This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a detailed analysis of Article 21A of the Indian Constitution, which provides for free and compulsory education of all children in the age group of six to fourteen years as a fundamental right. 

This article has been published by Sneha Mahawar.

Introduction 

The essence of every country lies in education, and without it, the country fails to survive. As a result, the cornerstone of the country is education. It is crucial for the overall growth and effective operation of a democracy. Education helps people become more skilled and more likeable, and as they grow, so does the country. It aims to achieve a wide range of goals ranging from employment to that of human resource development, general improvement, and bringing about much-needed social environment change. It provides residents of a nation with personal freedom and empowerment, thereby contributing to the development of an independent individual. It is regarded as the societal cornerstone that supports political stability, social progress, and economic prosperity. After food, clothing, and shelter a person’s fourth essential necessity is education. It is the foundation upon which society is built. Social justice and equality are made possible only by means of education. Article 21A of the Indian Constitution, which was inserted into the Constitution by means of the Constitution (Eighty-sixth Amendment) Act, 2002, mandates every state to provide free and compulsory education to all children in the age group of six to fourteen years, thereby declaring education as a fundamental right guaranteed under Part III of the Constitution. This amendment is a major milestone in the country’s aim to achieve ‘Education for All’. The government stated this step as ‘The dawn of the second revolution in the chapter of citizens rights’. This article explores this provision with respect to society, the judiciary, and other provisions of the Constitution in general. 

Right to Education and its underlying history 

Without some knowledge of the historical causes of the denial of the right and the constitutional response thereto, it is impossible to comprehend the significance of the Right to Education in India. When India gained independence from the British in 1947, the Constitution’s framers had to deal with the reality of the population that was predominantly illiterate and profoundly impoverished.

1. As originally enacted, Article 45 of the Constitution, a Directive Principle of State Policy, obliged the State to make every effort to provide free and compulsory education to every child until they complete the age of fourteen years, within ten years from the commencement of the Constitution. The Constitution stipulates that even while the Directive Principles of State Policy are not “enforceable in the court of law,” the State is nonetheless required to use them when enacting legislation since “the principles therein put out are nonetheless important in the governing of the country.” Additionally, Article 45 was the only Directive Principle with a deadline for completion, which shows how highly the Constitution’s founders valued this principle.
2. There can be little debate about the abject failure of the endeavour to provide universal access to education in the initial decades following independence. The overall literacy rate was a modest 65 percent as of 2001.  In terms of primary education, from 2003–2004 to 2004–2005, more than 10% of students enrolled in Grades I–V, left school before completing the program. For the first time ever, according to census data, the number of illiterate Indians fell from 329 million in 1991 to 304 million in 2001.
3. It shouldn’t come as a surprise that, like any other democracy, the democratic arms of the Indian government engaged in self-reflection and self-correction as a result of the failure of sheer scale mentioned above. The amount that the Central Government allocates for education has been rising over time, albeit slowly and erratically. For the first time in 1955–1956, spending on education exceeded 1 percent of the Gross Domestic Product (GDP), and it remained in this range until 1979. The constitutional amendment that granted the Central Government concurrent legislative authority to intervene in the area of education was a very significant milestone in 1976. Although it hasn’t yet been accomplished, the government has set a self-imposed goal of spending 6% of the GDP on education.
4. It is obvious that in the past few years, there has been significant progress made toward the realisation of universal primary education. This is frequently credited to the Sarva Shiksha Abhiyan [National Campaign for Education for All], a national umbrella program launched in 2000 with the goal of achieving universal primary education. According to government figures, the overall number of children who are not enrolled in school has decreased from 42 million at the beginning of the tenth five-year plan (1997-2002) to 13 million in 2005. 
5. A 2 percent cess on all significant central taxes, with the proceeds going particularly towards elementary education, is a practical step made toward resource mobilisation. It was decided to amend the Constitutional provisions to include the Right to Education as a fundamental right. In addition to this, education was slowly gaining momentum in terms of budgetary allocations and program execution.
6. Ultimately, Article 21A, a fundamental right that is subject to judicial review, was added as a result of the Constitution (Eighty-sixth Amendment) Act of 2002. One of the aspects of this amendment,  which is the exclusion of early childhood care and education (for children younger than six years old) from the scope of the justifiable right, attracted a substantial amount of criticism. It is crucial to recognise that there was no mistake on the side of Parliament in this. The fact that the right to primary education is now an absolute right while the state still has some latitude in terms of its obligation to provide early childhood care and education, shows that the Parliament’s intention was to move the goalposts in terms of enforceability.

It is crucial to keep in mind that the financial commitment the State needed to make in order to universalize primary education no longer seems wholly implausible. For instance, a government-appointed expert committee first calculated that it would cost 0.78 percent of GDP annually to implement universal primary education in the years prior to the inclusion of Article 21A. However, the government revised the expected yearly cost to 0.44 percent of the GDP at the time the constitutional amendment was proposed. 

