According to Article 26 under the Universal Declaration of Human Rights, 1948, elementary education should be free and compulsory. The Declaration further demands that higher education be made equally accessible to all, on the basis of merit. More than half a century later, this vision has not materialised, creating the need for more focused efforts. In this context, it is important to set into motion a mechanism for improving our aspirations towards a satisfactory educational system, taking into account the international commitments and national development indicators put forth at the World Education Forum, Dakar.

Education’s intrinsic human value – its ability to impartially provide support and meaning to the process of living – makes it a foundational pillar for human rights. But education is also an indispensible tool in establishing and securing further rights: healthcare, freedom, security, prosperity, employment and social inclusion etc. In other words, the securing of educational rights promotes aspirations and institutional commitments towards other human rights.   

Since education is a universal human right, exclusion is a grave violation. Creating accountability for violation of human rights can be a powerful force for social change. Because the private sector and charities are insufficient in tackling the problem of exclusion, it is the responsibility of the state to intervene and protect the educational rights of its citizens. 

Consequently, this mechanism, mentioned above, presents the state with the primary responsibility of overseeing the provision of educational services, within the framework of accountability towards national and international human rights. As such, it is the state’s responsibility to translate international commitments into national statutes. Without the appropriate legislation, the citizens have very few alternatives. 

The dimensions of human rights and education

An educational policy based on a human-rights framework, and national legislations based on international law, would place the state as a guarantor of easy access to education for all. The state is given the responsibility for ensuring that high-quality education is delivered for free up till foundational and secondary standards. Additionally, the state should create the necessary mechanisms for providing the appropriate education for its citizens with disabilities.

Proposed Bill for amending the Education Act, 1971

(A) The main reasons for amending the Education Act, 1971:

* In order to abrogate the current categorisation of primary and lower-secondary education, and to establish education from pre-primary level to 8^th grade as foundational education, the following clause (B2) has been added after (B1), under article 2 of the main Act: “(B2) ‘Foundational education’ should be understood as the education from pre-primary level till 8^th grade.” “Education up to primary level” has been replaced with “foundational education” in clause (A) of sub-article (2), article 7 of the main Act.

* Articles have been added after article 2 of the main Act to establish foundational education as free education: “2A. The right to free and compulsory foundational education: (1) Every child shall have a right to free and compulsory foundational education. (2) Free and compulsory foundational education, as per sub-article (1), shall be provided through a community school in the area where the child resides.”

2D. The responsibility of providing free and compulsory foundational education: (1) The state shall bear the responsibility of providing free and compulsory foundational education to each and every child through community schools. (2) To fulfil the responsibility outlined in sub-article (1), the Nepal government shall make the following provisions:

(A) Establishing the required number schools, where necessary, such that each child has access to free and compulsory education, (B) Enrolling each child of school-going age into a school, making provisions for their mandatory attendance, monitoring the situation, and making the necessary provisions to ensure that each child completes his/her foundational education, (C) Making provisions for the governmental and local bodies, as well as non-governmental organisations, needed to guarantee free and compulsory foundational education for every child, (D) As per the outlined framework, making a minimum number of teachers available, based on the number of students and subjects taught in the school, (E) Creating a free and timely supply of relevant textbooks needed for foundational education.

(2) The Nepal government shall gradually make provisions for free education for those studying at the secondary level in community schools.

* To increase inclusiveness in commissions as well as district and school -level committee formed under the Act, particularly as they relate to articles 2E 3, 5, 7A, 11, 11K, 12, and 16.

* To make provisions for inclusive and special education for those who are vision or hearing impaired, or suffer from physical, mental or other disabilities:

“(D1) ‘Special education’ should be understood as the specifically-tailored and skill-enhancing education delivered separately to groups of children with vision or hearing impairment, or mental, physical and other disabilities, through the use of the appropriate media.”

The following clause (D1A) has been added after (D1): “(D1A) ‘Inclusive education’ should be understood as the following: (A) Specifically-tailored and skill-enhancing education, delivered through the appropriate teaching methods, for those with vision or hearing impairment or those with physical, mental and other disabilities. (B) Impartial education given to those who are in a socially, economically, or geographically marginalised position.”

(2) The Nepal government shall progressively create provisions regarding free education for those studying in secondary-level community schools. However, secondary-level schooling shall be free for those with disabilities. Article 6A has been replaced with the following: “6A. Provision for special education, inclusive education, informal education, open education and distance education: (1) Special and inclusive education shall be as good as general education. However, specialised curricula, books and teaching methodology can be provided for those with hearing or vision impairment or mental disabilities.

Debated and incorrect points in the proposed Bill from the standpoint of universal human rights principles, international conventions relating to education, and courtroom exercises.  

* In the proposed Bill, the phrase ‘it is appropriate’ should be added to the reference of developing special and inclusive education through the provision of free education up to secondary level, as well as skill-enhancing education, for those with disabilities.

* The provision to amend article 2(A) of the main act is tied to article 16 of the Interim Constitution, in which it is mentioned that education up to secondary level should be free. But the proposed Bill only suggests that education up till 8^th grade, as foundational education, should be free, and remains silent on the idea of free secondary education. This needs to be mentioned.  

