Legal education

This article is written by Satyaki Deb, a final year B.A.LL.B.(Hons.) student from the Department of Law, Calcutta University. This article provides an exhaustive overview of the Right to Education Act, 2009 (RTE Act) with relevant case laws from an analytical viewpoint.

This article has been published by Sneha Mahawar.

Introduction

“Right Education should help the student, not only to develop his capacities but to understand his own highest interest.”                             -J. Krishnamurti

The Right of Children to Free and Compulsory Education Act, 2009, widely known as the RTE Act or Right to Education Act, 2009 (hereinafter referred to as the Act or RTE Act) was passed by the Rajya Sabha on 20th July, 2009 and Lok Sabha on 4th August, 2009. It ushered in as a blessing for the millions of children in India when it came into effect on 1st April, 2010 after receiving the President’s assent on 26th August, 2009. Now, every child between the age of six to fourteen years, as a matter of right, can have access to free and compulsory education. Every single child of 6-14 years, irrespective of his/her caste, religion, gender, wealth, place of birth, etc., is now entitled to free and compulsory education.

A brief overview of the RTE Act

Scope and applicability of the RTE Act

Irrespective of any differences, the RTE Act provides for all children between the age group of 6-14 years free and compulsory education. Post the Jammu and Kashmir Reorganisation Act, 2019, the Right to Education Act, 2009 applies to the whole of India w.e.f. 31.10.2019. 

Even though this Act extends to the whole of India, regarding the scope and applicability of this Act, there are certain limitations viz:

Significance of the RTE Act

The Right to Education Act, 2009 has been pivotal in the domain of education. The importance of this crucial legislation are as follows:

  1. The RTE Act has conferred entitlement upon all children between the age group of six to fourteen years without any bias and this rights-based approach towards implementation of free and compulsory education has cast a legal duty upon the state to implement the fundamental Right to Education of the child.
  2. Not only do the children now have the right to free and compulsory education, but they also have the right to receive such education from qualified and trained teachers.
  3. The goal and the values of equality and social justice are becoming a reality with the RTE Act and its inclusive elementary education for all formula.
  4. Education being a topic under the Concurrent List in the Seventh Schedule, this RTE Act lays down specific policies and guidelines to be followed by the Central Government, state government and even local bodies in the course of ensuring the Right to Education.
  5. The minimum 25% reservation for weaker sections and disadvantaged groups of children from Class I itself in almost all types of schools provides the critical mass necessary to make a change.
  6. The RTE Act has a zero-tolerance policy for any sort of discrimination meted out to the children studying under the reserved quota. The no screening policy under the Act ensures that no children miss out on their fundamental right to free and compulsory education because of their caste, religion, etc.
  7. No child shall be expelled from a class till class 8 because of this Act and this goes a long way in ensuring no kid misses out on his elementary education. 
  8. This Act provides for quality education imparted by qualified and trained teachers in a proper teacher-student ratio.
  9. Quality Education is also provided for by this Act by ensuring a proper school atmosphere and better infrastructure norms which include proper classrooms, drinking water facilities and separate washrooms for boys and girls.
  10. This Act seeks to achieve better social integration and is pivotal to the building of a just and humane society.
  11. An easy transfer policy for the child is available under the RTE Act.
  12. The number of enrollments of children at the lower and upper primary level has increased a lot since the inception of the RTE Act.
  13. India’s literacy rates have increased at a much faster pace because of the RTE Act.

Free and compulsory education as a Directive Principle

Some provisions of the Directive Principles of State Policy under Part IV of the Constitution contained the roadmap to the inclusion of the Right to Education under the solemn category of fundamental rights before the right to free and compulsory education became a fundamental right for all children between the age of six to fourteen years.

