Right to Education: A Judicial Outreach

INTRODUCTION

'Education is the most important weapon which you can use to change the world' - Nelson Mandela

Education has always been an issue which has been of the prime focus for any nation. The development of any country is dependent on a lot of factors but education is considered as that important tool which can change the face of a nation as well as the individual. In the present scenario if we talk about basic human rights, apart from basic amenities like food, clothing and shelter one thing that has emerged as one of the most important need of the hour is undoubtedly education. This factor plays a vital role in the demarcation between developed and developing nations. Often confused with schooling, education in its simplest of the meaning means transfer of knowledge and skills from one generation to another generation. Right from the time when need was felt to write down the human rights that an individual is entitled, education found its place in all those documents along with the other basic human rights. This shows that how imparting education was an important issue in development of an individual as was considered by all human rights organizations and international laws and conventions.

The Universal Declaration of Human Rights which was adopted by the General Assembly of United Nation in the year 1948, in clause 26 talks about education. This clause says that everyone has a right to education and education shall be free at primary level or fundamental stages. Elementary education should be compulsory, technical and professional education should also be generally available and higher education should also be kept in mind and should be made equally accessible to all on the basis of merit. The countries who are a state party to UDHR should thus make effective efforts to ensure this right.

The International Covenant on Economic, Social and Cultural Rights which was adopted by United Nation’s General Assembly, in its article 13 talks about the Right to Education for all.

The article reads as 'education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.'[1] To meet up to these expectations, the state parties need to have a realizations that primary education to be made free and compulsory for all and the technical and vocational education should also be taken care of. The higher education should also be made accessible to all on the basis of merit. The ICESCR devotes the biggest article for the realization of right to education as education is the right which helps you to realize all the other rights that an individual has been provided. It is mainly through the education itself that an individual, specially the socially and economically marginalised section, can take himself out of poverty, exploitation and can have access to all other rights that he has been provided and can live a dignified life.

RIGHT TO EDUCATION IN INDIA- When the constitution framers were framing the constitution, education remained one of the most debated, discussed and thought over topic. At the time of independence, India’s literacy rate was very low that was a big hinderance in the way of development. Constitution framers were aware about this fact and hence they paid special attention to education so that the pace of development could be accelerated. However, India at the time of the independence was not a very strong economy. Hence guaranteeing education to all was seen as too much burden over the state. Education, therefore, invited a lot of discussions over it. There were two sides on the issue, one which wanted right to education to be a fundamental right and the other which wanted it to come under the Directive Principle of State Policy. The drafting committee decided to not include it under the part III but kept education under part IV i.e. the DPSP. The constitutional framers very well knew that if kept under part III of the Constitution, education is going to give birth to a lot of claims and hence will be big burden over the state. DPSP just acts as a guideline to the state and hence it is not enforceable in the court and this was the reason education was included under it.

When the constitution came into force, Article 45 of the then constitution stated the provisions of free and compulsory education for children. This article which was Article 36 of the Draft Constitution went through a couple of amendments to gain this shape. Article 36 began with 'Every citizen is entitled to' instead of 'the state shall endeavour to provide' as all the DPSP’s stated. The objection raised by Pandit Lakshmi Kant Maitra who asked for the amendment of the word 'every citizen is entitled to' as he felt that this looked like an amalgamation of DPSP and Fundamental Rights and does not fit in the framework of DPSP. As DPSP’s are the guideline to state, it should start with the state shall endeavour to, so that the state has the liberty to make provisions for the realization of education to its citizens. The same idea was given by B.R. Ambedkar and hence the amendment was done. The article finally stated 'The state shall endeavour to provide, within a period of 10 years from the commencement of this constitution, for free and compulsory education for all children until they complete the age of fourteen years'.

Article 41, as well in its broader sense talks about right to education, however it was again under the part IV and is not enforceable. This article was subjected to economic availability of the state which means that it was up to the state to make provisions for education under their economic capacity. There were several other points of discussion in the Constitution Assembly Debates which came under the wide ambit of education. The debate whether or not the word primary should be included with free and compulsory education and the debate of whether or not education should be imparted in mother tongue are to mention a few. However, one thing which is to be noticed is out of all the Articles that talked about education, minority education, inclusion of mother tongue, regarding admissions, reservation or the article which talks about discrimination none of them talks about the time frame other than Article 45. It was only article which gave a time limit of ten years as constitution makers wanted the state to take reasonable and effective measure to make the condition of the education better in the country. It was only after 6 decades that some considerable changes were made in the legislations regarding education. The ground reality, however, still remains to be a concern for the government.

