Right to Education: A Constitutional Safeguard in Nepal.

Introduction

There are certain rights which have been conferred upon human beings prior their birth and continue even after death. These essential, basic, natural and inalienable rights (or freedom) of human beings are known as human rights. Human rights have been a hot issue of the whole world. In order to live a life with dignity, an individual must be equipped with adequate human rights which should be safeguarded by the constitution of the state where s/he is been brought about as well as the international charter and other instruments related to its protection and promotion. Among the various rights entitled by the national and international instruments as human rights, education has attains the foremost position.

However, the basic human rights like right to life, right to property etc. come into forefront, however, in this modern period of massive technological as well as industrial development, education has been the supreme of all rights. It is the undeniable fact that the person without education remains no longer competitive in the world in any aspect. So, education attains the highest position in human rights. It is not meant to say that rests of the human rights are less important. All the rights termed as “human rights” are equally important, but education is one of the most important.

So by knowing the importance of education, it becomes prime objective for each and every nation to make such a constitutional safeguard to promote the education within the nation. The education here doesn’t confine only with the academic degree that are taken from the formal classes, besides, it includes all those sort of activities which result people gain knowledge which could be used to earn their living. All the countries should effort in such a way that education could be established as the culture of each and every individual which could frame their lifestyle in a desirable manner.

Talking about the constitutional provisions in Nepal, the Constitution of Kingdom of Nepal 2047 and the Interim Constitution of Nepal 2063 has ensured “Right to Education” as one of the fundamental rights of Nepalese people. The Interim Constitution of Nepal has ensured free education for every Nepalese people up to secondary level by the government. The Article 17(1) of the constitution has provision for getting primary education in mother tongue. Nepal has ratified the United Nations Convention on Child Rights 1989 in 1990, where Article 28(1) of the convention recognizes the right of a child to education and imposes duty upon the state to make primary education compulsory and available free to all. In some respect the Interim Constitution of Nepal is in obedience to the international instruments which promote education.

The Interim Constitution of Nepal 2063 includes the legal provisions which are consistent with the democratic norms and values, universally accepted principles of human rights, gender justice, criminal justice. Talking about the legal provisions related to education, as in previous constitution of Nepal, Right to Education and Culture (Article 17) is stated as fundamental right. The same legal provision is maintained. However, Article 17(2) of the constitution states that “Every Citizen shall have the right to receive free education from the state up to the secondary level as provided for in the law.”1. It is not such that the previous four constitutions didn’t emphasis education, but it was for the first time that such type of constitutional safeguard was given to education as fundamental right. In its Article 18 had ensured basic education in mother tongue up to primary level. Besides that, no other provisions regarding education are so far found.

Nepal has been the member of the United Nations and the Article 26(1) of UN Charter has the provision that right to education should be ensured as fundamental rights and education up to some level should be made compulsory.2Besides, the UN Charter believes that the education is the only factor that helps in the development of the human personality capable enough to respect human rights and fundamental rights.3Universal Declaration of Human Rights is considered the major international standard and it is in the part of making education compulsory as well as parents rightful enough to choose the right kind of education to their children.4 The International Covenant on Economic, Social and Cultural Rights(ICESCR,1966) also supports the UDHR that right to education is a fundamental right5 It believes that education enables all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.6Besides, it also believes that primary education should be made free and compulsory.7It has also defined secondary education as technical and vocational and secondary as well as higher education should be made available and accessible to all.

