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This article is written by Priyanka Sharma who is pursuing LLB from O.P. Jindal Global University.

Introduction

One of the most substantial means which can structure the future of a person, as well as the nation, is education and learning. In the most developed countries, education stands as a major contribution to their growth and evolution, which also marks an important difference between the developed, developing and underdeveloped nations.

Mahatma Gandhi rightly said, “By education, I mean an all-round drawing out of the best in the child and man’s body, mind, and spirit.” Knowledge and learning being a vital part of one’s life is a staircase to a sense of identification in a society. Nevertheless, the jagged standard of education is yet a matter of question.

Although, members of the constituent assembly from a longer time recognized the prominence of united education, but never executed it as a fundamental right.

  • Major legal changes took place in 1992, when the Supreme Court of India held in Mohini Jain v. State of Karnataka, that even if the educational right is not been guaranteed specifically as a fundamental right in the constitution, but interpreting the directive principles, it seems that the state has desired to provide education to each and every person of India.

The court then explains that this particular principle of education leads to a constitutional right because it is necessary for the establishment of fundamental rights which include the right to dignity and life.

The court expresses a direct relation between the right to education and the right to life, stating that to live a life of meaning, a person needs the important rights which lead to a life of dignity, and to obtain such a life, education is indispensable. Thus, the court declared the right to education as essential for the right to life, and therefore this essential to be delivered by the state.

In Unni Krishnan v. State of Andhra Pradesh (1993), the Supreme Court reiterated this decision that the right to education flowed clearly from the right to life. However, it conveyed its refusal that this right is assured at all levels, and instead only mandated basic education for children below 14 years old. 

In continuance to this, the State moved ahead by altering the Constitution in 2002 by addition of a new article 21A- The right to education for children between 6 -14 years.  (the 86th Amendment). 

Then the government came up with the RTE Act in 2009 to deliver its obligations provided in Article 21A. 

This Act implies all the concerned persons like parents, society, educational institutions as well as the central governments to ensure their part in order to deliver free and compulsory education to the children of 6-14 age bracket. 

Major Components of The RTE Act, 2009

  • In India children belonging to the age of 6-14; has a free and compulsory education right in any neighbourhood school till the attainment of elementary education.
  • No child shall be held back, expelled, or required to pass a board examination until the completion of elementary education.
  • Any child above 6 years of age has not been admitted in any school or could not complete his or her elementary education, then he or she shall be admitted in a class appropriate to his or her age.  

However, if a case may be where a child is directly admitted in the class appropriate to his or her age, then, in order to be at par with others, he or she shall have a right to receive special training within such time limits as may be prescribed. 

  • Proof of age for admission: For the purpose of admission to elementary education, the age of a child shall be determined on the basis of the birth certificate issued in accordance with the Provisions of Birth. Deaths and Marriages Registration Act 1856, or on the basis of such other document as may be prescribed. No child shall be denied admission in a school for lack of age proof.
  • A certificate will be awarded to a child who will complete his/her elementary education.
  • Twenty-five percent reservation for economically disadvantaged communities in admission to Class I in all private schools is to be done.
  • Most important is improving the quality of education.
  • School teachers will need adequate professional degree within five years or else will lose job.
  • School infrastructure (where there is a problem) needs to be improved every 3 years, else recognition will be cancelled.
  • The state and the central government will share the financial burden.

Numerous ideas like Sarva Siksha Abhiyan (SSA) and Mid-Day Meal Scheme were initiated by the central government to encourage the universal application of primary education before the establishment of RTE Act.

Positive impact

  • Enrolment in the upper primary level i.e. 6th to 8th class has increased after the RTE Act.
  • Elimination of “no-detention policy” has created better quality of learning in the elementary education system.
  • Increased awareness widespread regarding primary education of children.
  • The Government has also introduced a multilingual scheme, for school learning named Samagra Shiksha Abhiyan, which includes in its ambit these 3 schemes: 
  1. Sarva Shiksha Abhiyan (SSA).
  2. Centrally Sponsored Scheme on Teacher Education (CSSTE).
  3. Rashtriya Madhyamik Shiksha Abhiyan (RMSA)

Although, the establishment of the right to education under Article 21A has made a good impact in the country, leading to an increase in enrolment in educational institutions but there are some major pitfalls prevailing in the current act, which have diluted the very object of the article. Hence, some prominent changes are required to be made in Article 21A of the Constitution.

Pitfalls in Article 21A

  • The current fundamental right to education under Article 21A expands to children between 6 to 14 years, i.e., students between Classes I to VIII only.

The major hindrance under this right is that it excluded the children of age group of 0-6 yrs. as well as 14-18 yrs. from its ambit. 

It is a scientifically -encouraged fact that a child adapts to the information super effectively in his initial nurturing years of 3-4 age, which is the age of nursery, which makes it crucial for its cognitive development but RTE fails to extend its scope to pre-primary level (LKG, UKG)

Secondly, excluding the young people aged 14 to 18yrs. from the ambit of 21A is creating an eccentric and undesirable difference in the country as young people between this age have nowhere to go. The irony here is that on one hand, the Right to education under Article 21A provides free and compulsory education up to the age of 14. On the other hand, The Juvenile Justice Act, 2000 for the protection and care of children does not allow the employment of children below the age of 18. On an estimate, today the population in the age bracket of 14-18 is nearly 101 million. 

