THE ROLE OF THE NATIONAL COMMISSION OF FOR PROTECTION OF CHILD RIGHTS (NCPCR)

IN MONITORING THE

RIGHT TO EDUCATION (RTE) ACT

By Karmanye Thadani Research Associates, CCS

TABLE OF CONTENTS

Pg. Acknowledgements.... 3

Abstract......

I. Introduction.....

II. Functioning (Not specific to the Right to Education Act) ......

III. Role of the NCPCR in implementing the RTE Act ...... 16

IV. Conclusion.........

31

ACKNOWLEDGEMENTS

I would like to thank my colleagues in CCS, President Parth J. Shah and all those in the School Choice Team, especially Mr. Shantanu Gupta and Ms. Aakansha Bapna, for all the help and support. I am also very grateful to the staff of the NCPCR for having been so very cooperative.

ABSTRACT

This research paper analyses the work of the NCPCR as regards monitoring the implementation of the RTE Act in theory and in practice. Material from the NCPCR website and media reports, besides informal interviews with the NCPCR staff and Mr. Umesh Gupta, a critic of this statutory body, have formed the basis of this research, making the research methodology doctrinal as well as nondoctrinal. The writing is descriptive, and in the conclusion, gets analytical. A uniform style of foot noting has been used throughout the text. The functioning of State Commissions for Protection of Child Rights (SCPCRs) and / or other such equivalent bodies at the state level is beyond the scope of this study.

I.

INTRODUCTION

The NCPCR was set up in March 2007 under the Commissions for the Protection of Child Rights Act, 2005. The Commission was set up top meet some international child rights obligations, most notably the United Nations Convention on the Rights of the Child. The Commission claims its mandate to be to ensure that all Laws, Policies, Programmes, and Administrative Mechanisms are in consonance with the Child Rights perspective as enshrined in the Constitution of India and also the UN Convention on the Rights of the Child1, a child being someone belonging to the age group of 0-18 years2.

The Commission states that it visualizes a rights-based perspective flowing into National Policies and Programmes, along with nuanced responses at the State, District and Block levels, taking care of specificities and strengths of each region. In order to touch every child, it seeks a deeper penetration to communities and households and expects that the ground experiences inform the support the field receives from all the

About NCPCR, available at http://www.ncpcr.gov.in/about_ncpcr.htm accessed on 21st June 2012

2

Ibid.

authorities at the higher level3 and thus sees 4an indispensable role for the State, sound institution-building processes, respect for decentralization at the level of the local bodies at the community level and larger societal concern for children and their well-being5.

II.

FUNCTIONING (NOT SPECIFIC TO THE RIGHT TO EDUCATION ACT)

A.

Composition

The NCPCR, by virtue of the Commissions for the Protection of Child Rights Act, 2005, is to be headquartered in New Delhi6 (its address is 5th Floor, Chanderlok Building, 36, Janpath, New Delhi - 1100017) and consist of a Chairperson and six other members. The Chairperson should be a person of eminence and one who has done outstanding work for the welfare of children.8 The six other members, out of which at least two are be women, are to be persons of eminence, ability, integrity, standing and experience in any of the following fields93 4

5 6

Supra note 1 Ibid.

Ibid. Commissions for the Protection of Child Rights Act, Section 3(3) 7 Complaints, available at http://www.ncpcr.gov.in/complaints.htm accessed on 21st June 2012; the author has also visited the office several times 8 Supra note 6, Section 3(2)(a) 9 Ibid., Section 3(2)(b)

(i) (ii)

education child health, care, welfare or child development children with disabilities

(iii) juvenile justice or care of neglected or marginalized children or (iv) elimination of child labour or children in distress (v) child psychology or sociology (vi) laws relating to children

The Chairperson is to be appointed by the Central Government on the recommendation of a three-member Selection Committee constituted by the Central Government under the Chairmanship of the Minister in-charge of the Ministry of Human Resource Development and the other six members are to also be appointed by the Central Government.10 The Chairperson and every Member are to hold office as such for a term of three years from the date on which he assumes office, provided that no Chairperson or a Member shall hold the office for more than two terms.11 However, no Chairperson or any other Member shall hold office as such after he has attained in the case of the Chairperson, the age of 65 years and in the case of a Member, the age of 60 years.12 The Chairperson or a
10 11

