Devesh Kapur has recently authored an overview of Indian politics and governance which makes for interesting reading. Subtitled “Conflicting prospects for the world’s most populous democracy,” the piece highlights both the positives and negatives of the current situation in India, and contains some stimulating assertions about various issues, including the courts and legal process in India. Kapur’s writings are typically deeply researched, and provide stimulating ideas about many contemporary issues of interest. (Click here for access to his working papers and here for his other published papers). My focus in this post is on Kapur’s analysis of the woeful situation regarding education in India:

“Critics of liberalization in India incessantly harp on the necessity of increasing national government expenditures on health and education. They are loath to admit that primary education and health are principally the responsibilities of the state authorities. Even the Marxist government in power in the state of West Bengal for more than a quarter century has failed to make much progress in providing universal primary health and education (the one realm where communist governments have had relative success). The reason is simple: an unwillingness to enforce the basics of public administration by ensuring that well-paid government employees—from health workers who don’t show up at clinics to teachers who don’t show up to teach—do their jobs, because those same civil servants are an intrinsic part of the ruling party.”

While Kapur may be right in pointing out that the states in India should take greater responsibility for education, the legal and constitutional history of the issue is not so clear-cut.

In British India, at least since 1935, education had been listed as a subject for which only the provinces (states) could enact legislation. Granville Austin tells us that during the drafting of the constitutional provisions relating to education in the constituent assembly, there was a debate among the framers about whether education should be shifted to either the union or concurrent lists, so that the Central government would be able to enact laws on education. Maulana Azad, who went on to become independent India’s first Union minister for Education, strongly opposed leaving education entirely to the states, and garnered support for his view from Nehru and other influential members of the Constituent Assembly. Azad argued that it was necessary to give this power to the Central Government so that uniform national standards for education could be established. However, some of the other framers believed that the states should also have the competence to make policies and enact laws relating to education. They were prompted, in part, by the knowledge that the several languages spoken across India would require a decentralized approach to education. The situation was resolved by retaining education in the state list, but also including entries relating to higher education and scientific and technical institutions in the Union and Concurrent lists, thereby giving the Central government the power to make policies and enact laws to regulate essential aspects of education. It was also agreed among the framers that the Central government would have the power to make national policies for coordinating the provision of educational services. It is a well documented fact that successive Central governments in independent India neglected the issue of primary education. Until 1979, India spent less than 1% of its GDP on programmes for education. In 1976, via the 42nd constitutional amendment, education was moved from the State to the Concurrent list, presumably to give the Central government a larger role in enabling the provision of education at a national level. However, not much changed on the ground as a result of this legal change. In 2002, the right to education for children between the ages of 6 and 14 became a fundamental right (via the 86th Constnl Amendment Act). There was an intense debate about the nature and ambit of the right, as well as about the financial allocations which would be necessary to secure the right – an overview of these issues is provided in this Frontline essay by Anil Sadagopal. Activists involved in education have long asserted that creating a right for education was not the issue (especially because the Supreme Court had already asserted such a right in the early-1990s). What is crucial is the manner in which the right is administered through legislative and executive action. The NDA government had come up with a legislative effort to implement the new fundamental right which was severely criticized by child rights activists and groups. The UPA government has apparently released a new Bill which has been subjected to intense scrutiny and criticism, which is only to be expected, given the contentious nature, long history and vital importance of the issue, for which no easy solutions are at hand.
India Together (which has a long running series of pieces focusing on Law) is going to feature a series of articles on the UPA’s bill on education and the first in the series focuses on the main elements of the Bill which have been most criticized by child rights groups. This will surely be an issue that will garner more national attention in the months ahead, as it should.