This financial demand appears doable given the government’s self-imposed aim to raise spending to 6% of GDP and the context of gradually increasing budgetary allocations for education. The protracted delay in implementing the fundamental right is especially concerning in light of these historical occurrences. Significant issues with constitutional law and democratic accountability with regard to the new fundamental right have been raised as well.  

Article 21A of the Indian Constitution

Human progress depends on education. Any nation’s future is dependent on the quality of its educational system. Even while the members of the Constituent Assembly understood the value of universal education, they were unable to guarantee it as a fundamental right because of a lack of funding, despite the fact that it was listed in the Directive Principles of State Policy. The Indian judicial system attempted to include the right to education as a component of the Right to Life in the 1993 case of Unni Krishnan v. State of Andhra Pradesh. Through a constitutional amendment that was passed in 2002, the Indian Parliament also gave its future inhabitants the right to an education.

On several occasions, both the judiciary and the Parliament had the chance to clearly explain the nature of this newly created fundamental right, particularly in light of the possibility that it might conflict with the fundamental right of minorities that already exists to create and run educational institutions of their choosing.  There were a few crucial questions that needed to be addressed. Whether the Supreme Court’s decision in the afore-mentioned case to include the Right to Education in the purview of Article 21 and the insertion of this new right alongside the Right to Life has given the former any precedence over other related rights, remains an unanswered question.

Right to Education under the Indian Constitution 

The Indian Constitution has several provisions and schedules that protect children’s interests in education. There are various articles and guiding concepts in the Indian Constitution that protect and mandate the provision of education for its citizens. The Sergeant Commission, the last British education commission, predicted that universal education would be available in 40 years, or by 1985. The 42nd Amendment of 1976 to the Indian Constitution, made education a concurrent issue in order to expand basic education facilities, especially in underdeveloped areas thereby making education accessible to every individual by means of delivering it freely and mandatorily with priority for primary education.

Initially left out of the Constitution’s list of fundamental rights, the Right to Education was added as a Directive Principle under Article 45, which mandated the State to make efforts to offer all children free and compulsory education until the age of 14. This was done within the first ten years of the Constitution’s coming into effect. Article 45’s directive covers all levels of education up to and including the age of 14 and is not just limited to elementary school.

As a result, this age group of children should have had free access to education. The Supreme Court implied the ‘Right to Education’ during this time from other constitutional provisions such as Articles 21, 24, 30(1), 39(e), and 39(f), in its decision-making concerning issues over the Right to Education. The Court has time and again highlighted that the state can fulfil its moral commitment under Article 45 to “provide for free and compulsory education for children” through government-run and aided schools, and that Article 45 does not mandate that this obligation be fulfilled at the expense of minority populations.

On August 4, 2009, the Indian Parliament passed the Right to Education Act, 2009, popularly known as the RTE Act, 2009. Article 21A of the Indian Constitution explains the necessity of free and mandatory education for children aged 6 to 14 in India. With the implementation of this Act on April 1, 2010, India joined the list of 135 nations that have made education a fundamental right for all children. It establishes basic standards for primary schools, outlaws the operation of unrecognised institutions, and opposes admissions fees and kid interviews during admission to government-aided schools.

Through routine surveys, the Right to Education Act keeps an eye on every neighbourhood and identifies children who should have access to education but have not been provided with it. In India, there have long been significant educational issues at the national level as well as in the states. The RTE of 2009 outlines the tasks and obligations of the Central Government, each state, and all local governments in order to fulfil any gaps in the nation’s educational system.

List of constitutional provisions promoting education as a right

1. Article 21A: The new Article 21A, which was inserted into the Indian Constitution by means of the 86th Constitutional Amendment, states that “the state shall provide free and compulsory education to all children between the ages of 6 and 14 through a law that it may determine.” In 2009, the Right to Education Act was passed in light of Article 21A.
2. Article 15: Discrimination based on grounds of religion, ethnicity, caste, sex, or place of birth is forbidden by Article 15 of the Indian Constitution. Article 15(3), however, says that nothing in this clause prevents the state from adopting any specific measures for women and children.
3. Article 38: Any social order that promotes the welfare of the people is secured by Article 38 of the Indian Constitution.
4. Article 45: Article 45 of the Indian Constitution endeavours to provide free and compulsory education to all children up to the age of 14 years.
5. Article 29(2): Article 29(2) of the Indian Constitution provides that no citizen shall be denied entrance to any state-maintained educational institution or be denied financial help from state funds on the basis of their religion, race, caste, language, or any combination of these.
6. Article 30: Minority linguistic and religious groups are protected by Article 30 of the Indian Constitution. They have the right to create and run any institution they want.