Supra note 5, Section 4 Ibid., Section 5(1)

Member may, by writing under his/her hand addressed to the Central Government, resign his office at any time.13 B. Functions

The functions of the NCPCR, as laid out in Section 13(1) of the Commissions for the Protection of Child Rights Act, 2005, are as follows:a. Examine and review the safeguards provided by or under any

law for the time being in force for the protection of child rights and recommend measures for their effective implementation b. Present to the Central Government, annually and at such other

intervals, as the Commission may deem fit, Reports upon the working of those safeguards c. Inquire into violation of child rights and recommend initiation of proceedings in such cases d. Examine all factors that inhibit the enjoyment of rights of

children affected by terrorism, communal violence, riots, natural disasters, domestic violence, HIV/ AIDS, trafficking, maltreatment,

12 13

Ibid. Supra note 5, Section 5(2)

torture and exploitation, pornography, and prostitution and recommend appropriate remedial measures

e.

Look into matters relating to children in need of special care

and protection, including children in distress, marginalised and disadvantaged children, children in conflict with law, juveniles, children without family and children of prisoners and recommend appropriate remedial measures f. Study treaties and other international instruments and

undertake periodic review of existing policies, programmes, and other activities on child rights and make recommendations for their effective implementation in the best interest of children g. h. Undertake and promote research in the field of child rights Spread child rights literacy among various sections of society

and promote awareness of the safeguards available for protection of these rights through publications, media, seminars and other available means i. Inspect or cause to be inspected any juvenile custodial home or

any other place of residence or institution meant for children, under

the control of the Central Government or any State Government or any other authority including any institution run by a social organization, where children are detained or lodged for the purpose of treatment, reformation or protection and take up with these authorities for remedial action, if found necessary j. Inquire into complaints and take suo moto notice of matters related to: i. ii. Deprivation and violation of child rights Non implementation of laws providing for protection and development of children iii. Non-compliance of policy decisions, guidelines or

instructions aimed at mitigating hardships to and ensuring welfare of the children and to provide relief to such children or take up the issues arising out of such matters with appropriate authorities

k.

Such other functions as it may consider necessary for the

promotion of child rights and any other matter incidental to the above functions

C.

Powers

In the list of functions enumerated above, the aspect of conducting enquiries has been mentioned. In this section, we shall examine the powers conferred upon the Commission during the process of conducting enquiries (which find a mention in Section 14 of the Commissions for the Protection of Child Rights Act) and the steps it can take after completing the enquiry (which are mentioned in Section 15). While taking up an enquiry, the NCPCR has been conferred all the powers of a civil court trying a suit under the CPC and, in particular, in respect of the following matters, namely(a) summoning and enforcing the attendance of any person and examining him on oath (b) (c) (d) discovery and production of any document receiving evidence on affidavits requisitioning any public record or copy thereof from any court or office

(e)

issuing commissions for the examination of witnesses or documents.

The Commission shall have the power to forward any case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case has been forwarded to him/her under Section 346 of the CrPC. On completion of the inquiry, the Commission can take any of the following steps (i) where the inquiry discloses the commission of violation of child rights of a serious nature or contravention of provisions of any law for the time- being in force, it may recommend to the concerned Government or authority the initiation of proceedings for prosecution or such other action as the Commission may deem fit against the concerned person or persons (ii) approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary

D.

ACTIVITIES TAKEN UP BY THE NCPCR (NOT SPECIFIC TO THE RIGHT TO EDUCATION ACT)

The NCPCR has been engaging in a wide variety of activities to further the cause of child rights. It looks at the gaps in the legal and policy frameworks from the perspective of child rights14 and makes recommendations, often in the form of guidelines, to the government and other concerned stakeholders in this direction15, besides writing letters to Government bodies appealing to them to take action16. It also carries out ground-level research of prevalent child rights problems in different parts of the country by way of field visits17 and publishes reports18. It organizes conferences, seminars and workshops to sensitize people about child rights issues.19
14

