This article has been written by Naveen Talawar, a law student at Karnataka State Law University’s law school. The article deals with 86th Constitutional Amendment, its historical background, and the Right of Children to Free and Compulsory Education Act, 2009, its features and criticisms in detail.
It has been published by Rachit Garg.
Table of Contents
Knowledge is the key to gaining power, and education is the key to gaining knowledge. It strengthens a person’s future identity. Individual empowerment and freedom are achieved as a result of education, which contributes to societal advancement. All stages of learning and growth are built on the basis of elementary education. It boosts the confidence of persons with analytical talents. As a result, a focus on primary education is necessary to enhance the country’s socioeconomic position.
The country’s growth will be difficult without ensuring the dissemination of education among the general public. As a result, the Indian government has made a historic step toward universalizing elementary education by adopting the ‘Right of Children to Free and Compulsory Education Act, 2009’, which makes it mandatory for children to get a basic education. It was introduced by the 86th Amendment in December 2002, and it was enacted by the Parliament in July 2009, with the provisions of the Act taking effect from April 1, 2009.
Three specific clauses in the Constitution were introduced by the 86th Amendment Act of 2002 to encourage the realisation of free and compulsory education for children aged six to fourteen years as a basic right. They are as follows:
- The addition of Article 21A in Part III,
- The modification of Article 45, and
- The addition of a new clause (k) under Article 51A (fundamental duties), makes the parent or guardian responsible for providing educational opportunities to their children aged six to fourteen years.
In India, organised education has a long history. There were various formal proposals for free and compulsory elementary education from 1882 forward. These demands were expressed in a number of national and regional initiatives aimed at improving education’s basic supply. India has been concentrating on the need to legislate for universal and compulsory education since 1911 when the Gokhale Bill for primary education was introduced. The first law mandating compulsory education was the Bombay Municipality (Primary Education) Act of 1918. Though there was no mention of “free” or “compulsory” education in the 1986 National Education Policy, the Ramamurty Committee, which examined the policy, called for education to be recognised as a fundamental right.
The World Conference at Jomtien
The need of universalizing primary education was recognised during the 1989 Jomtien Conference on ‘Education for All,’ with international aid organisations focusing their efforts on it. During the 1990s, the Indian government, too, became more interested in elementary education and adult literacy.
Myron Wiener’s book
Furthermore, Professor Myron Wiener’s stunning statements in his book ‘The Child and the State in India : Child Labour and Education Policy in Comparative Perspective’, which said that India’s poverty was less relevant as an explanation for the country’s incapacity to eliminate child labour and enforce compulsory schooling than the middle classes’ belief system, caused creases in Indian society (to which class, the state bureaucracy also belonged).
Apex Court’s decisions
Two Supreme Court rulings in the early 1990s, however, provided an immediate incentive for elementary education to move from policy to right. The Supreme Court concluded in Mohini Jain v. State of Karnataka  that the Directive Principles, which are crucial to the country’s administration, cannot be read separately from fundamental rights. Furthermore, the judgement relied on seeing the right to education as an integral part of Article 21 of the Constitution’s right to life. The case of J.P. Unnikrishnan and others v. the state of Andhra Pradesh , established that the right to education is inextricably linked to the right to life and that the state is therefore required to provide basic education to all children during their childhood. According to the court, “the passage of 44 years, more than four times the duration necessary under Article 45, has transformed the duty imposed by the article into an enforceable right. The state must, at the very least, comply with Article 45’s mandate and proclaim it a right”. The court ruled that the rights inherent in the directive principles are required for both governance and the creation of fundamental rights.
Later, in 1994, the United Front Government resolved to make elementary education a fundamental right, which it would enforce through appropriate legislation. As a result, it received a lot of attention in the ‘Common Minimum Programme,’ and the Saikia Committee (1997) was created to look into the idea’s economic feasibility. The following recommendation was made in the Committee’s report:
“The Indian Constitution should be amended to make the right to free elementary education for children up to the age of 14 a fundamental right.” Simultaneously, an express provision in the Constitution should be enacted to make it a basic duty of every citizen who is a parent to provide all children under the age of 14 with opportunities for elementary education.”
83rd Amendment Bill
During the Monsoon Session of Parliament, the government embraced the committee’s recommendations and tabled the Constitution (83rd Amendment Bill,1997) in the Lok Sabha. The “Department-Related Parliamentary Standing Committee on Human Resource Development” was entrusted with the task of reviewing the Bill. The following was the effect of the proposed constitutional change:
- After Article 21 of the Constitution, the following Article should be introduced:
- “21A. (1) The state shall provide free and compulsory education to all citizens aged six to fourteen years..”