86th Constitutional Amendment Act, 2002

The 86th Amendment Act of 2002 adds three specific provisions to the Constitution to make it easier to understand that children between the ages of 6 and 14 have a fundamental right to free and compulsory education. This amendment was made with the intention of protecting citizens’ rights to education and recognising India’s educational challenges.

1. Every child has the right to a full-time elementary education of adequate and equitable quality in a formal school that complies with certain fundamental norms and standards, thanks to the addition of Article 21A in Part III of the Indian Constitution.
2. The language of Article 45 went through modification to Article 45 as it was replaced with the statement that the “State shall work to ensure early childhood care and free and mandatory education for all children up to the age of six”.
3. The addition of a new clause to Article 51 A makes it explicitly mandatory for parents or guardians to provide opportunities for their children between the ages of 6 and 14 to receive an education [Article 51A (k)]. 

Reasons behind the enactment of the Right To Education Act, 2009

The reasons behind the enactment of the Right to Education Act, 2009 have been provided hereunder: 

1. 1950: Article 45 of the Indian Constitution lists it as one of the Directive Principles of State Polices.
2. 1968: Dr. Kothari was put in charge of the First National Commission for Education, which submitted its reports concerning education as a right.
3. 1976: The Constitution was amended to make education a concurrent issue that falls under both Central and state jurisdiction (42nd Amendment of the Indian Constitution).
4. 1986: The Common School System (CSS) was supported by the National Policy on Education (NPE), which was developed but not put into practice.
5. 1993: The Right to Education was recognised as a fundamental right that followed the Right to Life under Article 21 of the Indian Constitution, according to the Supreme Court’s decision in the case of Mohini Jain v. State of Karnataka (1992) and Unni Krishnan v. State of Andhra Pradesh (1993).
6. 2002: Article 21A was added to the Constitution as part of the 86th Amendment, which also altered Article 45 and added a new basic responsibility under Article 51A(k).
7. 2005: The Central Advisory Board of Education (CABE) Committee report, which was formed to design the Right to Education Bill, had been submitted.
8. 2009: The Right of Children to Free and Compulsory Education Act, 2009 came into the picture. 

Right of Children to Free and Compulsory Education Act, 2009

To give effect to Article 21A of the Constitution, the Right of Children to Free and Compulsory Education Act, 2009, was passed. It said that the state would provide free and mandatory education to children between the ages of 6 and 14 years old, incorporating the right to primary education. In 2008, six years after the Indian Constitution underwent an amendment (86th Amendment, 2002), the Cabinet approved the Right to Education Bill. The Cabinet adopted the measure on July 2, 2009. The bill was approved by both the Rajya Sabha and Lok Sabha on July 20, 2009, and August 4, 2009, respectively. The Act was notified as legislation on September 3, 2009, after receiving the President’s approval. With the exception of the state of Jammu and Kashmir, the law took effect on 1st April 2010 throughout the nation. The Act provides for the following: 

1. Every child between the ages of 6 and 14 has a fundamental right to free, obligatory education in schools up to the completion of elementary education.
2. Children who have either quit school or have not shown up at any school will be enrolled in the schools, and no school will be able to refuse to accept them.
3. In order to admit pupils from economically disadvantaged and weaker sections of society to class one, private and independent educational institutions must set aside 25% of their seats.
4. A child’s age must be established for admission to a school based on a certificate issued in accordance with the terms of the birth, death, and Marriage Registration Act of 1856 or on the basis of any other documents that may be required.
5. The Act’s implementation will be supervised by the state commission and the National Commission for the Protection of Children’s Rights (NCPCR).
6. School management committees of 75% of parents and guardians are required to oversee all schools, with the exception of private unaided institutions.
7. The mother tongue of the child will be used as the instruction medium, and a thorough and ongoing system of performance evaluation will be used.
8. A number of teachers for classes 1st to 5th:

• Admitted children (up to 60): The number of teachers required is 2.
• Children between (61-90): The number of teachers required is 3.
• Children between (91-120): 4 teachers are required. 
• Above 150 children: 5 teachers + 1 head teacher.

9. The ratio of financial responsibilities between the Central Government and each state will be 55:45. For the northeastern state, it will be 90:10.
10. Building: 

• At least one classroom for every teacher and one office-cum-store-cum-head teacher’s room.
• Separate toilets for girls and boys.
• A kitchen where a mid-day meal is prepared.
• One playground. 
• Safe and adequate drinking water facility.

11. A minimum number of working days:

• 200 working days for 1-5th class.
• 220 working days for 6-8th class.

12. Instructional hours:

• 800 Instructional hours per academic year for the 1st-5th class.
• 1000 Instructional hours per academic year for the 6th-8th class.

13. The Act mandates the presence of libraries in each school, providing newspapers, magazines & books.
14. According to the RTE Act, children who live within “the prescribed area or borders of neighbourhood” should have access to primary schools:

• Primary school within 1km.
• Elementary schools within 3km.

