SASI K.G.
Education has long been the basic instrument in the
development of entire humanity. Even though right to education has always been
a natural law, it was not recognized so until the second half of the nineteenth
century. Let us consider the evolution of the acceptance of Right to Education
into our common legal processes.
01. Pre independence history of evolution of Right to Education
Clause 43 of The East India Company Act 1813, also known as the Charter
Act of 1813 made education a State responsibility[i]. It allotted Rs
100,000 to promote education in Indian masses[ii].
In 1870, Compulsory
Education Act was passed in Britain. In 1882, Lord Ripon organized the Hunter
Commission under William Wilson Hunter. The Hunter Commission (1882-83) brought
out the neglect to the primary and secondary education in the country and
recommended that the responsibility for the Primary Education must be given to
the Local Boards and Municipal Boards. His other important recommendations were
as follows:
1. The government
should take special care to extend the primary education.
2. There should be literary and vocational training in
secondary education.
3. The commission brought out inadequate facilities
available for the female education in the country.
These recommendations were partially implemented and
there was a slow growth in the number of the secondary schools in the country[iii].
As soon as Hunter Commission report came, Indian leaders
demanded provision for mass education and compulsory education Acts. In 1893, Maharaja
of Baroda introduced Compulsory Education for boys in Amreli Taluk and he
extended Compulsory Education in 1906 to rest of the state. In 1906, Gopal Krishna Gokhale made a plea to
Imperial Legislative Council for introduction of Free and Compulsory Education.
In 1910 he proposed Private members Bill which was subsequently rejected. In 1917,
Vithalbhai Patel successfully got the Bill passed and the first law on Compulsory
Education popularly Known as Patel Act, came into existence. The Patel Bill, 1917 was the first compulsory education
legislation. It proposed to make education compulsory from ages 6 to 11. In 1918, every
Province in British India gets Compulsory Education Act on the Statute Book and
in 1930, Hartog Committee Recommendation for better quality (less focus on
quantity) hindered spread and development of primary education.
Many of these initiatives were not seriously implemented due to lack of resources[iv]. Shri Gopal Krishna Gokhale while debating a bill on compulsory education in the imperial legislative council in 1911 has said, "Elementary education is both compulsory and free, and in a few nations, though the principle of compulsion is not strictly enforced or has not been introduced, it is either wholly or for the most part gratitutious, in India alone it is neither compulsory nor free. Thus in Great Britain and Ireland, France, Germany, Switzerland, Austria, Hungary, Italy, Belguim, Norway, Sweden, the United States of America, Canada, Australia and Japan it is compulsory and free. In Spain, Portugal, Greece, Bulgaria, Servia and Rumania, it is free, and in theory, compulsory, though compulsion is not strictly enforced[v]."
Many of these initiatives were not seriously implemented due to lack of resources[iv]. Shri Gopal Krishna Gokhale while debating a bill on compulsory education in the imperial legislative council in 1911 has said, "Elementary education is both compulsory and free, and in a few nations, though the principle of compulsion is not strictly enforced or has not been introduced, it is either wholly or for the most part gratitutious, in India alone it is neither compulsory nor free. Thus in Great Britain and Ireland, France, Germany, Switzerland, Austria, Hungary, Italy, Belguim, Norway, Sweden, the United States of America, Canada, Australia and Japan it is compulsory and free. In Spain, Portugal, Greece, Bulgaria, Servia and Rumania, it is free, and in theory, compulsory, though compulsion is not strictly enforced[v]."
The Government of India Act, 1935 provided that
"education should be made free and compulsory for both boys and
girls." Free and compulsory education got a further boost when Zakir
Hussain Commission recommended that the State should provide it. The Zakir Hussain Committee was appointed by the Wardha
Conference in October 1937 and had the mandate to prepare a detailed syllabus for
the seven years of Basic schooling. The report of the Committee was approved by
Gandhi and accepted by the Indian National Congress at its Haripura session in
March 1938. As was expected, for many years this report served for all
practical purposes as the Bible for Basic educators
Sir
John Sargent, the Educational Adviser to the Government of India was asked to
prepare a comprehensive report on education. For the purpose, the government
formed a Committee of Enquiry with 22 members. The report of the committee was
submitted to the Central Advisory Board of Education (CABE) in 1944. The Board
accepted it in ‘toto’ and recommended its enforcement. The scheme was known as
‘Sargent Scheme of Education’ as it was prepared by John Sargent. It is also
known as ‘Report by the Central Advisory Board of Education’ and also as the
plan for post-war educational reconstruction in India. This scheme has a
historical importance as it was the first attempt to develop a National System
for Education in India. The report of the Committee consisted of 12 different
chapters covering from pre-primary to university education. It was a fullfledged
educational plan for the future educational reconstruction in India. The report
had diagnosed every problem critically and had given definite and clear-cut
solutions. It deals with almost all types of education for all classes of
people in India. This was the first report that present a comprehensive picture
of education in our country at that period of time[vi].
