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Opinion

School education in tailspin due to legal turmoil

Binod K. Pathak

Binod K. Pathak

 |  Kathmandu

A country that struggles to fulfill the basic needs of the people cannot provide quality education. According to the recently released Human Development Index (HDI) report, Nepal is ranked at 146th position out of 193 countries. The Human Development Index (HDI) is a statistical average of three most important aspects of human life: health (life expectancy), education and earning (PCI - per capita income). Education is measured by calculating mean years of schooling completed and expected years of schooling upon entering the education system. Obviously, Nepal is not doing great on the educational front.

Although a noticeable rise in the enrolment rate in school has been observed lately, high percentage of dropouts remains a matter of concern in school education of Nepal. The government’s economic survey report (2021 AD) shows that over two-thirds of the students enrolled in grade one get out of the school system before they reach grade 12 (the last grade of secondary level of education). The retention rate of students up to grade 12 is pathetically low that stands at only 29.2 percent. The retention rate up to grade 10 is all the more discouraging. Out of 100 students who are enrolled in grade one, 36 students leave the school by the time they write Secondary Education Examination (SEE) of grade 10. The retention rate till grade 10 is just 64.6 percent. 

Is the ‘Right to education’ just a declaration? Can't it be enforced against a state if this right of a citizen is violated? Can’t the Supreme Court of Nepal take ‘suo moto’ action by issuing writs against the state if such a wide-scale of school students comes into knowledge? A violation of any fundamental right is legally enforceable in the interest of citizens’ welfare.

The number of students, studying in the academic session 2022, increased by minuscule 2.5 percent compared to the previous academic session. Among the total students, 74.2 percent are in the basic level (1-8) and 25.8 percent are in the secondary level (9-12). Agreeably so, this number has gone up at every level owing to the increase in the retention rate of students, yet it is nowhere near 100 percentage mark.

The dominant cause of Nepal being the largest exporter of unskilled and semiskilled workers is the low retention rate in school. This is also the contributory cause to poverty and increasing rate of unemployment. The trapped citizens in the cobweb of poverty and unemployment underscores the importance of compulsory education to all and dropout for none.  Education is the only way for both the citizens and the state to march toward the path of development and bring prosperity to oneself as well as society.
  
The Constitution of Nepal, 2015 guarantees free education up to the secondary level as a fundamental right of Nepal’s citizens. However, the basis of this guarantee is not mentioned in the law. Is the ‘Right to education’ just a declaration? Can't it be enforced against a state if this right of a citizen is violated? Can’t the Supreme Court of Nepal take ‘suo moto’ action by issuing writs against the state if such a wide-scale of school students comes into knowledge? A violation of any fundamental right is legally enforceable in the interest of citizens’ welfare. Even PIL (Public Interest Litigation) can be filed if the state neglects to fulfill its constitutional obligations more so if it is enshrined under Part 3 of the Constitution of Nepal. Article 31, clause -1 says that every citizen shall have the right of access to basic education. Clause -2 of the same article adds further that every citizen shall have the right to get compulsory and free education up to the basic level and free education up to the secondary level from the State.

All three levels of government (federal, provincial, and local level of government), referred to as state here, claim their authority to administer school education all over the country. These constitutional provisions have created utter confusion regarding the administration of education and the nature of transaction of curriculum within the classroom. 

If the enrolment rate falls short of the 100 percent mark. There seems to be a failure of the state to ensure compulsory and free education for school-going children of Nepal. The state can’t pass the bulk as it is under the constitutional obligation to protect the right of access to basic education and stop the dropouts at any cost. All three levels of government (federal, provincial, and local level of government), referred to as state here, claim their authority to administer school education all over the country. These constitutional provisions have created utter confusion regarding the administration of education and the nature of transaction of curriculum within the classroom. 


Schedule 8 of the Constitution of Nepal places basic education and Secondary education under the domain of local government to administer and supervise the same. Again, Schedule 9 of the Constitution of Nepal places education as a broader shared item under the domain of all three levels of government (federal, provincial, and local). Which level of government out of the three will enact law on education and execute it? Isn’t it that ‘Basic and Secondary education’ is the part of overall broader item of education?

This is where the overlapping item placed in Schedule 8 and Schedule 9 of the Constitution of Nepal has caused muddiness in both legislative and executive actions of the state and its consequent fallout on all the stakeholders of school education in the absence of perspicacious interpretation of constitutional provisions by the Supreme Court on the matter in hand. Which level of government, if the law is enacted, will have an overriding effect over the overlapping item under the scheme of federalism and divisions of power among the three tiers of political governance? If all three levels of government have enacted laws about ‘basic and secondary education’ and their provisions are in clash with one another, then which law will be rendered superfluous and to what extent? Questions like these are real vexing issues as well as a huge embarrassment for any of the three governments because laws to enforce federalism have still not taken shape almost a decade after the adoption of the Constitution of Nepal, in 2015.

Moreover, it entails a clash of power and authority in the absence of clear provisions of law under the newly adopted federal structure of political governance. This is a wake-up call for the government to press the appropriate amendment of the constitution and devise new secondary laws to establish school education in its true spirit not to tinker with it by allowing it as a business venture and source of funds for the political party. 

(Binod Kumar Pathak is an editor, educator and academician)



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