“It is no beyond our power to create a world in which all children have access to a good education”
~Nelson Mandela
Background
Kashmir has been in a lockdown for the past 10 months. Last year, there was no schooling in the valley for six months due to the upheaval that followed the repeal of Article 370 of the Indian Constitution by the Government of India. Schools re-opened momentarily in March, only to be closed a few days later to comply with the restrictions imposed to contain the coronavirus pandemic. In turbulent times like this, online education becomes of paramount importance and acts as a savior, ensuring intellectual growth of the students. However, the Internet restrictions and speed throttling has further escalated this crisis.
The Internet services at 2G Speed are extremely slow and can’t be relied upon. The Foundation of Media Professionals filed a Public Interest Litigation[1] challenging the government order that restricted internet speed to 2G in the state of Jammu and Kashmir on the grounds that it violated not only equality before the law but also to the right of children to free and compulsory education. The government responded by telling the court that right to access Internet was not a fundamental right. This effective denial of education to the children in Kashmir has caused gross human rights violations and put their future at risk.
Education plays an important role in conflict resolution and as well as in establishing peace and cooperation. Children in areas of armed conflict regions who get deprived of education are jeopardized even more. Education can also provide psycho-social support in times of distress.[2] This article is an attempt at analyzing the current situation in Kashmir, with respect to the laws concerning right to education at the International level and then in India. It further examines how children’s right to education in Kashmir can be secured.
Through the Prism of Indian Constitution
The Judiciary and Legislature have played an effective role in protecting the rights of children to education. The 86th constitutional amendment act[3] has made education a fundamental right, by making it mandatory for states to provide free and compulsory education to all children of the age of 6 to 14 years. Unfortunately, this fundamental right has now become a privilege that the children in Kashmir can’t seem to afford. The Right to Education of these children must be secured, as it is the key to achieving and realizing all other human rights.
A strong development in the right to education was observed when the apex court held in Mohini Jain v State of Karnataka[4] that, “the right to education was concomitant to the fundamental rights enshrined under Part III of the Indian Constitution.” The court further stated “the right to life and dignity provided in Article 21 of the Indian Constitution cannot be assured unless it is accompanied by the right to education.” The 2019 Judgment of the Kerala High Court in the case of Faheema Shirin R.K. v. State of Kerala[5] was extremely relevant to the extent that it had recognized Right to Access to Internet to be within the bounds of Right to Education as well as Right to Privacy. The court considered a variety of benefits of internet usage for education purposes like ability to access online courses and resources, e-books, news, etc., all of which would contribute to the overall academic development of a student. Online education has seen a sharp increase to fill the gap of classroom education in these turbulent times. Many Universities and schools across the globe have shifted to online classes and modes of assessments. Kashmir is also in a similar situation to an extent as education institutes in the region have remained closed since March. The differentiating factor in this region is the fact that access to internet is severely restricted, hampering the ability of students to avail of online education as well as perform mandatory assessment requirements of their respective institutes.
These internet restrictions are also not in compliance with Anuradha Bhasin v. Union of India, 2020,[6] which established that internet restrictions have to be temporary and justified. However, the court delegated the government the responsibility to provide a justification. The Supreme Court further stated that exercising other fundamental rights through the internet is a fundamental right. Since right to education is a fundamental right, preventing this directly violates what the Supreme court held.
Further, these restrictions also fail the test of proportionality, laid down in the Puttaswammy judgement.[7] It requires that there must be a reasonable nexus between the objectives of the restriction and the means to achieve it. If the test of proportionality were to be applied to the restrictions on Right to Education in Kashmir, it can be said to be highly disproportionate. While there do exist national security concerns when it comes to that region, the fact remains that ensuring that children are educated is the best way forward. Not only would it help making young minds more aware of their troubles, it would also equip them with the right tools to actually resolve these issues for good.
Kashmir is a sensitive region, which has been severely affected by cross-border terrorism, yet education can actually help in dealing with this issue more efficiently. And this should not be a justification to establish low standards of equality before the law. Denying access to education has put the future of children in Kashmir at stake and violated their right to life.
Article 51 (c) of the Indian Constitution[8] states “It is mandatory for states foster respect for international law and treaty obligations in the dealings of organized peoples with one another.” It is important to understand this right from a global perspective as it will provide us with the standards every nation is supposed to achieve. These discriminatory actions by the state are not in compliance with the International Human Rights Perspective.
