Common School System and Constitutional Frame work

Ramesh Patnaik, Hyderabad

At the out set, it may be stated that this paper do not discuss about content of education, teaching and examination methods, medium of instruction and teaching of languages and other issues related with school education. This paper confines its discussion only to the question of access to quality education to every child through common school system of public education based on neighborhood school.

Though Common School System was proposed long back by Kothari Commission, it was not implemented for the last four decades and so. The only reason that can be cited to this non-implementation of this proposal of the commission is the lack of political will on the part of the successive governments. With the Supreme Court raising the status of the right of the child education to a fundamental right, in 1993 in its judgement on Unnikrishnan case, there developed a momentum in different democratic circles in favor of the long cherished dream, the Common School System. Even after such an epoch making judgement of the Apex court, successive governments at the centre could drag on the issue and could complete their tenures without bringing legislation to ensure right to education. Those very parties, which led the union governments in the last fifteen years, are contesting in the ensuing general elections for Loksabha to come to power again. Certainly it is the right time for institutions, intellectuals and activists to raise the question of CSS for a wider debate.

The state, after British rule, that came into existence in India, represented vested interests of certain privileged classes through out. Naturally, such a state would like an education system aimed at social reproduction for maintaining class relations and the prevailing economic order instead of one which can help the transformation of the society. The political parties which all wielded power either at centre or at provincial level did only run the system in the best interests of those very classes. The successive governments did not use the relative freedom within the system to achieve the democratic goals set in the constitution. However, people of this country still hope to achieve the long cherished goal of right to education through Common School System. So the debate and activism are alive. Supreme Court Judgement, certainly, continue to give strength to the debate and activism in favor of child’s right to education and related issue of common school system.

The hope of the people for common School system is not completely baseless. The egalitarian preamble of the constitution gives them the hope. So also, people of this country achieved many demands by waging heroic battles against different governments in the post independence period. People of this country, workers, peasants, women, dalits, tribal, teachers and students all fought against the successive governments for protection of their rights against ongoing corporate globalization. They were successful, of course, partially. So, the pioneers of the movement for common school system can keep all the confidence in the people of this country to achieve the goal. One can be certain that the peoples’ movement can achieve necessary amendments for the constitution within the scope of it’s’ preamble and can also restrain the on going corporate globalization to realize the dream of Common School System. Of course, one has to think where to start and how to proceed in building such a historic nation wide movement. Let us take certain important questions related with constitution in formulation and implementation of the policy of common school system through neighborhood school.

The constitution of India gives the religious and linguistic minorities the right to establish and run educational institutions of their choice (Art 30) and further it confers right to profession and occupation to all citizens (Art 19). These fundamental rights are extensively misused to commercialize education sector by vested interests. One can not oppose these rights conferred on minorities and all citizens, but one shall have to find ways and means to restrict the misuse of these rights. Kothari Commission also raised this very issue and concluded that private schools which do not seek aid could not be brought under common school system and the commission there by expressed its inability to curb commercialization of education. The commission proposed that by strengthening government schools and aided schools which come in the ambit of common school system and by providing quality education there, the children can be attracted to common school system of public education and there by unaided and fee collecting private schools could be rendered irrelevant gradually. After the four decades of Kothari commission report, today, the situation is still worse. While quality of education in government schools further deteriorated, the number of private schools increased multifold. If we take Andhra Pradesh for example, one out of three school students are in unaided private schools (47 out of 135 lakhs of students in 2007-08 academic years). The menace of unaided private schools was not nipped in the bud and now it has gained monstrous proportions. Vested interests are inter-woven with this sector of unaided private schools. It is late, but, may not be too late for establishing a common school system across the country. The misuse of the referred fundamental rights provided in Art 19 and 30 require being immediately checked for the purpose.

The Minorities’ right: Protection of minorities is the first duty of any civilized nation. The constitutional protections to that affect are to be guarded with all care. However, at the same time, one has to see that the same provisions are not misused by vested interests. Some states, say Andhra Pradesh, earlier tried to restrict the misuse of this provision is the point here. The government of Andhra Pradesh, under public pressure, made it a condition for recognition of minority institutions established under Article 30, that they should enroll minimum 85% of the students from the same minority community. This condition delivered good results for some time. Private operators could not open as many educational institutions as they wanted to make big profits by enrolling students from majority community due to this condition. However this condition was liquidated later in favor of educational tycoons. The point here is that there can be some legislation at all India level, on the above lines, to see that the article 30 is not misused. One may even suggest a suitable amendment to Art.30 of the constitution for the purpose.