15. The Act establishes the disabled population’s Right to Education up to the age of 18.
16. The Act prohibits both physical and psychological abuse, procedures for screening youngsters who are being admitted, capitation costs, teachers providing private instruction and operating schools without authorisation.

Features of the Right to Education Act, 2009

Compulsory and free education for all

In India, the government is required to provide free and required primary education to each and every child, up to class 8, in a neighbourhood school within a 1 km radius. No child is required to pay any fees or other costs that would keep them from pursuing and finishing their elementary education. In order to lessen the financial burden of school expenses, free education also involves the distribution of textbooks, uniforms, stationery items, and special educational materials for students with disabilities.

Special provisions for special cases

According to the RTE Act, a child who is not enrolled in school must be accepted into a class for their age and get additional instruction to help them catch up to age-appropriate learning levels.

The benchmark mandate

The RTE Act establishes guidelines and requirements for classrooms, boys’ and girls’ restrooms, drinking water facilities, the number of school days, and working hours for teachers, among other things. This collection of requirements must be followed by each and every elementary school in India (primary + middle school) in order to uphold the minimum standards required under the Right to Education Act.

Quantity and quality of teachers

The RTE Act ensures that the necessary pupil-teacher ratio is maintained in every school without any urban-rural imbalance at all, allowing for the sensible deployment of teachers. Additionally, it requires the hiring of teachers who have the necessary academic and professional training.

Zero tolerance against discrimination and harassment

The RTE Act of 2009 outlaws all forms of corporal punishment and psychological abuse, as well as discrimination based on gender, caste, class, and religion, as well as capitation fees, private tutoring facilities, and the operation of unrecognized schools. Less than 10% of schools nationwide, according to the Right to Education (RTE) Forum’s Stocktaking Report, 2014 adhere to all of the requirements of the Right to Education Act. Even if the Right to Education Act of 2009 brought about a lot of advances, worries about the privatisation of education still exist. Inequalities in education have persisted for a long time in India. Although the Right to Education Act represents the first step toward an inclusive education system in India, its successful implementation still presents difficulties.

Improving learning outcomes to minimise detention

No child is allowed to be held back or expelled from school until Class 8, as per the provisions of the Right to Education Act. In order to guarantee learning results that are acceptable for each grade in schools, the Continuous Comprehensive Evaluation (CCE) system was created in 2009 under the Right to Education Act. This approach was established in order to examine every area of the child while they were in school, allowing gaps to be found and addressed as soon as possible.

Monitoring compliance with RTE norms

School Management Committees (SMCs) are essential for enhancing governance and participatory democracy in primary education. All schools covered under the Right to Education Act of 2009 are required to form a School Management Committee made up of the principal, a local elected official, parents, and other community members. The committees have been given the authority to establish a school development plan and monitor how the schools are operating.

Ensuring all-round development of children

The Right to Education Act of 2009 calls for the creation of a curriculum that would guarantee each child’s overall development. Develop a child’s knowledge, abilities, and potential as a person.

Right to Education Act is justiciable

The Right to Education Act of 2009 is legally enforceable, and it is supported by a Grievance Redressal (GR) framework that enables anyone to take legal action against violations of its provisions. Oxfam India and JOSH filed a complaint with the Central Information Commission (CIC) in 2011 under Section 4 of the Right to Information Act, 2005 to ensure that all schools adhere to this requirement. All public authorities are required to share information with individuals about how they operate under Section 4 of the RTI Act, which is a proactive disclosure section. Since public authorities include schools, Section 4 compliance was required.

Creating inclusive spaces for all

All private schools must set aside 25% of their seats for children from socially and economically disadvantaged areas, according to the Right to Education Act of 2009. The Act’s clause promoting social inclusion aims to create a more equitable and just society.

The conflict between Article 21A and Article 30(1) of the Indian Constitution

Articles 21A and 30(1) are both essentially about the Right to Education, although they take different approaches to that right. Every child has the right to the former as an individual whereas minorities only have the latter as a collective right. It is important to determine where the two pieces are complementary to one another, where they are competing with one another or contradicting one another, and to what extent.

In cases like Re Kerala Education Bill (1958), Saint Xavier College v. State of Gujarat (1974), Saint Stephen’s College v. University of Delhi (1991), T.M.A. Pai Foundation v. State of Karnataka (2002), and Islamic Academy of Education v. State of Karnataka (2003), the Supreme Court has discussed the nature of the right guaranteed by Article 30(1) on numerous occasions.

