Home | Back Issues | Contact Us | News Home
“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 286
September 8, 2012

This week's issue:
Law In-depth
Law Watch
Your Advocate
Human Rights Monitor
Law Week

Back Issues

Law Home

News Home


Law In-depth

Illiteracy: A threat to equality before law

Md. Ashraful Alam


Today, 8th September is the world illiteracy day as to be observed all over the world. Governmental as well Non-governmental organizations have organised a lot of programs to create awareness among people for literacy. I am trying to analyze right to education in a pragmatic human rights approach to show essentiality of education to the way of equality before law. Education is the primary vehicle for human, economic and social development, profiting both the individual and society. It is very difficult for individuals to exercise their civil and political rights unless they receive the basic education. Right to education is granted in Article-17 of Bangladesh constitution. The Article provides that the state shall adopt effective measures for the purpose of (a) establishing a uniform, mass-oriented and universal system of education and extending free and compulsory education to all children to such stage as may be determined by law. (b) Relating education to the needs of society and producing properly trained and motivated citizens to serve those needs, (c) removing illiteracy within such time as may be determined by law. Article-17 provides for state's obligation to remove illiteracy within such time as determined by law. That means there has time limitation for fulfilment of the obligation.

Dear reader, you can hope that if a government can not fulfil it in this worldly life, may do in life after death. The right is taken as one of the fundamental principles of state policy. It should be more important that this right is not judicially enforceable. Therefore, if there is any violation of right to education, none can get any judicial protection to enforce the right. These principles are suitable to describe as an ornament of our constitution. I never would like to give allegation to the framers of the constitution rather an international hypocrisy against economic, social and cultural rights after 1948, adoption of The Universal Declaration of Human Rights (UDHR). The western developed countries thought if civil, political, economic, social and cultural rights were taken under same covenant, that countries might have pay for equality of human being as the rights are international character. The hypocrisy became successful through division of civil and political rights under a covenant to be judicially enforceable and another is not on the same footing. Right to education is one of them not to be judicially enforceable.

But if a prudent man think even for a moment that how non-enjoyment of right to education has paralyzed civil and political rights, may be stop watch statue. Granting of civil and political equality can never be enjoyed unless and until there is equality through economic and social rights. A man can never be free and hungry in the same time. Suppose all citizens are equal to have one vote in national parliament election. But my question to you, is a poor citizen who needs food to live equal in exercising his equal voting right? I think answer should be live fast than politics. If you dare to oppose with me, suppose he is exercising his voting right but is he a little eligible to determine the right candidate through his understanding?

It is only a token equality. Because, an illiterate citizen is neither able nor capable to make a rational choice in exercising his voting right. Only literacy and education, an economic and social right can give the main sword to exercise the civil and political right. Education is the only key to root out all the maladies like poverty, health problems, over- population etc. Moreover, a citizen has to live at first to exercise his civil and political right. He can live on food by wage earning job. But he is never entitled to a standard job unless he has education. Because our equal grant is only among equals who are educated. An illiterate is not entitled to get equal protection although he has civil and political equality. That is why a citizen never gets the enjoyment of civil and political equality since he has no social equality. Education brings self-confidence and self-reliant to exercise his rights. A foundation of basic education and literacy expands an individual's economic and social opportunities, helping to acquire better job with higher and more dependable income. Education can also be a powerful vehicle for improving awareness on other social issues, such as healthcare and the uptake of preventive health services. A citizen who does not know his rights, how he can exercise his right? Can any one show any example that an uneducated citizen who has neither economic solvency nor social status is a parliament member in Bangladesh? The answer is known even to a little boy. Because, a citizen who has no enjoyment of economic, social and cultural right can never look forward to civil and political right. As we, citizens of Bangladesh are victimized not by luck rather by our constitution itself. Our Constitution is the supreme law of the land.

If the constitution itself keeps the right to education as judicially non-enforceable, what would be effect by thousands of writings? Argument may be shown by someone as to limited resource of government. But it would be more suitable answer to them that a country with less recourse than Bangladesh has proved to give fundamental grantee of right to education. Neither Non-governmental organization nor any eminent scholar on legal side dare to raise the issue that right to education which is a pre-requisition for civil and political equality to be transformed into fundamental right. Another problem is in legal academic study itself. Because, our law institutes are producing black latter lawyers and judges who look only to the black latter laws written in book. They don't try to understand that law is for man, not man for law. They should know not only what the law is but also what the law should be. However, there is a little hope and aspiration in Bangladesh among new generation as to apply golden rule of interpretation through judicial activism. The Supreme Court is the guardian of our constitution through judicial review power. It would be the most appropriate if the matter is clarified by the court to declare that the right to education should not be kept in non-enforceable right. It should be turn into a judicially enforceable fundamental right. Because, this right is a vital requirement for enjoyment of civil and political rights. The court may look to Indian courts how they have applied a pragmatic approach to bring right to education into fundamental right via judicial interpretation of the constitutional provisions. Indian supreme court declared a glory decision in Unni Krishnan, J.P. v. State of A.P. and Others (1993). The Court held that the right to basic education is implied by the fundamental right to life (Article 21 of Indian constitution), when read in conjunction with the directive principle on education (Article 41). The Court held that the parameters of the right must be understood in the context of the Directive Principles of State Policy, including Article 45 which provides that the state is to endeavor to provide, within a period of ten years from the commencement of the Constitution, for free and compulsory education for all children under the age of 14. Article 41 indicates that after the age of 14, the right to education is subject to the limits of economic capacity and development of the state. Quoting Article 13 of the International Covenant on Economic, Social and Cultural Rights, the Court stated that the state's obligation to provide higher education requires it to take steps to the maximum of its available resources with a view to achieving progressively the full realization of the right of education by all appropriate means.

The state responded to this declaration nine years later by inserting, through the Ninety-third amendment to the Constitution, Article 21-A, which provides for the fundamental right to education for children between the ages of six and fourteen. The Court didn't direct to transfer Article-41 of Indian constitution to part 1v in decision of Unni Krishnan case. Because, subsequently court stated in case of M.C. Mehta v. State of Tamil Nadu & Ors (1996)that Article 41 had acquired the status of a fundamental right. Where Indian Court declared that right to education has acquired the status of fundamental right only on expiration of ten years since adoption of Indian constitution and government can't escape its liability on the ground of progressive realization, what should be the position of Bangladesh court? The modern trend about right to education has been newly shaped with right to life. A citizen who is denied right to access education is not only deprived of his right to live with dignity, he is also deprived of his right to freedom of speech and expression enshrined in fundamental rights. We can't deny the latest concept of right to education only on point that that right is one of the fundamental principles of state policy. There is only the way to say think globally and act locally.

The writer is Senior Lecturer, Department of Law, Uttara University.


© All Rights Reserved