The Right to Profession and article 19: The text of article 19 of the constitution of India reads as follows. “19. (1) All citizens shall have the right—(g) to practise any profession, or to carry on any occupation, trade or business.” Let us see how Supreme Court interprets the art 19 of the constitution of India in its Unnikrishnan vs Government of Andhra Pradesh case (1992).

Para-64: While we do not wish to express any opinion on the question whether the right to establish an educational institution can be said to be carrying on any "occupation' within the meaning of Article 19(1)(g), perhaps, it is we are certainly of the opinion that such activity can neither be a trade or business nor can it be a profession within the meaning of Article 19(1)(g). Trade or business normally connotes an activity carried on with a profit motive.

Para-67 Teaching may be a profession but establishing an institution employing teaching and non-teaching staff, procuring the necessary infrastructure for running a school or college is not 'practising profession'. It may be anything but not practising a profession.

From the above paragraphs 64 and 65 of the judgment, we understand the right to trade or business provided in article 19 is not applicable to education. So also, we understand that no citizen do have fundamental right to establish an educational institution employing teaching and non-teaching staff and run it under his ‘right to profession’. However, Supreme Court was not ready to give a precise meaning of the phrase ‘carrying on an occupation’ with reference to the said article. At the end, while vehemently opposing trade and business in the field of education, the SC allowed individuals and associations to establish educational institutions and to run them and even to collect fee from the students. The court was of the opinion that recognizing and affiliating public authorities have a right and duty to see that the admissions of students are in conformity with right to equality and other provisions of the constitution and do have the right and duty to regulate fee structure and quality of institution in an appropriate manner. This judgment was weak because it allowed individuals and associations to establish educational institutions on non charitable basis even. Such an allowance, though not allowed as fundamental right as the petitioners appealed, ultimately leads to the commercialization of education. That is what all happened.

Coming again to the question of ‘right to profession’, as explained by ‘Unnikrishnan’, it do not give a fundamental right to citizens to establish an educational institution and employ teaching and non-teaching staff and earn money or otherwise. Yes, article 19 does not give a fundamental right to citizens to establish an educational institution, but every citizen does have a fundamental right to practice a profession of his choice. And, also it is to be noted that the right to practice a profession invariably includes earning a livelihood out of that. If a qualified person practice teaching profession and charges from the beneficiaries some fee against his service, he can not be penalized for that. So, in conjunction, it can be said that a citizen has a fundamental right to practice teaching profession which may include collecting fee from his students but do not have fundamental right to establish and run an educational institution by procuring infrastructure and by employing others. It means self employment in a profession including teaching profession is a fundamental right. Further, if few qualified teachers form into an association, run a school, teach lessons there to the students and collect fee from them, how can they even be penalized? They can invoke right to profession and right to association, both provided in article 19, in their favor. From the above discussion it is understandable that, there is no way but to allow so formed cooperative bodies to establish and run educational institutions. ‘Unnikrishnan’ did not explain the above part because it allowed individuals and associations to establish educational institutions even on a wider basis. Allowing individuals and associations to establish educational institutions even outside right to profession, as the judgment did, lead to the wide spread commercialization of education. The fifteen years’ experience after the judgment necessitates a fresh look at the issue. Now, it may be required to restrict the scope of allowance to individuals and associations to establish educational institutions only under the right to profession in conjunction with the right to association. In other words, to see that education service is not converted into trade, there shall be an amendment to the constitution effecting that no individual or association is allowed to establish educational institutions on any basis other than charity basis. There can be only two exemptions to that namely; article 30 and right to profession in conjuncture with right to association as elaborated above.

Cooperative associations of professionals: There can be a legislation to restrict the misuse of the provision of right to profession and right to association in the context of establishment and administering of educational institutions. Such legislation, however, shall make provision for the professional associations formed out of teachers, karmacharies, and other personnel required to run an educational institution to establish and administer an educational institution and collect fee from the students. It means, only those who would work in the educational institution form an association and the association establishes and administers the institution on its own and collect fee from the students both against the fixed and reoccurring expenditure of the school including their salaries. The membership of the association shall be restricted to only to those who practice one or other profession in the educational institution and also no person working in the educational institution shall be denied of the membership. Such legislation, while safeguarding the right to profession and right to association even in this context, at the same time restricts practice of trade in education. Such educational institutions established and administered by professional associations may be called as cooperative educational institutions and in the case of a school, it can be called a cooperative school.

The clause 6 of article 19: Before we close our discussion on article 19, we may be required to see the implications of clause 6 of Art 19.