In Pramati Educational and Cultural Trust v. Union of India (2014), the constitutional bench of the Supreme Court focused only on the issue of whether aided or unaided minority educational institutions are required to provide ‘free and compulsory education’ to ‘all,’ i.e., free education to 25% of the students in the nation. However, every time the issue was only related to the extent to which various government regulations may penetrate into the right to ‘administer’ minority educational institutions. However, the right to ‘create’ minority educational institutions was not addressed. How minority groups can create educational institutions has never received the amount of attention it deserves.

Every child in India, regardless of caste, class, creed, or religion, has the right to a primary education under Article 21A of the Indian Constitution. Each child has a right that cannot be waived since the idea of waiver does not often apply to fundamental rights. However, because minor children between the ages of 6 and 14 are the focus of Article 21A, the State has an even stronger obligation to uphold children’s Right to an Education. The type of education guaranteed by Article 21A is elementary-level fundamental education and is the most significant feature of the Act of 2009 as well. It is not intended to be a religious or specialised education of any type.

The Supreme Court stipulated in Re Kerala Education Bill (1958) that Article 30(1) states and means that linguistic and religious minorities should be allowed to open educational institutions of their choice. The disciplines that can be taught in these educational facilities are not constrained in any way. Due to the fact that minorities will typically want to raise their children effectively, qualify them for higher education, and send them into the world with the intellectual skills necessary to enter the public sector, the educational institutions of their choice will inevitably include secular general educational institutions as well. In other words, the Article leaves it up to the minorities to choose educational institutions that will serve both ends, namely, the preservation of their religion, language, or culture, as well as the end of providing their children with a complete high-quality general education. 

The next thing to keep in mind is that the Article explicitly grants two rights to all minorities, regardless of whether they are based on language or religion, namely, the right to create and the right to run educational institutions of their choice. It is abundantly obvious that the Constitution contains no specific limitations, but the legal interpretation of the document has not yet produced a binding ruling requiring minorities to establish institutions that might fulfil both objectives. 

The Supreme Court made (2002) the assumption that most minorities would want their children to have both religion and modern education in order to raise respectable citizens. However, their comments fell out of line with reputable advice. This is the reason why the Supreme Court’s directions have not been put into practice at the local level.

It is clear that up until recently, Madrassahs were regarded as educational institutions in Maharashtra by the Maharashtra government’s order designating “Madrassahs not teaching conventional courses’’ as non-schools. Many other states, including West Bengal, Bihar, and Uttar Pradesh, are experiencing a similar predicament. Article 21A’s goal of ensuring that children receive basic education is violated by the state’s recognition of such educational facilities as schools. Every child has the right to get a fundamental education for at least 12 years to provide the groundwork for their personality and intelligence.

Numerous Islamic sects in India are operating these Madrassahs, which offer both secular education and religious instruction to students from all backgrounds. However, certain Islamic religious groups in India claim that Madrassahs are closed to students from other groups because they are only intended to produce Islamic religious experts. These organisations receive financial assistance from the state as a result of their position as minority-run educational institutions. Article 29(2) of the Indian Constitution states that no citizen of India may be denied entrance to educational institutions managed by the state or that receive funding from the state, and such minority schools, therefore, are obviously operating in contravention of this provision.

The Supreme Court ruled in Pramati Educational and Cultural Trust v. Union of India in 2014 that the Right to Education Act of 2009 cannot force minority educational institutions to admit students from other communities in order to uphold the state’s goal of providing ‘free’ and ‘compelled’ education to ‘all.’ The Court, however, reaffirmed that the state can use regulatory measures to affect all educational institutions, including aided and unaided minority educational institutions. In Pramati’s case, the Supreme Court upheld its earlier rulings stating that institutions providing aided or unaided minority education can be subject to regulatory measures required to designate such an institution as an “educational institution”.

The Supreme Court’s views, which are summarised above, make it quite evident that the rights granted to religious minorities by Article 30(1) of the Indian Constitution are not unqualified. The fundamental and guiding ideals of our Constitution, such as equality and secularism, govern this right. Therefore, such regulatory measures are constitutionally permissible if they are implemented in schools that are associated with all religions in order to check the quality of religious instruction that is to be offered to the pupils. In this approach, it is possible to harmoniously interpret both the individual rights of children and the collective rights of the minority population, which may be advantageous for the entire nation.  Thus, institutions of all religions that only offer religious instruction to children younger than 14 years of age, should be outlawed outright since they are violating Article 21A’s guarantee that children have the right to basic education.

Need to support education for girls in India

According to a thorough investigation of the human capital theory, education significantly affects the productivity of the economy by raising factor production per worker. Plans for long-term economic development are centred on education and the development of human resources. Girls who feel unsafe and insecure also stop attending school. Boys attend school in the afternoon after girls do in the morning. Senior students frequently say that the boys follow them home after school while they are being teased. Due to the arousal of several complaints surrounding such events, police officers were appointed for patrolling, when the girls got out of school. However, as soon as there were fewer police officers, the boys kept harassing the girls. Because their parents thought it was no longer safe to send their daughters to school, many girls dropped out eventually. The issue still exists despite repeated reports to the police and SMC members.        