The 1944 Sargent Report strongly recommended free and
compulsory education for children aged six to fourteen. By 1947, primary
education had been made compulsory in 152 urban areas and 4995 rural areas. A
list of pre-independence compulsory primary education legislations are given
below.[vii]
The Bombay Primary
Education (District Municipalities) Act, 1917
The Bengal Primary
Education Act, 1919
The Bihar and Orissa
Primary Education Act, 1919
The Punjab Compulsory
Education Act, 1919
The United Provinces
Primary Education Act, 1919
The Bombay City Primary
Education Act, 1920
The Central Provinces
Primary Education Act, 1920
The Madras Primary
Education Act, 1920
The Bombay City Primary
Education (District Boards) Act, 1922
The Bombay Primary
Education Act,1923
The Patiala Primary
Education Act, 1926
The Assam Primary
Education Act,1926
The U.P. (District
Boards) Primary Education Act, 1926
The Bikaner State
Compulsory Primary Education Act, 1929
The Bengal (Rural)
Primary Education Act,1930
The (Jammu and Kashmir)
Compulsory Education Act,1934
The Madras Primary
Education Act, 1937
The Bombay Primary
Education (Amendment) Act, 1938
The Punjab Primary
Education Act,1940
The Mysore Elementary
Education Act, 1941
The Travancore Primary
Education Act, 1945
The Bombay Primary
Education Act,1947
02. History of Indian Legislations on Right to Education
Shahuji Maharaj of Kolhapur (Maharashtra) and the State of Baroda (the Gaeakawad State, now in the State of
Gujarat) were having compulsory education Act before independence. After
independence almost all the States and Union Territories have enacted their own
primary education Act in the absence of any Central Act, as education is the
subject of Concurrent List (List-III). A list of State Acts, which make the
education free and compulsory in their States is given below, but this list is
not exhaustive.
(1)Bombay Primary Education Act, 1947
This act ensures free education to boys and girls of the
age between six and fourteen. According to Section 31 of this Act no charge
shall be charged from such students in areas of compulsion. As per Section 32
it is the duty of the parent to cause children to attend school. In case of
failure in this regard, penalty is prescribed under Section 35. Section 36
provides penalty for a person who employs such children.
According to this Act child is one between seven and
fourteen. No charge shall be charged from the students in notified areas of
compulsion. it was the duty of the parent to cause children to attend school.
In case of failure in this regard, and for a person who employs such children
penalty is prescribed.
Provisions of the Saurashtra Act was similar to Himachal
Act.
(4) Kerala Education Act, 1958
In
Kerala the Madras elementary Education Act, 1920, the Travancore Primary
Education Act, 1121, and the Cochin Free Compulsory Primary Education Act, XI
of 1123 were brought into force. The above acts had provided for free and
compulsory education in selected areas. Substituting these Acts, Kerala Education Act, 1958 came into force. As per
Section 21 of the Act the previous practice of selected areas continued, but
Section 23 provided for, “23. State to provide free compulsory education of
children.- The Government shall provide for free and compulsory education of
children throughout the State within a period of ten years from the
commencement of this Act.” Section 26 talked about the obligation of the
guardians to send children into schools. Any interference of attendance of such
children was punishable under Section 29. Section 30 provided for noon meal and
dress to poor students.
(5) Punjab Primary Education Act, 1960
This Act provided for free and compulsory education for
children between six and fourteen in notified areas. Guardians are liable.
Hindering attendance by engaging children in employment was also punishable.
(6) Delhi Primary Education Act, 1960
No fee
shall be levied in respect of any child for attending an approved school which
is under the management of the State Government or a local authority.
