This article is written by Akash R. Goswami of the faculty of law, Aligarh Muslim University. In this article, he has discussed the aspect of education as a right of every child, the RTE Act, and loopholes and challenges for the implementation of this act. 

Introduction

The root of education is bitter, but the fruit is sweet. I begin my introduction with this sweet quote, but this is very unfortunate that only half of India’s children  between the age of 6-14 go to school. 3 million children between the age of 6-14 do not attend school. And 70 million children across the world are restricted from going to school everyday. In this article, we will know about the basic need of education in regard to human rights, challenges in India regarding education, the rights associated with education, acts, amendment and allocation of funds and many more aspects in regards to the constitution of India.  

International Legal Basis

On the foundation of international recognition “Right to education” enriched in international law in Article 26 of the Universal Declaration of Human Rights, and considered basic need of every human being. In many international events such as  Article 13 and 14, social and cultural rights that everyone should have primary education right. In 1960 UNESCO, right to education again strongly stated in the convention against discrimination in education, in Europe convention which is held on 20 March 1952 states that right to education is a human right and everyone shall have the access to primary education hence to established and entitlement to education under Article 2.

United nations universal declaration on human rights adopted in 1941 states that:

“Everyone human being has the right to education. Education must be free, at least in the primary and fundamental stages. Moreover, primary education shall be compulsory. Advance and professional education shall be made generally available and higher education shall be accessible to all on the basis of merit and equality.”

To know more about the right to education in brief, please refer to the video below:

Many other international human rights treaties affirmed the right to education protected and propagate such as the following:

• United Nations pact on the rights of the Children in 1989 under article 28 and 29.
• Eradication of all type of discrimination against women 1981 under article 10.
• Convention against discrimination on the basis of employment and corruption in 1953 under article 3.

These international treaties have been working for access to the educational provision to all and also try to an annulment of discrimination at all stages of the education system and wanted to give good quality and standard of education that one should have it.

For the operation of these treaties, it’s a pleasure to mention India is a state party the CERD convention, the CEDAW convention and the convention of the rights of the child.

Some international organizations working for the promotion of education

• UNESCO
• UNICEF
• Amnesty International
• The International Labour Organization
• The World Bank

These all international organizations and treaties made out hard their efforts to eliminate the problem of poverty through education, although there are many international problems but to attain them first we have to accomplish the task of education and for this it is very crucial that every child must have access to standard quality of education (primary) and should get a chance of higher and advanced education.

Right to Education in India

Education is the process of making things learned and acquisitions of knowledge, skills, beliefs, and habits and helps to lift those who belong to socially and economically marginalized from poverty. 

India is known as the home to 19% of the world’s children. What does that mean? India is a country where the majority of youngster lived. But it is also true that one- third of the world’s illiterate population resides in India. It is not like that the rate of literacy has not been increased, it is, but the rate of growth is rapidly very slow in contrast to decline. from 1991 to 2001 the rate was 12.6% while it has declined to 9.21%.

To tackle these alarming issues, the government of India introduced the right to free and compulsory education act, RTE and making education as a fundamental right for the children’s age group of 6-14.

The Right to education act is an act of parliament proposed on 4 august 2009 which shows and highlights the model of the importance of free and compulsory education to children age group 6-14 in India. India has become one of the 135th countries to implement the right to education as a fundamental right guaranteed in our constitution under Article 21A to every child. This act came into force on 1st April, 2010.

Challenges and Implications

Although the right to education becomes the fundamental right but still a parliamentary process and largely expected to become a reality soon, determined to succeed for a country who has witnessed policy failure for a decade. We observe that education is never inexpensive, neither free nor compulsory. To make a move through legislative enactment is a major shift for the state-guaranteed education provisions given to disadvantaged groups who had witnessed the history of provisions that have consistently failed from protecting the interest of minority class.

Studies have uniformly shows that those who have excluded from the education reflects largely inequality with social, political and economic fabric likely of caste, class, and gender. Edges of exclusion are broadly possessed in occupational and social classification.

For example children of upper sophisticated class, or small families and households who are economically stable and depend on non- agricultural profession has better educated.