NCPCR Activities, available at http://www.ncpcr.gov.in/activities.htm accessed on 21st June 2012 15 NCPCR Guidelines, available at http://www.ncpcr.gov.in/ncpcr_guidelines.htm accessed on 21st June 2012 16 NCPCR Letters, available at http://www.ncpcr.gov.in/letters.htm accessed on 21st June 2012 17 NCPCR State Visits, available at http://www.ncpcr.gov.in/state_visits.htm accessed on 21st June 2012 18 NCPCR Publications/Reports, available at http://www.ncpcr.gov.in/publications_reports.htm accessed on 21st June 2012 19 NCPCR Events, available at http://www.ncpcr.gov.in/ncpcr_events.htm accessed on 21st June 2012

The issues the NCPCR takes up include child labour, female foetecide, child health and nutrition, the needs of children without parental care, children with disabilities as well as children on railway platforms, the treatment of children in juvenile justice homes, the displacement of children within the country and also the participation of children in reality shows.20 As mentioned earlier, it addresses complaints and takes suo moto cognizance of problems. It even conducts public hearings.21 These require more detailed discussion.

As regards complaints, non-anonymous complaints regarding any nontrivial matter can be made to the Commission free of cost in any of the constitutionally recognized languages so long as the matter concerns child rights without involving specific civil law aspects such as property rights or contractual obligations and is not pending with any other legally

20

Issues, available at http://www.ncpcr.gov.in/issues.htm accessed on 21st June 2012 21 NCPCR Public Hearings, available at http://www.ncpcr.gov.in/public_hearings.htm accessed on 21st June 2012

constituted commission or sub judice with any court or tribunal.22 All complaints may be addressed to the Chairperson of the Commission.23

Complaints can be sent to the Commission on its postal address or sent by e-mail to complaints.ncpcr@gmail.com.24

The powers the NCPCR has while instituting an enquiry while receiving a complaint or taking suo moto cognizance of an issue and after the same have already been discussed. Next, we may discuss the aspect of public hearings.

Public hearings are gatherings where specific grievances are aired before a jury.25 The concerned government officials are also present to present their status report with respect to the particular grievance. After hearing the grievance and the official action-taken report, the jury gives directions on the case.26 For a public hearing, an NGO must identify the relevant instance of violation of child rights with all the relevant details as to the victim(s), his/her/their parent(s), perpetrator(s) and circumstance(s) and send petitions to the relevant Govt. departments to take action and follow
22

Complaints, available at http://www.ncpcr.gov.in/complaints.htm accessed on 21st June 2012 23 Ibid. 24 Ibid. 25 Supra note 20 26 Ibid.

up with them for the same, besides registering an FIR with the police if the case so warrants it.27 In case of non-action, the NGO can write a petition to the NCPCR asking for a public hearing with all relevant documents attached.28

If the NCPCR deems the matter fit for a public hearing, it appoints a jury comprising experts in the field and serves summons to the victim/his/her parent(s)/representative(s) as also the concerned Govt. officials. 29 The hearing is video-recorded and within a fortnight of the hearing, the NCPCR shall issue directions to the relevant Govt. department to take action and send a report of the same to the Commission. 30 If no response is received within a month, the NCPCR sends the department a reminder. 31 Even then if no action is taken, a special jury or enquiry commission is set up by the NCPCR to suggest what remedial action can be taken and it recommends the same to the executive or judiciary.32

27 28

Supra note 20 Ibid. 29 Supra note 20 30 Ibid. 31 Ibid. 32 Ibid.

III. ROLE OF THE NCPCR IN IMPLEMENTING THE RTE ACT The RTE Act, a legislation meant to define the scope of the right to free and compulsory education in the age group of 6 to 14 years as a fundamental right under Article 21A of the Indian constitution, under Article 31(1), authorizes the NCPCR to examine and review the safeguards provided by or under the RTE Act and recommend measures for their effective implementation as also inquire into complaints relating to childs right to free and compulsory education and even, in this direction, take necessary steps as provided under Section 15 of the Commissions for the Protection of Child Rights Act. Article 31(2) of the RTE Act states that while discharging its functions under the RTE Act, the NCPCR shall have all the powers bestowed upon it by Section 14 of the Commissions for the Protection of Child Rights Act.