THE JUDICIAL OUTREACH - The article 45 initially talked about a time span of 10 years. However, it was long journey for education to move from Part IV of the Indian Constitution to Part III, with judiciary playing its active role in the interpretation of education through various articles of the constitution. The most important and landmark interpretation was that Right to Life included Right to Education or not. This question was put before the court in the case of Mohini Jain v State of Karnataka. Karnataka legislature passed an act with the view of eliminating the capitation fees for the students taking admissions private medical colleges of Karnataka. The tuition fess of INR 2000/- was fixed for the candidates admitted against the government seats and other students from the state had to 25000/- per annum. However, for the candidates who were Indians citizens but were from any other state other than Karnataka had to pay a sum of INR 60000/- per annum. On a writ petition filed by Mohini Jain who was a candidate from the other state, this notification was quashed by the Supreme Court as violative of Article 14.

The court in this case went on to state that our constitution does not guarantee us Right to Education as a expressed article but if read Article 21 along with Article 38, 39 (a), 41 and 45 we will get a clear picture that the framers of the constitution wanted to make it obligatory for the state to provide education to all. The court also argued that if the provisions under Article 41 and Article 45 are not realized by the state, fundamental rights will remain inaccessible to majority of the population who are illiterate. Unless a citizen is educated, he cannot have the knowledge and realization of the rights that he has been provided under the Part III of the constitution. It was the first time when the court drew a relation between Right to Life and Right to Education. Right to Life includes right to live with human dignity and thus right to education becomes a part of it as 'Right to Education flows directly from Right to Life'. Also, Right to Education if provided will ensure that other rights enshrined under the constitution are given to the masses and since Right to Education can be derived from Right to Life, the state is under a constitutional obligation to provide education institutions at all level for the benefit of the citizen. The court in this case held that charging the capitation fees is nothing but 'selling of education' which is adversely going to affect the standard of education in the country. Admission on the basis of capitation fees is discrimination under article 14 as it highly probable that a poor meritorious student could miss out on the seat in front of a rich non-meritorious student.

The judgement and the interpretation by the court in this case, however opened the ambit of Article 21 regarding Right to Education, was not practical to implement. Firstly, it imposed a bigger responsibility over the state to provide primary education as well as to provide and maintain education institutions for higher education. Secondly, if the private institutions who don’t get an aid from government were not to charge capitation fees, this would totally eliminate private educational institutions as in any case they will not be able to meet there needs and it will not have been possible for the state to impart education to all without private institutions.

The question, whether or not the private educational institutions were to be allowed to charge capitation fees was addressed in the Unni krishanan,JP v State of Andhra Pradesh case, which involved a five judge bench.

Several private educational institutes moved before the Supreme Court challenging the Constitutionality of the state laws which regulated the capitation fees charged by such institutions. Private educational institutes argued that if the principles laid down in Mohini Jain all the private educational institutions would shut down. The court in this case held that in order to treat a right as Fundamental Right, it is not necessary that it should be expressly mentioned Part III, in fact both Part III and Part IV of the Indian Constitution are complimentary and supplementary to each other. If Article 21 is read in conjunction with Article 41, it will be very much clear that one has right to education which forms a part of right of life under Article 21. However, the court in this case said that this right only extends till the age of 14.

The private educational institutions argued that they have the right under Article 19 (1)(g) that gave them complete autonomy and if they are not allowed to decide upon the fees that they need to charge, no one would want to set up an institution in this case. The court accepted this argument and said that setting up of private educational institutions fall under 'occupation' mentioned under 19(1) (g). The judgement in this case rejected the plea of private educational institutions however it said that it would not be fair to restrict private entities in providing education. A scheme was, therefore, framed in order to balance interests in which one of the provisions regarding fees said that the maximum fees chargeable by the institutions would be subjected to the fee fixation committee established by state government.

The scheme made by the Supreme court in the Unni Krishnan case was only to implemented for the academic year 1993-1994. After that every year Supreme Court added new conditions for admissions into the institutions which mainly included fee structure. As the private institutions were not able to recover the cost of the education that they were imparting, Supreme Court brought in the concept of NRI quota which allowed the private educational institutions to reserve and charge higher fees from candidates coming under this category.