A well-educated woman can give her children a better lifestyle and access to better healthcare by realising the value of education for future generations. In addition, educating girls will significantly lower the rates of infant and maternal mortality, child marriages, and domestic and sexual abuse in households. A girl with higher education is also more likely to take part in political debates, meetings, and decision-making that results in the creation of a more democratic and representative government. 

New standards for the health, cleanliness, security and safety of kids in both private and public schools have been released by the NCPCR. The new recommendations stress that girls need to learn about menstrual hygiene and receive help so they don’t skip class. Additionally, they state that schools must have a zero-tolerance policy for any issue involving child sexual abuse and that lawbreakers will face harsh punishment.

Does Article 21A guarantee the Right to Education in mother tongue

The Rajasthan High Court in a landmark decision of School Development Management v. State of Rajasthan (2022) while contemplating the Right to Free and Primary Education, observed that Article 21A of the Constitution does not “ensure” the right to obtain education in one’s “mother tongue or home language.” However, a single judge bench led by Justice Dinesh Mehta ruled that the Rajasthan government’s decision to convert Shri Hari Singh Government Senior Secondary School in Peelwa, Jodhpur district, to an English medium school in September 2021 is void because it violates Article 19 (1) (a) of the Constitution which guarantees the Freedom of Speech and Expression. The School Development Management Committee (SDMC) and the parents of the school’s children had petitioned before the Rajasthan High Court, which rendered its decision thereafter. 

Facts of the case

It was argued before the Court that changing the educational medium in the middle of a session violated students’ fundamental rights and was against the Constitution. The parents insisted that they opposed “full conversion of the present institution,” which was thinking of keeping only English as the language of instruction. They claimed that the sudden change would force students to enrol in other schools during the academic session, which would have an impact on their academic performance.

The Rajasthan State Government insisted that pupils may simply enrol in the various government institutions offering Hindi as a second language nearby. The administration argued that such a decision was acceptable by citing the policy choice of one English-medium school in a community with a population of more than 5,000 people. However, after reviewing the relevant constitutional provisions, the High Court dismissed the argument.

However, the petitioners’ argument that Article 21A protects the right to obtain an education in Hindi was rejected by the Rajasthan High Court. The Court cited a 2014 Supreme Court decision (State of Karnataka & Anr. v. Associated Management of English Medium Primary and Secondary Schools & Ors (2022)) that had taken a similar tack in holding that the wording of the article is not absolute and permits the state to choose the medium of instruction ‘by law’. According to what has been granted under Article 21A of the Constitution, “no child or parent can claim it as a matter of right, that he/his ward should be trained in a particular language or the mother tongue solely,” is what the Court observed in the present case.

Decision and analysis by the Rajasthan High Court

1. The Right to Education is a part and parcel of Article 19(1) (a), which guarantees the Freedom of Speech and Expression, and the Court acknowledged that it could not be said that it is not protected by any of the fundamental rights. The bench then looked at the limitations imposed by Article 19(2), concluding that the State government’s decision in this matter, which was solely administrative, does not constitute a “reasonable restriction” as defined by Article 19(2).
2. According to the Court, clause (2) may only be used “in the interest of the sovereignty and integrity of India, the security of the state, friendly relations with foreign nations, public order, decency or morality, or involving contempt of court, defamation, or instigation of a crime.” Thus, the state government’s decision could not whittle down a child’s right to receive an education in Hindi under Article 19 (1)(a).
3. The Court also stated that it was against the law to “scoop out 601 kids with one stroke of the pen under the confidence that they would be accommodated at neighbouring schools.” The state government’s decision would also be in violation of Article 14, which guarantees the Right to Equality, as it was made without using any evidence or comprehensible standards. The Court also pointed out that the Concurrent List of the Constitution, which contains subject matters on which both the Centre and the state have the authority to legislate, encompassed education.
4. According to the Right to Education Act of 2009, “the medium of teaching shall, to the extent practical, be in the mother tongue or the home language.” Justice Mehta stated that in light of this, “English as a language of instruction cannot be imposed on a child by state law, much less by a policy or administrative decision, as in the instance at hand.”

He added that such a change would also be in violation of the RTI Act’s rules and the National Education Policy 2020. The SDMC held that the school may proceed with the transition in the following academic session provided a majority of the SDMC members approved of such a move, despite the fact that the policy decision itself was not contested and the SDMC had supported the decision in principle.

5. The Court denied the petition, describing the conversion to an English-medium school in the middle of the academic year as “dehors the power of the State” which means it is outside the power of the state.