So how can we as a nation justify the exclusion of the young people which are above 14 but still below 18 from the fundamental right to education?

Looking at the practicality, what sort of future will a student end up to after completing his 8th standard if he is not able to afford the monetary resources to study further as the RTE does not recognizes the right to education after this standard?  

Today, each and every vocational proficiency programme requires particular educational and age fulfilment as their necessary qualifications. Employers do not want to provide job placements before the age of 18.

At the most, there are a small number of formal skill courses that offer work contracts, but none of them provides permanency of work specially in the organised sector. Thus, no wonder to the fact that every second person of India’s bulk operates in the unorganised sector. The same seems the future of the left out young people.

Even the Draft National Education Policy (DNEP) in May, 2019 has proposed the expansion of the right to free and compulsory education to Early Childhood Care and Education (ECCE) as well as higher secondary education. It proposes to cover the children right from the age of 3 till the age of 18 years under the scope of 21A considering it crucial for a meaningful equivalent access to valuable education for all pupils.

Thus, it is high time that we recognise the genuine and serious problems in Article 21A of the constitution of India and modify it. Article 21A must be amended by covering the age group of 3-18 in its ambit and eliminating the previous provision which limits the age bar to 6 to 14 yrs.

  • Exclusion of minority schools from the ambit of Article 21A

The introduction of Article 21A was expected to be the most intensive effort to ensure free and compulsory education for all.

This was first deteriorated in the case of Society for Unaided Private Schools of Rajasthan v. Union of India (2012) but has now been further deprived through the inaccuracy of the judgment held in Pramati Educational and Cultural Trust v. Union of India, where though stating Article 21A as lawful, the court has weakened its object by making it bound to Article 30. 

The Supreme Court has taken a step beyond the case of Rajasthan schools and has entirely disconnected all the minority educational institutions, irrespective of aid or unaided, from the ambit of the right to education (Article 21A). This is a quite arbitrary reading of Article 30 clause (1) and providing all minority schools in a no-regulation area. Article 30(1) establishes the fundamental right to conduct and administer educational institutions of their choice to all minorities.

Pramati judgement

So, the Pramati judgement implies that all the minority schools will be allowed to charge any sum of fee, conduct any sort of criteria to admission and thus differentiate against any class of children and enjoy not being answerable neither to the court nor to the upset parents.  

The main issues with the decision embraced in the Pramati case are:

It has raised the status of Article 30 to such level that supersedes most of the fundamental freedoms, even above Article 21 and has placed it on an elevated platform.

According to the court’s reasoning in the case, all the fundamental rights in our constitution are bound by certain ‘reasonable restrictions’, but Article 30 alone is above any reasonable restriction. 

This judgement of the Court does not justify the constitution’s framework. Its impression of a minority school looks like if there would be an addition of even a small number of non-minority students in their schools, it would offset the ‘minority character’ of their educational institutions.

The rights of minorities under the purview of Article 30 are not free from all sorts of restraints, and this has also been acknowledged in previous cases like TMA Pai

T.M.A. Pai Foundation & Ors. vs State of Karnataka & Ors. 

It was stated in TMA Pai that the admission of a limited number of non-minority students to a minority school would not steal away their minority character and such inclusion is clearly pondered upon in Article 29 as well as Article 30.

But, the decision of the court has shut down the entry to all non-minority children of the marginalised sections to the minority schools reasoning it to be unconstitutional.

The absurdity of this decision is felt when pondered upon the objectives of the very initiation of the RTE. It did not begin only to educate the children of the unprivileged sections, but also to disclose to the advantaged sections of the society the harsh ground reality of disparity in the country by making them split their space with the students of the underprivileged. This also included the minority schools to provide benefits to those lower sections. No doubt that there were generous values in the framers while constructing Article 30 but I am sure that they even did not aim to downfall the other purposes as well.

The room for the right to education seems to not match with the particular perspectives of rights of minorities to establish and administer educational institutions of their choice under Article 30. But it must be considered that this right is not over and above all rights.

Article 30 grants the freedom to manage a school, not to mismanage it in any sense.Laws for adequate hygiene and sanitization, up-to-mark academic criteria, etc. should strictly apply on minority schools as well.

Also, according to Article 29 clause (2), a minority school (government aided) cannot discriminate against students on reasons of caste, religion language, race in the cases of their admission.

The Pramati judgement was also poor on the ground that it fails to consider apart from the 25 percent reservation in section 12(1)(c), the RTE Act also specifies provisions on pupil-teacher ratio, infrastructural checks, ban on screentests and capitation fee. These provisions, instead of crushing the ‘minority spirit’, value both the students as well as the society.

Then, it fails to realise that the govt.-aided minority schools hold a different standing than the unaided ones and are more docile to such laws than the other.