(2) The State shall enforce the right to free and compulsory education referred to in Sub-section (1) in the manner authorised by law.
(3) The state may not enact any law relating to educational institutions that are not maintained by the state or receive state subsidies in order to fulfil the requirements of clause (2) for free and compulsory education.
- Article 35 of the Constitution shall be renumbered as clause (1) of that Article, and the following clause shall be inserted after clause (1) as so renumbered and before the Explanation: “(2) The competent legislature shall make the law for the enforcement of the right to free and compulsory education referred to in clause (1) of Article 21A within one year of the commencement of the Constitution (Eighty-third Amendment) Act, 1997”
“Provided, however, that any provision of any law relating to free and compulsory education in force in a State immediately before the commencement of the Constitution (Eighty-third Amendment) Act, 1997 that is inconsistent with the provisions of Article 21A shall remain in force until amended or repealed by a competent legislature or other competent authority, or until one year after such commencement, whichever is earlier.”
- The Constitution’s Article 45 shall be removed.
- The following sentence must be inserted after clause (1) in Article 51A of the Constitution: “(k) to provide educational opportunities to a child between the ages of six and fourteen years of whom such a citizen is a parent or guardian.”
Passing of the 86th Constitutional Amendment
In November 1997, the Department Related Parliamentary Standing Committee presented its report to both houses of Parliament, proposing that the Bill be passed with the recommended amendments. The following are the committee’s main recommendations:
i. Article 45 must be preserved in order to satisfy the needs of children aged 0 to 6.
ii. The proposed Article 21-A clause (3) relating to private institutions must be removed.
iii. The central government should prepare a skeleton statue, with each state developing the specifics depending on their own requirements.
As a result, the Constitution 93rd Amendment Bill, 2001 was revised and reintroduced in Parliament, replacing the Constitutional 83rd Amendment Bill, 1997. The 93rd Bill was introduced to amend the Constitution in three different ways:
- Add Article 21-A after Article 21 to say that “the state should offer free and compulsory education to all children aged 6–14 years in such a manner as the State may by law designate”.
- Change Article 45‘s wording to “The State shall endeavour to provide early childhood care and education for all children until they reach the age of six.”
- Add clause (k) following clause (j) under Article 51A stating “Who is a parent or guardian to provide educational opportunities to his child or, as the case may be, ward, between the ages of 6 and 14 years.” As a consequence of the unanimous passage of the bill, the 86th Constitutional Amendment Act was enacted.
Need for the 86th Constitutional Amendment in India
The 86th Amendment was established to ensure that children under the age of 14 have access to free and compulsory formal education. Article 21A outlines the commitment of the state to provide children with free and compulsory education. This article, on the other hand, also requires the state to offer a child aged 6 to 14 years suitable schooling and education, which will be delivered by the state utilizing whatever methods are available.
This article also stipulates that such children must have access to schools within a reasonable distance of their homes and that it is the responsibility of their parents to ensure that their children attend school. According to the Act, every child aged 6 to 14 has the right to an environment that provides early childhood care as well as the opportunity for quality education.
The 86th Amendment has the effect of strengthening and developing the Indian educational system. This has allowed all children to finish their primary school education with their parents and guardians. This legislation is essential not only for young children but also for obtaining an education regarding children’s rights, such as the right to proper schooling in a nearby location and access to quality education. The Act was passed to achieve these goals by ensuring that every child obtains quality education and has access to basic amenities such as classrooms, skilled teachers, and a safe environment for children. Instead of dropping out of school, children who do not complete elementary education by this age will be able to catch up later.
Right of Children to Free and Compulsory Education Act, 2009
The ‘Right of Children to Free and Compulsory Education Act, 2009,’ also known as the Right to Education (RTE) Act, 2009, was passed to put into effect the 86th Constitutional Amendment Act of 2002. This act is arranged into seven chapters and 38 sections.
The title of the RTE Act includes the words ‘free’ and ‘compulsory’. Free education implies that no child, excluding those enrolled by their parents in a school not funded by the applicable State Government, would be asked to pay any fee, charge, or expenditure that may prevent them from pursuing and finishing primary education. The phrase ‘compulsory education’ implies that the responsible government and local authorities must provide and ensure that all children aged 6 to 14 have access to and complete primary education.
Features of the Act
The main features of the Act are as follows:
- The Act mandates that the state must provide free and compulsory primary education in the neighbourhood for all children aged 6 to 14 years old, beginning immediately.
- No child is compelled to pay any fee, charge, or expenditure that might prevent the child from completing elementary school.
- Children who have dropped out of school or have never attended one will be enrolled, and no school will be permitted to deny them admission.
