Reflections on civil society and human rights
Oscar Vilhena VieiraI; A. Scott DuPreeII
ICoordinator of Sur Human Rights University Network and Associate Professor of Law, Catholic University of São Paulo and Getúlio Vargas Foundation, in São Paulo
IIDirector of Programs at Conectas Human Rights
Why do our societies still accept and even perpetuate human rights violations? The first part of this paper discusses why individuals respect or do not respect other people's rights.
Disrespect for rights emerges, among other factors, from persistent inequality that creates moral exclusion and, consequently, promotes the invisibility and demonization of those who struggle for their rights.
The second part of this paper explores the role of civil society, which, with its variety of interests, provides for a plural discourse, publicizes injustice, protects private space, interacts directly with legal and political systems and drives social innovation. Towards an agenda for strengthening the future human rights discourse, the authors suggest three strategies: improving communication and educational capacity, investing in innovative models, and building and strengthening networks that will ensure an active dialogue among diversities.
The continuing challenge of human rights
In the last half century, the language of human rights has become commonplace. It became, to the dismay of many, a political tool during the Cold War period and entered into foreign policy as a highly selective weapon to use against one's enemies. Looking on the positive side, the Cold War period played an enormous role in making the human rights language heard around the world. It is doubtful that the United Nations alone could have carried out such an effective dissemination.
The demand for a just international system is, arguably, at a peak today. The global peace protest on February 15, 2003 brought together millions on all continents not just to demonstrate against the then impending war against Iraq but also in support of the United Nations system. A reason for this sense of injustice, among others, is that we have failed to end violations of basic human rights. Social, cultural, civil, economic and political rights are incorporated in international and national legal systems but enjoyed in reality by few.
Why is there this continuing disrespect for rights? And how can we change this?
Who must respect human rights?
The first question may seem obvious but it is worth exploring: who needs to respect human rights? That is, who is responsible for the continuing lack of respect?
One common answer to this question is that the state must respect human rights. This is correct. The worst abuses, omissions and transgressions are the responsibility of the state. The state here is taken as the governing authority (including the police, the courts, the legislature, the public services and foreign policy) arising from some form of social compact. The presence and power of state authority is so prevalent in all spheres of our lives that human rights are often conceived as a set of principles or contracts between the state and those governed by it.
It is argued here, however, that human rights go beyond the state-citizen relationship for three reasons: (1) they require individual, voluntary submission to a correlated obligation to respect the rights of others; (2) they are both positively and negatively affected by non-state authorities; and (3) the shrinking mandates of states around the world further reduce the state's role. In recognition of the broad set of actors who must respect rights, Article 28 of the Universal Declaration of Human Rights explicitly mentions "a social and international order" that implies other actors, including individuals, communities, other non-state authorities, corporations and the international community at large.
First of all, respect for human rights is the responsibility of individuals. Even the greatest abuses of human rights are often, but not always, the fault of an individual. The action of individuals is magnified through access to state, corporate or informal authority. The separation of individuals from the contexts in which they are formed, nurtured and thrive is folly. But clearly individuals must respect rights.
The illusion of the state as the only responsible party for human rights should be further dispelled. Authority arises from any power that one individual or group has over another, not just state authority. Social groups have this authority over their members. The state can restrict or discourage their abuses but it is not immune from the power they exert. Our hypothesis must explain also why these social forces, both formalized and informal groupings that compose a level of "authority", do not respect human rights.
The private sector assumes de facto control of many areas critical for human rights, and to this extent an exclusive focus on state authority does not explain why people's rights are not respected. The enormous struggles for the creation of a concept of the social responsibility of the corporate sector in the last decades should serve to illustrate the need for a human rights discussion that includes and transcends the state/citizen duality. The Global Compact, promoted by the UN, is one example of such a discussion.
Returning to our question, we seek a reason for why we (keeping in mind that the "we" here includes individuals, state, private sector and social groups) choose to respect or not respect human rights. We will start by examining reasons for people to respect human rights.
Why do people respect human rights?
Three reasons to respect rights are posited for the purpose of this paper: cognitive, instrumental and moral reasons.
Cognitive reasons. We need to know what rights are. Information is critical for making choices. It comes to us through diverse cultural, media and educational sources. Information about human rights must link individuals with the universalized principles and integrate human rights, or be clear where it does not, within contextually developed values.
This is not a trivial matter. In many societies and languages, the words and terms of the rights vocabulary either do not exist or are being invented. The concept that people are endowed with rights is often contrary to day-to-day experience, existing privileges, religious and hierarchical entitlements and cultural systems. This is true not just of extreme practices such as female genital mutilation or caste systems, but also of such perceived rights in various societies to bear arms, punish with the death penalty or use children as soldiers.
To the extent that human rights are not respected because of a lack of understanding, it is critical to invest in education. But cognition is not only a result of formal education. Dialogue and active participation in the evolution of a rights language is key to a supportive cognitive logic. Education, in this sense, creates a common language. It does not force people to follow the rules of human rights but enables them to make informed choices. Cognitive reason, thus, is a necessary but non-compelling force in the logic of human rights. Suffice it to say that some of the greatest violations of human rights in modern history have taken place in the best educated societies.
Instrumental reason. People respect rights to attain rewards or escape punishment. Taking a narrow instrumental view, respect for rights is reinforced if disrespecting them is clearly damaging to one's image, physical well-being or integrity and respecting them is likewise beneficial. To have an instrumental value, respecting rights must make one better off. Through this instrumental reasoning, called utilitarianism in the tradition of Bentham, individuals seek to maximize social and economic utility. Three instrumental reasons bear discussion state coercion, peer pressure and reciprocity.
1. To the extent that people fear and expect punishment or reward from the state they will respect a rule of law incorporating human rights. This could be called the hobbesian argument. This could be called the hobbesian argument. State coercion can be an effective instrument for human rights in some circumstances and is also a necessary condition because there will always exist some degree of antisocial behavior that cannot be otherwise controlled. But people also respect rights in the absence of coercion. It would be untenable for any society to bear the cost of the level of state coercion that would be needed to ensure compliance with all legal rights. Imagine, for instance, if the threat of a fine or worse were the only reason people do not run red lights. Much more compelling is the instinct to avoid an accident coupled with understanding of why following the rule will help us to do that.
The spectrum of punishment or reward that states can use as instruments has been reduced over the last decades. States maintain a monopoly over violence (war) and punishment (legal systems) but their action has been visibly reduced in the area of social services, most particularly employment, education, health, social security and other areas connected with ponderously under-respected social and economic rights.
Likewise, while a part of the solution, we should not forget that states have been the worst abusers of human rights. We must both strengthen restricted and positive state coercion while seeking accountability and reasonable limits on state authority.
2. Instrumental reasons extend beyond legal frameworks. People are part of groups and communities that shape and determine their actions. A second instrumental reason for respecting human rights is an expectation of retaliation or benefit from a community to which one belongs. For obvious reasons, peer pressure is a complex and indirect reason for human rights. Individuals do not belong to only one group. They are influenced by many very few of which have anything to do with rights. But the closeness and participation of individuals in groups suggests that peer pressure has considerable influence.
3. We impart to others the rights that we wish for them to impart to us. Reciprocity is theoretically friendly to difference. It gives us a reason to expect that necessarily different people should be treated as we would like to be treated. We listen, thus, because we want to be heard and we respect property because we want to hold on to our own property. Reciprocity does not assert any transcendental quality of good and evil. It does not imply that murder, torture, starvation, illiteracy and preventable illness are bad in themselves. What it does assert is that I cannot accept these things for others unless I accept them also for myself. It neither affirms nor denies the existence of a deeper moral framework. Beyond this, it has little to say about situations of unequal worth. Reciprocity as a reason to respect human rights is unstable. Starting from a structure of mutual advantage, individuals have an incentive to cheat, that is "what is in my interest is that everybody else cooperates and I defect." In other words, that everybody else adheres to rules that are mutually advantageous if generally adhered to and I break them whenever it is to my advantage to do so.1
Moral reasons. People respect rights because they believe humans are endowed with equal moral value. Rights make no sense unless we accept a moral, fundamental human dignity and that every human deserves to be treated as an end and not a means. This is the Kantian argument to respect rights. Morality is easy to grasp but is resistant to reductionism. A moral reason to respect rights can be framed from a more procedural perspective; we have to respect other people's rights because, by democratic consensus, we agree that humans are endowed with them, regardless of status, social condition, race or whatever other differences exist.