One of the biggest reasons which impediments India’s progress and could not enable it to achieve its high level of illiteracy, especially when the gap between discourse, debate and structural framework in all policy effort in education, and more prominently development have been the main genesis for India’s poor performance in securing the equitable educational opportunity for all. Despite the variety of commitments and right laid down in Indian constitution regarding equality is constantly failed to satisfy the ambition developed by the birth it comes to women and girls. Despite several attempts and efforts through educational reforms by the government, the most recent census (2011) reports that overall youth literacy is at 74.04% – 82.14% among males and only 65.46% for females. This data clearly shows that the dramatic disparity and indifferences in the literacy levels between genders, amounting to a gap of 16.68%. The situation is even more shoddy for women residing in rural areas. Another more crucial factor which always a wall against any policy is “Poverty” and can be blamed for many problems in India, including that of a low female literacy rate. More than two-thirds of India’s population lives below the poverty line. although the government is putting many efforts to make primary education free, many families are still not ready to send their children to school. As parents think instead of going to school which is located at a far distance from their villages or homes to go to work and earn a livelihood.

There are many more challenges, but the above discussed are creating more problems before the government while the formulation of the RTE Act.

Constitution on Education

The basic structure gives every citizen social justice and, education is a social aspect, which needs to be addressed by policymakers if the population is lacking behind literacy level than there will be no equality of opportunity to be a real provision. And if the person is not given the chance to make his/her life, free from misery and problems than one can not be attained social transformation, which is the cornerstone of education. 

 The Right to education is now become the fundamental right and included in part III of the Indian constitution under article 21-A. This was done in the case of Mohini jain vs. state of karnataka [1]. Supreme court division bench decide this case. Justice comprising of Kuldip Singh and R.M Sahai held that:

“Right to education is the essence of the right to life and directly flow and interlinked with it, and life living with dignity can only be assured when there is a significant role of education”.

Later, the validity of this judgment re-examined in by five judges bench in J.P. Unnikrishnan v. State of Andhra Pradesh [2] and held that:

“Right to education means citizen has the right to call up the state to provide the facilities of education to them in according to the financial capacity”.

The above-stated cases enumerate the right to education to be in part III being as a fundamental right. There are many more cases which seeks that right to education is a fundamental right, in the case of Maharashtra State Board of Secondary and Higher Education vs. K.S. Gandhi [3], the supreme court referred above judgment in relation to case Bandhua Mukti Morcha, etc v. Union of India [4].

• It would be therefore the necessary duty of the State to ensure the facilities and opportunity to children enjoined under article 39(e), 39 (f) of the Constitution and to prevent exploitation of their childhood due to extreme poverty and notion.

Provisions given in the Constitution promoting and strengthening the educational framework in India 

• Article 28: In our Constitution Article 28 provides freedom to attend any religious instruction or religious worship in educational institutions.
• Article 29: This article gives equality of opportunity in educational institutions.
• Article 30: Acknowledge the right of minorities to establish and administer educational institutions.
• Article 45: This article mandate the state shall dispense to provide within a period of ten years from the inception of this Constitution for free and compulsory education for all children of this country until they complete the age of 14 years. The responsibility for providing elementary education lies with the scope under state Government, the central Government, the Local Bodies and authorities, and voluntary organizations or any other government organization.
• Article 46: Talks about the special care for the furtherance of education and economic interests of the Scheduled Tribes, Scheduled Caste, OBC and the weaker sections of society.
• Article 337: This article regulates the special provision with respect to educational grants for the benefit of the Anglo-Indian community.
• Article 350B: It provides for grants and offers for linguistic minorities.
• Article 351: This article deals with the development and promotion of the Hindi language.

86th Constitutional Amendment Act

This constitutional amendment is made with regard for protecting the citizens right of education, as we know the challenges in India regarding education, so it is quite necessary for the policymakers of this country to amend the constitution and bring some changes in educational policy, so that more people in India will get the right of education, and transforms their lives towards a better future.

