Introduction
"Online learning is not the next big thing, it is the now big thing."
– Donna J. Abernathy
After over three decades since the nation’s last education policy, the Union Cabinet approved the new National Education Policy (hereinafter, the “NEP”) on 29 July, 2020. The new policy has brought about visionary changes, so much so that it has been called[i] a “revolution in the Indian education system”. One of the key areas that the NEP focuses on is the use and integration of technology into education, and emphasizes that the relationship between technology and education is bi-directional.
The NEP comes amidst the havoc wreaked by the COVID-19 pandemic on the education sector. Schools in 190 countries have faced complete or partial closure. In India, educational institutes have remained physically shut for five months, and this has been accompanied by a massive shift to the digital education bandwagon.[ii]
This move, however, may have done more harm than good. Recently, a Class X girl took her life due to lack of access to online classes.[iii] In July, a man sold his cow, his family’s only source of income, to buy a smartphone so that his children could attend online classes.[iv] In essence, the repercussions of digital divide in the country arising out of socio-economic factors are being felt at a greater gravity than ever before.
The prominent digital divide raises questions about the implementation of the NEP, which focuses on using technology for the “improvement of educational processes and outcomes”. Apart from this, the integration of technology and education has proved to be a pandora’s box in other ways. This integration has raised several other questions regarding data privacy, cyberbullying and cyberstalking, inter alia. All these questions have paved the path for a discourse on legal concerns surrounding the use of technology in education.
National Education Policy: A Boon or a Bane?
The NEP showcases a huge prospective for the integration of technology in learning; albeit, the provisions for the same have been met with a plethora of criticism from academicians, think tanks, students as well as other stakeholders.
The NEP elaborates several aims like “improving teaching, learning and evaluation processes, supporting teacher preparation and professional development, enhancing educational access, and streamlining educational planning and management including processes related to admissions” in a chapter dedicated solely to accommodate technology in education (NEP 2020, Chapter 23 & 24). The provisions for enabling efficient learning enhanced with technology seem promising, however, in absence of guidelines and plans to build up the prerequisites required to handle the technology, the same provisions seem impractical.[v] Such prerequisites range from personal to regional level, and include both, the ones educating and the ones being educated. Making the internet, computers and other essential hardware accessible and available to everyone is another challenge altogether especially when mere 10% government schools have a functional computer[vi] today. All such provisions are superfluous unless such requisites are met.
The NEP 2020 also envisages provisions for stimulating privatisation of higher education, which might further pave the way for inaccessibility and economic inequality. This provision has even been compared to inviting FDI in the education sector.[vii] While proposing to increase expenditure on education to 6% of the GDP (NEP 2020, 26.2), the draft does not mention the source of the expenditure itself. While complying with the provisions for integration of technology, the first step would be to upgrade the current infrastructure to meet the technological requirements. Unless this extra cost comes from the Government’s pockets itself, the provisions shall inevitably lead to increased fees[viii] and consequently, increased drop-outs. This result would be the exact opposite of what the policy wishes to achieve- a gross enrollment ratio of 100% by the year 2030. This aim would be a distant dream due to the possibility of NEP inducing an even wider economic gap with sudden fee hikes.
While the 1986 policy had detailed and intricate provisions for the scheduled caste, scheduled tribes, women’s equality, physically or mentally challenged and other educationally backward sections, the new policy seems to club all such classes as the ‘Socially and Economically Disadvantaged Groups’ (“SEDGs”), stripping them of any specialised provisions. Despite the specialised skill set which is a prerequisite to comprehend the nuances of technology, the NEP fails to inculcate provisions to make the infrastructure technology-friendly for students with differing technological capabilities. Although provisions for availability exist for ‘divyang’ students (NEP 2020, 23.6), it is simply a directive provision and no solid implementation plan or timeline has been laid down for the same.
NEP has introduced coding as a compulsory subject in the Middle Stage, i.e., classes 6-8 (NEP 2020, 4.2). Read with provision 4.11 (mother tongue to be the medium of instruction till class 5 whenever possible), introduction of computer languages, which are strictly in English, immediately after class 5, would be extremely difficult to grasp for students who are not used to learning in English. This would especially create a hurdle for children who come from non-english speaking families.
The NEP further proposes to create (NEP 2020, 23.3) an autonomous body National Educational Technology Forum (“NETF”) which aims to “provide a platform for the free exchange of ideas on the use of technology to enhance learning, assessment, planning, administration, and so on”. The primary functions of NETF focus on research and innovation in the field of integration of technology in education. Detailed provisions for such research exist but in absence of any structure for this information to trickle down to the ground level.
