Factsheet: Status of child rights with specific reference to RtE in Tamil Nadu

1           Introduction

Ensuring education for all children up to 18 years helps prevents child specific violations such as child labour, child marriage, child sexual abuse including child trafficking and child sex work and children in conflict with the law. There is national and state level commitment to the right of children to free and compulsory education, making civil society and citizen engagement possible.

Other important laws regarding child rights are the Protection of Children from Sexual Offences Act, 2012 (POCSO), The Child Labour (Prohibition and Regulation) Act, 1986 (amended 2016), The Prohibition of Child Marriage Act 2006, The Juvenile Justice (Care and Protection of Children) Act 2000 and the Pre–conception and Pre-Natal Diagnostic Techniques Act, 1994 (PNDT).

2           The national promise

India is party to the sustainable development goals (SDGs). SDG 4 and 16 are relevant in this context.

SDG4 Quality Education

4.1     By 2030, ensure that all girls and boys complete free, equitable and quality primary and secondary education leading to relevant and effective learning outcomes.

4.2     By 2030, ensure that all girls and boys have access to quality early childhood development, care and pre-primary education so that they are ready for primary education.

SDG16: Promote just, peaceful and inclusive societies

16.1   Significantly reduce all forms of violence and related death rates everywhere.

16.2   End abuse, exploitation, trafficking and all forms of violence against and torture of children.

16.3   Promote the rule of law at the national and international levels and ensure equal access to justice for all.

16.5   Substantially reduce corruption and bribery in all their forms.

16.6   Develop effective, accountable and transparent institutions at all levels.

16.7   Ensure responsive, inclusive, participatory and representative decision-making at all levels.

16.10 Ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements.

3           The state promise

The present government, in its election manifesto (May 2016), has prioritised education, promising (a) Enhanced standards in school education (b) Improved infrastructure in schools (c) Free breakfast for the elementary school children (under the Midday Meal Scheme) (d) Free Laptops with internet for 10th and 12th standard students.

4           The right

The Right of Children to Free and Compulsory Education Act (RtE) 2009, is an Act of the Parliament of India enacted on 4 August 2009, which describes the importance of free and compulsory education for children between 6 and 14 in India under Article 21A of the Indian Constitution and the modalities for implementation. India became one of 135 countries to make education a fundamental right of every child when the Act came into force on 1 April 2010. RtE is the first legislation in the world that puts the responsibility of ensuring enrolment, attendance and completion on the government.

The Act makes education a fundamental right of every child between the ages of 6 and 14 and specifies minimum norms in elementary schools. It requires all private schools to reserve 25% of seats to children (to be reimbursed by the state as part of the public-private partnership, PPP). Children are admitted into private schools based on economic status or caste based reservations. It also prohibits all unrecognized schools, and prohibits capitation fees and interviews of the child or parent for admission. The Act also provides that no child shall be held back, expelled, or required to pass a board examination until the completion of elementary education. There is also a provision for special training of school dropouts to bring them at par with students of the same age.

5           The status of education in Tamil Nadu

The fundamental right to free and compulsory education for all, enshrined in our Constitution in Article 21A is yet to be realized by a large number of our children. The state, over the decades, has been abdicating its constitutional responsibility with respect to provision of school, college and professional education of equitable quality for all children. This has been done by designing and permitting discriminatory educational facilities that provide varying quality of education to different sections of society and by increasing the space for the market forces (private sector) to set directions in policy formulation and educational planning. It is the constitutional obligation of the state to promote and finance all school education that is equal and non-discriminatory.

A national sample survey (2014) commissioned by Educational Consultants India, a Government of India (GoI) enterprise, and supported by the Ministry of Human Resources Development (MHRD) estimates that in Tamil Nadu about 50% of the children aged between 6–13 dropout from school (urban 51.59%, rural 55.41%). Homeless children and those living in slums are the most affected. Even in urban settlements with tenements, one cannot ensure that there are schools in the neighbourhood. Due to sheer distance, a lot of them dropout. Poor toilets and sanitation is another major reason for the high percentage of dropouts among girl students.

Tamil Nadu has Primary, Upper Primary, Secondary and Higher Secondary levels of schooling. For the administration of education, there are 385 Community Development (CD) Blocks, 64 Educational Districts, 412 Block Resource Centres (385 in CD Blocks and 27 in Urban Areas), 4,088 Cluster Resource Centres, 43,133 Village Education Committees, 17,371 Revenue Villages and 13,230 Panchayats. School Management Committees (SMCs) are being formed for elementary schools.

The female literacy rate is below 70% in 13 of 32 districts in Tamil Nadu (Dharmapuri, Ariyallur, Villupuram, Krishnagiri, Erode, Salem, Thiruvannamalai, Perambalur, Namakkal, Karur, Dindigul, Pudukkottai, and Theni).  In 12 districts the gender literacy gap is more than 20%.

The government has been encouraging the corporate sector by offering major subsidies every year. The government has also favoured the growth of private educational institutions under the PPP concept. Incidentally, the budget for implementation of RtE throughout the country is just half of the amount spent on organising the 2010 Commonwealth Games. To say that the country does not have enough funds to make RtE a reality is a farce. The Indian Constitution clearly says that it cannot be left to the states to provide people their rights according to convenience. It is not lack of funds that is a hindrance to the implementation of RtE but lack of intent and political will.

