Introduction

Education is one of the basic elements for the success of democratic system of any Government. An educated citizen may choose better representatives to form the Government. Education provides human dignity to a person, to develop himself as well as contribute towards the development of his country. So, when India adopted a democratic Constitution on January 26, 1950 and declared it a republic, the framers of our Constitution imposed a duty on the State under Article 45, as one of the Directive Principles of State Policy, to provide free education to all children until they complete the age of 14 years, within 10 years from the commencement of the Constitution.

Universal Declaration of Human Rights

According to Article 26 of Universal Declaration of Human Rights:-

  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. Rights of Parents: Parents have a prior right to choose the kind of education that shall be given to their children.

 

Status of Right to Education after 1950

The Constitution is the law of land and any law framed contrary to it will be held unconstitutional and invalid. Our Constitution framers were aware about the problem of illiteracy and compulsory education of children, so they issued many Directive Principles of State Policy in Part IV. When the original framers gathered at the Constituent Assembly, their desire to provide free and compulsory education was well established. The real question in the debate was whether the original framers would make free and compulsory education justifiable or not. They oscillated between the options, first placing it in the fundamental rights and later moving it to the directive principles of State policy under Article 45 of the Constitution.

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 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. Eventhough 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.

This article was a directive principle of State policies within India, effectively meaning that it was within a set of rules that were meant to be followed in spirit and the government could not be held to count if the actual letter was not followed. However, the enforcement of this directive principle became a matter of debate since this principle held obvious emotive and practical value, and was legally the only directive principle within the Indian Constitution to have a time limit.

Capitation Fee Case

The first time the question of right to free and compulsory education was raised was in the case of Mohini Jain, 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 of 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.

The Hon’ble 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.

Case of Unni Krishnan, J.P

The Supreme Court was asked to examine the correctness of the decision given by the court in Mohini Jain in the case of Unnikrishnan. 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 & 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.

The citizens of this country have a fundamental right to education and it flows from Article 21. This right is, however, not an absolute right. Its content and parameters have to be determined in the light of Articles 45 and 41. In other words, every child/citizen of this country has a right to free education until he completes the age of 14 years. Thereafter his right to education is subject to the limits of economic capacity and development of the State.

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. The right to education has been treated as one of transcendental importance in the life of an individual and this 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 and the Constitution would fail.

The decision of the Mohini Jain case was partly overruled and it was held that Mohini Jain case was not right in holding that charging of any amount must be described as capitation fee. Saying so amounts to imposing an impossible condition, it is not possible for the private educational institutions. The private 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 the charged by similar Government institutions, cannot itself be characterised as capitation fee.

 

Right of Children to Free and Compulsory Education Act, 2009

The Constitution (Eighty-sixth Amendment) Act, 2002 inserted Article 21-A in the Constitution of India to provide free and compulsory education of all children in the age group of six to fourteen years as a Fundamental Right in such a manner as the State may, by law, determine. It means that every child has a right to full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards. It came into effect on 1 April 2010.

The Salient Features of this act are:

  1. Right of children to free and compulsory education till completion of elementary education in a neighbourhood school.
  2. It clarifies that ‘compulsory education’ means obligation of the appropriate government to provide free elementary education and ensure compulsory admission, attendance and completion of elementary education to every child in the six to fourteen age group. ‘Free’ means that no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education.
  3. It makes provisions for a non-admitted child to be admitted to an age appropriate class.
  4. It specifies the duties and responsibilities of appropriate Governments, local authority and parents in providing free and compulsory education, and sharing of financial and other responsibilities between the Central and State Governments.
  5. It lays down the norms and standards relating inter alia to Pupil Teacher Ratios (PTRs), buildings and infrastructure, school-working days, teacher-working hours.
  6. It provides for rational deployment of teachers by ensuring that the specified pupil teacher ratio is maintained for each school, rather than just as an average for the State or District or Block, thus ensuring that there is no urban-rural imbalance in teacher postings. It also provides for prohibition of deployment of teachers for non-educational work, other than decennial census, elections to local authority, state legislatures and parliament, and disaster relief.
  7. It provides for appointment of appropriately trained teachers, i.e. teachers with the requisite entry and academic qualifications.
  8. It prohibits (a) physical punishment and mental harassment; (b) screening procedures for admission of children; (c) capitation fee; (d) private tuition by teachers and (e) running of schools without recognition.
  9. It provides for development of curriculum in consonance with the values enshrined in the Constitution, and which would ensure the all-round development of the child, building on the child’s knowledge, potential and talent and making him free of fear, trauma and anxiety through a system of child friendly and child centred learning.

Despite the commencement of the Act in 2010, surveys have revealed that the levels of awareness about RTE were quite deplorable in many rural areas. Many in rural areas are still unaware of this constitutional provision which guarantees children their right to education.

Drawbacks of the Act

The drawbacks of the Act are:

  1. Out of School Children: The number of dropouts, despite best efforts are still very high, mostly in the states of Uttar Pradesh, Bihar, Orissa and West Bengal.
  2. Financial Constraints: Availability of funds is a challenge of accessibility of education.
  3. Insufficiency of Teachers: Vacant seats of teachers, non availability of teachers and slow process of recruitment of recruitment of teachers are a challenge before accessing education.
  4. Lack of Infrastructure: According to the Right to Education Act, a school must have at least one classroom for each teacher, a room that serves as the office, headmaster’s room and store, have seperate toilets for boys and girls, clean drinking water, kitchen, playground, library and a boundary wall or a fence. However, in many schools, students from kindergarten to class five sit together in a single classroom.
  5. Poverty: Many children drop out of school due to poverty as they are unable to pay school fees, the costs of uniforms, transport and stationery so they resort to child labour.

 

Changes which can be made to the Act

The drawbacks of Right to Education (RTE) can be amended by:

  1. Effective implementation of existing provisions of the RTE Act is required and engagement of civil society may be further strengthened to make it more effective.
  2. Minimum pupil-teacher ratio should be maintained in each school as per the provisions. This will be possible by recruiting more qualified and trained teachers.
  3. Enough funds should be allocated to develop infrastructural facilities in schools.
  4. In order to make RTE more effective, it is necessary to establish modality through which the RTE Act is protected and a system needs to be evolved to deal with lacunae in implementation.
  5. Though the RTE Act has a provision for including overage children in its ambit, in reality this is not happening; hence proper groundwork needs to be initiated with the help of civil society to meet targets.
  6. Achieving the goal of equitable, quality education for all requires progress along multiple dimensions such as better policy, stronger political commitment, superior implementation, and higher community involvement.
  7. Advocacy needs to be done, by which, states should ensure all sanctioned posts of teachers are filled up immediately to achieve targets.

 

Conclusion

India got independence in 1948 and since then, the people of India have been struggling to make primary education compulsory. Despite Right of Education being a fundamental right under  Article 21 A of the Indian Constitution, does this right provide education to all? There are many loopholes available in this right which detained children to take compulsory primary education.

 

References:

  1. The Kerala Education Bill vs Unknown on 22 May, 1958, 1 SCR 995
  2. Miss Mohini Jain vs State Of Karnataka And Ors on 30 July, 1992 AIR 1858, 1992 SCR (3) 658
  3. Unni Krishnan, J.P. vs State Of Andhra Pradesh, 1993 AIR 2178, 1993 SCR (1) 594
  4. Universal Declaration of Human Rights,1948
  5. Article 21 of Constitution of India
  6. Right of Children to Free and Compulsory Education (RTE) Act, 2009