Thus, the modality of functioning of the NCPCR remains the same even with respect to monitoring the implementation of the RTE Act. It is

interesting to note that while the RTE Act explicitly mentions the NCPCR, the NCPCR has looked into the implementation of various other statutes dealing with child rights, such as the Child Labour (Prohibition and Regulation) Act33, which is certainly legitimate and well within its responsibility, even though those statutes dont make any mention of the NCPCR.

We may now examine in some detail the work done by the Commission with respect to implementing the RTE Act. A separate division, called the Right to education (RTE) Division has been created for this purpose.

This apart, wherever the NCPCR has undertaken field visits to oversee the child rights scenario in general, the issue of the implementation of the RTE Act has found due attention.34

33

See, for instance, NCPCR head advocates amendment in Child Labour Act, available at http://zeenews.india.com/news/nation/ncpcr-head-advocatesamendment-in-child-labour-act_781223.html accessed on 25th June 2012 34 See, for example, Report on children coming from North East to Mangalore and situation of children institutions in Mangalore: Visit Report of Dr. Yogesh Dube, available at http://www.ncpcr.gov.in/Reports/Manglore%20Report.pdf accessed on 4th July 2012

A.

Composition of the RTE Division

It can be understood well from the block diagram given below.

NCPCR
Chairperson
Member Secretary RTE Division Senior Project Coordinator

Project Coordinator Programmes

Project Coordinator Admin & Coordination

Project Coordinator Complaints

Project Officer Project Assistant

Project Officer yet to be allotted to Project Coordinator

Project Officer

Project Officer

1 Accounts Officer

1 Programmer

1 Accounts Assistant

4 Data Entry Operators

The Member Secretary is an Indian Administrative Service (IAS) officer of the Joint Secretary level appointed by the central Govt. for a period of three years. The designation of Senior Project coordinator is a new name, the earlier one being National Coordinator. The other posts are filled through a recruitment process with certain eligibility criteria as to educational qualifications and work experience, and selection is based on an interview. They get all the benefits and emoluments that other Govt. officers are eligible for, depending on their designation.

B.

Complaints

The work of the NCPCR relating to implementing the RTE Act has not been limited to the issue of corporal punishment, and has extended to other areas as well.

The NCPCR has received complaints pertaining to issues of noncompliance of the Act, such as those relating to no detention till Class VIII and denial of admission on the ground of disability.35

An RTI query reveals that as of March 2012, the NCPCR received 2,850 complaints regarding the RTE Act.36 However, it has been able to resolve just 692 cases, or just 24% of the entire lot, by now.37

Breaking down the numbers year-wise, from 1st April 2010 to 31st March 2011, the commission received 1,089 complaints (including those relating to corporal punishment), of which it resolved 592 cases38, only about 54%.

And from 1st April 2011 to 16th March 2012, the commission could only resolve a mere 100 of the total 1,761 complaints received39, only about 6%!

cases of Right to education act violations remain unresolved, available at http://articles.economictimes.indiatimes.com/2012-03-31/news/31266620_1_ncpcrrte-act-protection-of-child-rights accessed on 2nd July 2012 36 Supra note 35 37 Ibid. 38 Ibid. 39 Ibid.
35

76%

Mr. Umesh Gupta, who filed the RTI application, said Not only is the data shocking, but the numbers actually denote the lowering efficacy of the NCPCR in monitoring the proper implementation of the RTE Act over the two years.40 Despite what looks like a dismal performance, Delhi seems to be better off than most other states. According to the document, in 2011-12, of the total 517 complaints received from Delhi, 80 were resolved.41

In Tamil Nadu, of the 15 complaints, three were taken care of; and in Uttar Pradesh, of 59 complaints, seven were acted upon.42 A case each was resolved in Maharashtra and West Bengal from where the number of complaints has been 132 and 99 respectively.43

However, in states like Andhra Pradesh, from where 780 complaints were received, none has been resolved.44 Nor has any case been resolved in Odisha (35 cases), Haryana (17) or Assam (12).45

Ibid. Supra note 35 42 Ibid. 43 Ibid. 44 Ibid. 45 Ibid.