86th constitutional amendment act, 2002 brings three new changes in our constitution, for the better functioning, and to facilitate a better understanding of the right to free and compulsory education to the children age group between six to fourteen. (6-14)

These are:

1. Insertion of new Article i.e, 21A in part III of the Indian constitution, which provides that every child has the right to free and compulsory education of equitable quality and subject to some norms and standards.
2. Bring alteration and modification in Article 45 and substituted as the State shall endeavor to assure early childhood care and free and compulsory education for all children until they complete the age of six years.
3. Adding the new clause, (K) under Article 51A, the result of this new fundamental duty is added which states that whosoever is a parent or guardian has a duty to furnish opportunities for education to his child or, as the case may be, ward between the age group of six to fourteen years.

• In Shyam Sundar case [5]

Court held that the “right of a child should not confines only to free and compulsory education, but should be enhanced to have quality education without any discrimination on the basis of their economic, social and cultural background.

Judicial Approach

The State of Madras v. Shrimati Champakam Dorairajan [6], in this case the supreme court gives a landmark judgment. This judgment results in the First Amendment of the Constitution. Here the court held that providing such contradictory reservations was the reason for infringement of Article 29(2) of the Indian Constitution. Court held:

Fundamental rights are sacred and can not be a subject to abridged by any legislative or executive action or order except provided in part III. directive principles of state policy have to be uniform and should be run on a subsidiary basis related to a fundamental right. However, if there is no infringement/violation of rights conferred by part III of the Indian constitution, there can be no objection over, the state acting in accordance with the directive principles of state policy.

The observation of the right to free and compulsory education was put up in the case of Mohini Jain in 1992, which famously known as “capitation fee case”.

The questions to be observed in this case were:

1. Is there a clause of ‘right to education’ guaranteed to the people of India provided in the Constitution? 
2. If so, does the aspect of ‘capitation fee’ implied in the same?
3. Whether putting of capitation fee in regard to admission to educational institutions is arbitrary, unjust, and unfair and such violates the equality clause provided in Article 14 of the Constitution?

The division bench of the Supreme Court said that the ‘right to life’ is an essential element for all those rights which the Courts must enforce as they are important to the dignified enjoyment of life. The right to education moves directly from the right to life. The right to life provided under Article 21 and the dignity of an individual life is not being achieved unless it is tossed and coupled with the right to education.

Education in India can not be a product for sale. We hold that every citizen of India has the ‘right to education’ under the Constitution. The State is under a legal obligation to formed educational institutions to enable the citizens to enjoy the right mentioned above. The State may discharge its duty through State-owned or State-recognised educational institutions. When the State Government gives grants recognition to the private educational institutions it mandates an agency to fulfill its duty given and mentioned under the Constitution. The students must be given admission to the educational institutions – whether State itself owned or State recognized in bearence of their ‘right to education’ under the Constitution. Charging capitation fee for the purpose of admission to an educational institution is a violation of a citizen’s right to education under the Constitution.

Court also observed that the Constitution made it compulsory to give education to all its citizens. This interpretation solely would assist the people to metamorphose the objectives of political economic and social justice. And charging capitation fee of large sums by institutions of higher education is a repudiation of the right to education.

The Supreme Court observed the validity of the verdict given by the court in Mohini Jain in the case of Unnikrishnan.

The bench of five Judges by 3-2 majority partially agreed with the Mohini case decision and held that right to education is a fundamental right under Article 21 of the Constitution as it directly flows from “right to life”. As considered, the court partially overruled the Mohini Jain’s decision and observed that the right to free and compulsory education is available only to children until they complete the age of 14 years, after that the responsibility of the State to provide education is subject to the limits of its economic capacity. “Thus it is well observed by the decisions of this Court that the provisions of Part III and Part IV are complementary and supplementary in nature to each other and fundamental right means to achieve the goal inculcate in Part IV of Indian constitution, It is also observed that the fundamental rights should be established in the light of the directive principles”.