The Indian judiciary and Article 21A of the Indian Constitution

The most important investment in human growth is education, which is also a tool for creating an equitable and just society and for fostering economic prosperity. The government has also established a number of national institutions for the promotion and defence of the citizens’ Right to Education. The dynamic process of education begins at birth. The foundation of socioeconomic progress and the mirror of society is education.

The foundational component of a successful democratic society and governance is education. It supplies the nation with a new vision and direction in order to eradicate the ills of society. Both a fundamental and human right, education encourages respect for basic freedoms alongside peace. Education is the primary factor in the development of human resources since it improves the skills, effectiveness, productivity, and general standard of living of those who get it. In light of this, universalising elementary education makes it necessary for the state to provide free and required education to all children aged 6 to14.

The right to higher education is not specifically mentioned in the Indian Constitution. However, the Supreme Court of India has addressed the issue in a number of Public Interest Litigation cases that have arisen in recent years. Unni Krishnan J. P. v. State of Andhra Pradesh (1993) and Mohini Jain v. State of Karnataka (1992) are two of the most significant rulings concerning the right to education, that find its discussion hereunder. Despite the fact that Article 21A is still relatively new, there is already some limited court commentary on its scope and significance. 

It is welcome to not search for a detailed analysis of the below-mentioned case, but instead a summarised version of the ratio of the case for understanding the application of Article 21A. 

Mohini Jain v. State of Karnataka (1992)

In this instance, Miss Mohini Jain, a native of Meerut, applied for admission to the MBBS program at a private medical college in the state of Karnataka in the session commencing in 1991. The college administration required her to submit Rs. 60000 as the first year’s tuition fee as well as a bank guarantee for an amount equivalent to the charge for the following year. The management declined to admit Miss Jain to the medical college after hearing from her father that the requested sum was beyond his financial capabilities. The administration allegedly wanted an additional fee of Rs 450000/-, according to Miss Jain, who testified in Court, but the management had denied such a claim.

The Supreme Court ruled in this case that even though the Right to Education as such has not been protected by the Constitution as a fundamental right, it is obvious from the Preamble and the Directive Principles of the Constitution that the state was intended to provide education for its citizens. Additionally, they ruled that private educational institutions’ collection of capitation fees violated the Right to Education that is implied by the Rights to life, human dignity, and equal protection under the law.

Unni Krishnan, J.P & Ors v. State of Andhra Pradesh (1993)

The case challenged the constitutionality of state regulations governing capitation fees levied by some private professional educational institutes.

Through petitions made by private educational institutions to contest state laws, the case is given substance. The states of Tamil Nadu, Karnataka, Andhra Pradesh, and Maharashtra created this state legislation to control the capitation fee amounts. The laws stated that any additional fees received by management employees would be regarded as capitation fees. The Supreme Court has observed that it would be the responsibility of the state to offer the facilities and opportunities required by Article 39(e) and (f) of the Constitution and to avoid the exploitation of their infancy owing to destitution and squalor.

According to the Supreme Court, when read in connection with the Directive Principles particularly focusing on education, the fundamental Right to Life (Article 21) implies the right to a minimum level of education as well. The Court ruled that the scope of the right must be understood in light of the Directive Principles of State Policy, including Article 45, which mandates that the State must make every effort to provide free and mandatory education for all children under the age of 14. 

The Court determined that Article 21 does not establish a fundamental Right to Education leading to a professional degree. However, it was decided that the 44 years after the Constitution’s enactment had effectively changed the non-enforceable right of children under 14 into a legal obligation, with respect to education. After turning fourteen, their Right to Education is restricted by the state’s economic capacity and level of development (as per Article 41).

The Court cited Article 13 of the International Covenant on Economic, Social, and Cultural Rights when it stated that in order for the State to fulfil its duty to provide higher education, it must use all of its resources to the fullest extent possible in order to gradually realise each individual’s right to education.

In Unni Krishnan’s case, the Court disagreed with the ruling in Mohini Jain v. State of Karnataka (1992) that the Constitution guarantees the Right to Education at all levels. Following the Constitutional Bench’s ruling in Unni Krishnan, the Supreme Court declared that Article 45 has now been elevated to the status of a fundamental right in the case of  M.C. Mehta v. State of Tamil Nadu & Ors (1996).

The Court further ruled that a right need not be explicitly identified as a fundamental right in Part III of the Constitution in order to be treated as such by stating that “the provisions of Part III and Part IV are supplemental and complementary to each other.” The Court disagreed that the moral demands and aspirations expressed in Part IV are superior to the rights reflected in Part III’s provisions.

Nine years after this pronouncement, the State responded by adding Article 21A to the Constitution, which guarantees children between the ages of six and fourteen the fundamental Right to Education. Additionally, legislation mandating basic education has been adopted by a number of Indian states. However, because of a number of administrative and financial restrictions, socioeconomic and cultural reasons, and other factors, these laws “have not been enforced.” Therefore, there is no national law requiring children to attend primary school.