(7) Other Legislations
A list of other similar legislations are given below.
The Assam Primary Education Act,1947
The Cochin Free Compulsory Primary
Education Act, 1947
The Madhya Pradesh Compulsory Primary
Education Act, 1950
The Ajmer Primary Education Act, 1952
The Madras Elementary Education Act,
1952
The Hyderabad Compulsory Primary
Education Act, 1952
The Vindhya Pradesh Primary Education
Act, 1952
The Assam Basic Education Act, 1954
The PEPSU Compulsory Primary Education
Act, 1954
The Bhopal State Compulsory Primary
Education Act, 1956
The Madhya Pradesh Primary Education
Act, 1956
The Andaman and Nicobar Islands (Primary
Education) Regulation, 1959
The Kerala Primary Education Act, 1961
The Andhra Pradesh Primary Education
Act, 1961
The Mysore Compulsory Primary Education
Act, 1961
The Gujarat Compulsory Primary
Education Act, 1961
The Karnataka Compulsory Primary
Education Act, 1961
The Assam Elementary Education Act, 1962
The West Bengal Urban Primary Education
Act, 1963
The Rajasthan Primary Education Act,
1964
The Orissa Education Act, 1969
The West Bengal (Rural) Primary
Education (Temporary) Provisions Act, 1969
The Uttar Pradesh Basic Education Act,
1972
The Karnataka Education Institutions
(Prohibition of Capitation Fee) Act, 1984
The Tamil Nadu Compulsory Education
Act, 1994 (w.e.f.' July 1998)
The Goa Children Act, 2003
There are many other similar legislations also. These
Acts generally provide for,
(1) State Governments can notify the areas in which the
Act can be implemented,
(2) Penalties for not sending children to school,
including fines and imprisonments, and
(3) Power in a vested authority to grant exemption from
the legislation.
However, these Acts remained un-enforced, due to various
socio-economic and cultural factors as well as administrative and financial
constraints. There was no central legislation making elementary education
compulsory. The Central Government was of the opinion that compulsion should be
on the State rather than on parents. It
has, therefore, been advocating community involvement, decentralisation
of planning and management of school education to Panchayat Raj Institutions,
motivation of children to attend schools regularly, improvement of
infrastructure and facilities in schools, development of locally relevant
curricula, improvement in quality of text-books, teacher training,
child-centered learning and adoption of minimum levels of learning.[viii]
The Central Government has also initiated centrally
sponsored schemes of Operation Blackboard, Non-Formal Education and
establishment of District Institutes of Education and Training in 1987-88 and
launched a National Programme of Nutritional Support to Primary Education in
1995-96 for provision of Mid-day Meals.
03. International Charters upholding Right to Education
(a) Universal Declaration of Human Rights, 1948
Article 26 of Universal
Declaration of Human Rights, 1948 states,
“(1) Everyone has the right to education. Education shall
be free, at least in the elementary and fundamental stages. Elementary education
shall be compulsory. Technical and professional education shall be made
generally available and higher education shall be equally accessible to all on
the basis of merit.
(2) Education shall be directed to the full development
of the human personality and to the strengthening of respect for human rights
and fundamental freedoms. It shall promote understanding, tolerance and
friendship among all nations, racial or religious groups, and shall further the
activities of the United Nations for the maintenance of peace.
(3) Parents have a prior right to choose the kind of education that shall be given to their children.”
(3) Parents have a prior right to choose the kind of education that shall be given to their children.”
(b) International Covenant on Civil and Political Rights, 1966
Article 18 (4) of the Covenant states, "the State
Parties to the present Covenant undertake to have respect for the liberty of
parents and, when applicable, legal guardians to ensure the religious and moral
education of their children in conformity with their own convictions."
(c) International Covenant on Economic, Social and Cultural Rights, 1966
Article 13 of this Covenant provides right to education
to everyone. It states,"the State Parties to the present Covenant
recognize the right of everyone to education. They agree that 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. The
States Parties to the present Covenant recognize that, with a view to achieving
the full realization of this right :
(i) Primary education shall be compulsory and available
free to all;
(ii) Secondary education in its different forms,
including technical and vocational secondary education, shall be made generally
available and accessible to all by every appropriate means, and in particular
by the progressive introduction of free education;
(iii) Higher education shall be make equally accessible
to all, on the basis of capacity, by every appropriate means, and in particular
by the progressive introduction of free education;
(iv) Fundamental education shall be encouraged or
intensified as far as possible for those persons who have not received or
completed the whole period of their primary education; .
