Recognising a judicially enforceable right to education

Education has long been called the backbone of the nation, yet Bangladesh's Constitution refrains from recognising this basic human right in a way that would be meaningful for the people of the country. Article 17 of the Constitution promises free and compulsory education. However, this right has been placed, quite systematically, in Part II of the Constitution, as a Fundamental Principle of State Policy, rendering it judicially unenforceable. In simple terms, the right exists in writing, but the government cannot be held judicially accountable for not giving effect to it.

Currently, Bangladesh is suffering from a crisis of quality education as evidenced by the World Bank's Human Capital Index (2024). A Bangladeshi child entering school at age 4 can expect to complete around 10.2 years of schooling by age 18. Yet, when adjusted for learning outcomes by the Learning-Adjusted Years of Schooling (LAYS) metrics, this falls to only 6 effective years, i.e. a loss of nearly four years of education quality. The 2022 National Student Assessment revealed that nearly half of primary students cannot read Bangla at their grade level, and two-thirds cannot perform basic arithmetic operations. Other studies conducted by governmental and non-governmental agencies, such National Academy for Primary Education (NAPE), BRAC Institute of Governance and Development (BIGD) lend credence to this.

If there was an accountability framework in place, through a justiciable right to education, and if there was an accountability metric in place, through the LAYS and other formats, then that could strengthen rights-based governance. Ministries would be compelled to publish learning-outcome data, audit resource use and justify any deviations. This would enable the civil society, concerned citizens, parents, and stakeholders to exercise their constitutional right to challenge government policy decisions, thus building a culture of participation and transparency.

On the other hand, a judicially enforceable right to education is supported by the people as well. A survey carried out by BANBEIS in 2024, revealed that an overwhelming number of the Bangladeshi people supported the inclusion of the right to education, amongst other rights, as a judicially enforceable right in the Constitution. 98.4% of 45,925 respondents to the survey said they want food, clothing, shelter, education and healthcare to be constitutionally recognised.

Besides the above, the most compelling argument for the recognition of the positive right to education is that it creates a constitutional framework for accountability. Making it enforceable will imply that in the event the State fails to take adequate and necessary measures to protect it, citizens will be able to hold the government accountable by instituting a writ petition under Article 102 of the Constitution. Once education becomes justiciable, governments will be required to justify their actions, or lack thereof, against constitutional benchmarks. Courts could demand periodic progress reports, ensure that funds are allocated fairly, and compel authorities to remove systemic barriers. The object of such judicial review is not to replace policymaking but to ensure that policy meets principle.

Critics often argue that Bangladesh lacks the resources to make education a fundamental right. However, international jurisprudence recognises that states are obligated to realise rights such as education within the resources available. Article 2(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) enunciates the principle of progressive realization of economic, social and cultural (ESC) rights. This approach is not theoretical. Globally, courts have veered towards recognising the justiciable right to education despite resource constraints. Like in South Africa, the Constitutional Court in the Governing Body of the Juma Musjid Primary School v. Essay N.O. (2011) held that the state bears the duty to ensure access to education, even when resources are constrained. Notably, the court here distinguished between the right to 'basic' education and the right to 'further education' and held that basic education is unqualified and immediately realisable while further education should be progressively realised (emphasising the availability of resources argument).

Bangladesh can learn from its neighbour, India, as well. Because of similar constitutional provisions and identical socioeconomic and political scenarios, Bangladeshi jurisprudence often mirrors that of India. Yet, India has already constitutionalised the right to education by inserting Article 21A in the Constitution through its 86th Amendment. This came in line with the 1993 judgment of Unni Krishnan v State of Andhra Pradesh which recognised the right to education as a fundamental right.

  Finally, a justiciable right to education will not merely strengthens institutions but also discipline political will and create a durable and sustainable accountability mechanism which may be used to keep education-related policymaking in check. For an array of social, legal and economic reasons, Bangladesh should recognise the right to education as an enforceable right.

The writer is student of law, University of Dhaka.