Ashoka Kumar Thakur v. Union of India & Others (2008)

The opinion of Justice Bhandari in the Ashoka Kumar Thakur case (2008), possibly the most important affirmative action case decided by the Supreme Court of India in the recent decade or more, serves as the most notable example of discussing the Right to Education. On the surface, Ashoka Kumar Thakur doesn’t seem to have much to do with elementary schooling. The main constitutional issue concerned was whether the constitutional guarantee of equality was violated by the reservation of seats in educational institutions for members of the Other Backward Classes (i.e., socially and educationally backward classes of Indian citizens).

The Petitioner’s wide and all-encompassing challenge to the legitimacy and rationale of the Government’s Education Policy, of which the subset of reservations was the particular cause of harm to them, appears to have provided the setting for the dicta on the Right to Basic Education. Justice Bhandari essentially concurred with the other judges in sustaining the contested affirmative action policies in his separate opinion in this case. In what he believed to be an inversion of constitutional principles, he was harshly critical of the government for placing higher education (and, in particular, affirmative action in higher education) ahead of basic education.

His opinion includes obiter dicta on Article 21A in this context. He planned for Article 21A to have two main components: 

1. First, all children of the appropriate age must attend school, and 
2. Second, the education they get must be of “quality.”  

This is a foreshadowing sign that the Supreme Court may be inclined to rule that a minimum education guarantee of quality is necessary for fulfilling the constitutional duty when the issue inevitably arises in the context of concrete claims under Article 21A.

Election Commission of India v. St. Mary’s School (2008)

Laws or programs that blatantly obstruct the constitutional objective of universal primary education might be the subject of a constitutional challenge under Article 21A. Election Commission of India v. St. Mary’s School (2008) is a great illustration of this strategy that the  Supreme Court of India noted. In this case, the Supreme Court was debating the practice of ordering school employees to hold elections during regular school hours. How to resolve the conflict between two competing constitutional priorities was how the Court itself characterised the problem.

It acknowledged the crucial significance of free and fair elections in the Indian context, as well as the Election Commission of India’s constitutional obligations in this regard. However, it ruled that this alternative constitutional objective could not take precedence over the fundamental right to free elementary education. The “deplorable status” of primary education in India was noted in this case. Taking the same into account, the Supreme Court had opined that only on holidays and other days when classes are not in session could teaching staff be deployed for election-related tasks. Thus, the deployment of teachers for the purpose of election tasks cannot take place on days they have duties in school to deliver education to the children. 

It is interesting to note that Article 21 of the Constitution, which is at least textually interpreted as a negative procedural due process right defending life and personal liberty, was the main focus of the Supreme Court’s reasoning in this case. 

Avinash Mehrotra v. Union of India and Others (2009)

In this ruling, the Supreme Court of India expanded the definition of the Right to Education to include the right to a safe learning environment, and it required schools to abide by the specific fire safety requirements that had been laid down in this judgment.

In response to the fire that engulfed Lord Krishna Middle School in the Kumbakonam District, this public interest legal petition was filed. With about 900 pupils, Lord Krishna Middle School was a private institution. A nearby kitchen fire spread to the school building’s thatched roof, which collapsed and killed 93 kids inside. The school was required by municipal building rules to be certified every two years, however, Lord Krishna Middle School was three years past due and had numerous significant code violations.

Justice Bhandari opined in the case of Avinash Mehrotra v. Union of India and Others (2009) that the liberal and inclusive interpretation given to other fundamental rights by the Supreme Court of India provided important direction for how Article 21A could be construed.  The Court observed that more than “a teacher and a blackboard, or a classroom and a book” is needed to educate a child. Although Justice Bhandari acknowledged that the case at hand did not require (or possibly even permit) the Court to detail the full contours of Article 21A, he believed it was justified to conclude that where clearly unsafe structures were employed to house schools, this could not be construed as constituting compliance with the mandate of Article 21A.

While States have made an effort to develop and adhere to school building rules, the Supreme Court emphasised that not enough has been done. The Supreme Court established basic fire safety requirements for schools in accordance with its duties under Article 21A of the Constitution safeguarding children’s fundamental Right to a Free and Compulsory Education.

Conclusion 

One of the most important pieces of legislation in Indian history to ensure that children receive a basic education is the amendment to the fundamental right to education. The nation’s future lies with its children. Education is therefore a tool for introducing a child to cultural values, preparing him for future professional training, and assisting him in making a normal adjustment to his surroundings. A child today cannot succeed in life without education. The fundamental right to education applies to everyone equally. The most crucial component of higher education is therefore elementary education.

References 

• https://ili.ac.in/pdf/p4_vishal.pdf
• https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3874332
• https://www.researchgate.net/publication/342734746_right_to_education_with_special_reference_to_Article_21A

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