(v) The development of a system of schools at all levels
shall be actively pursued, an adequate fellowship system shall be established,
and the material conditions of teaching staff shall be continuously improved.
The State Parties to the present Covenant undertake to
have respect for the liberty of parents and, when applicable, legal guardians
to choose for their children schools, other than those established by the
public authorities, which conform to such minimum educational standards as may
be laid down or approved by the State and to ensure the religious and moral
education of their children in conformity with their own convictions."
Further, Article 14 provides two years of time to the
State Parties to the Covenant, to secure free and compulsory primary education
in its territory and submit plan of action for the progressive implementation
within reasonable number of years.
(d) United Nations Convention on Rights of Child, 1989
Article 28 of this Convention provides right of the child
to education and further states that with a view to achieving this right
progressively and on the basis of equal opportunity. This reads as follows-
"1. States Parties
recognize the right of the child to education, and with a view to
achieving this right progressively and on the basis of equal opportunity, they shall, in particular:
(a) Make primary education
compulsory and available free to all;
(b) Encourage the development
of different forms of secondary education, including general and vocational
education, make them available and accessible to every child, and take
appropriate measures such as the introduction of free education and offering financial assistance in
case of need;
(c) Make higher
education accessible to all on the
basis of capacity by every
appropriate means;
(d) Make educational and vocational
information and guidance available and accessible to all children;
(e) Take measures to encourage
regular attendance at schools and the reduction of drop-out rates.
2. States Parties shall take
all appropriate measures to ensure that school discipline is administered in a manner
consistent with the child's human dignity and in conformity with the present
Convention.
3. States Parties shall
promote and encourage international cooperation in matters relating to education, in
particular with a view to
contributing to the elimination of
ignorance and illiteracy throughout the world and facilitating access to
scientific and technical knowledge and modern teaching methods. In this regard,
particular account shall be taken
of the needs of developing countries. [ix]
"
The State must recognise that education
of the child shall be directed to the development of the child's personality,
talents and mental and physical abilities to their fullest potential.[x]
04. State and Concurrent lists’ conflict
Education has traditionally been reserved for the States
until in 1976, vide the 42nd Amendment of the Constitution, education become a
part of Concurrent List of Schedule VII. In its 165th Report, the
Law Commission of India has also recommended enactment of Central Legislation
in this respect. Putting education in the Concurrent List turns out to be a
positive development, given the States’ failure to provide effective
legislation. The States’ laws fail on two accounts. First, they are too lenient
to have a deterrent effect. Secondly, the legislation is not adequately
enforced, in part, because it does not require police officers to do the job.
If we analyze the legislation passed by different States, another conclusion
becomes obvious: no State has provided for an adequate punishment whose effect
would be to deter citizens from committing a violation.[xi]
The Tamil Nadu Compulsory Elementary Education Act, 1994
has (fine up to one hundred rupees); The Delhi Primary Education Act, 1960
(fine up to Rs. 200); Gujarat Compulsory Primary Education Act, 1961 (fine up
to Rs. 25) and likewise in other States too. Analysis of these State laws
reveals that they are weak in character and perhaps have never been
implemented. If we compare these laws with their sister statutes in United
States, we realize that the U.S. laws are far stronger, e.g., Wisconsin Statute prescribed (fine up to, $500 or
imprisonment up to 30 days or both). For a second or subsequent offense,
punishment is fine up to $1,000 or imprisonment up to 90 days or both.
Alternatively, they may be sentenced to perform community service. Unlike
Wisconsin, Tamil Nadu, Gujarat, Delhi and other State's Statutes have no teeth.