40 41

According to a staff member of the NCPCR who was interviewed by the author of this paper in person, an estimated 60-70% of the complaints relate to Govt. schools failing to meet infrastructure norms laid down under the RTE Act or there being no school in a certain area, and getting these problems solved obviously takes time, ranging across a few months.

That apart, in the context of admission-related complaints in Govt. schools, often bureaucrats in concerned Govt. bodies (such as in the context of Delhi, the Directorate of Education, Delhi, and MCD) dont give timely responses to the NCPCR, according to Mr. Kumar. He stated that recently, the NCPCR has requested for enquiries to be instituted against those inefficient bureaucrats by the concerned departments.

He also mentioned that now, the NCPCR has changed its policy by first instructing the concerned Govt. officer to get the student admitted in the school or if not that one in case that the seats in that one had been filled, then another one to the satisfaction of the parents, and then seeking a detailed report as to the reasons for non-compliance, since doing the reverse delayed the process of the childs admission to his/her detriment. He also mentioned that earlier, the Complaints Cell was understaffed, comprising only three people, which also contributed to the backlog.

The author of this paper, however, has met Mr. Umesh Gupta in person, and he argues that this claim of most complaints being infrastructurerelated is not true; rather, most complaints are admission-related.

He also cited a case of corporal punishment filed by a prominent activist, the victim of which was his own grandson, and after a prolonged period of three years, the NCPCR, in his opinion, wrongly declared the complaint to be without substance.

He also vociferously argues as to how the NCPCR is silent on child labour in its own vicinity, when it has the authority to take suo moto action.

C.

Programmes

The RTE Division of the NCPCR, as the block diagram given earlier clearly elucidates, has a separate wing to carry out his Programmes, just as it has one to address complaints. These are primarily carried out with the help of Social Audit Groups (SAGs) and State Representatives (SRs).

Talking of SAGs first, their NGOs or Civil Society groups partnering with the NCPCR. Collectively, they are working on a pilot project of certain blocks in 11 states. The NCPCR writes letter to the concerned state governments authorizing the SAGs to carry out its own work and soliciting the cooperation of the state governments for the purpose.

The SAGs check whether the infrastructure norms stipulated for schools under the RTE Act are being met and raise awareness about the Act in general. At the grass root level, there are district coordinators, block monitors and panchayat facilitators at the district and block levels respectively. They also conduct, on regular basis, what is called a shikha sanwad (which would really translate to education dialogue), at the block or district level, engaging Govt. officials, school management and a community at large to discuss education-issues. They coordinate with the concerned SCPCRs also and carry out in of teachers and educational officers. They also survey outoffschool children and report their The SAGs sign Memorandum of Understanding findings to NCPCR.

with the NCPCR to complete their work within a given time-frame and to submit reports to the latter. Currently, there are 12 SAGs.

The State Representatives (SRs) are appointed in an honorary capacity to engage with the Govt., schools and the community at large on behalf of the NCPCR. They can act throughout the concerned state, not in specific block only. They too participate in shiksha sanwads and a required to submit reports. The SRs are entitled to work on the entire multitude of child right issues and not just those pertaining to education. The Programmes and Complaints wings of the RTE Division working close coordination when it comes of public hearings.

There is also a project supported by the PMO to address child rights concerns in areas of civil unrest (e.g. parts of Assam infested by the recent Bodo-Muslim violence) and education gets due priority in the same.

D. Legislative and Executive Suggestions

The model RTE rules for the states do not include mechanisms of grievance redressal and the NCPCR is working on formulating the same to make model rules that include all aspects of grievance redressal including the method of lodging complaints, specific authorities from the State

machinery to be approached for complaints, timeline for grievance redressal etc. The NCPCR has also done commendable work in the field of corporal punishment, mental harassment and discrimination.

Section 17 of the RTE Act prohibits corporal punishment. In fact, this was undoubtedly a child rights issue in India even before the RTE Act came into existence, not only according to international law but also because that has been illegal going by Supreme Court interpretations of the IPC even prior to the emergence of the RTE Act.46 In fact, the NCPCR has taken interest in this issue even before the RTE Act came into being. 47 Section 17 also prohibits mental harassment of children and discrimination of any nature.