* The article 5F – proposed after article 5 under the main Act – considers educational fees collected from students as part of the board’s fund. Under a provision for free education, the collection of fees from students goes against the constitution and international law. Proposed 5F (2) (B) must be removed.

* Under article 6A of the main Act, the provisions made for special, inclusive, informal, open and distance education are incomplete. Additionally, they contradict the 2006 Convention on the Rights of Persons with Disabilities.

* The provision – listed as point 24 in the proposed Bill – for replacing article 16 (3) under the main Act gives further rights to regulate institutional schools. From an angle of practicality, the provision goes against the right to free education. This should be removed.

* The provision for amending article 16(D), in sub-article (2) under point 25 of the proposed Bill, is against the constitutional provision for free education. Provision should be made consistent with the constitution.

* The amendment of article 16(K) under the main Act, mentioned in point 26 of the proposed Bill, is important. Under this provision, teachers removed from service during the conflict would be reinstated after investigation. However, the sub-article under the stated article does not allow for compensation to be given to those teachers for the time between the suspension and reinstatement. As such, the provision goes against popular legal practices in the court. Appropriate legal provision needs to be made.

* There is a lack of regulation over the definition of institutional schools (private schools) as well as their approval process. Consequently, even though the amended Act makes provisions for the right to free foundational education, this will become impractical to implement. For example, clauses (1), (2), (3), (4), and (5) under article 3 of the main Act have not been changed. The appropriate amendments have also not been put forth by the proposed Bill.

Provisions to be added to monitor private schools, and to be consistent with the Supreme Court order of May 24

* Due to the lack of clarity, in article 3 (8) under the main Act, on procedures for obtaining and regulating affiliations with foreign educational institutions, many schools are operated with supposed foreign affiliations. No proposal exists for making appropriate amendments. A regulatory mechanism, consistent with the Supreme Court decision, is needed.

* Article 7 under the main Act has not been able to include the provisions for the right to language. Article 7 (2) (A) in the main Act makes provision for education in the mother tongue up till primary level. Instead, the proposed amendment allows foundational education – till 8^th grade – to be acquired through the mother tongue. However, the principles of linguistic rights argue for the administering of education in one’s mother tongue up till the secondary level. Such a provision would be more appropriate.

* Article 1 of the 2006 Convention on the Rights of Persons with Disabilities makes provision for creating disability-friendly educational institutions and public places. In contrast, there is no provision for disability-friendly educational institutions either in the main Act or the proposed Bill. Such a provision should be made.

* The proposed Bill is silent on the materialisation of provisions made in Article 10 of the 1979 Convention to Eliminate of All Forms of Discrimination Against Women. A suitable provision must be made. 

* The proposed Bill makes no provision for child-friendly education, as per the directives laid out by article 28 under the 1989 Convention on the Rights of the Child.

* Provisions for giving additional rights to Dalits and marginalised communities is missing. This is against the Supreme Court order.

* All committees and commissions formed under the current Act mostly comprise of government employees. More teachers, intellectuals and others must be included, by reducing the number of government officials.

* Additional provisions need to be made to regulate public schools and to make them more accountable.

Conclusion

The proposed Bill to amend the 1971 Education Act fails to capture the spirit of provisions made by international conventions on the rights to education, courtroom exercises, provisions made for the right to education in other countries, Nepal’s Interim Constitution, as well as international treaties ratified by the Nepal government. Nevertheless, the proposed Bill seems somewhat positive and progressive, as compared to the amendments that have been made time and again on the 1971 Act. In the context of Nepal, it is observed that not many courtroom exercises have been initiated to strengthen educational rights. Acknowledging the positive aspects and putting them aside, this document tries to focus on the points that are critical but missing. The above-mentioned points cannot completely represent the entire spectrum of values pertaining to human rights and the rights to education. Upon reflecting on the essence of the proposed Bill, there is a sense that the state is trying to hand over the right to education in instalments. The right to education, however, should be a birth right of each individual, and not something one should receive in instalments. As such, the proposed Bill fails to fully encompass the spirit of the right to education.

* This study, conducted by human rights activist and speaker Mr. Shreekrishna Subedi for the Nepal Constitutional Foundation, has been finalised based on the inputs given by various pressure groups: women’s, ethnic, Dalit, Madeshi, youth and others. The Foundation would like to thank: Kamala Bishwokarma, Bharat Gautam, Molikala Dewan, Binaya Kumar Kusait, Kamala Himchuri, Prakash Silwal, Rabin Subedi, Rishi Chapagain, Tanka Aryal, Rameshwor Upadhaya, Dr. Tirtha Raj Khania, Phurpa Tamang, Gopi Bishwokarma, Shyam Kumar Bishwokarma, Kapil Chandra Pokharel, Teku Nepali, Abhishek Adhikari, and Dr. Bipin Adhikari.

This research has been supported by The Asia Foundation and opinions expressed in this report are of the authors and don't necessarily reflects of The Asia Foundation.