Provision 23.4 mandates that the NETF will maintain a regular inflow of “authentic data” and will engage with a diverse set of researchers to analyze this data. However, neither does the NEP define “authentic data”, nor does it specify a mode of collection of the data. The provision also fails to appoint any handlers or the final recipient of this data, which can lead to unnecessary complexities of handling of data between the Central and State government agencies. Not only does this undermine the uniformity of the data collection process, but also puts the data at risk of privacy breaches during the transaction.
Collection of undefined data could also prove to be a potential hurdle for teachers giving lectures on sensitive and political issues, and might be a fatalistic blow to the right to free speech. The NEP has also laid emphasis on disruptive technologies like Artificial Intelligence. While such technologies can prove to be helpful in making education inclusive, they also raise serious privacy concerns. For instance, a school in China using facial recognition technology to analyse[ix] students’ behavior in the classroom triggered concerns of children’s privacy, especially in case of data leakage. (read more on data privacy its tumultuous relationship with GDPR here)
The impracticality and duality of some provisions in the policy has been raising eyebrows since the conception of this draft, inviting a plethora of criticism and making people wonder whether the policy is designed for education or exclusion.
Further Potential Impediments
Intellectual Property Rights Concerns
Apart from the lacunae in the NEP that need attention, there are various other legal issues with the use of technology in education. One of the foremost hindrances to a smooth transition to technology based education is the threat of intellectual property rights (hereinafter, “IPR”) violation. Section 52(1)(j) of the Copyright Act, 1957 allows for use of copyrighted material by education institutes as long as “the audience is limited to such staff and students, the parents and guardians of the students and persons connected with the activities of the institution or the communication”. This might be a cause of concern for teachers using copyrighted content in their recorded lectures. If these recordings are published on public fora, it might amount to copyright infringement.
With focus shifting to online learning and distance learning, especially due to the pandemic, the EdTech industry has witnessed a major boost. This substantially increases the risk of IPR infringement in EdTech businesses, whose principal asset is intellectual property. While some educational institutions have established their own policies to address copyright and other IPR infringements pertaining to their online courses, there has been no intimation by the government about a framework to tackle the issue.[x]
Cyberbullying and Cyberstalking
A practical concern that has been highlighted recently is that of cyberbullying and cyberstalking of teachers, especially of female teachers, during online classes.[xi] This concern extends to the safety of students as well. While cyberbullying is not specifically defined in Indian legislations, they can attract provisions under the Information Technology Act, 2000 (hereinafter, “IT Act”) and the Indian Penal Code, 1860 (hereinafter, “IPC”). Sections 67 and 67A of the IT Act, which lay down punishment for transmitting obscene and sexually explicit material respectively, can be attracted for posting sexually colored remarks against the teachers.
The same actions can also attract liability under Section 509 of the IPC, which lays down the penalty for insulting the modesty of a woman and Section 354A, which stipulates punishment for sexual harassment. Section 294, IPC can be attracted for playing obscene songs to disrupt the class. Other provisions of the IPC that can be invoked for cyberbullying are Section 500 (punishment for defamation), section 506 (criminal intimidation) and Section 507 (criminal intimidation by anonymous communication). Stalking, including cyberstalking, has been penalised under Section 354D of the IPC.
Despite statutory protections, holding the bully or stalker liable becomes a daunting task, especially when they are anonymous. The National Crime Records Bureau reported an increase of almost 110% in cyber crime cases registered with the police from 2016 to 2018. Yet, the number of disposed cases are lower than the number of new cases reported, which has led to a steady increase in the total number of pending cyber crime cases in the country.[xii] Further, experts have stated that police are often reluctant to file take action against cyber crimes.[xiii] Moreover, these offences often go unreported. A recent study conducted by Child Rights and You found that only 50% of the children reported cyberbullying to their guardians or teachers.[xiv] All of these are concerns that extend to online education as well.
National Education Policy: The Way Ahead
The provisions for integration of technology in education will all be in a naught unless the digital divide in the country is bridged first. Even if the hardware requirements are met, disseminating the required skill set to operate the hardware is another hurdle to be conquered. The students and teachers need to be on the same level of comfort with technology for this policy to take effect. The current situation and economic condition of the country would just prove to be the Achilles heel of the policy. A full-fledged implementation plan must accompany the policy to increase the accessibility of technology all over the country.
The ambiguity surrounding the term “authentic data” must be elucidated upon. The policy makers also need to clarify whether such data will be classified as personal data under the Personal Data Protection Bill, 2019. Ideally, explicit consent of the data principal should be obtained before using or processing such data (Section 11, PDP Bill).
In addition to the above points, the effects of privatisation of Higher Education Institutions must be analysed properly in order to rule out any possibility of unanticipated fee hikes and increased dropouts. A possible solution to overcome this problem is that the government should bear the cost of infrastructural upgradations as and when required to meet the standards. However, this seems an inconceivable idea as the cost of such a huge scale upgradation might even surpass the aimed 6% expenditure on education.