Right To Education Act, RTE 2009

Historical Background

• 1950: Constitution of India provided under Article 45, as one of the directive principles of State policy, which states that: The State shall endeavor to provide for a period of ten years from the inception of the Constitution, for free and compulsory education for all children until they reached the age of fourteen.
• 1968: First National Commission established for education under the supervision of Dr. Kothari and submits its reports. It introduced several far-flight changes as a uniform syllabus for both boys and girls, mathematics and science should be made as compulsory subjects and It is also proposed a common school system.
• 1976: Constitutional amendment for making education in a concurrent subject (responsibility of central and state) was passed.
• 1986: The National Policy on Education (NPE) supports to Common School System (CSS) and was formulated. Subsequent NPE’s endorsed CSS but it has never been implemented.
•  1991: A book is written Myron Wiener bearing the title The Child and State in India: Child labour & Education in comparative perspective highlighting the states’ failure to swap up child labour and exploitation on child and enforce compulsory education in India.
• 1993: The Supreme court in the case of Mohini Jain and Unnikrishnan vs State of Andhra Pradesh ruled that the right to education is a fundamental right that flows from the Right to life in Article 21 under Indian Constitution.
• 1997: Constitutional Amendment for making Education as a fundamental right was introduced.
• 2002: 86th Constitution Amendment takes place and insertion of Article 21A has been done, which states that “The State shall be bound to provide free and compulsory education to all children of the age group between six to fourteen years in such as a law, determine.” This 86th Amendment also brings changes in Article 45 which reads as “The state shall endeavor to dispense early childhood care and free education for all children until they reached the age of 6 years”. And also added a new fundamental duty under Article 51A(K).
• 2005: CABE committee report established to draft the Right to Education Bill submits its report.
• Every time a new phase or version was placed until it was presented in Parliament in 2008.
• The bill was approved by the cabinet members on 2 July 2009.
• Lok Sabha passed the bill on 4 august 2009 and the Rajya Sabha on 20 July 2009.
• It received President assent and was conferred as the law on 3 Sept 2009 as The Children’s Right to Free and Compulsory Education Act RTE, 2009. 

After many schedules of meetings, drafting and redrafting the right to education act was made which is a genuine instrument to full fill the basic demand and securing social justice for every child. This policy work on 4A’s which tells about what education means to them and their present situation in the context of this ideology.

Availability – In that sense education is free and the government is bound to fund the education and expert teachers in his/her subject and well qualified are there and sufficient infrastructure able to support educational framework.

Accessibility – Means the education is for all, there is no sense of discrimination especially to support the weaker section of the society.

Acceptability – That the value of education is appropriate, there is no discriminatory and culturally acceptable, and subject to some quality; that the school place which is harmless and teachers are well qualified.

Adaptability – That education dynamic and develop with the changing needs of society and its people and contribute to overcome the inequalities, such as sex discrimination.

Main features of the Right to Education Act 

• Compulsory and absolutely free education to all children of India, between the age group of 6 to 14.
• No child shall be put off, expelled and scold or required to pass a board examination until he reached up to elementary education.
• If a child above the age of 6 years has not been admitted to any school or may not complete his or her elementary education, then he or she shall be admitted to a class which is according to his or her age. However, if the case may be where a child supposed to be admitted in a class according to his or her age, then, in order to comparison with others, he or she shall have a right to receive special training and special care within such time limits as may be prescribed. Provided further that a child so admitted must have the right to elementary education and guaranteed free education till he/she completes the elementary education even after he/she reached the age of 14 years.
• Proof of age to take admission: For 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. Marriages and death Registration Act 1856, or on the basis of such other documents as may be provided in the annexure. however, no child shall be left out for admission in a school for lack of age proof or other documents.
• When a child who completes his/her elementary education shall be given a certificate
• Call needs and attendance need to be taken for a fixed student-teacher ratio.
• Twenty-five percent reservation for economically disadvantaged and weaker communities in admission to Class I in all private schools is to be compulsory.
• Improvement in the quality of education should be dynamic and important.
• School teachers will need adequate professional degree within five years or not fulfill the condition might lose the job.
• School infrastructure (if there is a problem) need to be improved in every 3 years, else recognition to that particular school will be canceled.
• The Financial burden will be shared between the central and the state government as an educational subject comes under the concurrent list.

RTE Amendment Bills

• The Parliament has given its assent for the Right of Children to Free and Compulsory Education (Amendment) Bill, 2018.

The amendment bill does away with the no-detention policy mentioned in the law. Prior to this a child can not be held back or detained until he completes his elementary education. But after the amendment its depend on the state to continue the policy of non-detention or not.

Or the state may conduct the examinations either at the end of the 5th class or 8th class or both. The Student who failed in the examination will be given instruction and opportunity provided to appear for re-examination as per prescribe 2 months after the declaration of result.