“(6) Nothing in sub-clause (g) of the said clause (19) shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, 2[nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,—

(i) the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or

(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise]”.

So, the sub clause 6 is clear and, it allows the state directly or through a corporation owned by it to carry on any trade, business, industry, or service, whether to exclusion, complete or partial, of citizens or otherwise. Many advocates of common school system invoke this clause for their purpose. This clause was very much there when Kothari commission gave its report. But ‘Kothari’ found it difficult to invoke this clause to bring the un-aided public schools in to the ambit of common school system in the then obtaining understanding of the constitution. However, this clause was interpreted by Supreme Court, later, in many a case in favor of public interest. Former chief justice, Chandra Chud was quoted in Unnikrishnan vs. govt. of AP for his out standing understanding of the essence of the constitution.

"Those rights (Fundamental Rights) are not an end in themselves but are the means to an end. The end is specified in Part IV.”

We can safely conclude here that the state has all the authority to nationalize all the educational institutions in the wider public interest on the basis of the provisions of the constitution. If banks can be nationalized, why not education?

But the mute question is that shall the democratic sections of the society allow the state to monopolize education process. Will it not pave path for fascisation of education and culture by the state. Shall our opposition to commercialization of education and multi tier system of educational institutions lead us to accept absolute state control on education? Can we accept state control as synonymous to public interest in a country with all possible forms of inequality and with the track record of the state in its pro hegemony conduct? The people who believe in transformation of the present system based on inequalities may require establishing and running alternative educational institutions. So also, is it not the responsibility of the democratic sections of the society to demand a suitable amendment to the constitution to state clearly that education neither be a trade or business nor it can be a occupation? Further, is it not required of us to demand again to clearly state in the constitution with suitable amendment that right to profession with respect to teaching and medicine is more sacrosanct? Shall not we plead for right to profession and right to association and for the use of both of the rights in conjunction to establish and run educational institutions as elaborated earlier? While concluding the discussion on article 19 it can be stated that, as it is given now, the article 19 allowed SC to interpret it in favor of self financed colleges with ‘reasonable’ margin of profits. This article 19, as it is given now, can also allow the state to exercise complete control over education process If it is so needed to restrict and regiment education as the German Nazis did. The article 19 is required to be suitably amended to protect the right to teaching profession and also to plug the holes of commercialization in the name of right to occupation. In a word, with respect to education, while right to profession is to be fully fortified, the right to occupation along with right to trade and business are to be completely liquidated.

Common School System: if there is an effective ban on commercialization of education by suitable amendments to the article 19 of the constitution, we will have schools of only three categories as far as ownership is concerned. 1) Schools run by central provincial and local governments, 2) schools run by charitable trusts and 3) Co-operative and self financing schools run by associations of teachers and karmacharies. These schools can co-exist in the same neighborhood. Here we can introduce the neighborhood concept. Legislation that is to be made for neighborhood school may provide that the parent/guardian can enroll their child/ward in any of the schools available in the delimited neighborhood only. While the first and second category schools would not collect any fees from the students, the third category schools which are essentially self financing schools collect fee from the students as the appropriate authority may fix time to time. However, all schools, irrespective of the category to whichever they belong, shall follow the same syllabus, same teaching and examination methods, same service conditions for the teachers etc.

Right to Choice of School: The question under consideration is the parents right to enroll their child in a school of their choice. Actually this is an unfound right. Votaries of private schools on commercial lines are bringing this question to the fore. Kothari commission did not raise this question at all. The recent Bihar commission on common school system denied existence of such right either in Indian constitution or in the constitution of any other democratic country. The very concept of compulsory elementary education is based on the right of the society in bringing up the child over the right of the parent. While parents give the child a physical entity, the society gives her the socio-cultural and intellectual entity and hence the right of the society in upbringing the child overrides the right of the parent or guardian as far as schooling is concerned. On the other hand, the right of the child to grow as a harmonious social being requires her to join a neighborhood school. So, from any angularity, the so called right of the parent need not be considered in formulating the common school system.

However, in the above scheme of things, a relative choice is offered to the parents. They can enroll their children in any of the schools in the delimited neighborhood. One restriction imposed in the above scheme of things is that a parent /guardian can not send her child/ward outside the delimited neighborhood. He has to choose only one of the available schools in the neighborhood if there are more than one school in a given neighborhood.