The point is that human rights must have a moral authority as minimalist, operating principles not as a utopian vision. As we have witnessed in the last decade in Rwanda, Kosovo, Colombia and Myanmar, to take only a few examples, we are still far from realizing these protections. Without such, millions of people will continue to fall victim to unbridled power and ambition.
In summary, we propose key elements of explaining respect for rights include: knowing what they are and reflecting upon them; symmetry and consonance with instrumental logic; and the belief in the equal, moral dignity of all humans. Practically, these three conditions imply that human rights norms themselves are dynamic, and arise out of social processes. Jürgen Habermas, in his development of a discourse ethics, theorizes as to how such a process looks: "For a norm to be valid, the consequences and side effects that its general observance can be expected to have for the satisfaction of the particular interests of each person affected must be such that all those who affected can accept them freely".2 The validation of norms from diverse perspectives ensures that the cognitive, instrumental and moral authority of a respect for rights is implanted deeply within the grain of society. Thus, we see ongoing social discourse as the process that creates the logical conditions for the respect of human rights.
Why do people not respect other people's rights?
One of the most pressing issues for those who would promote human rights today is social and economic inequality. Actual inequality is staggering and growing. As an illustration, we consider economic inequality measured by access to financial resources (we could just as well discuss persistent inequalities arising from religious, social, class, gender, race or sexual preferences). About one in five people in the world live on less than one dollar a day. In countries like Brazil, the richest one percent controls the same amount of resources as the poorest 50 percent. As the Human Development Reports published by the United Nations Development Programme show, lack of resources means also lack of proper education, health conditions, housing, water and other sanitary conditions. The absence of these basic conditions for the majority creates a situation of disparity and inferiority between those with access and those without. The same circumstances can be found in both central and peripheral nations.
Both economic and social inequality trigger moral exclusion. They reduce the perception of equal worth of every human being, destroying the conditions for the respect of human rights. In the 2002 Brazilian presidential campaign, a key candidate declared, he would "defend human rights, but would also defend right (law-abiding) human beings."3 This is to say that people can be less than human if they do not fit into the category of valuable people. It is still all too easy to secure our own good by focusing on an easy enemy. Rights under such circumstances can often appear a farce, an issue of power for those who are among the lucky few negotiating the terms for those excluded. Moral exclusion manifests itself through two distinct characteristics:
Invisibility of those who are devalued. Their actual pain and suffering is not shared by those who are valued. While they exist as a collective force (economically as a means to production, politically as a subject of governance) they have little voice and few direct means to move or constrain those who are on top. Their opaque and silent submission to highly hierarchical realities makes them invisible. This invisibility is strengthened over time by a cultural reinforcement that is often accepted and even deepened with the collusion of members of the invisible groups. Negative perceptions of capacity and inequality become the statu quo and are, thus, imbedded in all levels of action and impervious to change.
Demonization of those who are being devalued and who would challenge the statu quo. The sheer force and numbers of devalued populations whether seeking religious or race equality; trying to attain goods, such as land, employment or health services; or behaving in an anti-social manner are a direct threat to wealthier or better endowed elements of society with a stake in maintaining or expanding existing privileges. In this way, the efforts of the devalued appear as the problem that needs to be eliminated. Violence is often the instrument used to deal with those who challenge injustice.
Policies, social practices and even laws that deny equal worth to those in vulnerable groups are still commonplace. In order to make them viable, they are always justified in terms of a social priority or as economic imperatives. The fear engendered in the United States, for example, after the September 11, 2001 attack on the World Trade Center allowed the US government to ignore the rights of Afghani soldiers captured in the subsequent retributive war against that country and to wage a global campaign against demonized enemies whether or not it could be justified by international law. In the developing world, minimum social rights are being disregarded in the name of orthodox economic principles. To some extent, fear for national and international security trumps human rights. But a strong social base in which human rights are understood, consistent with systems of reward and benefit and part of the moral language, will provide minimalist limits.
The consequences of this process of devaluation of humanity are very negative for the realization of human rights and are at least a partial answer to why human rights are not respected in the world today. Those on the bottom of the social pyramid, whose rights should be protected, are treated as objects or enemies. At the same time, the impunity and privilege of those on the top is reinforced. The problem is the need to develop the logic of human rights call it an ethical cosmopolitanism that would convince individuals, groups and societies to treat every individual as an end of equal intrinsic worth. This would be a cosmopolitanism in which human rights are well integrated into curricula (cognitive reason), promoted through enforcement and reward systems (instrumental reason) and made obvious through a shared norm of the dignity of humanity (moral reason).
Following on the Habermas quote above, we emphasize the notion that the realization of human rights has both moral and political dynamics realized through social discourse. This discourse ethics necessitates actual dialogue and structures for enabling ongoing exchange in order for a norm to be seen from all perspectives. It requires symmetry, impartiality and openness that must be driven by voluntary association, which maximizes the choice and the full participation of the individual. We turn to civil society as the natural environment in which such diverse perspectives and the dialogue about norms is an ongoing process. The logic of civil society is the action of individuals and groups to express and realize the valid and diverse desires and needs of society. The next sections of this paper will reflect on the role of civil society in constructing a global ethical cosmopolitanism for the realization of human rights.
Civil society and human rights
What do we understand by civil society and why do we think a strong civil society is important for ensuring respect of human rights? The expression "civil society" has been appropriated by different and sometimes opposite intellectual and political traditions.
From a normative perspective, we define civil society as the sphere of life that has not been colonized by the instrumental ethos of the state and the market. In the machiavellian tradition, the struggle for power between and within states is based on a strategic way of acting, where the legitimacy of the means is measured by the results. This instrumental ethos collides with the morality of rights in which people are an end in themselves and cannot morally be used for the achievement of other objectives. In the market, this instrumental ethos also prevails since the logic of the economy is the maximization of benefits (economic benefits) with minimal resources, where people (workers) are a means for producing profits. In a world dominated by the market and states, the ongoing social, political and economic discourse that takes place within civil society is critical for creating and strengthening the conditions necessary for the respect of human rights. This is not to diminish the strategic importance of developing good, democratic governance and corporate social responsibility. But more responsive human rights models will only emerge through the catalyst of a healthy civil society.
The definition of civil society proposed by Jan Aart Scholte is a useful starting point: "Civil society is the political space where voluntary associations explicitly seek to shape the rules (in terms of specific policies, wider norms and deeper social structures) that govern one or the other aspect of social life".4
Organizations and associations of civil society assume different forms with one common feature: they amplify the voices of particular interests and are natural advocates for devalued or invisible groups. Jean Cohen and Andrew Arato suggest four features of civil society that we take as a framework for understanding the breadth of potential impact of the human rights discourse that takes place in civil society: publicity (institutions of culture and communication), plurality (differentiation of interest and form), privacy (an environment supportive to the development and expression of the individual) and legality (the structure of basic laws and rights that enable publicity, plurality and privacy).5
Associations seeking human rights often emerged as a response to governmental abuse, generalized or specific restrictions on human rights or other adverse circumstances. The movement includes a range of organizations that formulate a discourse of emancipation and social justice in terms of rights. Human rights-oriented associations have made a strategic decision to promote human rights discourse as opposed to other political forms of action. The divisions within these associations reflect the development of these concepts in United Nations treaties along these divisions: civil and political rights (participation in government, protection of individual security, association and expression, access to justice), social and economic rights (income, employment, education and training, health services, access to information) and cultural rights.
How is civil society a critical human rights actor?