- It specifies that no school shall refuse a child’s entrance for whatever reason.
- Private and independent educational institutes will have to reserve 25% of seats for students from economically disadvantaged and disadvantaged parts of society (SCs and STs, Socially Backward Classes, and Differently Abled People) in order to be accepted to class first (to be reimbursed by the state as part of the public-private partnership plan).
- The Act provides for the development of a curriculum that adheres to the ideals stated in the Constitution, as well as the overall development of the child.
- With the exception of government schools, all schools must be recognized within three years by meeting the specified criteria and conditions, or risk a fine of up to Rs. one lakh. It also prohibits the use of unregistered schools and stipulates that no contribution or capitation fees be charged, as well as that no child or parent be interviewed at the time of enrolment.
- The implementation of the Act will be overseen by the National Commission for the Protection of Child Rights (NCPCR) and State Commissions.
- The Act mandates the improvement of educational quality by establishing specific norms and standards for teacher-student ratios, infrastructure, teacher qualifications and training, curriculum, assessment, and access, as well as the precise distribution of roles and responsibilities among various stakeholders. Current private schools must complete all of these standards within the time limit allowed to avoid unfavourable consequences.
- The child’s mother tongue will be used as the medium of instruction, and the child’s performance will be evaluated in a comprehensive and continuous manner.
The Right of Children to Free and Compulsory Education (Amendment) Act, 2019
The Right to Education Act of 2009 was amended by this bill. This Act superseded the provisions of Section 16 of the 2009 legislation. The elimination of the no-detention policy was the main goal of the amendment act. If a child fails an examination, he or she will not be detained in the same class but will be promoted to the next without having passed the previous one. If a child fails an examination, he will be given the option to retake it, according to this Act. A child may be detained if he or she fails re-examination.
Criticism of the Act
- The Act has been criticized for neglecting to define the terms ‘free’ and ‘compulsory,’ as well as for being silent on the crucial issue of the educational quality given to the children concerned. The law appears to be designed to deflect criticism of government activities that have resulted in a decline in educational service quality.
- The Act’s limitation of the fundamental right to education to children aged six to fourteen attracted the most criticism. It was pointed out that this was a clear violation of the Supreme Court’s decision in Unni Krishnan, which stated that every child under the age of fourteen has a fundamental right to primary education. Furthermore, it is well recognised that the age period of three to six years is crucial since a child’s mental abilities are at a key stage of development at that time. This reality is ignored by the constitutional amendment, which holds the state fully responsible for providing education to children above the age of six. According to anti-child labour organisations, minors aged fifteen to eighteen should be granted the right to an education to effectively limit child labour abuses.
- The third big issue in Indian education is the pervasive bias that pervades the country. The children of the affluent and privileged attend high-quality private and special-interest public schools, whilst the great majority of the poor, particularly minorities and marginalised groups, attend run-down government schools. As a result, the educational system’s division replicates society’s class division. The latter has played a key role in the continuance and exacerbation of social inequalities. It also results in poor education.
- The Act’s attempt to amend Article 51A to require parents to educate their children from the age of six to fourteen was also criticised.
Successes and failures of the Act
Successes of the Act
Successes of the Act include:
- Everyone, regardless of socioeconomic level, is required to attend school under the Act.
- It aims to establish equality for all by ensuring that everyone has equal access to education.
- It strives to ensure not just giving education for the sake of delivering education, but also great education in word and spirit, by integrating measures for teacher quality maintenance.
- The supply of educational accessories, such as the mid-day meal programme, inspires students from lower socioeconomic classes to attend school rather than participate in child labour to acquire a day’s food.
- The government has expressed its commitment to education by requiring the appropriate local governments to construct a school within a certain region if one does not already exist.
- The Act’s concern for the poorest segments of society is reflected through the provision of particular care for children from weaker sections and disadvantaged groups.
- The law encourages parents to send their children to school rather than put them to work around the house by making them liable for it.
Failures of the Act
The following are some of the most serious problems with the Right to Education Act
- The legislation only allows minors between the ages of 6 and 14 to participate. Even though India has ratified the United Nations Charter, which states explicitly that free education should be made mandatory for all children under the age of 18, it excludes younger children (under the age of 6) and older children (14-18).
- The 2009 Right to Education Act includes no provision for children with disabilities or, to be more precise, those with special needs to acquire an education. Despite the promise of universal access to education in the Right to Education Act of 2009, India’s out-of-school population is dominated by children with special needs. Over 600,000 (28 percent) special-needs children ages six to thirteen do not attend school, according to the 2014 National Survey of Out of School Children Report.