This creates the total position of law unclear budding from a flawed opinion by the greatest court.

A constitutionally acceptable balance must be drawn between the right to education as well as a right to minority to make them jointly enforceable.

The right to education should be guaranteed universally as well as evenly.

Recently, a massive survey was funded by the HRD Ministry and conducted by NCPCR (National Commission for Protection of Child Rights) assisted by private agencies. The main objective of the study was, to ascertain that whether disallowing admission of poor students to the minority schools under a constitutional provision is in reality helping students in Muslim and Christian communities or not.

According to the sources in the NCPCR, an answer has already been asked from the states to “Study the Impact of Article 15(5) with respect to Article 21A of the Constitution of India on Education of Children on Minority Communities”.

Article 15(5) of the Constitution states that educational institutions run by the minorities under Article 30 shall be exempted from the constitutional reservation. 

This was added by the 93rd Constitutional Amendment in the year 2005 and the validity of the alteration was confirmed by the five-judge bench of the Supreme Court in the case of Ashok Thakur in 2008.

In their observation, the NCPCR and SCPCRs have stated that although the missionary schools have restricted admitting underprivileged students, the amount of Christian students in those institutions is limited and hence the objective behind article 15(5) to grant exemption to minority schools from reservation quotas with the aim to conserve their script, culture and language is not getting accomplished.

Thus, looking at these observations it seems that the provisions of the RTE should be covered universally in order to achieve the adequate benefits of it.

This suggestion to extend reservation for unprivileged children to unaided minority institutions has also been brought forward by the Draft Report on the New National Policy on Education which is headed by T.S.R Subramanian

“The committee feels that the larger national obligations to meet the rights of economically weaker sections should extend to all institutions including minority [religious and linguistic] institutions,” the report has recommended to the government.

The panel report says that “it is now important to reunite the rights of the economically weaker sections with the rights of the minorities under Article 30(1), particularly when minority institutions appear to clutch at any prop to ensure that their obligations, met by other aided or unaided schools, are circumvented.”

The report asks for added evaluation saying that it is essential to make sure that “minority institutions are established only for genuine reasons envisaged by the Constitution…; that they do not use their constitutional privilege to manoeuvre out of national obligations established in overall public interest.”

Taking in account the objective for the very establishment of the Article 21A for enabling all the citizens of the country an equal and indiscriminate access to education, it seems that reasonable restrictions need to be imposed over Article 30(1) and the Right to education under 21A should now be extended to the minority institutions as well.

Article 15(5) contradicts with the application of 21A to minority institutions and thus, in order to cover minority schools under the ambit of 21A, it requires amendment in both Article 15(5) as well as 30 clause (1).

Changes to be made in the provisions of the Constitution

I. DEFINING NEW AGE BRACKET IN THE RIGHT TO EDUCATION UNDER ARTICLE 21A

The old provision under 21A provides education rights to children from 6-14yrs. It should be extended from3-18yrs now. Thus, the new right to education under amended article 21 A will go as: 

21A. The State shall provide free and compulsory education to all children of the age of three to eighteen years in such manner as the State may, by law, determine.

II. AMENDING ARTICLE 30, BY ADDITION OF A CLAUSE (3), WHICH WILL IMPOSE REASONABLE RESTRICTIONS ON 30 CLAUSE (1)

Article 30(1) provides that All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

A new clause will be added as 30 (3) which will state that:

(3) Nothing in clause (1) of the said article shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe, Schedule Castes or any socially and educationally Backward Classes of citizens.

III. AMENDING ARTICLE 15(5) AND THEREBY REMOVING THE EXEMPTION PROVIDED TO MINORITY EDUCATIONAL INSTITUTIONS FROM CONSTITUTIONAL RESERVATIONS. 

Thus, this amendment will enable the extension of the application of Article 21A to the minority institutions as well.

The new Article 15(5) will state that:

(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State and also including the minority educational institutions, whether aided or unaided by the State referred to in clause (1) of Article 30.]

These necessary amendments in the constitution of India will aim to achieve the real meaning of the right to education in India. Education is the foundation for a person’s identity, mind-body development, a quality life of dignity, and his overall future. Thus, equal access to it must be provided to each and every citizen thus removing the unfair gaps in the nation

The new amendments will ensure 

  • Each child beginning from the age of 3 till the age of 18yrs. has widespread access to education, for his optimal upbringing and progressive future, and thus increasing the age bar from 14 to 18 will help more and more youngsters to complete higher education attract good employment schemes, qualify for various vocational skill and aptitude programmes, clear tough competitive exams, and opt for more permanent job placements which they previously could not do because of the lack of monetary resources and the age bar for free and compulsory education being limited to 14.
  • Covering minority institutions under the purview of RTE will ensure that there is reservation for the underprivileged section students in the minority schools providing equal and nondiscriminatory admission to all the students whether rich or poor and thus demarcating a clear line between rights of the minority and the right to education to all students. This will now also help in a strict regulation of the minority schools previously left unchecked, in terms of infrastructural, hygiene and sanitisation facilities, pupil-teacher ratio, quality of learning procedures, etc.

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