Progress in human rights requires the establishment of conditions conducive to their respect. These conditions create norms that take on cognitive, instrumental and moral aspects, which arise from an ongoing dialogue that engages diverse perspectives and constantly recreates these norms as dynamic and universal principles. If one is seeking justice, it is impossible to skip this process, because the dialogue itself is a component of justice. The realization of rights is a process and cannot be effected solely through incorporation of rights in national and international legal structures. Civil society creates and recreates the conditions for validating and realizing human rights. We emphasize five aspects of this action: (1) providing a sphere of action for all social groups; (2) making injustice public; (3) protecting private spaces from state and market incursion; (4) intervening and interacting directly with legal and political systems; and (5) driving social innovation.
Providing a discourse of plurality. Human rights discourse must be practical, responsive and accessible to a plurality of perspectives. This discourse needs to engage devalued and invisible groups as proponents for the change that they perceive as necessary to justice. Obviously, civil society is the home to conflicting claims for justice and one aspect of the dialogue is a negotiation between various rights and in the distribution of resources invested in solutions. For example, both personal security and fair treatment under the law can be seen as keys to provide justice to an individual. The individual will view these rights from a different perspective depending on whether he or she is living in a state of insecurity or is directly affected by a legal action. The human rights discourse is not a mechanism for the resolution of these issues; it is a space within which they can be resolved through the interaction and dialogue of all those affected by a given problem.
Making injustice public. Civil society groups are good watchdogs for injustice because they give voice to perspectives and vantage points that are otherwise unheard. For this to be true, association and dialogue must be open and with minimal intervention. In this fashion, civil society assists in the realization of human rights by bringing injustice into the public sphere. A problem can arise when more influential and powerful groups within civil society itself drown out the voices of the less powerful. This can be partly counteracted by the associative principle individuals associate on various levels and with various interests based on their own social and private needs for expression and because the strength of civil society arises directly from the co-existence of diverse perspectives. In this way, diverse groups act on human rights by publicizing and bringing to light injustice and advocating or exerting pressure for change. Groups can exert pressure by producing and providing information, educating the public and others, proposing public policies and taking legal action.
Protecting private space. Civil society defines a space for individual expression and development that is separate from the citizen or consumer logic of the state and market. Individuality is expressed through association or non-participation and is, thus, largely elective. In terms of rights, this view of the individual is critical because it conceives a person as the end in him/herself. Human rights groups protect this space by seeking the positivist conditions necessary to enable individual expression and reinforcing the limits of state and market action.
Intervening and interacting directly with legal and political systems. To some extent, in every country and on the international level, law and public policy conducive to the realization of human rights have been promulgated. The laws and norms embodied in these systems are only effective to the extent that they are used, refined, supported, and thereby validated by civil society. Human rights groups have participated directly in this process by bringing legal cases before the courts, by providing information and data critical to the refinement of public policy and by proposing new mechanisms or the eradication of ineffective ones, with a view to the creation of a supportive framework for human rights. This intervention should be strategic, with a focus on paradigmatic change and pressure on government policy to be more consistent with the ongoing human rights discourse.
Driving social innovation. Social innovation is a proactive human rights approach that must take place on manageable levels, where dialogue, feedback and results are open and accountable to diverse perspectives. Innovation happens through the creation of models on smaller scales that show the possibility of solutions to intractable issues of justice on larger scales. Social innovation in civil society emerges as a direct response to localized injustices. Innovators are deeply aware and involved with those affected by this injustice and, working with them, try out and invent approaches for their resolution. This happened in South Africa, for example, with the Social Change Assistance Trust, which created and supported community legal assistance structures during the apartheid era that demonstrated inexpensive, minimal infrastructure could be provided in rural areas to make justice accessible.6 It is happening in Brazil today, with various social groups seeking more effective ways to use the court system and the Constitution for the redress of long-standing injustice. The Pro Bono Institute7 that provides high quality volunteer lawyers to social groups is one example in which the authors are involved.
In short, civil society is a key player in creating the conditions for the realization of human rights. It promotes human rights discourse that validates rights norms, particularly by including devalued and invisible groups. The forms of this discourse are also diverse, and give rise to diverse strategies and means through which the logics of human rights can be realized in society. This brief discussion of the role of civil society leaves one, however, with an obvious question: if civil society is a powerful and important actor in the realization of human rights, what is keeping it from being effective?
What prevents civil society from achieving a stronger impact in human rights?
Flexibility, diversity and volunteerism, some of the strengths of civil society, are also its weakness. Civil society, neither protected nor powerful in relation to the state and market, is largely divided and lacks financial and other resources. Several of these characteristics are reflected in the challenges of the human rights movement today. This paper discusses three: fragmentation (both thematic and geographical), neutraliza-tion of discourse and resource dependency that will be sketched out below:
Fragmentation of the rights movement has created a competition for space, voice and resources that breaks the solidarity around human rights. In order to become more effective, human rights organizations must seek ways to strengthen joint action and discourse among diverse actors.
Human rights groups are working on a variety of themes and issues; including torture, police abuse, HIV/Aids, housing, social and economic rights, discrimination, and even such themes as environmental protection and development. The thematic fragmentation has both a positive and a very negative aspect. The positive aspect is that the diversity of action and involvement reflects the diversity of interests within a social discourse leading to a relevant framework of human rights. Their work covers many areas of importance to devalued populations, giving voice to invisible groups and bringing to light those who are forgotten or ignored. The negative aspects are several: (1) the diversity of interest can create a competition for public attention and resources needed in addressing particular rights issues, thereby diminishing the sense of a shared human rights cause; and (2) associated to the first is the channeling of social energy in different directions, impoverishing social discourse.
Another division that must be dealt with runs South/North. It is less related to geography than to a conceptual "peripheral" access to resources of the majority of the world's population. Some international agreements, such as those on human rights, have counted on little participation from peripheral populations in the past (it should be noted that UN conferences [e.g.: Rio de Janeiro 1992, Vienna 1993, Beijing 1995 and Durban 2001], have marked a welcome increase in the participation of the South). Southern actors need to become stronger proponents within the international human rights movement. Recognizing that the strongest organizations naturally grew up in the shadow of international government agencies and the resources and power of the North, we must bring human rights home. The South must participate to a greater extent on the international level of human rights action because it is in great need of human rights protections and approaches, and its populations are those who are least served within the existing rights legal infrastructure.
An aspect of the South/North divide is the need to reinforce the credibility of local human rights organizations in the South with their own governments and societies. They often work in the shadow of or as subsidiaries to Northern organization, relying on the advocacy of organizations based in Washington, New York, London, Paris and Geneva. Secrecy, of course, is a survival strategy in countries that are actively repressing human rights and human rights advocates. But it is not a good strategy once minimal protections have been achieved because human rights must be made public and visible. Human rights organizations in the South must improve their reach and credibility within their own contexts and in the international arena.
Neutralization of the Discourse
Human rights gained momentum in struggles against authoritarian regimes in Latin America, Europe, Africa and Asia. In the North, human rights are an important subtext at this exact moment. Human rights organizations need to understand and act in the political space.
Once crises are over, human rights organizations often recede into the background. Some of the most skilled leaders move into government; others, having accomplished what they set out to do, abandon the social sphere altogether. But after the establishment of democratic structures and the rule of law, the human rights movement faces its most onerous challenges in translating rights into reality. Here, in the end of a repressive period, we confuse the struggle for rights with a revolution that can be won with a constitutional document, a voting booth and a free press. There is more need than ever for specific policies, wider norms and deeper social structures to realize human rights. These must be tested and must grow out of the communities where we live in partnership with government and with the private sector.
That is why it is a mistake for human rights organizations to seek political neutrality (to the extent that this is possible) to make their discourse more acceptable and credible to the public and the state. While the political neutralization of discourse avoids conflict, it also avoids critical debate.
