Dear Colin, The Indian Parliament could have enacted a statute for Right to Education anytime since the Constitution was adopted, using Right to Life, article 21, Directive Principle Article 45 or other aspects of Constitution as a basis, adopting any age group; 0-18 or even up to 21 years of age; even without enacting the 86th amendment. Nothing in the Constitution prevents that, or no amendments were/are needed for that. That is clear.
But the Indian state did not do that. It abdicated its responsibility and did not feel compelled to do so, even when the ground situation in terms of exclusion kept on swelling. Spurred perhaps by the Unnikrishnan judgment, it brought in Article 21A through the 86th Amendment in 2002 that restricted the fundamental right age group from 6-14; in the process in fact diluting the judgment in terms of age criterion of 0-14 years, and by asserting that the right would be given through 'a law that the state may determine', where as the judgment clearlly said that the right exists. Consequently, the process of drafting a statute was begun, first by the NDA Government and then by the present UPA government. But instead of using the age group 0-18, which it could easily bring in citing, for example, the JJ Act, the UNCRC and of course the original article 45 of the Directive Principles and the Unnikrishnan judgment, it chose to base the statute exclusively on article 21A, restricting the age group to 6-14. It has resisted attempts to enlarge this age group, contending that it was bringing in the statute only under the compulsion of Article 21A and no more. So where as nothing in the Constituion prevents the state from enlarging the ambit of the Statute, by locating it exclusively within Article 21A, the state has opted to restrict the age group. It is in this context, that if the only compulsion the state is prepared to accept is Article 21A of the 86th amendment, has the suggestion emerged that the way to further compel the state might be to try and amend this article to enlarge the age criterion. I do hope that clarifies the issue. Best wishes, Vinod 2009/1/6 colin.gonsalves <[email protected]> Dear Vinod, You write: "First about the age group 14-18, on which the 86th Amendment is silent. I mean it to be restrictive in terms of the formulation of the law that flows out of Article 21A, and not restrictive on the power of the state to bring in age 14-18 by other means. Since Article 21A defines the age as 6-14, and also says that 'in such a manner as the state may, by law, determine', the Bill flowing out of this to make the law gets, in my understanding, restricted to 6-14. That does not imply that the state cannot bring in a separate statute for the 14 -18 age group, as you say. In fact my question to you is: can the Bill flowing out of 21A (and not a separate statute) change the age parameters set by 21A? The legal opinions I got was that it cannot. The necessity, to my mind regarding re-amending the 86th Amendment comes because of the age group 0-6 on which the 86th Amendment is not silent. The requirement of right is not only for age group 14-18, but as importantly, or more, for 0-6, which was part both of the original Directive Principle Article 45 and the Unnikrishnan judgment. This age group now forms part of the new Article 45 under the 86th Amendment, asking the state to endeavour to provide ECCE to this age group, hence denying it its fundamental right. If that is now done through a separate statute, as for the 14-18 age group, that would contradict Article 45 of the 86th Amendment. I presume, it is the new Article 45 that needs to be integrated with Article 21A that necessitates an amendment. And if that is being done, it seem natural to integrate the age group 14-18 too with Article 21A. So my question to you is: can the right of 0-6 be given through a statute without amending Article 45 of the 86th Amendment?" I find this to be a re-statement of your original position. Who gave you legal advice to the effect that the state cannot enact a law granting a legal entitlement to free and compulsory education for all children upto the age of 18? I find the proposition so absurd that I think it would be very hard to find a lawyer who would give this advice. It is one thing to say, that education upto 18 is not a constitutional right and it is an entirely different thing to say that such a statutory right cannot be brought into force because it is restricted by a provision of the Constitution. Your additional argument now is that the new Article 45 (after the 86th Amendment) which states "the state shall endeavour to provide early childhood care and education for all children until they complete the age of 6 years", restricts the ability of the state to enact a statute for that group because that would "contradict Article 45". Pray why? If the new Article 45 requires the state to endeavour to do something and the state enacts a statute towards that end, what's the problem? Why would it "necessitate an amendment"? I find it alarming that in our movement on the Right to Education such elementary misconceptions prevail and are being circulated with such conviction. I have no doubt that the sowing of such seeds of confusion will do incalculable harm to the child's right to education. Warm regards Colin
