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The article argues how the constitutionally recognized fundamental right of access to education has become a privilege for majority of the student population in India.
The COVID-19 pandemic has brought with it a plethora of unforeseen challenges. The implications of the ensuing lockdown are bound to have a lasting impact on various domains, particularly on the education sector.
As states across the country have been forced to shut down schools and educational institutions to prevent the spread of the Coronavirus, uncertainties surrounding the situation have reportedly impacted more than 32 crore students in India.
On April 15, 2020, the Ministry of Home Affairs issued a notification laying down guidelines to be followed during the lockdown period. The Ministry has directed institutions to adhere to the academic calendar through online education and encouraged the use of Doordarshan and educational channels for teaching purposes.
While the direction is a welcome move for some, many students across the country with access to little or no digital infrastructure are now faced with unwieldy practical challenges.
The digital divide
A country with the world’s largest youth population has now been thrust into an e-learning experiment of unprecedented scale and scope. While it may be feasible for schools and students in metropolitan cities to adapt quickly, there is little hope for those in rural areas.
This digital divide may be attributed to multiple factors – lack of infrastructure in terms of access to internet, absence or dearth of computers in schools, inability of underprivileged students to procure computers, and lack of digital literacy amongst both teachers and students.
Students in rural areas and children of migrant workers experiencing homelessness due to the lockdown are likely to be impacted most severely. The Annual Status of Education Report (Rural), 2018 revealed that in 596 government schools belonging to 619 districts, only 21.3 per cent of students had access to computers in their schools.
The Government of India’s ambitious Bharat Net program to connect more than 6 lakh villages through 2.5 lakh gram panchayats or village blocks with high-speed Internet is also far from achieving its targets. As of April 2020, according to the Bharat Broadband Network Limited (BBNL) website, the government has been able to roll out equipment to only a little over half of the targeted gram panchayats. Of these, many have been reported to be non-functioning networks. Only 8.33 percent of all gram panchayats have service ready Wi-Fi hotspots.
In its 2019 report, the Parliamentary Standing Committee of the Ministry of Electronics and Information Technology suggested that the much-acclaimed digital literacy drive had touched only 1.67 per cent of the population even though at least three major flagship programmes were being run together.
Let's take the Pradhan Mantri Gramin Digital Saksharta Abhiyan (PMGDISHA) for example, which seeks to certify 6 crore individuals as “digitally literate” in rural India. So far, less than 50 per cent of the 6-crore target have been trained and only a third of those who have been trained are certified. The national average of the students certified under the programme stands at an abysmal 36 per cent.
Mobile connectivity in rural areas though, is not so bad. As per the data collected from the Telecom Service Providers in 2019, it is estimated that out of 5,97,618 inhabited villages, including gram panchayats, about 5,69,897 are covered by mobile services.
However, one must consider that having mobile connectivity does not imply that every such person would also have access to the internet or that all such mobiles would be smartphones that can support e-learning technology. Even if it is assumed that most people having mobile phones have access, one cannot ignore the issue of lack of digital literacy.
Besides, now that entire families have been confined to their homes due to the lockdown, the only mobile or computer in the house is likely to be used by the parents who are working from home.
Rural India’s poor internet penetration is further exacerbated due to low household incomes, frequent cable cuts, unreliable electricity and insufficient diesel supplies for generators in towers.
Unfortunately, a large student population of the tier 2 cities and suburban areas are also likely to bear the brunt. Data published by the Telecom Regulatory Authority of India (TRAI) in February, 2020 reveals that India has around 115 crore wireless subscribers, of which only approximately 66 crores have access to broadband-quality internet. Therefore, merely half of the country’s population has access to decent quality of internet.
The National Sample Survey 75th Round report indicates that there is a stark digital divide between rural and urban India. According to the report, the proportion of households in the country having computers was found to be around 10.7% (only 4.4% of rural households and 23.4% of urban households possessed a computer). 14.9% of rural households, 42% of urban households, and 23.8% of households all over India were found to have internet facilities.
In rural areas, only 9.9% of persons above the age of 5 were found able to operate a computer and 13% were found able to use the internet. In urban areas, 32.4% were found able to operate a computer and only 37.1% were found able to use internet.