Of course, human rights organizations should avoid partisan struggles but they also must understand them. Removal from the political sphere de-legitimizes the struggle of those who are seeking change through political means. In this way, social justice movements in the Chiapas in Mexico, the landless movement in Brazil, the HIV/Aids movement in South Africa and other social "uprisings" are approached cautiously by some human rights organizations. Human rights must be relevant to the real demands of the disenfranchised. The realization of rights springs from deep, gradual and ongoing processes of social negotiation. The professionalization of human rights acquiring skills, capacity and institutional support is an important activity but it should be complemented by the mainstreaming of human rights in the political sphere and stronger linkages with social justice movements.
Resource Dependency and Funder-Oriented Action
The needs for financial and other resources grow as organizations start to act in new areas, as their workforce transforms from voluntary activists to professional, highly trained advocates, and as the challenges require longer term approaches. Nevertheless, only a handful of foundations and other donors are investing in human rights, and among this group, fewer are willing to invest in more heterodox, smaller, transient organizations.
Resources are being raised from governments and government groupings (North American and European governments and to some extent other regional groupings and some governments in the global south), foundations set up by the private sector, family foundations and individuals. The source of the funding has a significant impact on the conceptualization of priorities and the definition of human rights themselves. For example, US government funding has traditionally emphasized civil and political rights over social and economic rights, reflecting that country's vision on human rights.8
The competition for these scarce resources creates a perverse cycle where human rights organizations adapt their initiatives and language to funding priorities. Resources are channeled to those organizations that are viewed as reliable in terms of the scope of a funding mandate. But the problem with resources is not that funding organizations have priorities, it is the over-reliance on few sources of funding. Human rights organizations are tempted to monopolize the discourse for their own credibility and survival. One way to reverse this is for funders to adopt strategies to catalyze open dialogue and links between human rights movements of various sizes, ages and geographic scope and to assist in developing more sustainable funding.
But beyond this, the human rights movement must expand the full spectrum of its resources: contributed ideas, expertise, knowledge, time, space and commitment. Strategic financial resources can leverage these contributions but not replace them.
How can human rights movements strengthen their action?
The future human rights movement should strategically focus on reinforcing and deepening the validation of norms that lead to creating a logic for the respect of human rights. Its action, as discussed above, must promote this infusion through participation of a plurality of perspectives, publicity of injustice, engagement with the state justice infrastructure, protecting private space and promoting social innovation. Fragmentation, neutralization of the discourse and resource dependency are impediments standing in the way of progress in each of these areas. In reflecting on the way forward, we believe that there are several important strategies that will pay off with greater impact and results.
Improve our capacity for communication and education
Neither modern communications nor educational systems are today focused on promoting social discourse or the diffusion of human rights information. Human rights organizations need to improve their capacity to make use of these systems as they exist, to broaden the reach of social dialogue.
This means continuing and improving educational initiatives that introduce people to the language of human rights, but also pioneering proactive dialogues with governments, the private sector and other social movements. New forms of accessible media manuals, handbooks, school curricula, music and art in which the human rights movement must become fluent have opened up. Simple exposure to human rights, the potential benefits and the worth of humanity is a critical message that needs to enter into the variety of educational experience designed to reach a bigger audience.
In addition to the promotion of principles and language into accessible forms, it must be realized that human rights is not a closed body of knowledge. By making use of existing communication and education systems, we must seek out ways to build ongoing feedback mechanisms and continuing dialogue.
Invest in socially innovative models
Human rights organizations are becoming increasingly skilled at publicizing injustice, as they should be. The negative story of human rights, however, needs to be balanced with the existence of viable alternatives. We believe that this calls for a proactive approach. On civil and political rights, for example, models need to be created to show how judicial systems can be opened for better access, how criminal offenders can be fairly treated, how more citizens can participate in government, how to redress discriminatory practices. In the area of economic and social rights, in addition to continued pressure for the government and market to take action toward their realization, we also need models to show how we can attain them. The innovation of approaches to human rights on a small scale will pay off in demonstrating that better large-scale systems are possible and will provide human rights organizations with a much stronger position.
Build human rights networks that heal fragmentation and strengthen resource use
Through their identification with and participation in networks, human rights organizations exchange information, learn from the experience of others, stimulate international solidarity and create an environment for dialogue that favors equal protagonism in the universal discourse of human rights. By definition, networks are horizontal. They facilitate but do not monopolize discourse, improve the capacity of individual organizations to use resources effectively and provide opportunity to less visible groups. Many, many networks exist today, ranging from those with formal membership to those that are so loosely constructed it is difficult to give them a name. What we mean by networking is to take the actuality of the social process as critical for the realization of human rights. This engagement has to happen across levels of society with individuals, community groups, universities, government agencies and corporations; it also means active and constant dialogue with a variety of interests and not just those that agree with us.
A concluding reflection
This paper set out to explore why people do not respect rights and to provide some practical ideas about changing this situation. Towards this, we have suggested that the logical framework for rights is in need of development and that a promising path lies in understanding respect for human rights as something that emerges from a process that must be continually realized through social discourse. This has implications for the human rights movement today. While it has achieved some successes, particularly in the areas of advocacy and education, it could be much more effective as a convener of under-represented groups and perspectives and in fostering space for the strengthening of human rights norms.
These arguments do not provide any single easy answer. They suggest some reason to be optimistic, however, if the awakening consciousness of civil society in many parts of the world can lead to greater respect for human rights. Putting faith in a process of social discourse may be insufficient for those whose rights are violated today but without this process their situations will remain invisible and the universal moral dignity underlying their rights will not overcome the stage of a theoretical construct. Optimism is warranted because the social processes discussed in this paper are attainable and in some cases under way.
1 See Brian Barry, Justice as Impartiality, Oxford, 1999, p. 51, for more discussion of this aspect of reciprocity.
2 Jürgen Habermas, Moral Consciousness and Communicative Action, p. 120. Massachusetts Institute of Technology, 1990.
3 "... defender direitos humanos, mas também os seres humanos 'direitos'" , José Serra, as reported in Folha de S. Paulo, September 17, 2002.
4 Jan Aart Scholte, Civil Society and Democracy in Global Governance. CSGR Working Paper n. 65/01, Centre for the Study of Globalization and Regionalization. University of Warwick, January 2001.
5 Jean L Cohen and Andrew Arato. Civil Society and Political Theory, p. 347. Massachusetts Institute of Technology, 1994.
6 For information on the SCAT model, see the Sourcebook on Foundation Building, Synergos Institute, 2000 or <www.scat.org.za>. Last access on April 19, 2004.
7 For more information about the Pro Bono Institute (São Paulo, Brazil), visit <http://www.institutoprobono.org.br>. Last access on May 14, 2004.
8 See Supporting Human Rights and Democracy: the US Record 2002 2003 on the US State Department website for more information: <http://www.state.gov/g/drl/rls/shrd/2002/>. Last access on April 19, 2004.
Publication: ICSSR Conference on New Economic Policies for a New India
Date: 24 January 2000
The significance of education for economic growth and a progressive society needs no argument. India's performance in this area is indeed shameful. I do not want to delve on the past, but look towards the future. In this paper, I first discuss some of the myths about the problems of education in India, then evaluate recently proposed solutions, and at the end, offer my agenda for reform.
I. Challenging the Conventional Wisdom
Myth 1: The poor need their children to work/earn.
This is one of the most pernicious beliefs that pervade the education establishment. Several surveys including the recent PROBE study provide data to challenge this widely held belief. Nonetheless the belief controls much of education policy discussion. Its acceptance is taken as the sign of one's genuine concern for mass education, and its rejection as elitism or extremism.
In the past children were required to help the family, but the current realities are rather different. We must not be the prisoner of the past, especially in such a critical task of formulating national education policy.