The other main problem is implementation of these laws.[xii]
05. Supreme Court on Right to Education under Article 21
Supreme Court has held that
children of the nation are a supremely important asset. Their nurture and
solicitude are our responsibility, children's programme should find a prominent
part in our national plans for the development of human resources, so that our children grow up, to become robust citizens,
physically fit, mentally alert, and morally healthy; endowed with the skills
and motivations needed by society. Equal opportunities for development to all children during the period of growth
should be our aim, for this
would serve our larger purpose of reducing inequality and ensuring social
justice.[xiii]
Education is one of the most important functions of the
State. The State has a basic responsibility in regard thereto. Earl Warren, CJ,
speaking for the US Supreme Court emphasized the right to education while
stating - "today, education is the most important function of the State
and local Governments. It is required in the performance of our most basic
responsibility, even services in the armed forces. It is the very foundation of
good citizenship. Today it is the principal instrument in awakening the child
to cultural values, in preparing him for later professional training, and in
helping him to adjust normally to his environment. In these days it is doubtful
any child may reasonably be expected to succeed in life if he is denied the
opportunity of an education[xiv]."
The Constitution framers were of the view that right to
education should exist in India, but at that time the position was different,
so they had put it under Article 45 in Directive Principles of the State
Policy. Initially, this Article states that the State to make provision within
10 years for free and compulsory education for all children until they complete
the age of 14 years. The object of this directive was to abolish illiteracy
from the country. Unfortunately, some States failed to enact a law for free and
compulsory education to the children below the age of 14 years. Even though,
many States have taken steps towards free basic education, but, they could not
make it compulsory.
In early time, the question was raised before Kerala High
Court regarding the justiciability of Article 45 of the Constitution but it was
held that Article 45 is not justiciable, being only directive in nature. The
Article does not confer legally enforceable right upon primary schools to
receive grants-in-aid from the Government.[xv]
The first time the question of right to free and
compulsory education was raised in the case of Mohini Jain[xvi]
in 1992, popularly known as "capitation
fee case".
In this case, petitioner Mohini Jain of Meerut (UP) had
challenged the validity of a notification issued by the Government under the
Karnataka Education Institutions (Prohibition of Capitation Fee) Act, 1984,
which was passed to regulate tuition fee to be charged by the Private Medical
Colleges in the State. Under the notification the tuition fee to be charged
from students was as: Candidates admitted against Government seats Rs. 2000 per
annum, the Karnataka students Rs. 25,000 per annum and students from outside
Karnataka Rs. 60,000 per annum. The petitioner was denied admission on the
ground that, she was unable to pay the exorbitant tuition fee of Rs. 60,000 per
annum.
The two judge bench of the Supreme Court held that the
right to education at all levels is a fundamental right of the citizen under
Article 21 of the Constitution and charging capitation fee for admission to
education institutions is illegal and amounted to denial of citizen's right to
education and is also violative of Article 14 being arbitrary, unfair and
unjust. Capitation fee makes the availability of education beyond the reach of
poor. The right to education is concomitant to the fundamental rights enshrined
under Part -III of the Constitution. The fundamental right to speech and
expression cannot be fully enjoyed unless a citizen is educated and conscious
of his individualistic dignity. The education in India has never been a
commodity for sale, their Lordships declared.
Supreme Court held that the right to education is a
fundamental right' under Article 21 of the Constitution, which cannot be denied
to a citizen by charging higher fee known as capitation fee. The right to
education flows directly from the right to life. The right to life under
Article 21 and the dignity of an individual cannot be assured unless it is
accompanied by the right to education.[xvii]
The Supreme Court was asked to examine the correctness of
the decision given by the court in Mohini
Jain[xviii]
in the case of Unnikrishnan.[xix]
The petitioner running Medical and Engineering Colleges
in the State of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu contended
that if Mohini Jain decision is
correct and followed by the respective State Governments they will have to
close down their colleges.
The five Judges bench by 3-2 majority partly agreed with the Mohini's case decision and held that right to education is
fundamental right under Article 21 of the Constitution as it directly flows
from "right to life". As regards its content, the court partly
overruled the Mohini Jain's decision
and held that the right to free education is available only to children until
they complete the age of 14 years, after that the obligation of the State to
provide education is subject to the limits of its economic capacity and
development. The obligation created by Articles 41, 45 and 46 can be discharged
by the State either by establishing its own institutions or by aiding,
recognising or granting affiliation to private institutions. Private education
institutions are a necessity in the present day context.