Since the Indian Constitution came into force shortly after independence from 200 years of colonial rule, it was impossible to include and implement the Right to Education as a fundamental right at that stage of severe economic crisis. The original Article 45 stated that the state shall endeavour to provide free and compulsory education for all children up to the age of 14 years within a period of 10 years from the commencement of the Constitution (26th January, 1950). But unfortunately, much more than one decade passed since 1950 before the Right to Education got the glamorous spotlight of Fundamental Rights.

Along with Article 45, the interplay of some other Directive Principles viz. Article 41 (Right to Education), Article 46 (promotion of educational interests of SCs/STs and other weaker sections of the society), Articles 39(e) and (f) (protection of children) resulted in the laying down of the dimensions and parameters of the Right to Education as a fundamental right by the Judiciary. Thus, in the light of these Directive Principles, Right to Education means-

  1. All children have the right to free and compulsory education up to the age of 14 years.
  2. Thereafter, his/her Right to Education is subject to the economic limitations of the state and its development. 

It may be noted in this regard that the usage of non-justiciable Directive Principles to usher in the justiciable Fundamental Right to Education was only to lay down the parameters of this fundamental Right to Education. In no way does it mean that the other Directive Principles get automatically included under the ambit of justiciable fundamental rights. 

Right to Education as a Fundamental Right

Right to Education under Article 21of the Indian Constitution

Before the Right to Education Act came into the picture, it was the Supreme Court that held that the Right to Education falls under the hallowed walls of the fundamental right to live with dignity guaranteed under Article 21 because education ensures a good and dignified life. 

It was in the Unni Krishnan, J.P & Ors v. state of Andhra Pradesh & Ors. (1993) case, where a 5 Judge Constitutional Bench (in the ratio of 3:2) of the Supreme Court held conclusively after partially overruling a previous judgement that the Right to Education is a fundamental right under Article 21 of the Constitution for children up to the age of fourteen years. Beyond the age of fourteen years, the Right to Education becomes subordinate to the economic means of the state and its development. The Directive Principles of Article 41, Article 45 and Article 46 were used to define the parameters of the Fundamental Right to Education.

Right to Education under Article 21-A of the Indian Constitution

To give better effect to the Unni Krishnan judgement, the Parliament passed the 86th Constitutional Amendment Act, 2002 (w.e.f. 1.4.2010) which inserted Article 21-A under Part III of the Constitution envisaging the fundamental right to free and compulsory education for all children between the age group of six to fourteen years. Article 21-A has been hailed as the most significant of all fundamental rights because one’s ability to enforce his fundamental rights comes from his education. This was observed in Ashok Kumar Thakur v. Union of India (2008 SC).

Also, it may be noted in this regard that under Article 21-A read with Article 19(1)(a), every child has the right to have the medium of education in the language of her choice. This was held in the state of Karnataka  Vs. Associated Management of (Government Recognised – Unaided – English Medium) Primary & Secondary Schools &.Ors (2014)  

Moreover, under Article 21-A every child has the fundamental right to receive an education free from fear of security and safety because the children have a right to receive education in a sound and safe building with certain fire safety precautions in place as observed in the Avinash Mehrotra v. Union of India & Ors. (2009) case.

With the advent of Article 21-A, India joined the club of about 135 countries where children enjoy education as a fundamental right.

Right to Education as a Fundamental Duty

The 86th Constitutional Amendment Act, 2002 also inserted Clause (k) under Article 51-A envisaging the fundamental duty of a parent or guardian to provide opportunities for education of his child or ward between the age group of six to fourteen years. This was added to encourage and prompt parents and guardians to bring their children or wards to schools for education.

International legal basis of Right to Education

In the international sphere, various treaties including covenants, conventions, charters, declarations, recommendations, etc., have recognised the Right to Education. Compared to recommendations, declarations and other soft laws, treaties ensure the strongest guarantees because they impose an obligation upon the state. 

Article 26 of the Universal Declaration of Human Rights (UDHR) declares boldly that everyone has the Right to Education and with the adoption of UDHR, many international and regional treaties came into place to reaffirm the solemn Right to Education. Some of the treaties that uphold the glorious Right to Education are as follows:

A more comprehensive overhaul of the international basis behind the Right to Education, though beyond the scope of this article, can be accessed here.

