The National Education Policy, 2020: Some Constitutional Concerns – Part 1

Ed note: This is a two-part series on the National Education Policy. The link for the second part will be provided here after it is published.
The National Education Policy (‘NEP’) has recently been announced by the Central Government. Since its release in July 2020, the NEP has been heralded as a harbinger of much needed structural transformation of the education system. However, the policy raises a number of constitutional concerns. While some of these concerns regarding the medium of instruction in schools and the undermining of the federal principles have been raised elsewhere, certain questions of educational equity and interests of marginalised groups remain unaddressed till date. Through this article and its subsequent part, we attempt to provide a constitutional background to the concerns for educational equality while highlighting certain inherent deficiencies in the NEP. Furthermore, we make a case for radically strengthening the commitments towards educational equality through constitutional and stautory provisions.
However, before delving into a detailed analysis of the NEP, 2020, we acknowledge that the NEP 2020 is essentially a policy document. Thus, the limited scope of this piece is to only to indicate how the policy, against the backdrop of its provisions and its silences, may not be in line with Parts III and IV of the Constitution of India. Having said that, an actual constitutional scrutiny can only be conducted once the State makes laws in pursuance of the policy.
Scheme of the Policy
It is worth noting that the NEP’s introduction is aimed at providing inclusive, equitable and high-quality education while increasing access to educational opportunities universally. The NEP also acknowledges the lack of educational access and equality in the case of the marginalised groups by citing Unique-District Information on School Education 2016–17 data. To this effect, it states that:
  “[…] about 19.6% of students belong to Scheduled Castes (SC) at the primary school level, but this proportion falls to 17.3% at the higher secondary level. These enrolment drop-offs are even more severe for ST students (10.6% to 6.8%), Muslim students (15% to 7.9%), and children with disabilities (1.1% to 0.25%), with even greater declines for female students within each of these Socially and Educationally Disadvantaged Groups (SEDGs). The decline in SEDGs’ enrolment in higher education is even steeper.” (pp 23)
Evidently, the policy stresses on making ‘appreciable improvements’ to aid disadvantaged sections of the society. However, the content of its proposals does not signify a serious intent to bridge education inequalities. This is especially true because the proposals are limited to earmarking budgets, technology utilisation and outreach for the broad SEDG category without explaining any targeted efforts to mitigate specific contextual barriers that members of these diverse marginalised groups face. The policy also does not commit the State to specific financial responsibilities to ensure equitable educational outcomes, thus leaving much to be desired.
For instance, the policy does not substantively engage with the previous NEPs or draw upon their detailed outlines to serve all disadvantaged groups. An important omission in that regard is that of the Kothari Commission (and the National Policy of Education, 1968) vision of a Common School System (‘CSS’) for attaining equality in the system of education ‘with emphasis on equalization of educational opportunities’. It also does not take cue from the 1986 national policy that called for “special emphasis on the removal of disparities and to equalize educational opportunity,” especially for Indian women, Scheduled Tribes (‘ST’) and the Scheduled Caste (SC) communities. To achieve such a social integration, the 1986 policy called for expanding scholarships, adult education, recruiting more teachers from the SCs, incentives for poor families to send their children to school regularly, development of new institutions and providing housing and services. (pp 7-12)
Furthermore, the NEP, 2020 also fails to acknowledge the historical context of the demands by disadvantaged groups for equalisation of educational opportunities. One key proposal in this regard was the Article 2 Section 4 Clause 1 of the States and Minorities (1945), a constitutional proposal authored by Dr BR Ambedkar on behalf of the All India Scheduled Castes Federation. As per this clause, the federal government was obligated to undertake special ‘financial responsibility for the Scheduled Castes’ and make special provisions that ‘shall form the first charge on the Education Budget of the Union and State Government’. As against the vague proposals to remove ‘constraints’ faced by SEDGs, this constitutional proposal was categorical in fixing ‘the responsibility for finding money for secondary and college education of the Scheduled Castes in India’ on ‘the Union and State Governments’. It is pertinent to note here that the States and Minorities proposal ensured equality in access to educational opportunities by obligating the States to make provisions in their annual budgets in proportion to the population of the Scheduled Castes to the total budget of the States.
While the founders of the Indian Constitution were sensitive to the need for universalising educational opportunities, they were not oblivious to the need for ensuring equality in this universal access to such opportunities.  This is reflected in the drafting history of Article 45 which made it incumbent upon the State to provide education to all children within ten years of the commencement of the Constitution. Concurrently, the founders also made provisions to mandate special efforts to bridge educational inequalities between privileged and marginalised groups through Article 46 of the Constitution of India. The fact that Article 46 (Draft Article 37) was unanimously adopted in the Constituent Assembly Debates without any amendments, bears ample testimony to the commitment of our founding fathers towards the historically marginalised groups and their hard-won rights to equal access to educational opportunities.
Having discussed how the NEP, 2020 does not sufficiently fulfil the historical responsibility to bridge educational inequalities, we will now be analysing the NEP on the touchstones of the Part III and Part IV of the Constitution of India.  Assuming that the NEP, 2020 has been brought in pursuance of the mandate of Article 46 of the Constitution of India, it would be instructive to apprise the reader of the interplay between Part III and Part IV of the Constitution. This, in turn, would lay the foundation for our arguments on anti-hierarchy and educational equality in the next piece.
The Relationship Between Part III And Part IV of The Constitution
From State of Madras v. Champakan Dorirajan to In Re: Kerala Education Bill, Part IV has come a long way from strictly being regarded as non-enforceable to being regarded as the structuring values which determine the scope and ambit of Rights under Part III of the Constitution. Today, after a number of judgments, the position is sufficiently clear that the Directive Principles of State Policy (‘DPSPs’) are expected to be implemented in manner that does not abridge or come in a clear conflict with Fundamental Rights.
For the purposes of the present piece, and more specifically in the context of Article 46, Justice Krishna Iyer’s opinion in State of Kerala v. NM Thomas is instructive. Essentially, it states that Articles 16(1) and 16(2) must be interpreted in a manner which advances the goals of Article 46 of the Constitution. The goals of Article of 46 of the Constitution rest in promoting the educational and economic interests of the historically backward classes, and ensuring that they are protected from any kind of injustice at the hands of the State or any other social majorities. Therefore, when Articles 16(1) and 16(2) which mandate the equality of opportunity in matters of public employment are read in light of Article 46, it obligates the State to inter-alia, promote the economic interests of people from the backward classes. 
Justice Krishna Iyer’s opinion, thus advanced the idea of equality in the Constitution in the right direction by using Part IV principles as structuring values for determining the extent of Part III rights.
 The implications of this decision were two fold. First, the textbook interpretation of equality gave way to an interpretation which maintained the commitment of our Constitution towards the historically marginalised communities in India. Second, and more importantly, it also set the stage for the principle of anti-hierarchy to be actively implemented in India. This argument shall be discussed in Part II.