Universal and Compulsory Stages: The age group of child is now defined to be 0 to 18 years all over the world. India is a signatory to the Jomtin declaration of UNESCO which reiterates the same. So, the universal right to education should be extended up to age 18 years of the child. Bihar commission on common school system recommended the same. A child can complete two years Pre School, five years primary school, five years of lower secondary school and two years senior secondary school courses before she completes age 18. While it shall be compulsory on the part of the state to provide all the said four stages of education to all children, as far as child and parent are concerned, the pre-school education and senior school education (+2 levels) shall be made voluntary. The logic behind the proposal is that the state can not impose compulsory education on young child of below 6 years age and so also, formal structure of education can not be made compulsory to the children of adolescent age, say 16 to 18 years where the young child develops her own personality on her own imagination. However, the responsibility of the state to provide education to all children 4-18 age group remains all the same.

4 - 5 years-- Universal pre primary education

(Child care and education centers

attached to primary school)

6 - 15 years-- Compulsory and Universal 10 years of middle school education (5 years Primary and 5 years Lower Secondary)

16 -18 years-- Universal Senior School Education

(Pre University or Job enabling education)

In this scheme, a child, as he or she completes age 18, either become eligible to pursue higher education by completing pre-university course or become eligible to take up some vocation by completing some technical, industrial or skill oriented course. If the right of education ends at the age fourteen as the 86th amendment Act provides, the child will be neither eligible for higher education nor for skill oriented Job. It will be very dangerous to leave the child without direction at the age 14. So, any policy on school education shall provide for free and universal education up to age 18. The above proposed scheme, if implemented, will be in conformity with 10+2 system in vogue for many decades through out the country. This scheme facilitates 10 years common core curriculum in a given state and also provides for two years diversified courses to suit the conditions and interests of different individual children. At +2 level, some students who want to pursue higher education would like to join pre-university courses while others would like to take job enabling courses like polytechnic, industrial training and vocational courses.

Union list vs. State list: The subject, education was originally in state list and has been shifted to concurrent list in the period of emergency by 42nd amendment Act to the constitution. We know that states in India are linguistic and cultural entities and so they require formulating their educational policies at school level to pursue their linguistic and cultural identity needs. After twelve years of school education, as elaborated above, some students will pursue higher education to attend the professional and intellectual needs of the nation as a whole. So, it may be suggested that while school education will be in the state list, the higher education will be in concurrent list. If such a redistribution of powers is effected, different states can formulate their own common school systems in the given constitutional frame work. The shifting of school education subject to state list shall not come in the way of financial and academic support from the centre. Of course, the states will have to advance the ethos propounded in the constitution through their school system and will have to implement basic tenets of common school system of public education formulated at all India level and provide free education to all children up to age 18 for achieving the national goal of building democratic, secular and informed society.

Shifting of the subject of school education to state list facilitates the states to protect the cultural rights of the people of different regions and also to address the questions of inequalities between different social-sections. More important point may be that the people of different states can influence their own state governments to implement pro-people policies than they can influence the union government. So also, we know that more concentration of powers in the centre means faster growth of corporate globalization and enhanced danger of mono-culturist attacks. The point here is that while there shall be a broader framework of common school system of public education on the basis of neighborhood school concept at all India level, the states shall have more freedom to formulate their own policies to protect their own cultural identities on one hand and to achieve national goals on the other.

Equitable Quality: Earlier we have seen that, under the proposed regime, there can be only three categories of schools, at the most, in a given habitation. The numbers of schools which run on charity lines are falling very fast and for all practical purposes, we will find only two categories of schools namely, 1) Government run schools and 2) Self financing cooperative Schools run by professional associations of teachers and karmacharies on their own. If government schools are established in sufficient numbers and are facilitated to deliver quality education, 80% of the parents would only enroll their children in government schools. Only the families of top economic group, say about 20% may prefer to enroll their children to private schools. If government schools are provided with sufficient qualified teachers and necessary infrastructure, they can certainly deliver quality education. At such a stage, private schools can not excel government schools even they spend more money because education suits as a public service better than as private service. In a word, provision of needful conditions in government schools to deliver quality education leads to comparable standards across all managements in course of time. There are many examples, in Andhra Pradesh state, where government schools excel private schools in every aspect. The point here is that the government schools can be strengthened to provide quality education comparable to best private schools. Even after such a stage of development, private schools may remain in existence as status symbols and luxurious centers of richer sections of the society until radical transformation of the society.