Features of the RTE Act

The salient features of the RTE Act linked up with their relevant provisions are as below:

  1. Right to free and compulsory education (Chapter II of the Act): 
  2. Fundamental right of every child between the age group of 6-14: 

According to Section 3(1) of the RTE Act, every child of the age group of six to fourteen years shall have the right to free and compulsory education in a neighbourhood school till the completion of his or her elementary education.

  1. No fee or charges or expenses:

According to Section 3(2) of the RTE Act, no school fees, capitation fees, charges or expenses are to be borne by a child to get elementary education which may prevent him or her from pursuing and finishing his or her elementary education.

  1. Free textbooks, writing materials, uniforms:

Corollary to the provisions of Section 3(2) of the Act, every student is entitled to free textbooks, writing materials and uniforms.

  1. Applicable even to children with disabilities:

According to Section 3(3) of the RTE Act, any child with disabilities will also have the right to access free and compulsory education at par with children with disabilities under the provisions of Chapter V of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Moreover, according to the Proviso to Section 3 of the Act, any child with ‘multiple disabilities’ or ‘severe disabilities may also have the right to home-based education.

  1. Special provision for children lacking pre-school education after 6 years:

Section 4 of the RTE Act comes to the rescue of children who missed or lack in their pre-school education. In other words, Section 4 protects the children who even after six years of age were not admitted to schools or though admitted could not complete their elementary education. This Section states that the children are to be admitted in a class appropriate to his or her age and special classes are to be given to the student to bring the candidate up to date with the rest of the class. Also, for such a child who joined late, he or she shall have the right to free and compulsory education even beyond the age of fourteen years till the completion of his or her elementary education.

  1. Right of transfer to other schools:

According to Section 5 of the RTE Act, if a school fails to provide the requisite facilities to complete the elementary education, any student shall have the right to transfer his school to any other school other than a school belonging to a specified category or an unaided school. 

2)  Duties of appropriate govt., local authority & parents to establish schools:

Section 6 of the RTE Act lays down the duty upon the state to establish schools in neighbourhoods for the purpose of implementation of the provisions of this Act within three years of the commencement of the Act. 

3) Sharing of financials and other responsibilities:

According to Section 7 of the RTE Act, both the Central Government and the state governments shall have concurrent responsibility for providing and sanctioning funds for enforcing and carrying out the provisions of this noble Act. The Central Government shall develop a national framework of the curriculum with the help of proper authority, develop and enforce parameters for the training of teachers, and provide technical support and resources to the state government for promoting innovations, research, planning and capacity building.  

4) Duties of appropriate government and local authority:

According to Section 8 and Section 9 of the RTE Act, it is the duty of the appropriate government and local authority respectively to ensure that the children are getting their Right to Education guaranteed under the Constitution and RTE Act, ensure that the children from economically weaker sections and disadvantaged groups are not facing any discrimination etc.

5) Duty of parents and guardians:

According to Section 10 of the RTE Act, it shall be the solemn duty of every parent or guardian to admit his or her child or ward, as the case may be, to an elementary school in the neighbourhood for an education.

6)  Appropriate government to provide for pre-school education:

According to Section 11 of the RTE Act, in order to sufficiently prepare children below the age of six years for elementary school education, the appropriate government may take due measures to freely educate such children above the age of three years.

7) Minimum twenty-five percent reservation:

According to Section 12 of the RTE Act, a minimum of twenty-five per cent reservation for the economically weaker and disadvantaged group needs to be kept at all aided schools. Even the schools belonging to specified categories and any unaided schools not receiving any kind of aid or grant from the government or local authorities are required to keep the stipulated reservation of a minimum of twenty-five per cent mandated by the RTE Act.