• The Right to free and compulsory education to children (Amendment) Bill, 2017. The Bill provides to amend the Right of Children to Free and Compulsory Education Act (RTE), 2009 to extend the last date for teachers to acquire the prescribed minimum qualifications for the purpose of the appointment.

Unqualified and untrained elementary teachers to complete their training and ensure that all teachers at the elementary level have a certain minimum standard of qualification. It will help to ensure that all teachers have minimum qualifications as deemed necessary to maintain the standard of teaching quality.

Challenges for the implementation of the RTE Act

• The issue to share the burden 

This act made accountable to state and local bodies for its implementation. State tells that the local bodies are not sufficiently in its financial capacity to cover all the school bought under universal education. In that case, a center that holds most of the revenue tax has to support the state. The Anil Bordia Committee was set up by the HRD ministry to harmonize Sarva Shiksha Abhiyan and RTE Act. And the committee asked to look into the requirements of funds. Initially estimated that 1,71,000 crore required to implement the Act for the next five years. The committee argued for central it is a higher financial burden and it should be a 50:45 sharing ratio for the current year and 50:50 (2011-12). This seems very unrealistic for the state as the state should have to double their allocations. However, in April 2010 central agree to share the funding in raion 65:35 between center and state and a ratio of 90:10 in the matter of north-east state.

• RTE challenged by private schools

Right to education define school under aided by Government funds or by local bodies not aided by Government and school authorities.

this impliedly means private schools also comes under this act and mandate for all to hold up 25% seats for economically weaker section children and for reservation merit. By posing this rule, affect the business of private school and violates fundamental right provided under Article 19 1(G). But 19 (6) mandates the above article and which says that nothing in sub-clause (g) of the said clause shall affect the course of any operational law in so far as it imposes, or restrict the State from making any law imposing, in the contradiction interests of the general public, reasonable restrictions on the exercise of the right conferred. RTE was challenged before the Supreme Court as an unconstitutional infringement on the rights of private and minority schools.

On 12 April 2012, a three-judge bench of the Supreme Court gives its judgment by a majority of 2-1. Chief Justice SH Kapadia and Justice Swatanter Kumar held that providing such reservations is not illegal and unconstitutional, but observed that the Act will not be applicable to unaided private minority schools and boarding schools. However, Justice KS Radhakrishnan dissented with the view and held that the Act can not apply to both minority and non-minority private schools which do not receive any fund or grant from the government.

Free Uniform, Books under RTE Act

Each and every child from class 1st to class 8th will get the free books of course and uniform if the roadmap prepared by the central to implement the right to education act and the same accepted by the state.

Meeting of state education secretaries held recently and some given below point tabled:

• About 7.8 lakhs additional classrooms and 7lakhs girls toilet have to be created for the implementation of this act. And the government will spend 1.71 lakh crore for the next five years to implement this law.
• Every child will be provided by uniforms @ 400 per annum, and some states provide the uniforms from their budget. It is mandated that the uniform will be provided by the state government.
• Every child has to given free textbooks and the child having special care will get 3000 per annum for inclusive education and disabled students for the home-based study will get Rs. 10,000 per annum.
• Rs. 1.71lakh crore will be spent on infrastructure and for the training of untrained teachers, teachers’ salaries and civil work depend on 28% and 24% respectively.
• A Requirement of additional 5.1 lakh teachers to bear the rate of pupil-teacher ratio.
• Nearly about 27,000 kaccha school building upgrades.
• 17% will be spent on child requirements, and 9% will be spent on special training for children out of school. And for requirements of school, it will be maintained by 8% and for inclusive education, 6% set aside.
• RTE mandates free from barrier education to all children irrespective of caste, sex, and religion with special needs and one classroom per teacher.

