The outbreak of COVID-19 in 2019 has brought unprecedented challenges to all aspects of daily life, and governments have taken unparalleled measures to seize the spread of the virus. A notable consequence is government lockdowns worldwide, which also involve the closure of schools, universities, and educational institutions. This significant disruption of the education system has affected nearly 1.6 billion students in more than 190 countries worldwide. In light of this, and the importance of the right to education, this article analyses the impact of remote education on India’s human rights obligations, induced by COVID-19.
Understanding the Right to Education in International Instruments and Domestic Laws
Education is a fundamental human right enshrined under Article 26 of the Universal Declaration of Human Rights (UDHR) and Article 13 and 14 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR), and is an obligation subject to progressive realisation. Various national and international human rights instruments recognize the right to education and explain its specific dimensions. These international laws apply to India as long as they do not contradict with its domestic legislations and Courts often interpret domestic legislations consistent with international obligations. The ESCR Committee, in General Comment No. 13 noted that State parties shall adopt four interrelated components to receive quality education: availability, accessibility, acceptability, and adaptability. However, if an individual is deprived of this right to education, there is a significant chance that it can intensify inequalities and affect understandings of other related rights, such as gender equality, voting rights, employment rights, and so on.
The Supreme Court of India in Mohini Jain and Unnikrishnan v. State of Andhra Pradesh (1993) ruled that the right to education is a fundamental right which is an intrinsic part of Article 21 of the Indian Constitution. Later, the Supreme Court also upheld the validity of this judgement in case of J.P. Unnikrishnan v. State of Andhra Pradesh (1993) and reiterated that free and compulsory education of all children in the age group of six to fourteen years as a fundamental right is expressly manifested under Article 21A of the Constitution of India.
Recently in Radha M v. State of Karnataka (2021), the Karnataka High Court has ordered the state government to allocate funds and develop a scheme to provide study materials and technology necessary to deliver education if education institutions do not reopen. States are under obligations to provide digital solutions under the legal framework. Article 21A stipulates that education is compulsory for all. So, it must find solutions even during the pandemic. During the pandemic, the extent of the affinity between the right to education and right to access the internet were brought to light. This was largely relevant in the context of remote education being inaccessible to many in India. Therefore, to expand the definition of the right to education, this right will include the right to access the internet, the removal of restrictions on the use of the internet, and the access to the tools required for communication.
Unequal Access and the Digital Divide in the Context of COVID-19
The COVID-19 pandemic and compulsory adherence to remote education have highlighted the menace of unequal access to technology and the internet in the education sector. The ability of countries to foster remote education during the lockdown is a direct function of the development of the governments involved. The Supreme Court in State of Tamil Nadu and Others v. K. Shyam Sunder and Others (2011) interpreted Article 21A along with Article 14 & 15 of the Indian Constitution and affirmed that the right to education encompasses the right to get quality education without any discrimination based on social, economic and cultural backgrounds. This progressive step should be extended to all sectors and levels of education, and the aim should be to ensure equitable and adequate access to education platforms to all. Further, pursuant to Article 21A, the Right of Children to Free and Compulsory Education Act, 2009 obliges the State to provide Free and Compulsory education to a child and the responsibility to ensure compulsory attendance, admission, and completion of elementary education of every child from 6-14 years.
Related to this is the ability to access the internet. The Supreme Court of India in Anuradha Bhasin v. Union of India (2020) held that the right to access the internet and accessing information is also one of the rights under the freedom of expression which enjoys constitutional protection. Similarly, Paragraph 12 of the General Comment No. 34 under Article 19 of the International Covenant on Civil and Political Rights (ICCPR) stipulates that the right to access the internet and accessing information is one of the fundamental rights.
However, the reality paints a rather grim picture. In a survey conducted by Brookings, it was revealed that one in five children were enrolled in schools that do not offer remote education during the school closures, and in schools that had begun remote education, only slightly more than half attended all the classes. In addition, in low and high-income countries, many students suffer from the ‘digital divide’ phenomenon as they do not have the necessary technology and internet connection to run their studies at home. This digital divide is not merely educational but rather a socio-economic one.
As per UNICEF, in the second half of 2020, 86% of children in low-income countries did not receive primary education compared to 20% in highly developed countries, and at least a third of the world’s schoolchildren were unable to access remote education due to a lack of infrastructure. Meanwhile, India, as a country, has been one of the most affected countries by COVID-19. The virus has severely hampered the access to education of nearly 247 million primary and secondary school students in India. While school programs in India and around the world have made efforts to reach students at home in various ways, recent estimates of the impact on learning and emotional well-being suggest that children from low-income families suffered the most due to school shutdowns.
The Committee on Economic, Social, and Cultural Rights in General Comment No. 13 emphasized education as a right to empower, participate fully, and contribute to society. Therefore, education must be equally accessible for every class of the country. While educational institution shutdowns can be perceived as necessary to stop the spread of COVID-19, one must not forget that education is a human right, and governments must take all necessary steps to ensure its continued existence in times of crisis. Thus, planning and modifying education programs to address the risk of educational disruption is essential.
Mohd Ayan is presently pursuing his B.A. LL.B at Jamia Millia Islamia, New Delhi
Image: Kim Murton for NY Times