- The Right to Education Act is widely seen as being too input-driven rather than outcome-driven. The measure ensures that children are admitted to school, but it does not guarantee that they will receive an excellent education. The Act, along with other government initiatives, has been successful in attracting children to schools, but providing great education is still a long way off.
- The shortage of properly trained teachers has been a key barrier to the RTE Act’s full implementation. The Act’s requirement for a high student-to-teacher ratio resulted in a significant demand for qualified educators. As a result, several states have asked to be exempted from the qualifying norms throughout the recruiting process. As a result, unqualified individuals were obliged to run the educational system as para-teachers.
National policies and schemes
Prior to the RTE Act, the Central Government took several initiatives to promote primary education universalization, including five-year plans, the Sarva Siksha Abhiyan (SSA), the Mid Day Meal Scheme, and the Rashtriya Madhmayak Siksha Abhiyan (RMSA).
National Policy for Children
National policy for children acknowledged the need to include children’s programmes in national development goals. It asserted that the state must provide sufficient assistance to children before, after, and during their childhood to ensure their entire physical, mental, and social development. The policy was a major step forward in terms of safeguarding children’s interests. Early childhood care and development were given primacy among child development programmes in the 1986 National Policy for Education, which prioritised investment in the development of young children. The policy emphasised the need of developing Day Care Centers for Preschool Education so that young girls caring for siblings may attend school and low-income women can earn money.
Integrated Child Development Services
The Integrated Child Development Services (ICDS) system, which was established in 1975 in response to the National Policy for Children, 1974, is the most important public policy effort aimed at young children. The primary premise of ICDS, a nationally financed and state-managed national programme, is that early childhood education and care are intertwined issues that must be addressed as a whole.
12th Five Year Plan
The 12th Five Year Plan (FYP 2012-2017) prioritised education expansion, ensuring that educational opportunities are available to people from all stages of society and significantly boosting the quality of education provided. The Twelfth Plan was focused on literacy and school education.
Sarva Siksha Abhiyan
In 2001, the Sarva Siksha Abhiyan was launched with the objective of ensuring that all children aged 6 to 14 years attend school and finish eight years of education by 2010. The Sarva Siksha Abhiyan was a community-owned school system whose goal was to make elementary education universal. It was a response to the growing need for high-quality basic education. It enabled the advancement of social justice through primary education. By 2010, the Sarva Shiksha Abhiyan intended to provide all children aged 6 to 14 with practical and appropriate elementary education. Another goal was to close the socioeconomic, regional, and gender inequalities in school management through active community participation.
Mid-Day meals programme
The Mid-Day Meals Programme, which began in 1995, is one of the most popular programmes used to entice children to schools. Several more unique programmes have been implemented, with varying degrees of success. The government also distributes free textbooks to children. In addition, in 1994, the District Primary Education Programme (DPEP) was founded with the purpose of delivering primary education to all children through official primary schools or other options.
National Literacy Mission
The National Literacy Mission (NLM) was established in 1988 with the objective of achieving a 75 percent literacy rate by 2007. It educates the nonliterates between the ages of 15 and 35 in practical literacy. The comprehensive literacy campaign is the National Literacy Mission’s (NLM) major approach to eradicating illiteracy. By providing a learning continuum, the continuous education plan complements the efforts of the complete literacy and post-literacy programmes.
National Human Rights Commission’s recommendations on right to education
- Rather than being limited to children of a certain age, the right to free and compulsory education should be extended to all children until they complete primary school, i.e., class VIII.
- Terms like equal quality of education, free and compulsory education, as well as norms and standards, must be defined or explained.
- Attention should be paid to crafts and vocational training.
- The central, state, and local governments must all share responsibility for ensuring the right to education. In this regard, local government should make every effort to ensure that parents, local management committees, communities, non-governmental organisations, and others are engaged and involved.
- Each level of government/administration must clearly define its role and responsibilities in protecting the right to education.
- In terms of early childhood care, education, and development, the government should take the necessary measures for children aged 0 to 6.
- Minimum standards for all aspects of educational quality, including infrastructure, curriculum, teacher training, education, and other educational qualities, must be set in collaboration with professional groups.
- Universal access to high-quality education must be seen as a non-negotiable requirement. All students should have access to free textbooks, clothing, and lunchtime food.
- Short-term initiatives such as Sarva Shiksha Abhiyan (Universal Elementary Education Program) must be gradually integrated into the formal educational system.
- Para-teachers should be phased out completely, and instructors who are properly qualified and trained should be employed instead. This goal necessitates the expansion and development of teacher education/training institutes.
- Effective regulation and evaluation mechanisms should be put in place to ensure implementation and quality assurance in the school education system.