Estimates of Child Labour (All-India, Rural)
Proportion (%) of children aged 5-14 who are in the workforce
|Census of India, 1981||8.8||10.0|
|National Sample Survey, 1993||7.8||6.9|
|NCAER Survey, 1994||3.5||4.4|
Even in the PROBE states, the worst performer BIMARU states, among the out-of-school children in the age group of 6-12, only 5 percent of boys and 1 percent of girls engage in wage labour. The median work hours for boys are 3.3 and for girls 4.8, the average being 4 hours per day. However their cohorts who actually attend school also work on average 2 hours a day. Is it possible that parents keep their children out of school for the benefit of two extra hours of work?
The PROBE study concludes that only a small minority of children is full-time labourer and most of them work not as wage-labourers but as family helpers at home or in the fields. Moreover, the presumed causation that child labourers are unable to go to school because they have to work may actually be reverse, that is, they work because they have dropped out of school for other reasons (p. 16).
Myth 2: People are ignorant of the benefits of education.
Surveys to investigate why some children are never enrolled in school find that more than one-third of the children or parents are "not interested" in education. The finding is used to conclude that people do not really understand the importance of education and therefore cannot be relied upon to educate their children.
Work Patterns of Out-of-School Children (PROBE States) Boys Girls Proportion who performed wage labour on the day preceding the survey 5% 1% Average time of work on the day preceding the survey* 4.2 hours (3.3 hours) 5.1 hours (4.8 hours) Extra time of work, compared with children who are attending school 2.1 hours 2.2 hours *Median in brackets Source: PROBE survey (random sub-sample of 333 out- of-school children in the 6-12 age group)
Field researchers however have now come to the view that the supply and not the demand factors make people less interested in education. The quality of infrastructure (buildings, furniture, and supplies), teaching, and the concern for learning is so poor as to make the whole idea of education worthless, a waste of time. Whenever these drawbacks have been rectified, generally due to the initiative of some individual teacher, or principal, or bureaucrat, enrolments improve dramatically. (In the Total Literacy Programme, a few districts performed exceptionally well because of particular individuals.) People do not lack understanding of education's importance; they simply cannot be fooled into spending their time and money for a mediocre or a non-existent one. The PROBE study finds that almost 90 percent of the parents are keen to send their children to school, and that the gender discrimination in the desire to educate boys and girls is far lower than generally assumed.
Myth 3: People do not have money or are unwilling to spend on education.
The NCAER (1994) and NSSO (1991, 1993) studies suggests that in a given year people spend anywhere from Rs. 100 to more than Rs. 4000 per child on primary education. For the year 1986-87, the total household expenditure on primary education was Rs. 7388.5 million. This private spending on primary education is not just by the rich and the middle class in urban areas. Out of the Rs. 7388.5 million, Rs. 4202.5 million were spent by rural areas, more than half of the total private expenditure. In that year, the total government expenditure on primary education was Rs. 17,000 million. So the private expenditure is by no means an insignificant amount; it was more than 40 percent of what the government spent on primary education.
The NSSO study also points out that households in our villages on average spend about Rs. 104 on fees, Rs. 42 for books and supplies, and Rs. 107 for private coaching to provide primary education to their children. The poor have already been spending on education.
States in which governments spend more on education, people also spend more. If one interprets higher spending by governments as a little better quality of education, then it is apparent that parents are willing to spend when they are offered the kind of education they desire. In Kerala, for example, the poor spend a substantial portion of their income on primary education, one NSSO study suggests up to one-third of the income.
Myth 4: Basic education provided by the government is free.
The previous discussion clearly indicates that people, including the rural poor, spend a great deal of money on basic education of their children. A detailed analysis of the NCAER and NSSO studies leads Professor J.B.G. Tilak of NIEPA (1996, p. 363) to the following conclusions: "Households spend large sums of money on acquiring primary education; a sizable number of students do not receive primary education free, in contrast to the claims made by the government; a large number of students pay tuition fee, examination fee and other fees even in government primary schools in India."
It is extremely important to understand these myths and the ground reality in India so that we would not prescribe solutions for non-existent problems and overlook the real problems that confront suppliers and demanders of education. False solutions would not only delay achievement of our goals but also waste our scarce resources.
II. Proposed solutions: Would they be effective?
Solution 1: Make elementary education compulsory.
A lot of ink has been poured and throats have become sore demanding urgent passage of a law making elementary education compulsory. Proponents claim that it would force parents to send their children to school and the government to make schools available in all parts of India. But above all, the contention goes, it would signal society's sincere commitment to basic education for all.
Is such a law necessary to achieve universal education? Kerala has no compulsory-education law and has the highest literacy rate. The passage of the law would actually allow the government to become more passive, albeit with a self-righteous alibi. Our experience with other good-intention laws against child labour, child marriage, and other social ills does confirm this outcome. Those who want to practice these have rarely been deterred. And any positively development in these areas could hardly be attributed to these laws. The passage of law by itself barely fosters positive result.
The compulsory-education law would just create opportunities for more commissions, national and international seminars, and pious declarations. Sure, more money would be spent in the name of education, but not on education. If we are going to measure government's resolve by the size of the education budget, it is rather easy to spend more money that will keep all stakeholders in our education system happy-politicians, bureaucrats, and educationists. Except of course parents and children, in whose name the money will be spent. The experience all over the world clearly suggests that it is not so much the size of the government education budget but how the budget is spent that determines the efficacy of the education system. Our own state of Kerala stands witness to the significance of choice and competition in education.
How would the compulsory-education law be enforced? Would it fine parents for not sending their children to school? How would the parents who are too poor to send their children to school find money to pay the fines? Would it then imprison them? Just one parent or both? Would failure of the government in properly enforcing the law or in creating necessary school infrastructure so that the citizens could abide by the law result in its dismissal? Would the dismissal apply to the state as well as the central government? Or would it result in the dismissal of just education ministers? Along with the secretaries of the departments of education? Would the law, given these enforcement problems, ever be properly and consistently applied? Who would bear the burden of arbitrary enforcement? The fact that the proponents have not bothered to raise the issues of enforcement, let alone suggest any answers, reveals their lack of sincerity. They want to claim to have done something for the poor state of education in the country without really doing anything-just by passing a law.
Practical difficulties aside, we must not forget the distinction between laws and morals. No society has been able to legislate moral behaviour. We are no different. The world history of prohibition stands as a guide: Rise of the mafia, street violence to capture markets, corruption of the police, legal system, and the bureaucracy, untold deaths due to illicit liquor. In the final analysis, prohibition has done more damage, not just to the treasury, which is of the least consequence, but to families and communities, the alleged beneficiaries of the ban. The law of unintended consequences is far more potent in case of good-intention laws.
Education is undoubtedly critical for the child, but so is nutritious diet, healthcare, nurturing environment. Education, even a good education, without the other necessary ingredients would make the child only marginally better. Our concern is with all-round welfare of the child; we need sensible and active parenting for all the children. If we sincerely and genuinely believe in the effectiveness of the law to address social problems, shouldn't we then pass a law making good parenting compulsory?
Solution 2: Take education out of the Directive Principles and put it in the list of Fundamental Rights.
It is forgotten that the Articles 23 and 24 of the Constitution guarantee a fundamental Right against Exploitation. Article 23: Prohibition of traffic in human beings and forced labour-Traffic in human beings and beggar and other similar forms of forced labour are prohibited... Article 24: Prohibition of employment of children in factories-No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Readers must judge how effectively these fundamental rights are protected by the government.
It is important to note that these Articles do not impose any positive obligation on the government; they require that the government simply prevent certain activities, namely, forced labour and employment of children in hazardous jobs. They do not mandate the government to provide alternative means of survival to those who are forced into labour (beggars for example) or to the children who are in hazardous jobs. They do not ask the government to provide for the care of these unfortunates, nor do they require the government to even offer safe, remunerative, non-hazardous employment. They mandate only prevention, not provision. Despite this limited mandate, the government has miserably failed in living up to the promise of Articles 23 and 24. The proponents of the fundamental right to education actually stipulate that government would be required to provide necessary schooling facilities. Is the government that cannot enforce Articles 23 and 24 capable of meeting the demands of the fundamental right to education? Again, the proponents do not properly address these questions.