The NCPCR has come up with a set of guidelines that was made public on 5th March 201248 and has received considerable attention from the media,
46

NCPCR, Guidelines for Eliminating Corporal Punishment in Schools, available at http://www.ncpcr.gov.in/Guidelines/Guidelines%20for%20Eliminating%20Corpora l%20Punishment%20in%20Schools.pdf accessed on 26th June 2012 47 See, for example, this letter dating 9th August 2007 (the RTE Act dates back to 2009), available at http://www.ncpcr.gov.in/Guidelines/Guidelines_on_corporal_punishment_ d_o_to_Chief_Secretaries_9_Aug_2007.pdf accessed on 26th June 2012 48 NCPCR draws guidelines to eliminate corporal punishment, available at http://www.thehindu.com/news/natio/article2963918.ece accessed on 26th June 2012

having been reported by the leading national newspapers and magazines in the country. The guidelines ask the schools to constitute special monitoring cells to take prompt action in cases of physical punishment or harassment of children. They also suggest that Corporal Punishment Monitoring Cells (CPMCs) should hear grievances related to corporal punishment, child sexual abuse, mental harassment and discrimination without any delay and should forward recommendations to district level authorities within 48 hours of the occurrence.

The NCPCR has suggested that school boards should ask the schools affiliated to them to ensure a corporal punishment-free environment that would be one of the conditions for granting affiliation or recognition while practice of physical punishment or mental harassment should be one of the grounds for withdrawal of affiliation, it said.

The guidelines suggest that school teachers should provide a written undertaking that they would not engage in any action that could be construed as amounting to physical punishment, mental harassment or discrimination.

It also says that schools should have annual social audits of physical punishment, harassment and discrimination. The guidelines suggest that results of the audit should be made public before start of every new academic year.

All school children are to be informed through campaigns and publicity drives that they have a right to speak against physical punishments, mental harassment and discrimination.

The NCPCR constituted comprehensive guidelines following a detailed study which was conducted in 2009-10 involving 6,632 children across seven States that showed that 6,623 children had reported experiencing some kind of punishment.49 As many as 81.2% of the children surveyed had been subject to outward rejection by being told that they were not capable of learning or some other kind of verbal punishment.50

Based on the findings of the report, the NCPCR experts have come out with guidelines which stress on positive engagement with children.
49

NCPCR draws guidelines to eliminate corporal punishment, available at http://www.thehindu.com/news/national/article2963918.ece accessed on 26th June 2012 50 Ibid.

The guidelines advise teachers to pay positive attention to children and appreciate good efforts while ignoring minor lapses. They also lay down that life skills education should be made a part of school curriculum and should address issues of self-esteem, aggression, drug abuse, decision making, coping with stress and others.

The guidelines also suggest that school authorities should hold meetings with parent-teacher bodies on the guidelines and decide which procedures they should adopt to protect children and their rights in schools.

NCPCR Chairperson Shantha Sinha said that the Commission had brought together some of the best minds and experts to draft its guidelines on corporal punishment.51

A Task Force on Child Entitlements to suggest legislative and executive reforms in respect of child rights includes NCPCR staff and this task force is obviously also looking at education.
51

Supra note 49

IV. Conclusion

The NCPCR, notwithstanding its perhaps much justified criticism, is indeed doing considerable work as regards monitoring the implementation of the RTE Act. It has been succeed in removing some of its own bottlenecks, but it would be a good idea, in the authors opinion, to empower the body more by way of amending the statute under which it came into being (not the RTE Act) so as to allow it to follow up more rigorously with bureaucrats of the concerned department as to whether its directions has been followed and to allow it the slam fines on the inefficient ones, just as the Central Information Commission (CIC) imposes fines on bureaucrats not responding to RTI queries in time or not responding to them at all. Though the focus of this paper in on education, strengthening the NCPCR as a body in general would indeed be beneficial from the point of view of the entire kaleidoscope of child rights issues; else, it would remain a toothless tiger.