8) Reimbursement to unaided schools:

Section 12 of the Act also lays down provisions by which the unaided schools carrying out the Right to Education duties under the RTE Act are reimbursed for expenditure incurred by it. 

9) No capitation fees and screening procedure:

According to Section 13 of the RTE Act, no children or their parents are to be subjected to any sort of screening procedure or required to pay any capitation fees for admission purposes. 

10) Proper pupil-teacher ratio:

Section 25 of the RTE Act lays down provisions for a proper pupil-teacher ratio so as to ensure that in the attempt of reaching the masses, the quality of education imparted does not slide down.

Important case laws related to Right to Education

SL.NoCase LawsCourt; BenchHeld/Observations/Directions related to Right to Education
1.Mohini Jain v. State of Karnataka, 1992(capitation fee case)Supreme Court, Two Judge BenchThe Court accepted that expressly Right to Education as a fundamental right has not been laid down, but reading Article 21 along with Directive Principles in Articles 38, 39, 41 and 45 the Court opined that the Constitution framers wanted to put a mandatory obligation on the state to provide education to its citizens.   The Bench further declared that charging a capitation fee amounted to discrimination on a class basis thus violating Article 14 of the Constitution. The Bench took an absolutist view in imposing the state’s obligation to provide education at all levels.
2. Unnikrishnan, JPv.State of Andhra Pradesh, 1993 Supreme Court, Five Judge BenchThe Mohini Jain Case came to be reconsidered before a higher bench in this case. The Court reiterated that the Right to Education is a fundamental right flowing straight from the right to life guaranteed under Article 21. But the Court also laid down that the parameters of this Right to Education were not absolute. Instead, the dimensions of this right were to be determined in light of the Directive Principles enshrined in Articles 41, 45 and 46. Thus, the Court partially overruled the expansive view of the state’s obligations to provide education for all levels and held that: Every citizen (child) has the right to free education till the age of 14 years. After 14 years, such a right will depend on the economic capacity and development of the state. Regarding capitation fees, the Court held that the private unaided educational institutions can charge higher fees but have to restrict themselves within the fixed ceiling.
3.TMA PAI Foundation v. State of Karnataka, AIR 2003 SCSupreme Court,11 Judge Bench(6:5 majority)The scheme of conditions like the restriction of fees up to a certain limit etc. imposed by the Unni Krishnan judgement was held to unreasonable restriction under Article 19(6) of the Constitution. This scheme was replaced by another judicially evolved scheme elaborated in the case of Islamic Academy of Education v. State of Karnataka, 2003 and PA Inamdar v. State of Maharashtra, 2005.
4.Pramati Educational & Cultural Trust v.Union of India,2014 Supreme Court, Five Judge BenchThis case was a reference from the 3 Judge  Bench judgement in the 2010’s Society for Unaided Private Schools of Rajasthan v. Union of India and ors. Case. In this case, the Bench upheld the constitutional validity of the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) and Article 21-A. This was a reaffirmation of the court’s earlier position in the Society case. The later part of the Pramati Case exempts all minority institutions from the ambit of the RTE Act. This is an increase of the ambit of exemption from the Society of unaided pvt. school case, which had limited it to unaided minority institutions. Minority institutions here mean both religious and linguistic minorities, as prescribed within the Constitution.
5.Action Committee Unaided Recognised  Schools v. Justice For All, (2021)Supreme Court, Two Judge BenchThe Court observed that to make Article 21-A a reality, the urgent need of underprivileged children i.e. economically weaker and disadvantaged children to have proper access to online education cannot be denied. The Court further observed that the state cannot shake off its obligations under Article 21-A and the RTE Act to children between 6 to 14 years citing a lack of funds.

Implementation of the RTE Act

The implementation of this noble Act has faced its own share of hurdles and even can be called lackadaisical in some aspects. It must be noted in this regard that Article 21, Article 21-A, RTE Act are mere tools. Unless collective efforts at all levels are present and working in synergy, transforming this dream into a reality will remain uncherished. 