Solution 3: Increase government spending on education to 6 percent of GDP.
The almost doubling of government expenditure on education is bound to have some positive impact. There is probably no government, particularly a democratic one, which is so inefficient and corrupt as to eat up all the increase in spending without any impact on the quantity and quality of education. The question is whether the impact would be in any way proportionate to the increase in spending.
Several of the countries that achieved high literacy rates in the post-war era, have rarely spent anywhere close to the 6 percent of their GDP. South Korea has spent about 3.2 percent, Japan spends around 3.8 percent, and China 2.6 percent. Student expenditure in the United States is one of the highest but student performance in mathematics, language, reasoning skill, and even geography is far below world standards. International evidence suggests that it is not how much the government spends but how it spends determines the quality of its education system. Filmer and Pritchett (1999), in their cross-section study of the states and union territories in India for the year 1992-93 to test the effect education expenditures on enrolment of students, especially from the lower income groups, conclude
"There is little evidence of a positive relationship between per student expenditures and enrolments of the students from the bottom 40 percent of family income.... This lack of a general effect is not surprising, as there is a huge literature that supports the proposition that, while additional spending has the potential to raise school quality, there is no necessary connection between school quality and school spending..." (p. 159).
A Tale of Two States
Kerala has the highest literacy rate in the nation, above ninety percent. The way Kerala spends its education money is also strikingly different from the other states. For illustration, I compare it with the state of West Bengal. Ideologically the governments of both states are equally committed to basic education and literacy. Both states have for long had popularly elected Marxist governments. The conclusions of the comparative analysis are however generally valid.
Table 1 highlights some of the crucial differences in the educational structure and the nature of government spending on education in the two states. Table 2 shows the effect of those differences on the performance of the education system in terms of literacy rate and the proportion of children never enrolled in school. (All data are from the NSSO 1991, 1993 and NCAER 1994; see also Tilak 1996. The data are for the year 1986-87 or 1991-92.) Kerala is one of the few states in the country were elementary education is not made compulsory by law. Both governments spend almost equal fraction of the total budget on education (about 25 percent). In West Bengal, 84 percent of rural children do not pay any fee for primary education but that number is only 48 percent in Kerala. Sixty percent of rural primary school children get free textbooks and supplies in West Bengal, only two percent in Kerala do. Households with less than Rs. 3000 in annual per capita income spend 25 percent of the income on elementary education in West Bengal but in Kerala it is 36 percent. The poor in Kerala spend the highest fraction of their income on their children's basic education compared to the poor in any other state in the country.
Table 1: State Commitment to Education
|Elementary Education Compulsory||Yes||No|
|Free Textbooks and Stationary||60%||2%|
|Proportion of Income Spent on Primary Education by Households in the Lowest Income Quintile||25%||36%|
|Share of Education in the State Budget||26%||25%|
Given these facts-more children get free education and supplies in West Bengal and the poor are asked to spend more of their own money in Kerala-one would expect that West Bengal would have a much higher literacy rate than Kerala. The facts speak otherwise
(Table 2). Kerala has 91 percent literacy rate while West Bengal has only 57 percent. Moreover, in West Bengal 46 percent of children in the age group of 6 to 14 have never enrolled in school, only two percent in Kerala suffer from that fate. What explains this vast difference in performance?
Table 2: State Performance in Education
|Children (age 6-14) Never Enrolled||46%||2%|
Kerala and West Bengal: Unfair Comparison
Kerala undoubtedly has had a head-start: There have been strong education movements in the state since the pre-independence days and the government has consistently spent a much larger proportion of its budget on education since independence. It then seems unfair to compare the two states in terms of their educational performance. The cross-section comparisons at a single point in time do not control for variations over time. Kerala's current spending on education is almost the same as West Bengal, but since Kerala had a head-start, current literacy rates and the reach of education are likely to be different. Nonetheless it is instructive to examine the distribution of their education spending. Kerala and West Bengal have chosen to spend their education money rather differently. The difference in the nature of their spending is the real purpose of this comparison.
Table 3: Distribution of State Education Spending
|Free Primary Education in Government Schools||84%||48%|
|Free Primary Education in Private Schools||15%||48%|
|Grant of Scholarship||0.5%||10%|
|Proportion of Private (aided) Primary Schools||11%||60%|
It is surprising that in a thoroughly Marxist state like Kerala, 60 percent of the rural primary schools are private, as compared to only 11 percent in West Bengal. The proportion of private primary schools in Kerala is the highest in the country; the second highest is Maghalaya at 21 percent, and the national average is only five percent. The government of Kerala also pays expenses of almost half of the students enrolled in private primary schools. The number for West Bengal is 15 percent which is the third highest in the country (Tamil Nadu is at 20 percent); the national average is again about five percent.
Kerala has the highest proportion of private primary schools and it also subsidises the highest proportion of students in private schools. Both of these facts give the citizens of Kerala wider effective choice in selecting primary schools for their children. Many of the private schools are run by various religious groups in the state. They are generally more likely to be successful in exerting pressure on parents to send their children to school. The choices available to parents must increase attendance as well as retention rates in the state.
Kerala uses its public funds to encourage competition among schools. To avoid transportation costs, most parents generally send their children to the nearest school. The resulting "geographical clustering" of schools and their customers lessens competition among schools. Each school has a captured customer base. By subsidising transportation costs, Kerala helps parents send their children to the school they consider best, irrespective of the distance. This increases competition among schools. The provision of direct scholarship to students in Kerala also leads to the same result. With the scholarship money, students can go to any school of their choice. Among all the states in the country, the highest proportion of children in Kerala receives transportation subsidies and direct scholarships (Table 3).
The focus on how the two governments spend their education rupees indicates that Kerala by offering more choices to parents and increasing competition among schools actually practices market principles. Kerala's citizens have received far better educational service than those of almost any other state in the union. The Kerala model of education-of choice and competition-is unique in the country, and so is Kerala's educational performance. It is not just how much a state spends on education but how it spends that determines efficiency and effectiveness of the education system. The status of higher education in these two states is also worth comparing. State universities in West Bengal receive 91 percent of their budget from the government. In Kerala it is only 54 percent, the remaining amount is generated by fees, donations, endowments, and other sources. Again Kerala requires its universities to raise almost half of their budget from the customers and communities they serve. This fosters accountability and more attention to the needs of those who help finance state universities. This is one of the important reasons that Kerala performs better also in higher education than many other states in the union.
|Source of Funding and the Nature of Spending||Central Universities||State Universities|
|Percent of Budget from the Government||90%||50%|
|Percent of University Budget Spent on Administration||41%||18%|
|Percent of University Budget Spent on Academic Programs||33%||55%|
It may be pertinent to note that in general the higher the funding from the government, the lower the spending on academic programmes at universities. Central universities receive more than 90 percent of their funds from the central government and spend about 33 percent on academic programs and support and 41 percent on administration. The state universities on average get a little more than 50 percent of their money from state governments and spend 55 percent on academics and only 18 percent on administration. The state universities that are more dependent on non-government funds pay more attention to their students and less to their bureaucracy.
In Kerala, the government has been spending more on education but so do the people of Kerala. The poor in the state spend about 36 percent of their annual per capita income on elementary education-the highest proportion in the country (Table 1). (I find it difficult to believe these numbers; it is hard to imaging that poor parents spend more than one third of their income on elementary education. But in any case it must be some positive number even far lower than 36 percent). Contrary to the conventional wisdom, government spending is not a substitute for private spending. Both seem to grow together; they are complementary. Parents' financial commitment to their children's education is a crucial component of quality education. Moreover, as the empirical evidence suggests, schools and universities that depend on non-government funds manage their finances more responsibly and are more attentive and responsive to the needs of their customers.
These are some of the macro solutions that have been offered to improve education in India. Scores of micro solutions that deal with curricula, pedagogy, and such are also on the table. Many of them are relevant and useful but there is no particular pattern to them or any systemic theme unifying them. Since the focus of the paper is on broad structure of the education system, I do not discuss the micro reform issues.