Suggestions for making RTE effective

1. The scope of the Right to Education act should not be limited to the age of 14 years it should be extended to the secondary level also. The government should make some modifications like introducing diplomas/degrees/courses with specialization in IT, software mobile communication, media, entertainment, telecommunication, automobile, construction or need of the requirement.
2. CSS ( Common School System) was an important step and go hand in hand for attaining equality decades ago, however now it must be changed into MSS (Model school system) based on the dynamic nature and demands of the society where education should be provided free of cost and on joint venture with private institute patterns.
3. Parents need to play a ruthful role in making RTE policy to be a success in India and, for this regards government mandate this as a fundamental duty of guardians and parents. Moreover, it can be done only by motivating them through counseling and guidance, and they must be made alarming about the RTE Act through media, pamphlets campaigns, hoardings, rallies, etc. only then we can aware all people about the importance of education and should expect that our future generations will be well educated.
4. Schemes like mid-day meal, SSA, RMSA accompanied by the world organization like UNICEF are playing an important role in increasing the massive enrollment ratio. By securing beginning and basic education to Indian children. However these international and national agencies should more be focused over weaker sections of the society, economically backward, females and highly populous states of India, these states should be a topmost priority to improve the quality of this act.
5. Most importantly local authorities and governing bodies should get involved so as to ensure the enrolment of the newborn babies and their record should be sent to a neighborhood school. After that school authorities take care and follow up the child and sent the information for registration and admission to his/her parents without any delays.
6. The Provision regarding severe punishment for the abusement of this act should be made out and the responsibilities of the central government, state government, teachers, parents, and administrators, Owners of the school, have to be fixed. It should be made necessary for all the government employees; whether working under state or center or person working under center or state-funded agency, should send their children in government or in government-aided institutes for the promotion of these schools.

RTE Available only form class 1st to 8th

The Most fundamental drawback of the RTE Act is that it only covers children’s age group for up to fourteen years. What for the children who are above then fourteen years of age? What about the student who wants to pursue higher education, forget about higher education what if the child after 8th standard do if he/she is not able to afford education. However, the government did well in this regard and adopted the system of baseline test every 2 or 3 months so to check the student’s knowledge. This system is borrowed from the USA program called no child left behind. So as to find out the interest of a child what he/she does, once the elementary education completes.

Objects of RTE

• As RTE drafted to provide free and compulsory education to every child of this country so as to know one left behind to get social justice.
• As the statistics tell us that the rate of literacy in India is increasing very low so to boost up and made India as a developed economy there must be an enhancement of literacy level.
• To provide assistance to the weaker and economically backward class so they also have some social transformation.
• As the right to education is a basic human right so to ensure this, RTE mandates the educational structure of the country.
• As studies show that there is huge sex discrimination in education, girls will not be allowed to study further due to her expense of marriage, but after making education free and compulsory the ratio gap is covered to some extent.
• Children with disability treat as worthless as their parents find them as a burden but disability comes with talent and government by this act provide grievances to those children who are disabled, and give them assistance and 10,000 per annum, so that they will also have life.
• Through this act people aware of the importance of education in one’s life to mark up their performance towards a better future.
• RTE, fundamentally aims that in India no child is deprived of having the right to education, as education plays an important role so if you invest in it today the interest over it will be handsome in the future.

Conclusion

Generally, education covers 5% of the GDP of any country to support their social transformation. Education is a key to grow finer or one step ahead who is not educated. Education is a powerful tool to provide an opportunity for a human being to develop to the fullest. for the advancement and promotion of the right to education UN human declaration, many more conventions mention about right to education. UNICEF, UNESCO and AMNESTY international organization made tremendous efforts to promote education right to education worldwide. After adopting the right to education India becomes the 135th country to have this law.

Parliament of India through an 86th constitutional amendment made the right to education as a fundamental right under Article 21-A . and for better formulation of the educational framework also enacted an act that is right to the education act. Which provide free and compulsory education to children age group 6-14. And have some features which mandate state and local bodies to provide a right to education to every child of this country and if not, they all are accountable for that. The rate of literacy is still under construction so in order to make this rate on increasing then there should be more act and ordinance of right to education will be accompanied. Then only India can transform into a developing nation, and will never set back as the citizens are educated.

References

1. 1992 AIR 1858, 1992 SCR (3) 658
2. 1993 AIR 2178, 1993 SCR (1) 594
3. 1991 SCALE (1)187
4. (1997) 10 SCC 549
5. https://indiankanoon.org/doc/48937/
6. AIR 1951 SC 226
7. https://www.lawctopus.com/academike/right-education-india/