After Unni Krishnan, a 11-judge bench was formed in the case of TMA Pai Foundation V State of Karnataka.The first question that was put forth before the court was that the scheme which was made in the Unni Krishnan was valid or not and the second question was whether the establishment Private Educational institutions come under Article 19(1) (g) of the constitution. The court held that setting up of private educational institutions would come under 'occupation' as stated under 19(1)(g) and this answer gave a clear picture that the scheme prepared by Supreme Court in Unni Krishnan was invalid. The court held that autonomy in terms of fees and admission are with the institutions subjected to the fact that a certain percentage of seats are reserved for the candidates coming from weaker sections and also upon discretion certain seats to be reserved for the candidates coming through the national exam. The percentage was however left to government.

However, questions were still persistent regarding the private educational institutions. It was the case of PA Inamdar v State of Maharashtra.This judgement gave answer regarding the reservation, admissions, free structure and autonomy of the private education. It was after a lot of interpretations by the Supreme Court that a balance of interest was drawn between the private educational institutions and the students.

After the inclusion of Right to Education in the Indian Constitution with the 86th Amendment Act, 2002 specified for the need of legislation. In 2009 The Children’s Right to Free and Compulsory Education Act was passed which ensured that all the children till the age of 14 are provided free and compulsory education. However, it was soon enough after the enactment of this act, several provisions of it were challenged before the court. In the case of Society for Unaided Private Schools of Rajasthan v. Union of India & Anr.[3] Section 12(c) of the Right to Education act which stated that 25% of the seats are to be reserved in all private unaided and minority institutions for weaker sections of the society. The court in this case held the Private educational institutions have the right to occupation under 19(1)(g) of the Indian constitution but the under 19(6) the government can interfere for the public interest. Since there is obligation over the government to provide free and compulsory education to all and hence the private educational institutions can function keeping in mind the public good and not just profitability. Talking about the unaided minority education institutions the Article 29(1) and 30(1) gives them the right to protect and conserve their language script etc. and if this act is imposed on such institutions they would be burdened and hence this won’t be serving the purpose of Article 29(1) and 30(1). Therefore, the minority unaided private educational institutions are not bound by under this act to provide the 25% quota.

In the case of Pramati Educational and Cultural Trust and Ors. v Union of India the validity of Article 15(5) and 21A of the Indian Constitution was questioned. Article 15(5) which was added to the constitution with the 93rd Amendment Act, 2005 authorised the state to make special provisions for advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes regarding their admission in educational institutions. The educational institutions here included both private unaided and aided but did not include minority education institutions. Several petitions were filed challenging the validity of the same. The court held that since the Preamble of the constitutions talks about equality of opportunity, these provisions are making it a reality and hence they are valid and constitutional. But the fact that the backward classes cannot claim their quota in minority educations stated that the state does not have absolute power to implement reservation under 15(5) and 21A.

CONCLUSION- Education, as said is not only the source of development but it is a development in itself. For any country to flourish and prosper the most important factor to that is the citizens of that country are educated. Education doesn’t mean schooling but it means holistic development of one’s mind. In India, after the independence the literacy rate of the country was a major issue that leaders knew could be a hinderance on the road of development. The efforts to increase the literacy were seen from the time of the constitution framing. The extensive debate over the issue of education indicated that that it was of prime concern for the constitution framers. After that several efforts and schemes were launched by government. However, the role of judiciary in the realization of right to education cannot be ignored at all. The Supreme Court from time to time interpreted the term Education. Even though education was in part IV of the constitution, it was with the efforts of judiciary that the fundamental rights and DPSP’s were read together, so that the imparting of free and compulsory education can be done without any obstruction. With its efforts the Supreme Court also made sure that the education should not be commercialized and that the right of all sort of education institutions are protected at the same time. Also, from time to time courts went on to give decisions which created a balance between the ones who are providing education and ones who need it.

However, the condition still needs to be improved. Even after making education a fundamental right and having a proper legislation for the same, the condition of the education is not satisfactory. The Government needs to scrutinize whether or not the schemes that have been made are reaching to them who are actually in need of it. Also, the conditions of the school, the infrastructure, the quality of teachers are needed to be checked regularly. If all of these are kept in mind the level of the education will rise leading to realization of all other rights and thus protecting and individual from all sorts of discrimination.

 

Navin Kumar Jaggi 
on 03 January 2019
Published in Constitutional Law
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