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Right to Education-A Brief Analysis [1]  

The Indian Constitution is a social document and the supreme law of the land. The founding fathers of the Constitution have incorporated a well designed constitutional manifesto under Part-IV of the Constitution to achieve socio-economic Justice. The Directive Principles of State Policy is not a catalogue but principles of good governance. It imposes certain obligations on the State to take affirmative action to establish a welfare State. These principles give directions to the functionaries of the State, the manner in which the Constitutional vision has to be achieved. One of the important directives is the duty of the State to provide free and compulsory education for all children until they complete the age of 14 years.

Education is the primary vehicle for human, economic and social development, profiting both the individual and society. It is very difficult for individuals to exercise their civil, political, economic and social rights unless they receive the basic education. The Supreme Court in Mohini Jain and Unnikrishnan cases recognized the right to education is an implied fundamental right. According to the court, the education has proximate relationship with life, protection of environment, eradication of untouchability, child prostitution and other related rights. The National Commission on review of the working of the Constitution has also endorsed the similar view.  As a result the parliament inserted Article 21-A to the Constitution by the 86th Constitutional amendment in 2002. This amendment also introduced new fundamental duty on parents to provide education to their children under Article 51-A to take affirmative action to full-fill the Constitutional mandate, the Parliament passed the Right to Education Act, 2009 w.e.f. April 1st 2010. The Act deals with various facets like appointment of teachers, standards, curriculum, infrastructure, community participation and responsibility of the State to provide primary education etc.

In June 2005, the CABE (Central Advisory Board of Education) committee drafted the ‘Right to Education’ Bill and submitted to the Ministry of HRD. MHRD sent it to NAC where Mrs. Sonia Gandhi is the Chairperson. NAC sent the Bill to PM for his observation.

On 14th July 2006 the finance committee and planning commission rejected the Bill citing the lack of funds and a Model bill was sent to states for the making necessary arrangements. (Post-86th amendment, States had already cited lack of funds at State level). The following are the important highlights of the Act.

Right of Child to free and compulsory education[2]: Every child of the age of six to fourteen years shall have a right to free and compulsory education in a neighbourhood school till completion of elementary education. This Act provides the scope to pursue and complete the elementary education without any kind of fee or charges or expenses.

Special Provisions for children not admitted to, or who have not completed elementary education [3]:

The child above six  years of age has not admitted in any school or though admitted, could not complete his or her elementary education, then, he or she shall be admitted in a class appropriate to his or age. The Act provides a right to receive special training, if the child is directly admitted in a class appropriate to his or her age.

Right of transfer to other school[4]: The Act provides a child shall have a right to seek transfer to any other school within state or outside state to pursue further completion of elementary education by obtaining transfer certificate.

Duty of appropriate government or local authority to establish school[5]:

The Act Provides the appropriate Government and the local authority shall establish a school, where it is not so established, within a period of three years from the commencement of this Act.

Sharing of financial and other responsibilities[6]: The Central Government and the State Governments shall have concurrent responsibility for providing funds for carrying out the provisions of this Act. The Central Government shall develop a framework of national curriculum with the help of academic authority, develop and enforce standards for training of teachers, provide technical support and resources to the State Government for promoting innovations, researchers, planning and capacity building.

Duties of appropriate Government and local authority[7]: There are Certain duties of appropriate Government and local authority to be achieved viz., provide free and compulsory elementary education to every child, ensure that the child belonging to weaker section and the child belong to disadvantaged group are not discriminated against and prevented from pursuing and completing elementary education on any grounds, ensure timely prescribing curriculum and courses of study for elementary education.

Duty of parents and guardian[8]: It shall be the duty of every parent or guardian to admit or cause to be admitted his or her child or ward, as the case may be, to an elementary education in the neighbourhood school.

Appropriate Government to provide for pre-school education[9]: With a view to prepare children above the age of three years for elementary education and to provide early childhood care and education for all children until they complete the age of six years, te appropriate Government may make necessary arrangement for providing free pre-school education for such children. The Act mentions the responsibilities of teachers and schools.

No capitation fee and screening procedure for admission[10]: The Act provides that no school or person shall, while admitting a child, collect any capitation free and subject the child or his or her parents or guardian to any screening procedure.

The Act prohibits physical and mental harassment[11]to child. The School to be established after obtaining the necessary certificate of recognition[12]. The Act provides the prohibition of private tuition by teacher[13]in the concerned established school.