The International Human Rights Perspective
Right to Education is duly recognized in International Law and thereby India is obligated to grant the same, as we have ratified many of the conventions, which recognize this Right. Education as a right has been recognized across a plethora of treaties and conventions. Article 26 of the Universal Declaration of Human Rights[9] states that “Everyone has the Right to Education” and further recognizes equal accessibility of education based on merit. The UNESCO Convention against Discrimination in Education[10] reaffirmed the Right to Education and had provisions against any kind of discrimination in this arena. Article 1 of this convention also has a provision against limiting of education to an inferior level.
The International Covenant on Economic, Social and Cultural Rights[11] also recognizes Right to Education in various articles, primarily Article 13, which states “education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms.” Article 13 (2) states “Primary education shall be compulsory and available free to all and secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education.”
Taking into account the International Laws and obligations of India, Right to Education must be guaranteed to all, especially without any form of discrimination. For Kashmir however, the students’ Right to Education is being affected solely because of the region to which they belong to. At a time when the world is going through unprecedented times, education becomes more important as it helps to better equip students for future challenges as well as improve their mental health. By restricting internet access in the region, the students are being discriminated against and are losing precious time which they will never get back.
The Way Forward
The socio-political environment in the Kashmir valley is highly volatile and has caused tremendous hardships to its residents. It is essential for the government to come up with solutions to ensure that no child lacks behind in terms of intellectual development. A solution could be the possible combination of formal as well as non-formal pedagogy. The Government and its agencies could partner with and take help from the variety of NGOs working in the region to reach the local communities at the ground level. Due to the ever increasing conflict in the region, another solution could be ensuring that teachers don’t have to travel over long distances from their place of resident, which can be done by assigning teachers from within localities to conduct classes in the neighborhood, and providing them with all the necessary aid to provide quality, all rounded education. Technology could further aid in this as satellite schools could be established within reasonable distances from homes of teachers and children in a particular locality.
These solutions are not just theoretical as they have been successful in some parts of the world. We can take the example of Kenya’s North East Province,[12] where a mobile camel library is in place to lend books to nomads in an inhospitable and impoverished terrain. This has helped by providing access to knowledge and education to the youth most disconnected from the rest of the world. In Somalia,[13] basic literacy and numeracy skills have been imparted to the populace through establishment of radio instruction programs, which have reached children and other intended audience through many digital media players in the region.
The hostile environment in Kashmir combined with the consequences of the pandemics has taken a massive toll on the intellectual development of the children in Kashmir, putting their futures at risk. It’s high time that the government should start acknowledging their fundamental and basic human right to education and stop ignoring their plight. Since the social and economic conditions in Kashmir are in a very dark phase, education should be stressed upon more than ever before. The government has to take responsibility and ensure protection of their human rights through a variety of innovative measures.
This article has been written by Pravah Ranka and Hritvik Mohan, 1st year students at Gujrat National Law University.
References
[1] Livemint, SC Issues notification to J&K Administration on plea to restore 4G, April 10, 2020, available at https://www.livemint.com/news/india/sc-notice-to-j-k-on-plea-to-restore-4g-services-in-region-11586419832949.html (Last visited on July 2, 2020).
[2] Department of International Development, University of Oxford, Jo Boyden & Paul Ryder, Implementing the Right to Education in Areas of Armed Conflict, 4, (June 1996), available at https://s3.amazonaws.com/inee-assets/resources/Implementing_the_Right_to_Education_.pdf (Last visited on July 2, 2020).
[3] The Constitution (Eighty-sixth Amendment) Act, 2002, § 2.
[4] Mohini Jain v. State of Karnataka, 1992 AIR 1858.
[5] Faheema Shirin R.K. v. State of Kerala, (2019) 4 KLJ 634.
[6] Anuradha Bhasin v. Union of India, 2020 SCC OnLine SC 25.
[7] K. S. Puttaswamy v. Union of India, (2019) 1 SCC 1.
[8] The Constitution of India, 1950, Art. 51(c).
[9] Universal Declarations of Human Rights, G.A. Res. 217A, U.N. Doc. A/810 (December12, 1948).
[10] Convention against Discrimination in Education, May 22, 1962, 429 U.N.T.S. 93.
[11] International Covenant on Economic, Social and Cultural Rights, January 3, 1976, 993 U.N.T.S. 3.
[12] The Guardian, Kenya’s children of the desert find that knowledge comes on the back of a camel, December 4, 2005, available at https://www.theguardian.com/world/2005/dec/04/davidsmith.theobserver (Last visited on July 2, 2020).
[13] UNESCO Institute for Lifelong Learning, Somali Distance Education and Literacy, Somalia, December 5, 2014, available at https://uil.unesco.org/case-study/effective-practices-database-litbase-0/somali-distance-education-and-literacy-somalia (Last visited on July 2, 2020).
Constitutional Law Society, NUJS 