India: A Backbencher in the Education Sector During COVID-19

[Aparajitha Narayanan currently works as a Legal Intern for the UNIRMCT and for Global Rights Compliance, The Hague. She holds an Adv. LL.M. in Public International Law from Leiden University (2019).]

Introduction

As a planet we are currently going through an unfortunate phase where the global order has taken a disruptive hit. Many believe that it is perhaps impossible to recover from this pandemic-created sinkhole, since COVID-19 has already resulted in travel bans, exchange of a slew of accusations between governments and a massive spread of xenophobia, concomitant with the spread of the indefatigable virus. The right to education has taken a backseat in light of the pandemic and while virtual classrooms are being heralded as the ‘new normal’ in education, it is not a luxury affordable to children from all classes of society, especially in the developing world. Presently, 144 countries have closed down schools all over the world with the objective of observing ‘social distancing’ norms, thus impacting 1,186,127,211 learners. This article will delve into the ways in which closure of schools has shone a necessary light on the education and correspondent income equality in India, and whether obligations set out by international law instruments pertaining to the right to education are being met.

International Law instruments protecting the right to education

An overarching international legal framework of treaties and conventions is in place to guarantee and protect the right to education. Article 26 of the Universal Declaration of Human Rights (‘UDHR’) affirms that right to education is a basic, fundamental human right for everyone. The International Covenant on Economic, Social and Cultural Rights, 1966 (‘ICESCR’) and the Convention on the Rights of the Child, 1989 (‘CRC’) borrow their provisions on the right to education from UDHR. They contain accessibility provisions which enshrine within themselves certain intersecting dimensions; those of, non-discrimination, where education shall be made accessible to vulnerable groups, without any discrimination on prohibited grounds (one of which is socio-economic status) and economic accessibility, which implies that accessible education shall also be affordable. Thus, these two statutes take into account, both social and economic inequality and aim to ensure that the right to education is free from all forms of discrimination. Further, the Committee on Economic, Social and Cultural Rights, by way of a recent statement, has urged States to make efforts to continue teaching online and ensure that there is affordable and equitable access to internet services and important technical equipment for the purpose of education, especially for students in poorer regions and communities. It is instructive that the said Statement also carries a caveat that such online teaching augments the risk of “deepening educational inequalities between rich and poor learners due to unequal access to affordable internet services and equipment such as computers, smart phones and tablets.”

Additionally, in 2008, the Special Rapporteur on the right to education identified emergencies (situations connected to armed conflicts/natural disasters) as a source of serious violations of the right to education. In this report, the principles popularised by General Comment 13 of ICESR; particularly those of availability, wherein States must have systems in place to continue to provide education even in emergency situations and adaptability, positing that States should be flexible to adapt to the evolving needs of students and societies, were highlighted and they are all the more important in pandemic times.

COVID-19 and its effect on education in India

Around the third week of March, when the country announced a nation-wide lockdown, as a necessary accompaniment, schools and colleges in India also closed. It was a vital time for the secondary education sector in particular, since school-leaving examinations (clearing these enable students to secure admissions in universities), entrance examinations of various institutions etc. are held during this period. Due to the closure of schools, these exams were arbitrarily postponed and now, students are being given an option to either appear in the examinations at a later, more conducive date (it is uncertain when) or alternatively, rely on their performance in the last two examinations.

The Ministry of Human Resource Development, India, has released free online learning resources to enhance ‘access’ during the country-wide lockdown, with an abstruse motto- “One nation, one digital platform” and “one class-one channel”. In tandem, the Ministry of Finance has also introduced many initiatives with the aim of advancing the reach of quality educational material to the remotest parts of the country, with ‘equity.’ As soon as the lockdown was imposed, many schools scrambled to arrange for ‘remote/online teaching’, at the advice of the Government, with teachers (more than tech-savvy students) suddenly being forced to discover and hurriedly learn varying methods of ‘online’ teaching. However, this ground reality is reflective of the amenity afforded only to a certain class of learners, conveniently excluding children belonging to lower-income families and those devoid of any technological influence, be it mobile networks, internet services or television sets. Some areas suffer from an utter lack of electricity even. In India, as per the 2017-18 National Sample Survey, households having computers is at a staggering 10.7% and those with internet facilities stands at 23.8%. The pervasive digital gap and technological divide pre-existing in India is even more evident during COVID-19, especially in the education sector. Against this factual backdrop, how can educational needs be furthered with ‘equity’, as the government envisages? When a household does not even own a computer, what practical purpose would even ‘free’ digital resources serve?

Further, closure of schools in India has a more fundamental drawback, as the government was responsible for providing ‘mid-day meals’ for students hailing from low-income families and during 2018-19, about 119.98 million students had availed this benefit. Statistics show that these mid-day meal schemes have contributed to increased enrolment in schools. Apart from losing out on their daily learning, these students also fail to get their everyday source of nutrition.

Fortunately, in 2002, India changed the status of the right to education (for children aged between 6 and 14 years) from a directive principle (non-enforceable) to a fundamental right. In 2009, the Right to Education Act (RTE Act), describing the modalities of free and compulsory education to be granted to children aged between 6 and 14 years, was enacted in the country. However, early childhood care and education for children from 0-6 years is only a directive principle. The RTE Act has certain shortcomings. The Indian Supreme Court, via two judgements, exempted all minority schools (aided and unaided), generally understood to mean religious and linguistic minorities, from the operation of the RTE Act, thereby diluting the fundamental right guaranteed under the statute. Reportedly, many private schools in the country have sought exemptions falsely claiming minority statuses, so that they can be excluded from the provisions of the RTE Act, thereby vastly affecting a child’s access to education services.

It is pertinent to note that ICESCR does not come embedded with a derogation clause allowing or prohibiting States to limit or derogate from economic, social or cultural rights in times of emergency. India has ratified ICESCR and CRC and has no reservations pertaining to the education-related provisions enshrined in such conventions. While India has ostensibly promulgated relevant legislations to fulfil its obligations under ICESCR and CRC, arguably, it falls short of respecting certain key stipulations. By restricting the ambit of the RTE Act to children aged between 6 and 14 years, early childcare and higher education are neglected. In its General Comment No. 13 to ICESCR, the meaning of ‘primary education’ has been clarified to include education catering to the ‘basic needs of children’, which in turn are not restricted to formal education, but also consist of early childhood education. The Integrated Child Development Scheme in India purports to provide childhood care and education, however, there is a growing concern that the scheme benefits do not trickle down to the poorest households and has not been successful in putting a stopper to enhancement of malnutrition levels. 

The online education policy suggested by the Indian government, while seemingly progressive and unbiased in nature, may cast long shadows of inequality on children belonging to parts of the country radically stricken by abject poverty. Such a policy is bereft of ‘equity’ or ‘equality of opportunity’ and flouts the anti-discrimination provisions of ICESCR and CRC, especially under the ground of ‘socio-economic status’. As factually pointed out, India has not ensured that its current education delivery systems are available to and accessibly by all, this educational disparity may lead to an upsurge in other endemic consequences like child labour and child marriage.

Conclusion

Education is a human right and an indispensable means of realising other human rights. Prior to the COVID-19 outbreak, ‘learning poverty’ was already at an all-time high. School closures are certainly necessary to curtail the spread of COVID-19, however, States must use necessary means and implement effective methods to safeguard the right to education. The education system in India is clamouring to catch up with the pandemic-induced changes to teaching and learning. In times of crises, when the vulnerable groups of society need more protection, it is rather regrettable that they are the worst-affected. These unprecedented times call for intrepid measures to protect the weak and the marginalised, not rely on a frail implementation of perfunctory policies.