Academic journal article South Asian Studies

Right to Free and Compulsory Education in Pakistan after 18th Constitutional Amendment

Academic journal article South Asian Studies

Right to Free and Compulsory Education in Pakistan after 18th Constitutional Amendment

Article excerpt

Abstract

The Constitutions of India and Pakistan guarantee justiciable human rights and incorporate the Directive Principles of State Policy. Fundamental rights are justifiable through courts, while the principles of policy enjoy immunity from judicial interference. Right to education was constitutionally recognized as one of the principles of policy, not as a fundamental right in both countries. Although its status was earlier elevated from the directive principles of state policy to a fundamental right, owing to judicial activism, however, it was incorporated by a Constitutional Amendment in the Indian Constitution under Article 21-A. While in Pakistan, it was the 18th Amendment of the Constitution which elevated it to the status of a fundamental right. Resultantly, now it is subject to judicial review, under newly inserted Article 25-A. Now, the governments are obliged for its provision to all children, aging from five to sixteen years. Learning a lesson from the Indian recognition, Pakistan must cover its distance more swiftly and smartly, instead of wasting time in litigation or enactment of supportive legislation.

Keywords: 18th Amendment, Fundamental Right, Compulsory and Free Education, Legislation, Education Litigation

Introduction

Education is an inevitable and integral part of a human life, which has various valuable and noble purposes. Internationally, it has been emphatically recognized in the Declaration, Conventions and other relevant documents. While right to education means that it necessarily should be available to everyone, leaving no child left behind; accessible to all, without any discrimination; acceptable to students and their parents or guardians, and adaptable to the requirements of an individual and a society at large. It is called as a four 'A' scheme (Preliminary Report of the Rapprteur on the Right to Education, 1999). Moreover, in more than 140 national constitutions, it has been enshrined as a fundamental right or a duty of a state. It is incorporated in a constitution either as a principle of policy, not binding through courts, or as a fundamental right, enforceable by courts. First, it was a constitutional right but as an optional principle both in India and Pakistan. Now, it has been recognized as an enforceable fundamental right. Since it is a positive fundamental right, therefore, it requires financial recourses or budgetary provisions. Although it is a human right, having a characteristic of universality, but, in many countries, it is justifiable only for citizens. Foreigners, immigrants or illegal workers cannot compel the government to provide them the right to education equal to its citizens. Then, the paper distinguishes the legal impact of a human right, incorporated as a principle of policy, or as a fundamental right, particularly, when a Principle of a Policy is expressly declared in a constitution that its infringement would not be called in question in any Court on any ground. Further, it explains that albeit an unequivocal jurisdictional debar, how the Indian constitutional Courts elevated a non-justifiable right to education to a status of an enforceable fundamental right, juxtaposing their juridical approach with their counter-parts in Pakistan.

Owing to judicial activism, when the Indian Courts obliged the government for a policy-making agenda, then, how right to universal or primary education was incorporated as a fundamental right after constitutional amendments, creating a liability for the governments and parents. The paper especially underscores that it does not make any substantive difference even a right is embodied in a constitution as a fundamental right unless it is followed by a sub-constitutional law, making a positive right to be a ground reality. Finally, it explains how India, after its incorporation as a fundamental right, substantiated it with a comprehensive law, which saved the Judiciary to manage it at a micro-level. Otherwise, it would have been an endless involvement of the Judiciary in administrative affairs, ignoring the principles of separation of powers and stepping-in the shoes of government. …

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