Monitoring of child’s right to education[14]: The National Commission or the State Commission for Protection of Child Rights, the Commissions for Protection of Child Rights Act, 2005, shall, in addition to the functions assigned to them under that Act, also perform the following functions, namely_

(a) examine and review the safeguards for rights provided by or under this Act and recommend measures for their effective implementation;

(b) inquire into complaints relating to child’s right to free and compulsory education and

(c) take necessary steps as provided under sections 15 and 24 of the said Commissions for Protection of Child Rights Act.

Constitution of National and State Advisory Council[15]: The Central Government and State Government by notification constitute a National and State Advisory Council consisting of such number of Members, not exceeding fifteen. The persons appointed to possess knowledge and practical experience in the field of elementary education and child development.

Power to issue directions: The Central Government and appropriate Government may issue such guide lines and directions for the proper implementation of the Act. The appropriate Government by notification make rules for carrying out the provisions of this Act.(s.35 and 38)

Recent Supreme Court Judgment

The Supreme Court on Thursday by a majority of 2:1 upheld the constitutional validity of the Right of Children to Free and Compulsory Education Act, 2009, which provides for free and compulsory education to children between the age of 6 and 14 years and mandates government/aided/and non-minority unaided schools to reserve 25 per cent of the seats for these children. A Bench of Chief Justice S.H. Kapadia and Justice Swatanter Kumar while upholding the law, however, held that it would not be applicable to unaided minority schools. Justice K.S. Radhakrishnan, gave a dissenting judgment[16].

The majority judgment said: “We hold that the Right of Children to Free and Compulsory Education Act, 2009 is constitutionally valid and shall apply to a school established, owned or controlled by the appropriate Government or a local authority; an aided school including aided minority school(s) receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority; a school belonging to specified category; and an unaided non-minority school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority.”

The CJI who wrote the judgment said: “It will operate from today. In other words, this will apply from the academic year 2012-13. However, admissions given by unaided minority schools prior to the pronouncement of this judgment shall not be reopened.

“By judicial decisions, right to education has been read into right to life in Article 21. A child who is denied right to access education is not only deprived of his right to live with dignity, he is also deprived of his right to freedom of speech and expression enshrined in Article 19(1) (a). The 2009 Act seeks to remove all those barriers including financial and psychological barriers which a child belonging to the weaker section and disadvantaged group has to face while seeking admission.”

The Bench said: “It is true that, as held in the T.M.A. Pai Foundation as well as the P.A. Inamdar judgments, the right to establish and administer an educational institution is a fundamental right, as long as the activity remains charitable under Article 19(1) (g). However, in the said two decisions the correlation between Articles 21 and 21A, on the one hand, and Article 19(1) (g), on the other, was not under consideration.

Further, the content of Article 21A flows from Article 45 (as it then stood). The 2009 Act has been enacted to give effect to Article 21A. For the above reasons, since the Article 19(1) (g) right is not an absolute right as Article 30(1), the 2009 Act cannot be termed as unreasonable.”

The Bench said: “To put an obligation on the unaided non-minority school to admit 25 per cent children in class I under Section 12(1) (c) cannot be termed as an unreasonable restriction. Such a law cannot be said to transgress any constitutional limitation. The object of the 2009 Act is to remove the barriers faced by a child who seeks admission to class I and not to restrict the freedom under Article 19(1) (g).

“From the scheme of Article 21A and the 2009 Act, it is clear that the primary obligation is of the State to provide for free and compulsory education to children between the age of 6 and 14 years and, particularly, to children who are likely to be prevented from pursuing and completing the elementary education due to inability to afford fees or charges.”

Conclusion:

There may be a thousand questions that remain unanswered, the most pertinent being on finding, training and motivating teachers, but they can't be cited as the reason for continuing to ignore the aspirations of the poor. For don't forget, their patience is running thin. Laws and Bills don’t make children go to school. Initially, there will be problems because while everyone must understand their social responsibility, what matters is whether the right children will have access to this programme.

[1]The Author is Faculty Member, Faculty of Law, ICFAI Foundation for Higher Education, Hyderabad.

[2]Section 3 of The Right of Children to free and compulsory Education Act,2009 (hereafter referred as Act)

[3]Section 4 of the Act

[4]Section 5 ibid

[5]Section 6 ibid

[6]Section 7 ibid

[7]Section 8 and 9 of the Act

[8]Section 10

[9]Section 11

[10]Section 13

[11]Section 17

[12]Section 18

[13]Section 28

[14]Section 31

[15]Section 33 and 34 of the Act

[16]J.VENKATESAN ‘Supreme Court upholds RTE Act’ available at http://www.thehindu.com/news/national/article3306454.ece (Last Visited on May 26, 2012)


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