8The Covenant has also not underestimated the value of fundamental education to those who have not taken even the primary education. It offers special educational programs to encourage and intensify them to get education.9 Not only these, the Convention on the Rights of the Child (CRC)1989 has also recognized education as the one of the basic rights of children. The Article 28 of the convention explains similar types of rights of the children regarding education to that of the UDHR and ICESCR. Moreover, the convention in its Article 28(2) is concerned 2 Article 26(1) “Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. 3 Article 26(2) of Universal Declaration of Human Rights-“Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.” Besides, it also believes that primary education should be made free and compulsory.7It has also defined secondary education as technical and vocational and secondary as well as higher education should be made available and accessible to all. 8The Covenant has also not underestimated the value of fundamental education to those who have not taken even the primary education. It offers special educational programs to encourage and intensify them to get education.9 Not only these, the Convention on the Rights of the Child (CRC)1989 has also recognized education as the one of the basic rights of children. The Article 28 of the convention explains similar types of rights of the children regarding education to that of the UDHR and ICESCR. Moreover, the convention in its Article 28(2) is concerned about such an environment in the school where the children can gain education with full dignity. The Article 28(3) of the convention has a broad objective to eliminate the ignorance and illiteracy from the whole world and render scientific and technical education. In order to accomplish on this objective, it urges for the promotion and encouragement in the international co-operation in matters of education.

The consciousness towards education started to rise when the Mass Revolution against Panchayat System was ignited. Up to that time, Nepal also had entered into ratification of many International Instruments like Child Rights Convention (CRC) 1989, International Covenant of Civil and Political Rights (ICCPR) 1966(Nepal ratified in 1991), International Covenant on Economic, Social and Cultural Rights(ICESCR) 1966 (Nepal ratified in 1991) etc. These international instruments and the raised level of consciousness in Nepalese people led to Nepalese educational sector towards a satisfactory stage. However, according to the National Census 2058 B.S. Nepal, the literacy rate of Nepal was 45.7% in which the male literacy rate constitutes 42.5% while the female literacy rate constitutes 33.8%. The Census also showed that more than 13% of the children who are likely to be enrolled in the primary education are deprived of getting primary education.

While analyzing the provisions in the past and present constitutions of Nepal regarding the constitutional safeguard of education, though they are guaranteed as fundamental rights of citizens, it can not be enforced. Right to education cannot be claimed as right as in the Nepalese constitutional provision10 because getting education is not made compulsory by this proviso The right means to say that a person is entitled to get education as per the policies and rules taken by the state regarding education but s/he cannot take the issue to the court to claim that state should provide education for her/him. This principle has been propounded in the case of Dallas V. Fosdick in America.

The foundation of all human rights is the recognition of the inherent dignity and of the equal and alienable rights of all members of human family. Human rights is the only weapon by virtue of which people freely determine their political status and freely pursue their economic, social and cultural development. The world today is engaged in a huge debate of socioeconomic and cultural rights and education is one of the most important socioeconomic rights ensured by the various national and international instruments relating to human rights. From the nature of education as socio-economic rights, it requires positive actions from the side of the state. It also requires national resources to implement these rights. The principal technique of implementation of educational rights is the constitutional guarantee as the fundamental rights. This leads to the statutory provisions to design a vehicle for the effective insurance of education to Nepalese people.

The constitutions of Nepal ever been practiced has made right to education as non-justifiable from the court and has placed it as the domain of government and outside the judicial enforcement. This system needs to be changed in the coming constitution and right to education should be brought into judicial enforcement. This argument has been criticized by many renowned scholars as it requires extensive affirmative actions and firm commitment from the state to bring right to education enforceable by the courts. But what should be taken into concern is 10 Surendra Bhandari, Constitutional Law, Pairabi Prakashan, 308. the ground reality. And the ground reality is that Nepal in its most essence requires a great leap on education. Right to education along with its fullest and effective and social contemporary interpretation is needed to be a fundamental right in the constitution because until and unless it is secured by the constitution, other rights though in a large number conferred by the constitution becomes no longer practicable on in other words, they remain as tigers but without teeth. Right to freedom and right to expression cannot be fully exercised or enjoyed unless the citizens are educated. In fact, education is the base of democracy as it makes people aware about the basic norms and philosophies of democracy. Besides, education makes people disciplined. The educated people only can take right decisions for the betterment of their life. If we take instances of Nepal itself, the democratic revolutions in Nepal are the outcomes of the level of knowledge of Nepalese people which was possible through education only.