Right to education is not stated expressly as a
Fundamental Right in Part III of the Constitution of India. However, having
regard to the fundamental significance of education to the life of an individual
and the nation, right to education is implicit in and flows from the right to
life guaranteed by Article 21. That the right to education has been treated as
one of transcendental importance in the life of an individual is recognised all
over the world. Without education being provided to the citizens of this
country, the objectives set forth in the Preamble to the Constitution cannot be
achieved. The Constitution would fail.[xx]
The private section's sector should be involved and
encouraged in the field of education. But they must be allowed to do so under
strict regulatory controls in order to prevent private education institutions
from commercialising education. The charging of the permitted fees by the
private educational institutions, which is bound to be higher than charged by
similar Government institutions, cannot itself be characterised as capitation
fee. The majority accordingly held that admission to all recognized private
educational institutions particularly medical and engineering shall be based on
merit, but 50% of seats in all professional colleges be filled by candidates
prepared to pay a higher fee. The court held that there shall be no quota
reserved for the management or for any family, caste or community, which may
have established such college. The criteria of such eligibility and all other
conditions shall be the same in respect of both "free seats" and "payment
seats"; the only distinction shall be requirement of higher fee
by payment students. The court evolved a scheme, which would provide more
opportunities to meritorious students who are unable to pay higher fee
prescribed by Government for such colleges.[xxi]
06. Insertion of Article 21A in the Constitution
Until the Supreme Court Judgment in Mohini Jain[xxii]
the right to education lay hidden in the Directive principles of State Policy
of the Constitution of India. The concerned provisions ran,
“41. Right to work, to education and to
public assistance in certain cases.- The State shall, within the limits of its economic
capacity and development, make effective provision for securing the right to
work, to education and to public assistance in cases of unemployment, old age,
sickness and disablement, and in other cases of undeserved want.
45. Provision for childhood care and
education to children below the age of fourteen years.-The State shall endeavour to provide, within a period of
ten years from the commencement of this Constitution, for free and compulsory
education for all children until they complete the age of fourteen years.
46. Promotion of educational and
economic interests of Scheduled Castes, Scheduled Tribes and other weaker
sections.- The State
shall promote with special care the educational and economic interests of the
weaker sections of the people, and, in particular, of the Scheduled Castes and
the Scheduled Tribes, and shall protect them from social injustice and all
forms of exploitation."
After Mohini Jain Case Articles 14 and 21 are added to
this list.
“14. The
State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.”
“21. No person shall be deprived of his life or personal liberty
except according to procedure established by law.”
The controversy raised in Unnikrishnan J.P. v. State of Andhra Pradesh[xxiii]
compelled the State to bring an amendment to the Constitution curtailing
educational rights upto the age of fourteen only. Constitution
(Eighty-sixth Amendment) Act, 2002 was then incorporated Article 21 A into the
Constitution of India and Government started to enact sufficient legislations
to achieve the intentions of Article 21 A.
Article 21 A guarantees free and compulsory education to all
children of the age of six to fourteen years in such manner as the State may,
by law, determine. It runs,
“21A. The State shall
provide free and compulsory education to all children of the age of six to
fourteen years in such manner as the State may, by law, determine[xxiv].”
07. Guidelines of the Supreme Court in Ashok Kumar Thakur v. Union of India[xxv]
The Supreme Court in this case has held
that “an inversion in priorities between higher and primary/secondary education
would make compliance with Article 21A extremely difficult. It is not suggested that higher education needs no encouragement
or that higher education should not receive more funds, but there has to be
much greater emphasis on primary education. Our priorities have to be changed. Nothing is really more important than to ensure total
compliance of Article 21A. Total compliance means good quality
education be imparted and all children aged six to fourteen regularly attend
schools.” In this regard Supreme Court issued the following guidelines to the
Central Government.
“(a) provides low-income parents/guardians with financial
incentives such that they may .afford to send their
children to schools;
(b) criminally penalizes those who receive
financial incentives and, despite such payment, send their children to work;
(c)
penalizes employers who preclude children from attending schools;
(d) the penalty should include
imprisonment; the aforementioned Bill would serve as an example. The State is obligated under Article 21A to implement
free and compulsory education in toto.
(e) until we have accomplished for children
from six to fourteen years the object
of free and compulsory education, the Government should continue to increase
the education budget and make earnest efforts to ensure that children go to
schools and receive quality education;
(f) the Parliament should fix a deadline by
which time free and compulsory education will have reached every child. This must be done within six months, as the right to free
and compulsory education is perhaps the most important of all the fundamental rights.