- Children from low-income households should be accepted into private independent schools.
T.M.A Pai Foundation v. State of Karnataka (2002)
The facts of this case are that Dr. TMA Pai founded the Academy for General Education in Madras in 1942. When the states were reorganised, the institution became a part of the state of Karnataka. Later, the “Manipal Engineering College Trust” was founded in the name of the establishment and operation of the “Manipal Institute of Technology,” to encourage the Konkani language and encourage Konkani language-speaking students. Later, the engineering college’s trustees transferred ownership to the TMA Pai trust, which was founded in Dr. TMA Pai’s memory.
To prohibit educational institutions from charging excessive fees, the governor of Karnataka introduced the “Karnataka Educational Institutions Ordinance, 1984.” The state government also issued an order restricting the number of students accepted and requiring a certain percentage of government seats to be filled. The TMA Pai trust’s engineering college was recognised as a minority-unaided private educational institution since it received no government funding. As a result, a writ petition was filed, arguing that the government’s restrictions on the administration of minority educational institutions infringe on minorities’ rights to establish educational institutions.
To what extent may the government impose administrative restrictions on minority-aided and unaided institutions?
The Court ruled that while state governments and universities cannot regulate the admission policy of unaided educational institutions run by linguistic and religious minorities, they can identify educational qualifications for students and create rules and regulations to uphold academic principles.
Mohini Jain v. State of Karnataka (1992)
In this case, an Uttar Pradesh resident applied for admission to a private medical college in the state of Karnataka to pursue an MBBS degree, and the provision permitting private medical colleges to charge higher fees to students who were not granted ‘government seats’ was challenged.
Whether the imposition of Capitation Fees violates Articles 14 and 21 of the Constitution?
The Court held that the charging of a capitation fee by the private educational institutions violated the right to education as implied by the right to life and human dignity and the right to equal protection of the law.
Avinash Mehrotra v. Union of India and Others (2009)
This case resulted from a fire that broke out in a Madras middle school. The school featured only one entrance and exit, as well as a single thatched roof construction with no windows. The fire started in a nearby makeshift kitchen where cooks were preparing a midday meal, 73 children were killed and many others were injured as a result of the fire. As a result, the writ petition was filed to protect children from similar tragedies in the future and to enhance the country’s educational standards.
The question was whether the right to education includes the right to attend a good school where children’s safety is not jeopardised?
The Court held that under Articles 21 and 21A of the constitution, there is a fundamental right to an education free from fear of security and safety and that this right to education includes the provision of a secure school. Regardless of where a family decides to educate its children, the state must safeguard their safety.
By implementing statutory safety regulations, the Court has saved children’s lives, and this is a challenge to private management schools that view education exclusively as a business with no regard for the lives of innocent children. The verdict has raised the government’s accountability, as free schooling and midday meals are no longer sufficient, and children’s lives must now be safeguarded.
The Right to Education Act (RTE Act), which was implemented by the Indian government in 2009 through the 86th Amendment, is certainly a milestone event in the history of the education system in India. This Act revolutionised the old system by proclaiming education a fundamental right for all children under the age of 14 in India. The new law makes it mandatory for state governments and municipal governments to ensure that every child receives an education in a school nearby. This law is important not just for young children, but also for learning about children’s rights, such as the right to proper schooling and access to a better education. The Act was enacted to achieve these goals by ensuring that every child receives a quality education and has access to fundamental resources, including classrooms, skilled teachers, and a child-safe environment.
Frequently Asked Questions
What is free and compulsory education?
Free education implies that No child, excluding those enrolled by their parents in a school not funded by the applicable State Government, would be asked to pay any fee, charge, or expenditure that may prevent them from pursuing and finishing primary education. The phrase ‘compulsory education’ implies that the responsible government and local authorities must provide and ensure that all children aged 6 to 14 have access to and complete primary education.
What are the changes introduced by the 86th Constitutional Amendment?
Three specific clauses in the Constitution were introduced in the 86th Amendment Act of 2002 to encourage the realization of free and compulsory education for children aged six to fourteen years as a basic right. They are
- The addition of Article 21A in Part III,
- The modification of Article 45, and
- The addition of a new clause (k) under Article 51A (fundamental duties), makes the parent or guardian responsible for providing educational opportunities to their children aged six to fourteen years.
What right does the Right to Education Act provide?
The Act provides that every child aged 6 to 14 shall have a right to free and compulsory admission, attendance, and completion of education in a neighbourhood school. A child with disabilities shall also have the right to pursue free and compulsory elementary education up to the age of 18 years.
- Occasional Paper-33njuneja.pdf
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