Although the criticism around adding classical and local languages falls out of the purview of this discussion, it is important to consider adding the language english to the curriculum from the initial stage itself. Practically, english forms the base of every computer language and technological platform, and students who are used to the platforms like SWAYAM or DIKSHA might face difficulty to switch platforms. The three-language structure needs to be carefully revised based on this debate.
The NEP cannot be a stand-alone legislation in itself. Integration of technology and digitization in any field escorts a glut of threats like cyber crimes, cyberbullying, cheating in online examinations, hacking into the institution servers, bypassing firewalls and censorship on the internet provided by the institutions etc. Relevant provisions of ancillary legislations like the Copyright Act, 1957 and the IT Act needs to be heavily updated and molded to supplement this draft.
Conclusion
In 2014, the current Prime Minister Narendra Modi shared his vision of Digital India and stated, “I dream of a Digital India where quality education reaches the most inaccessible corners driven by Digital Learning.” Although the NEP makes mention of enhancing educational access through technology and attempts to address the digital divide, this dream can only be realized through proper implementation of the policy. The current digital divide will prove to be the biggest hurdle that the country faces in terms of technology and education, and unless resolved, the NEP might become a policy for exclusion rather than education.
It is also imperative to address the various legal issues that threaten the sustainability of a technology-based education system. Existing legislations must be brought up to date to be congruent with the amplifying impact that technology has on all sectors of society, including education. Without realization of these impediments, the attempt to integrate technology and education might be nothing more than a shot in the dark.
[i] National Education Policy 2020 will bring revolution in Indian education system: Here’s how, India Today (9/08/20), available at https://www.indiatoday.in/education-today/featurephilia/story/national-education-policy-2020-will-bring-revolution-in-indian-education-system-here-s-how-1709381-2020-08-09.
[ii] Coronavirus lockdown | As schools remain shut, States leverage digital resources, The Hindu (28/07/20), available at https://www.thehindu.com/news/national/coronavirus-lockdown-as-schools-remain-shut-states-leverage-digital-resources/article32215461.ece.
[iii] Abdul Latheef Naha, Kerala Class X girl ends life allegedly over lack of access to online classes, The Hindu (02/06/20), available at https://www.thehindu.com/news/national/kerala/kerala-class-x-girl-ends-life-allegedly-over-lack-of-access-to-online-classes/article31728470.ece.
[iv] Ravinder Sood, Man sells cow to buy smartphone for online studies of his children, The Tribune (23/07/20), available at https://www.tribuneindia.com/news/himachal/man-sells-cow-to-buy-smartphone-for-online-studies-of-his-children-116524.
[v] Sangeet Jain, The National Education Policy 2020: A policy for the times, ORF Online, available at https://www.orfonline.org/expert-speak/national-education-policy-2020-policy-times/ last seen on 24/08/20.
[vi] Gaurav, Bhallav, Does the National Education Policy miss out on real issues?, The New Indian Express (12/08/20), available at
[vii] Long-due reforms, devil lies in details: NEP evokes mixed reactions from academicians, The Economic Times, available at
[viii] Here’s Why You Can Rejoice Over the New NEP. And Why You Cannot, The Wire, available at https://thewire.in/education/nep-higher-education-kasturirangan-education-ministry last seen on 23/08/20.
[ix] Schools using facial recognition system sparks privacy concerns in China, Medium, available at https://medium.com/@EdtechChina/schools-using-facial-recognition-system-sparks-privacy-concerns-in-china-d4f706e5cfd0 last seen on 23/08/20.
[x] Online Education and Intellectual Property Issues, BananaIP Counsels, available at https://www.bananaip.com/ip-news-center/online-education-and-intellectual-property-issues/.
[xi] Fareeha Iftikhar, Delhi university teachers claim harassment during web classes, Hindustan Times (13/04/20), available at https://www.hindustantimes.com/education/delhi-university-teachers-claim-harassment-during-web-classes/story-6xsKujEWKXqpO3JDpE5bBN.html.
[xii] Bharath Kancharla, In 5 years, more than fourfold increase in the number of pending Cyber-Crime cases, available at https://factly.in/in-5-years-more-than-fourfold-increase-in-the-number-of-pending-cyber-crime-cases-in-courts-the-police.
[xiii] Prasanto K Roy, Why online harassment goes unpunished in India, BBC (17/07/2015) available at https://www.bbc.com/news/world-asia-india-33532706.
[xiv] Online Safety and Internet Addiction, Child Rights and You, available at https://www.cry.org/wp-content/uploads/2020/02/Online-Safety-and-Internet-Addiction-p.pdf.
By Abhijeet Vaishnav, Digital Editor and Kavya Jha, Junior Editor, RSRR.