For without education, it becomes extremely difficult to exercise other
fundamental rights.” The Central Government acted accordingly and the Right of
the Children to Free and Compulsory Education Act, 2009 was enacted.
08. Recommendations for the Enforcement of Compulsory Education
Supreme Court has recommended the following
recommendations for making free and compulsory education possible in the
country.[xxvi]
(a) The recommendations for the enforcement of compulsory
education are contingent upon the implementation of a financial incentive
programme that would make education viable for the poor. The carrot must come
before the stick. If there is no financial incentive programme in place, the
Government cannot expect the poorest of the poor to send their children to
school.
(b) The
Parliament should criminally penalize those parents who receive financial
benefits and, despite such payments, send their children to work and penalize
those employers who preclude children from attending school or completing
homework. It has become necessary that the Government set a realistic target
within which it must fully implement Article 21A regarding free and compulsory
education for the entire country.
(c) The Government should suitably revise budget
allocations for education. The priorities have to be ·set correctly. The most
important fundamental right may be Article 21A, which, in the larger interest
of the nation, must be fully implemented. Without Article 21A, the other
fundamental rights are effectively rendered meaningless. Education stands above
other rights, as one's ability to enforce one's fundamental rights flows from
one's education. This is ultimately why the judiciary must oversee Government
spending on free and compulsory education.
(d) At the same time, spending is an area in which the
judiciary must not overstep its constitutional mandate. The power of the purse
is found in Part V, Chapter II of the Constitution, which is dedicated to the
Parliament. But the Supreme Court will not ignore the Article 21A right to
education, when a dearth of quality schooling puts it in jeopardy. The
Government's education programmes and expenditures, wanting in many respects,
are an improvement over past performance. They nearly fall short of the
constitutional mark. Lackluster performance in primary/secondary schools is
caused in part because Government places college students on a higher pedestal.
Money will not solve all our education woes, but a correction of priorities in
step with the Constitution's mandate will go a long way.[xxvii]
09. Right of the Children to Free and Compulsory Education Act, 2009
The Right of Children to Free and Compulsory
Education Act provided for the following changes in the primary education
scenario.
1. Free and compulsory education to all
children of India in the 6-14 age group;
2. No child shall be held back, expelled,
or required to pass a board examination until completion of elementary education;
3. A child who completes elementary
education (upto class VIII) shall be awarded a certificate;
4. Calls for a fixed student-teacher ratio;
5. Will apply to all of India except Jammu
and Kashmir;
6. Provides for 25 per cent reservation for economically disadvantaged communities in admission
to Class One in all private schools;
7. Mandates improvement in quality of
education;
8. School teachers will need adequate
professional degree
within five years or else will lose job;
9. School infrastructure (where there is
problem) to be improved in three years, else recognition
cancelled;
10. Financial burden will be shared between
state and central government.
11. Model Rules prescribed and the
States must make rules.[xxviii]
In Krishnagiri District Private Schools' Association v. The State Of Tamil Nadu and Anr.[xxix]
Madras High Court has held that the right to education will include
the right to choose the medium of instruction and whether the parents can
exercise such a right on behalf of the child the Full bench held that a parent
is entitled to direct and education of his son in the manner he considers best
suited and to guide thereby his future prospects. The State has no concern and
we hope no right to direct him to do so in a particular manner.
In Ka. Kalaikottuthayam v. State of Tamil Nadu[xxx]
the Madras High Court has declared that no school is entitled to fail a student
until the age of 14 years. Referring to the recently enacted Right
of Children to Free and Compulsory Education Act, 2009 and holding that it
created a statutory bar on the school from failing a child till the age of 14
years, the promotion of a student during those years was automatic. Allowing a
writ petition filed by a student who had been withheld in class VI by the
school administration for having failed in the examination, the High Court
declared that in view of the change in law, such a restriction could not be imposed
by the school.
In Society for Unaided Private Schools of Rajasthan v
Union of India & Anr.[xxxi]
the Supreme Court of India upheld the
constitutionality of section 12 of the Right
of Children to Free and Compulsory Education Act (RTE Act) , which requires all
schools, both state funded and private,
to accept 25% intake of children from disadvantaged
groups. However, the Court held that the RTE Act could not require private,
minority schools to satisfy a 25% quota, as this would constitute a violation
of the right of minority groups to establish private schools under the Indian
Constitution.