Overall, only 16.5% were found to have the ability to operate a computer and only 20.1% were found able to use internet in India. Even if it is assumed that these numbers have doubled or tripled over the past 1-2 years, it would be fair to say that India largely remains digitally illiterate.
Indian Constitution and its promise of equitable education
The Supreme Court in the case of Mohini Jain vs. State of Karnataka enunciated that the right to education flows from the enforceable right to life and personal liberty guaranteed by Article 21 of the Constitution, as there could be no dignified enjoyment of life, or the realization of other rights, without adequate education.
In Unni Krishnan, JP & Ors. s. State of Andhra Pradesh & Ors., the Apex Court observed that the parameters of the right to education must be understood in the context of the Directive Principles of State Policy. Article 45 provides that the State should endeavour to provide, within a period of ten years from the commencement of the Constitution, free and compulsory education for all children under the age of fourteen.
It was further clarified that after reaching the age of fourteen, the right to education becomes subject to the limits of economic capacity and development of the State. However, the Court duly noted that the State's obligation to provide higher education after the age of fourteen requires it to maximize the use of its available resources with a view to achieving full realization of the right of education.
Crystallizing this dictum of the Court, the State responded by amending the Constitution in 2002 and incorporating Article 21A, which guarantees the right to free and compulsory education to all children of the age of six to fourteen years. Subsequently, the Right of Children to Free and Compulsory Education (RTE) Act, 2009 was enacted. This legislation casts a legal obligation on the Central and state governments to ensure that the fundamental right enshrined under Article 21A is protected.
An analysis of judicial precedents shows that over the years, Indian courts have liberally interpreted and widened the scope of the right to education. The High Court of Kerala, for instance, in the case of Faheema Shirin RK v. State of Kerala & Ors., went on to declare that the right to have access to internet is an integral part of the right to education under Article 21.
While arriving at the ruling, the Court opined that the State should ensure that children were armed with modern technologies to compete in the developing world and attain success.
Our Constitution not only guarantees the right to education, it goes even further to ensure equal access to education of ‘satisfactory’ and ‘equitable’ quality to all children, without any discrimination. With the Coronavirus spreading at an exponential rate, lockdown and shuttering of schools across the country was necessary. We are now faced with a unique conundrum - to what extent does our legislative framework allow our fundamental rights to be suspended?
When the Constitution of India casts upon the State the responsibility to ensure that children from less privileged communities do not suffer by being placed on the wrong side of the digital divide, is it then fair to pass a blanket direction for all educational institutions to adhere to the academic calendar through online fora?
Numbers reveal that in doing so, the State is impairing the right of a majority of the student population and is further widening the urban-rural education gap. It is therefore a gross violation of Article 14 to allow access to e-learning to a privileged section of the student population, while depriving the rest.
India, like many other countries across the globe, is ill-equipped to deal with what’s to come. Having realized the inadequacy of digital capacity and in light of the many challenges being reported by parents and students across the country, the Ministry of Human Resources and Development launched a “Bharat Padhe Online” campaign on April 12, 2020 for crowdsourcing of ideas to improve the online education ecosystem of India.
However, it remains unclear as to which ideas will see light of day as the urban-rural education gap further widens amidst the looming COVID-19 crisis.
For those who do not have access to internet, a few measures have been notified which include broadcasting of educational content through Doordarshan and All India Radio. However, the effectiveness of teaching through such media is questionable when compared to online platforms, which allow students to raise doubts and have them clarified instantly.
Moreover, the level and scope of educational content through such media is limited – for instance students pursuing specialized courses are left in the lurch. We are yet to see any measures being taken to ensure access to education for children of migrant workers suffering from homelessness and for students with visual, hearing or learning disabilities.
While there are many unaddressed issues, the truth is that the experiment of a ‘Digital India’ remains a distant dream and a large population of students is gravely disadvantaged by this reality. Granted that the circumstances are peculiar, but it is the moral obligation of the State to ensure that fighting against COVID-19 does not exacerbate the disparities that already exist.
COVID-19 has brought to fore the fact that the right to internet is inextricably linked to the right to education – one hopes that it does not take another pandemic to realise it.
The author is a lawyer practicing at the High Court and district courts of Delhi. She is admitted to the New York State Bar and holds a Master’s degree from the University of Virginia School of Law, United States.