by Shrutika Pandey and Rongeet Poddar
The COVID-19 pandemic has had a disruptive impact on the education sector in India, as it has around the world. The imposition of a prolonged nationwide lockdown has rendered traditional classroom learning impracticable and has led to the advent of online education as an expedient tool to prevent further reduction of teaching hours. However, the adoption of e-learning tools raises concerns of inequitable access and further widening of the socio-economic divide. In this article, the authors argue for the adoption of a rights-based approach by the Indian state to address the widening digital divide and facilitate educational attainments.
Deeply entrenched inaccessibility
National Statistical Office data (2017-18) reveals that just 10.7% of households in India have a computer while only 23.8% enjoy access to internet facilities. The rural areas and the poorest households particularly bear the brunt of unequal access. Furthermore, the national figure for persons of above the age of 5 with the ability to operate a computer and the ability to use the internet also stand at a lowly 16.5% and 20.1% respectively.
A recent survey conducted in the state of Bihar has also revealed how structural factors constrain access. In many instances, the children in the family do not retain control over devices such as smartphones which are bare-minimum for online classes. The survey has also highlighted how gender-based disparities restrict access to e-learning for children. A disproportionate burden of the household chores often limits the participation of girls. Likewise, the boys in the family are also engaged in work as the pandemic has had an adverse impact on the family’s economic well-being.
Children with special needs are excluded from remote learning while many with disabilities are also struggling to attend online classes. As a consequence, distance-learning has increased the likelihood of drop-out rates. The integration of a rights-based paradigm must therefore be integral to an inclusive educational policy to bridge the digital divide as outlined by UNESCO.
Legal regime in India
The Karnataka High Court in India has recently issued an order to enable private schools to conduct online classes, limiting the screen-time in consonance with the Pragyata guidelines for remote learning, issued by the central government. The order was issued in response to a blanket ban on online education by the state government. The government decision had been challenged to be violative of Article 21A of the Constitution of India.
Article 21A (added by the 86th Amendment to the Constitution, 2002) imposes a mandate on the state to provide free and compulsory education to children between the ages of 6 and 14. The Right of Children to Free and Compulsory Education Act (hereinafter mentioned as the Act) was enacted in 2009 to pursue the goal of universal education in India. However, the current state of affairs demands a thorough re-evaluation of the existing regime in acknowledgement of access disparities. The definition of ‘access’ must be evolved from mere physical proximity to schools to include social, geographical and qualitative access to a formal, fully functional school with infrastructural facilities, learning materials and human resources.
However, access to internet and other e-learning facilities has been left outside of the purview as the Act did not envisage such a prolonged phase of social distancing, enforced due to the pandemic. Thus, the law is rendered ineffective under the present circumstances, failing to ensure effective and equitable access to online learning tools.
Education as a human right
An effective and equitable access to education requires policymakers to reimagine education as a human right in India. Section 9 (c) of the Act lays down that children belonging to disadvantaged groups must not be discriminated against and prevented from completing elementary education ‘on any ground’. A liberal interpretation of the provision offers a wider export to the phrase ‘on any ground’ to include digital access in its ambit. Moreover, Section 12(1) (c) requires unaided schools to provide ‘special facilities’ for students belonging to the economically weaker sections admitted in their schools and claim reimbursement for the same from the Central Government.
Lastly, the Right of Persons with Disabilities Act, 2016 also requires educational institutions and state authorities to provide ‘inclusive education’ to disabled children. The statutory mandate must be read in the context of a Kerala High Court decision, upholding a student’s right to access the internet within the right to life under the scope of Article 21 of the Constitution. The decision recognizes that internet connectivity is indispensable in the pursuit of holistic education.
The ‘balancing of rights’ approach is integral to adopting an inclusive education policy in the immediate future. The concept is not alien to Indian constitutional jurisprudence and has been affirmed in a landmark Supreme Court judgement which unequivocally pronounced the right to privacy. The apex court in India clarifies that that a balancing test must not be restrictive such that it constrains the effective operation of a fundamental right.
In the instant case, the fundamental right to free and compulsory education under Article 21A of the Constitution must be reinforced by the anti-exclusionary principle enshrined within the right to equality under Article 14. The provision of education has to be reinvigorated by the guarantee of non-discrimination such that no child is left to bear the brunt of digital divide. The disparate impact doctrine adds another dimension to the right to equality as it prohibits indirect discrimination resulting from facially neutral policies. India’s constitutional jurisprudence thus bears immense potential to reinvigorate the right to access education if a guarantee of internet access and non-discrimination is read into its ambit.
The judiciary in India has often resorted to international law instruments to broaden the scope of fundamental rights in India. The goal of enhanced accessibility in education has been underlined in the Committee on Economic, Social and Cultural Rights (CESCR) General Comment 13. Education is recognized as a human right under Article 26 of the Universal Declaration of Human Rights (UDHR) and Articles 13 and 14 of The International Covenant on Economic, Social and Cultural Rights (ICESCR) It serves as a vehicle for empowerment and bears the potential to lift ‘economically and socially marginalized’ children out of poverty. General Comment 13 highlights the importance of computer facilities and information technology for an educational institution. The CESCR urges state parties to be flexible to ‘adapt to the needs of changing societies’. However, the insistence on ‘adaptability’ cannot compromise a state party’s immediate obligation to ensure accessibility in violation of the principle of non-discrimination. Article 28 of the UN Convention on the Rights of the Child (CRC) also recognizes the right of children to education on the basis of equal opportunity.
The existing jurisprudence on an inclusive education also requires states to ensure effective participation of children with disabilities in remote learning. In International Association Autism Europe v. France, the European Committee of Social Rights held that France had failed to significantly raise the proportion of children with autism being educated in either general or specialist schools in comparison to other children. Limitation in accessibility constituted indirect discrimination and was thus held to be a violation of the right to social integration for disabled children as mandated under the revised European Social Charter.
The Committee relied on the judgment of the European Court of Human Rights in Thlimmenos v. Greece which had laid down that the principle of non-discrimination under Article 14 of the European Convention of Human Rights ‘is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different’. CESCR General Comment No.5 further requires states to provide necessary support to bring persons with disabilities ‘up to the same level of education’ as their non-disabled peers.
India’s National Education Policy, 2020 offers a cue to overcome the insurmountable barriers of exclusion in the long run as it seeks to adopt technological tools that would enable better participation and improve learning outcomes. There have been recent attempts to install digital screens at public libraries to enable access to online classes. Television and radio platforms have also been utilized to bridge the digital divide for students belonging to disempowered communities. The fundamental premise of a rights-based approach rests upon recognizing the educational needs of all children without discrimination. A comprehensive appraisal of children’s lived experiences thus can alone lead to the inception of innovative strategies that are truly equitable. The state has a positive obligation to ensure a wider reach of e-learning facilities by aiding educational institutions.
ABOUT THE AUTHORS
Shrutika Pandey is currently engaged with Human Rights Defenders Alert at New Delhi as a Litigation Assistant. She has previously written on topics concerning human rights in several national and international blogs.
Rongeet Poddar is a recent graduate of the West Bengal National University of Juridical Sciences and is set to join an Indian law firm. He has previously contributed to multiple blogs on commercial laws and human rights.