Public-Private Participation: Bihar commission on Common School System proposed that the government should extend aid to all recognized private schools and bring them under common school system of public education based on neighborhood school practice and where those schools will have to stop collecting fee from the students up to class VIII. The report suggested that the schools which collect fee from the students be derecognized. I do not know whether such a suggestion can be implemented within the scope of our constitution as it stands now and whether can we make necessary amendments to the constitution, given its’ general frame work, to bring a suitable legislation to implement the suggestion of the commission. On the other hand there is every possibility that the private managements collect both the aid from government and fees from the majority students. This proposed aid to private schools may become a scheme of 100% reimbursement against the 30% reimbursement proposed by RTE-2009 bill recently introduced in the Rajya Sabha. Everybody knows that the World Bank formulated the Policies of Public Private Participation and is promoting in different countries with an aim of siphoning of public funds to private operators. At this stage, every person who are on the side of the people require to be careful against the designs of different governments trying to push PPP schemes in different forms. I propose that this seminar should suggest in clear terms that public funds are to be spent entirely in public institutions only and private institutions can not be supported by public funds. In the present situation of corporate globalization guided by World Bank and where state overtly is supporting forces of market, there is every danger that the public funds are siphoned to private agencies in one or other form if not taken care of.

Understanding of Common School System: From the above discussion, we understand the limitations of the constitution of India, even after possible amendments within its frame work, in evolving a common school system. We may be able to take the following measures within the broad framework of the constitution.

1) There shall be an amendment to the constitution effecting that no individual or association is allowed to establish educational institutions on any basis other than charity basis. There can be only two exemptions that are provided by article 30 and right to profession in conjuncture with right to association as elaborated above.

2) There shall be an all India legislation allowing professional associations to establish schools and administer them on the basis of self financing. They can collect fees from the students for running the school including fixed costs. The membership of the professional association shall be restricted to only those who work in the school and none of those who work in the school shall be denied membership in the association.

3) School education shall be in the state list and union government shall render financial and academic support to the states to achieve the national goal of universal child education up to age 18.

4) And all state governments/UTs are required to establish sufficient number of schools, provide qualified teachers and necessary infrastructure and enable the staff there to provide quality education to the students in government schools.

5) The government shall universally provide to all children i) 2 years pre-primary education, ii) 10 years middle school education, iii) 2 years senior school education free of cost

6) Parents/guardians are required to enroll their children/wards in one of the available schools (government, charitable and self financed) in their neighborhood. They shall not be allowed to send their wards outside their neighborhood as delimited by appropriate authority.


Of course, the provision of quality government school in the vicinity of every habitation is very important, no less important is the provision of necessary conditions for the child to participate in school education on regular basis. Many children are not able to go to school, even education is provided free of cost, due to their family conditions. In Andhra Pradesh alone 20 lakh children of age group 6-15 are out side school. They are expected to be in the middle school. They make more than 13% of the relevant age group. In Andhra Pradesh 27% children drop out before they complete class V, 43% of children drop out of school before they complete Class VII and only 25 out of 100 who enroll in class one graduate middle school that is class X. There are different reasons for this drop out of children from schools. But, all reasons are emanating from poverty of the family. This paper is not intended to elaborate on the question. What is attempted here is to suggest some measures to enable the child to exercise her right to participate in school education.

Bihar Commission on CSS took a historical stand when it suggested that no child shall be an orphan in our country. It suggested that if the child does not have her own guardians, state itself should become the guardian of her. It should also be understood that the responsibility of the state extends to the children who have guardians but whose guardians are poor and not able to give her nutritious food, decent cloths and who are not able to meet non-fee educational expenditure. The state shall provide every child what ever it requires to continue its education. Some children may require food, shelter, clothing education material and health services, they shall be provided all their needs. It means they require government residential schools. Majority children do not require residence, they can well stay with the parents, but, they require other things including nutritious food for three times a day. They shall be provided those needs through school. That is the only way to arrest drop out and achieve high rate retention of the children in schools. Mid day meal programme in Andhra Pradesh helped an increase in retention of children in schools. This shows very clearly how such support programmes can increase retention. Bihar commission on CSS recommended certain measures in support of the children from poor families. What this paper proposes is that the state shall support every child according to its needs to enable it to continue its education. This paper further proposes that the state support to child to continue her education shall be guaranteed by constitution with suitable amendment to article 21A.

Conclusion: Ban on trade in education, ban on different forms of Public Private Participation, ban on establishment of private schools on non-charitable basis only with exemption of article 30 and right to profession as elaborate earlier, extension of universal education up to age 18, strengthening of government schools and taking measures to enable every child to continue her education on regular basis seems to be the issues of paramount importance to achieve the goal of universalization of child education and for establishment of common school system of public education on the basis of neighborhood concept. The seminar may also find time to discuss issue of shifting of school education subject to state list.

Shaheen Ansari


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