III. Agenda for Reform
Reform 1: Liberalise, abolish the license-permit raj in education.
We have abolished the license-permit raj in the economy. Instead of government determining what and how much of goods and services should be produced, under market principles of choice and competition, we now allow businesses and consumers to make those decisions. In the economy, government sovereignty has been abolished and consumer sovereignty has been established. We need the same liberalisation in the education system.
It is more readily accepted that increased choice and competition are good for higher education. The central government had introduced a bill which would have allowed establishment of private universities. Private colleges already exist in professional fields such as medicine and engineering. But there is no full-fledged private university in the country. The bill would have helped increase choice in higher education. It would also have lessened the financial burden on central and state governments of subsidising higher education. As students who could afford to pay the tuition go to private universities, less subsidy would be necessary, or more resources would be available to now smaller number of students in government universities. University Grants Commission has allowed several colleges to become autonomous. According to one estimate (Rao 1999), there are about 121 autonomous colleges in eight states that have taken advantage of the permission. (Andra Pradesh 19; Gujarat 2; Himachal Pradesh 5; Madhya Pradesh 41; Maharastra 3; Orissa 5; Tamil Nadu 43; and Uttar Pradesh 3) A qualitative analysis of the autonomous and non-autonomous colleges suggest that former perform relatively better in terms of personnel and financial management, infrastructure facilities, teaching-learning processes, and student evaluation systems (Rao, Matthew, and Samantray 1999). Encourage of this trend towards autonomy should be the primary focus in the area of higher education.
Choice and competition to improve the quality and financial viability of primary and secondary education is actually more urgent. Though that proposition is not as readily accepted. It is argued that market principles may be good in higher education but they are inoperative, irrelevant, or even harmful in basic education. Many maintain that in achieving basic education in a poor and largely illiterate country like ours, government must control the education system as closely as possible. They grossly underestimate the stifling effects of the license-permit raj in education.
To establish a new school requires a license from education authorities. The barriers to entry are so numerous and diverse that they discourage most honest people who would like to serve the cause of education. Licensing has the same effect in education as it had on the economy. The government limits competition and arrogates the power to decide how many and what type of schools can serve educational needs of the people. Most importantly, it creates artificial scarcity of schools and allows existing schools to exploit their customers. To curb such exploitation, the government puts further restrictions on the amount of fees that can be charged for tuition, laboratory, and transportation and on the amount and purposes for which donations can be asked from parents. The restrictions are impossible to enforce because the artificially created scarcity compels parents to pay up; they are no alternative schools to send their children. This morass of controls is what the "potato chip theory of regulation" predicts. One restriction creates situation that demands further restrictions, which in turn require more restrictions. Once a bag of potato chips is opened, it's hard to stop at one or a few chips.
The need for liberalisation in education is no mere rhetoric. Take for example the Delhi School Education Act, 1973. Rule 44 of the Act requires "an intimation in writing to the Administrator of his or their intention to establish a school" with details about the management system, funds on hand, teachers and staff, design of the building. The school must obtain "Essential Certificate" by establishing that its existence serves the public interest. The Administrator decides by taking into account "the number and categories of recognised schools already functioning in that locality, and general desirability of the school with reference to the suitability and sufficiency of the existing schools in the locality and the probable effect on them (my emphasis)." In this environment the capture theory of regulation predicts permanent artificial scarcity of schools. The theory suggests that the existing businesses would take control of the licensing/regulatory agency and thereby create barriers to entry and reduce competition in the market. Not only opening of a new school but addition of a new class in an existing school also requires prior permission (Rule 45). Rule 46: Closing down of a school or any class in a school-No managing committee shall close down a recognised school, not being an unaided minority school, or an existing class in such school without giving full justification and without the prior approval of the Director, who shall, before giving such an approval, consult the Advisory Board.
Rule 8 tells that school cannot fire any employee without permission and due process. Terms and Conditions of Service of Employees of Recognised Private Schools, Clause 2: Subject to any rule that may be made in this behalf, no employee of a recognised private school shall be dismissed, removed or reduced in rank nor shall his service be otherwise terminated except with the prior approval of the Director. Clause 3: Any employee of recognised private school who is dismissed, removed or reduced in rank may, within three months from the date of communication to him of the order of such dismissal, removal or reduction in rank, appeal against such order to the Tribunal constituted under section 11.
Schools need an exit policy as badly as other businesses. The license raj in education however goes much further than it did in the industry. The government never required that the customer of a company must take the company's approval before switching to an another company to purchase a similar product or service. But, Rule 139: Admission on transfer certificate-No student who had previously attended any recognised school shall be admitted to any aided school unless he produces a transfer or school leaving certificate from the school which was last attended by him. Schools could deny their customers the freedom to switch; they have captive customers.
Rule 131 creates more corruption and arbitrariness. Power to Director to regulate manner of admission-Where the circumstances of a case so require, the Director may, notwithstanding anything contained in the admission plan, direct the admission of any student to an aided school, and, on receipt of the direction, the head of such school shall admit such student in the school.
Given the strict controls on entry, expansion, and closure, fee structure, collection of donations, government funding to schools is very minutely regulated. Chapter VI, Grant-in-Aid describes various heads under which grant is given.
Categories of aid 1. Aid shall be of two categories, namely- (a) maintenance grant; and (b) building grant 2. Maintenance grant shall be of two kinds, namely- (a) recurring maintenance grant; and (b) non-recurring maintenance grant 3. The recurring maintenance grants are- (a) staff grant; (b) provident fund grant; (c) pension and retirement benefit grant; (d) medical benefit grant; (e) benefits specified in Chapter X; (f) grants for the purpose of books and journals which are essential for the library; and (g) grants for the acquisition of essential equipments of the school. 4. Non-recurring maintenance grant Non-recurring maintenance grant shall be of the following categories, namely- (a) contingent grant; (b) rent grant; (c) depreciation grant for school; (d) hostel grant and depreciation hostel grant; (e) grant for equipment, furniture, games and sports materials and the like; (f) biennial or triennial grants for the purchase of books for the library and for the setting up of a book bank.
One cannot but be amazed that with all these paperwork schools actually manage to teach a little. It would indeed be far better to remove all these barriers and give schools an open grant so that they can decide how best to spend it to achieve quality education. Abolition of the license-permit raj in education would, as it has in the industry, increase choice and competition in the market for education and make schools more responsive to needs of students and parents.
Achievement Marks by School Management, Chennai, 1994-95 (Higher Secondary Level) Public Private Aided Private Unaided English All Boys Girls Number of Students Mathematics All Boys Girls Number of Students 47 48 47 351 49 48 51 192 61 62 59 602 55 52 51 424 77 77 77 595 76 74 79 470
Very few studies exist that compare the performance of private and government schools. However, P. Duraisamy and T. P. Subramanian (1999) compare the working of public, private aided, and private unaided higher secondary schools in the Chennai area. Their study (p. 43) indicates that in English and Mathematics, the two subjects they analysed, students of the private unaided schools did the best and those of the public schools the worst.
The specific reforms for education liberalisation are: A. Pass the private university bill. B. Repeal all barriers to entry and exit in lower and higher education. C. Grant autonomy to existing schools, colleges, and universities without reducing financial support. D. Remove departments of education and other government bodies from the provision of education, convert them in financing and monitoring agencies. E. Make choice and competition the central focus of education policy in this area.
Reform 2: Institutionalise accountability of government and private educational entities.
Once education is liberalised and all existing institutions are given autonomy, they will begin to compete for students. The decision-making powers, in all areas of management, would be handed down to schools, colleges, and universities-that is to parents, teachers, and local administrators. It is critical to institutionalise accountability, in managing finances as well as teaching and research, so that the competitive forces would work to improve, and not undermine, the overall experience of education.
