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Right To Education

July 29, 2019
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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:

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

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].

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

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.

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.

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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

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 

RTE Amendment Bills

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.

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

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.

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:

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

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.

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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/

     

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