and the `appropriate government'. The aforesaid protocol under Rule 6 incorporates into the Rules the spirit of the 1997 Karnataka High Court judgement by Hon'ble Justice V. P. Mohan Kumar in A. Sriram Babu vs Chief Secretary to the Government of Karnataka, Bangalore4, which states: "... the guardianship of a minor vests in the Sovereign, i.e., the State. Hence, de hors the above provisions, it has a duty to take care about the welfare of a minor... The Sovereign had entrusted the guardianship to the parents. If they fail, the Sovereign can resume the right."

Thus, for the first time, the key provisions of Articles 41 and 46 of our Constitution and the relevant provisions of the UNCRC, namely Articles 9(1), 18(2), 19, 28 and 32, have been written into the RTE Rules of Karnataka in the form of this protocol as a means of enrolling and retaining every child in school and actualising the Fundamental Right to Education promised by Article 21A. This innovation can serve as a model for the entire country to make F&CEE a reality.


* Ms. Kathyayini Chamaraj is Executive Trustee of CIVIC Bangalore, an organization working on urban issues at the field and policy levels. Its current focus is on combating corruption by building transparency, accountability and people's participation in governance through the Right to Information.

2 The Hindu, September 25, 2013.

3 Myrdal G.,(1968),  Asian Drama. An Inquiry into the Poverty of Nations , 3 Vols., New York: Pantheon . 4 1998 (1) KarLJ 191


January March, 2015