10. Conclusion
For the march of the nation to integrity and development,
furtherance of the cause of education along with the constitutional right in
this regard is most essential. However from the educational rights of the
entire citizen vide Article 21, we have gone a little bit back, limiting the
right to children between six and fourteen only. Our poverty and lack of
resources have restricted us. But sooner or later we have to achieve the goal
of universal right to education covering the entire people in the globe.
Even now education is a big business. The meritorious
poor cannot learn the best and bring to the nation its best yields. Many less
meritorious reach in the corridors of responsible circles handicapped causing
relative regress to the growth of the nation.
Let all learn, and learn that learning is a right, and
uphold that right until death and even in deathbed facilitate others to learn,
as Buddha once has done.
[i] Dr. P.L.
Mehta and Rakhi Poonga : "Free and
Compulsory Education: Genesis and
Execution of Constitutional Philosophy", Deep and Deep
Publications, New Delhi (1997) pp 42-47
[ii]
https://en.wikipedia.org/wiki/Charter_Act_of_1813
[iii] http://www.gktoday.in/hunter-education-commission-1882-83
[iv] http://righttoeducation.in/when-was-first-demand-rte-made-country#sthash.AFOuoFak.dpuf
[v] Quoted by
Dr. M.M. Joshi, (Then) Minister of HRD, while debating on a bill relating to
86th Constitutional Amendment : Lok Sabha Debates, 28th November, 2001, Vo1.20,
page 476
[vii] Constitutional Amendment to Make Education a Fundamental Right by Nalini Juneja, 2003,
Published by National Institute of Education Planning and Administration, New
Delhi, Page 18-19
[viii]
Right to Education by Dr. Krishna Pal Malik, Pages 55, 56
[ix] Article 28 of the Convention on Rights
of Child, 1989
[x] Article 29 of the Convention on Rights of
Child, 1989
[xi] Right
to Education by Dr. Krishna Pal Malik, Page 56
[xii]
Ibid Page 57
[xvii]
Right to Education by Dr. Krishna Pal Malik, Page 46
[xx] Unni
Krishnan J.P. v. State of AP., (1993) 1 SCC 645 : AIR
1993 SC 2178; also see Bandhua Mukti
Morcha v. Union, of India,
(1984) 2 SCR 67; Miss Mohini Jain v. State
of Karnataka, (1992) 3 SCC 666
[xxi] Right
to Education by Dr. Krishna Pal Malik, Page 49
[xxiii]
(1993) 1 SCC 645 : AIR
1993 SC 2178
[xxiv]
Inserted
by the Constitution (Eighty-sixth Amendment) Act, 2002, Section 2
[xxvii]
Right to Education by Dr. Krishna Pal Malik, Page 62
[xxviii]
Ibid Page 60, 61
[xxix]
2010 WLR
401
[xxx]
(2010) 5 MLJ 1139
[xxxi]
(2012) 6 SCC; Writ Petition (C) No. 95 of 2010
Bibliography
1. Right to Education by
Dr. Krishna Pal Malik 2010 Published by Allahabad Law Agency, Faridabad
2. Law Relating to Women
and Child by O.P. Mishra Fifth Edition 2014 Published by Central Law Agency,
Allahabad
3. The Constitution of
India Volume 1 by D.J. De Third Edition 2012 Reprint Published by Asia Law
House, Hyderabad
4. The Constitution of
India Volume 2 by D.J. De Third Edition 2012 Reprint Published by Asia Law
House, Hyderabad
5. Dr. P.L. Mehta and Rakhi Poonga : "Free and Compulsory Education: Genesis and Execution of Constitutional
Philosophy", Deep and Deep Publications, New Delhi (1997)
6. Constitutional
Amendment to Make Education a
Fundamental Right by Nalini Juneja, 2003, Published by National
Institute of Education Planning and Administration, New Delhi
7. 10 judgments given in
the list of case laws
8. 60 Bare Acts as stated
in the List of enactments mentioned
9. Wikipedia
11.
http://judis.nic.in/supremecourt/chejudis.asp
12. And numerous online
sites
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