A. Link government grants with performance
To facilitate the Schumpeterian process of creative destruction, government grants to all educational institutions must be linked with their academic performance. For completely private institutions, the link between revenues and performance does exist; parents would not continue to purchase their services unless the standards were met. But government grants to government as well as private academic institutions are largely automatic-based simply on the number of students and physical infrastructure of the past with an eye on the growth in the head count and the need for maintenance and expansion of facilities. (Refer to the earlier description of the multitude of headings under which grants are doled out.) Linking government grants with performance would help realign self-interest and incentives of the institution with the needs of its customers. The institution's task is to educate; its revenues should depend on the extent to which it meets its responsibility.
There are multitudes of ways to measure performance of institutions and the issue needs a deeper analysis. But a simple way to gauge performance is to consider the number of students who pass the standardised board examinations. An institution's revenues could be linked with that number. Success in passing board examinations is probably not the best way to judge the quality of education; we should think of better and yet easier ways to assess the quality. The basic objective nonetheless is to make educational institutions earn their government grants by fulfilling their responsibilities.
B. Help establish independent certification, accreditation, and examination agencies.
Performance of the diverse institutions that would dot the educational landscape cannot be accurately measured by any single, uniform method. We would need as much experimentation in performance measurement as in the development of curricula and teaching pedagogy. Monopolies in the provision of education are harmful, so they are in the assessment of education. Competing sources of providers as well as assessors further the cause of good education.
In place of the license-permit system, independent certification and accreditation agencies would help monitor the quality of education. Again, instead of a monopoly or oligopoly of such agencies, freely competing agencies would provide more objective and accurate information to parents and students to enable them to make informed decisions. Significance and working of such independent institutions in various areas of the economy are discussed in Desai 1998.
Reform 3: Empower students and parents.
In the current system, government grants are given to academic institutions-schools, colleges, and universities. For the market for education to work as efficiently and equitably as possible, it is critical that the support is given directly to students and parents instead of institutions. Free choices of empowered students and parents would then determine the educational landscape. Consumers of education would become sovereign.
The idea of empowering consumers of education is generally framed as separating provision/production/management from financing of education. The government does not run or control any academic institution, it simply provides support to students and parents so that they can purchase education in a competitive marketplace. There are several ways to implement this idea; two most common are scholarships and vouchers. Many countries, including those with high literacy rates, are moving towards a voucher system to improve the quality of their education. The education system of Chile is now almost completely based on vouchers. Singapore is moving towards Independent and Autonomous schools and colleges. Several school districts and states in the United States have been experimenting with a voucher system. College education in the U.S. has long been financed either directly by students and parents, or through scholarships given by colleges and foundations, or through government subsidised loans, or through outright grant from the government for those who meet the minimum family income criterion. (For details of the voucher system in several countries, see the special issue of Education and Urban Society, August1999.)
There are several types of voucher systems. The system is rather flexible so that it can be adapted to peculiar problems of a country. It also allows a great deal of freedom to institutions in managing their affairs. Through vouchers institutions receive a fixed some of money for educating students. Institutions then are free to decide how to spend that money so as to improve the quality of education, retain students (prevent dropouts), and attract more students to increase their voucher revenues. Depending on local conditions, institutions would design appropriate schemes and programmes to achieve above goals. In some areas, institutions may be able to attract and retain students by providing mid-day meals and uniforms, in other by offering a wider variety of extra-curricular activities, in still other areas by arranging for remedial classes, and so on. Institutions would be able to use funds to meet specific local needs without any directives from the government or urgings from the communities. It will be in their self-interest to discover and implement the most suitable schemes and programmes for their students.
A. Universal voucher system
In this system, government provides vouchers of a specified sum to all individuals in a given age group. Individuals would then find institutions that meet their needs and aspirations. Netherlands and Chile have a very similar system.
B. Incentive voucher system
Generally vouchers cover the actual cost of providing education but do not pay for the opportunity cost of students' time or any extra incentive to acquire education. We in India, say, want to give special emphasis to girl education. An incentive voucher system would not only cover the cost of education but also provide some money to girls in the specified age group/educational level. A larger amount of voucher would be given to these girls and a part of the amount would then be given back by the institution to the girls as an incentive to enrol and attend school. The government could specify criteria (such as attendance, performance) that the girls should meet in order to get the money.
C. Income-constrained voucher system
The government would specify a family income level above which students could not receive vouchers, in other words, no financial support for richer students for education. It could be a single cut-off (say, no voucher for the family income above Rs. 30,000 per year), or it could be a graduated cut-off (60 percent of the standard voucher amount for the family income above Rs. 20,000 per year, 30 percent for above Rs. 30,000, and none above Rs. 40,000 per year).
What should be the actual amount of the voucher for elementary education? The expenditure estimates vary from survey to survey. Average cost of sending a child to a government primary school: (Rs/year) Source: PROBE survey (sub-sample of 831 children enrolled in government primary schools). Household Expenditures on Elementary/Primary Education (Rs per Student) Panchmuchi (1990) (Elementary Education, 1988-89) Government Private Aided Private Unaided Private Unrecognised Maharastra 382.25 4033.14 2452.18 2467.80 Karnataka 1194.46 1650.32 2530.39 Rajasthan 809.69 2185.46 7514.68 NCAER (1994) (Elementary Education, 1992-93) All Schools Bihar 290 Kerala 773 Delhi 1029 UNDP (1999) (Elementary Education, 1994-95) All Schools One District in UP 120 One District in Kerala 550 PROBE (1999) (Primary Education, 1996-97) All India Government Private 318 940 Tilak (1996) based on NSSO 1986-87 (Primary Education) All Schools India Rural Urban Total 84 117 109 Source: Manabi Majumdar (1999, p. 320) Average Cost of Sending a Child to School (Rs/year at constant 1996-7 prices) Primary Level NSS estimate, 1986-7* 212 PROBE estimate, 1996 318 Elementary Level NCAER estimate, 1994 478 *Excluding clothing expenses Source: NSSO, 1993; NCAER, 1996; PROBE survey
The government expenditure of elementary education varies from state to state in the rage of Rs. 500 per student per year to Rs. 1400. Private expenditures in government and government aided schools seem to rage from Rs. 300 to Rs. 1000. So the voucher amount could be in rage of Rs. 800 to Rs. 2400. Certainly additional work is required for more informed estimates of the voucher amount.
In conclusion, the three reform areas-liberalisation, accountability, and empowerment-provide a framework within which to design programmes and policies to give India an education system that could meet the needs of the 21st century. First and foremost, liberalise the whole education system from primary to higher. Allow free entry and exit; bury the license-permit raj education. Remove the archaic socialist restriction that education institution cannot operate for monetary benefit. Let the profit motive that produces all other goods and services so efficiently and abundantly play its role in the market for education.
Make all schools, colleges, and universities autonomous; let the teachers, parents, and local administrators have all the powers to make decisions. Link government grants to the performance of institutions. Incentives matter. We cannot make our education system wholly dependent on sudden emergence of crores of enlightened and wise teachers, professors, and administrators. Those who perform, must be rewarded, those who do not, must find a better use of their talents.
Design innovative ways to finance education of those who cannot afford it: Scholarships, voucher systems, loans. Encourage self-regulation of this autonomous education system by promoting independent certification, accreditation, and examination agencies. Transfer government institutions to trusts, societies, and private voluntary organisations (mislabelled as NGOs).
It must be acknowledged that many of our experts, including the Nobel Laureate Amartya Sen, argue for a larger role of the government in provision, financing, and management of the education system. They point out that government interventions have been critical in all countries that have high rates of literacy. That may be true. But we should learn from not what they did in the past but what they are doing today. Many of these countries are moving away from the government control of education through independent and autonomous institutions and voucher systems. We need not first repeat their mistake and then follow them on the new reform path. We must learn from their historic mistake and create our own path.
I look forward to a day when Sachin Tendulkar and Aiswariya Rai are paid crore rupees in an ad for a new college. If sellers of frivolous soft drinks can spend vast sums on ads, provides of a service as essential as education must at least be able to match. Only then we would be certain that we are not under-investing in education.
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