6           Problems to be addressed

6.1           Budget Allocation

The state has committed to spending Rs 241.3 billion (14.7% of the budget) for school education (up from an average of Rs 172.586 billion for the past five years according to the revised budget speech, 21 July 2016). This budget spend needs to be monitored by active citizens and civil society organisations to ensure optimal use and deployment as per the budget commitment. Framing a comprehensive policy for children could help in advocacy for amendments to various laws governing children.

6.2           Accountability to local government

As per the 73rd and 74th Constitutional Amendments, local government should be involved in the implementation of RtE. In practice no power is devolved to local government nor do they have well defined roles to play in school management and RtE implementation. Local government does not have the power to monitor the neighbourhood schools in the Village Panchayat area, Panchayat Union Wards or Municipal Wards. There is lack of accountability by schools to local government in the management and administration because the administrative control over the schools is vested with the school education department.

6.3           RtE omits children 0–6 and 15–18 years

RtE is applicable only to children from 6-14 years and denies the right of children 0–6 and 15–18 years. There are 7,423,832 children below six and 2,174,534 children between the age of 15 and 18, who are adversely affected by this omission. UNCRC defines every person below 18 years as a child. India has ratified the UNCRC and hence RtE must be for all the children below 18 years. The first and foremost omission in RtE is non-provision of preschool education for children under 6 years.

6.4           Disadvantaged Groups – ‘Weaker sections’ not rigorously defined

RtE is an omnibus legislation catering to all sections of the community. The so-called weaker sections have not been well-defined and has been left to the discretion of the states who have made a mockery of the same by prescribing annual income of up to Rs 300,000 as the eligibility criteria (According to the Socio-Economic and Caste Census 2015 (SECC) 92% of rural households reported a maximum monthly income below Rs 10,000 per month—less than 120,000 per annum). This has led to the more affluent sections making the best and most use of provisions regarding admission into private schools.

6.5           Regular monitoring

The Act doesn’t spell out clearly how to monitor schools. The undue emphasis of School Management Committees (SMCs) in this regard has proved to be wishful thinking. SMCs are nominated bodies and are filled with pliable parents and others. Being non-permanent honorary members they have little time to discharge the functions assigned to the SMCs. At present SMCs have a highly marginalized role. Even after six years of implementation of the Act, SMCs have been constituted only in 79% of the schools. In Tamil Nadu SMCs were constituted through nomination.

6.6           RtE is silent on safety standards

The Act has laid no norms for assessment of schools and grading them. It is silent on how to improve the schools. In Tamil Nadu there are many schools which do not have proper infrastructure, safety certificate, do not follow norms incorporated in the National Building Code, land area in violation of earlier government orders, RtE and Supreme Court directions. It is the responsibility of the school education department to see if the schools meet the appropriate standards and have the required clearances including the public building certificate, licenses and fire safety certificates.

6.7           Quality is not defined

In Tamil Nadu there are a multiplicity of Acts and guidelines, so no one knows what guideline which school is following. This has only helped commercially operating private schools of poor quality to enrich themselves with reimbursement of fee on admitting children under the 25% quota. This is nothing but diversion of public money to the private sector. Many matriculation schools and primary schools run pre-KG, LKG and UKG schools on the sly, without approval, permission or recognition from the education department.

Many of the schools have poor infrastructure and lack safety standards. According to the Justice Sampath Commission Report many of the schools that have proliferated in the past few decades have not obtained the mandatory recognition from the government and are run in “derelict structures” with a single entrance, narrow staircases, unclean toilets, unhygienic noon meal kitchens, and no safe drinking water. The commission also found that many schools had not obtained licenses for their buildings and that municipal authorities had issued sanitary certificates without visiting the buildings.

6.8           Violence

Violence is endemic in the system – both in private and government schools. The abuse of children, physically, emotionally or sexually is a gross violation of children’s rights – their right to live in dignity and security. Increasingly, the school environment has no protection against child abuse. Insensitivity to child rights and a culture of using violence against children for ‘disciplining’ is aggravated by the colonial educational rules sanctioning the use of corporal punishments in schools. Kneeling, making the student run around the ground and caning are forms of punishment which still exist in most schools. The state enforcement wing, prosecution and judiciary do not take sufficient preventive or deterrent action.

6.9           RtE is being diluted

The Government of India (GoI) has come up with an idea of boosting the Indian economy by a ‘Make in India’ plan. The plan is to supply cheap labour for the foreign investors who set up industries in India. To facilitate this the GoI has amended the Child Labour (Prohibition and Regulation) Act 1986 which paves the way for legitimising the child labour system. As per this new amendment, children between 14 to 18 years can also work in all but three hazardous occupations and processes.

The Child Labour (Prohibition and Regulation) Amendment Bill 2016 defines a child as a person who has not completed his fourteenth year of age. It goes on to further violate the definition of a child between 15 to 18 years as adolescent. It violates Article 32 of UNCRC which prohibits economic exploitation and is bound by Article 1 of UNCRC.

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