For smooth implementation of the Right to Education Act proper monitoring and evaluation processes is necessary which are described below:

(i) School Management Committees (SMCs):  SMCs include elected representatives of the local authority, teachers at the school, parents or guardians of students enrolled in such schools and act as a connecting link between the local community and the school. They also oversee that the schools are meeting their basic requirements from time to time. The delays in the formation of SMCs should be avoided for then the continuous assessments and inspections conducted by them that ensure proper implementation of the RTE Act will be jeopardised. The states should also develop their School Development Plans (SDPs).  SDPs are strategic and well-structured plans prepared by the SMCs for increasing the efficiency in school functioning. Thus the SMCs should be formed in a timely fashion and they should meet frequently for the better implementation of the RTE Act.

(ii) Internal audit: The internal audit of the RTE under the Sarva Shiksha Abhiyan (SSA) Scheme by the Chief Controller of Accounts should be conducted at the central level instead of conducting them through the internal audit wings of the concerned ministries/departments for smoother implementation of the provisions of RTE Act; and  

(iii) The National Advisory Council (NAC): The NAC was set up in 2010, as per Section 33 of the RTE Act, to advise the Central Government on proper implementation of the provisions of the RTE Act, 2009. Unfortunately, this body has remained largely futile as it has not been reconstituted since November, 2014, thereby being non-existent after 2014. NAC should be reconstituted at the earliest to properly guide the Central Government in the proper implementation of the RTE Act.

Criticisms related to the RTE Act

Some of the criticisms hurled at the Right to Education Act, 2009 are as follows:

  1. Lack of quality education: The quality of education imparted even after more than a decade of implementation of the RTE Act is pretty abysmal. A huge number of the teachers still remained untrained. Students of such schools are unable to comprehend their expected level of education done by their counterparts in standard city schools. Mere rote learning is the day to day business even in best-case scenarios. Lack of focus in the Learning Outcome process in the provisions of the RTE Act is silently eating away at the fruits of the Act. Also, the lack of proper provisions envisaging disciplinary actions against teachers being negligent in imparting their constitutional and statutory duties towards the Right to Education has contributed to the serious fall in the quality of education.
  2. Incidents of corporal punishment: Even though any sort of corporal punishment is strictly prohibited by the RTE Act under its Section 17, in reality, such physical punishments and mental harassments go on rampant and to make matters worse, the children are unaware of their rights regarding not to be physically beaten by their teachers. High levels of absenteeism because of corporal punishment by teachers are becoming an unfortunate reality and this totally sidetracks the process of education.
  3. Lack of proper infrastructure: The absence of safe and secure infrastructure is another menace. The prescribed provisions in the Schedule of the RTE Act read with Sections 19 and 25 of the RTE Act like proper teacher-student ratio, separate toilets for boys and girls, ramps for the physically disadvantaged and other norms and standards for the schools are missing in most schools. Inefficient fund channelisation and misuse of fund money have stood as a giant hurdle in the path of proper school infrastructure.
  4. Lack of care towards children outside the age mandate: Another major realistic drawback of the RTE Act provisions is that such provisions only cater for students between the age group of six to fourteen years. But from the age of two and half years only, most pre-school learning starts. The provision of Section 11 of the RTE Act and Article 45 of the Constitution asking the state to take proper measures at the preschool level is the only directory in nature. Thus, though the RTE Act allows the joining of children at any level suited to them, the absence of any proper bridge courses/classes or absence of free and compulsory education before the age of six years creates practical hurdles in the learning pathway of the children. If the RTE Act included all children between the age group of three to eighteen years at the least, many practical problems faced by the children and their poor and disadvantaged family members can be sorted out.
  5. Lack of coordination with child labour prohibition laws: Another important reason for the reassessment of the age group under the RTE Act is because till date millions of child labourers are slogging away in the shadows. Most of these children are outside the age group of six to fourteen years. In the absence of proper sync and due reference between the provisions of the RTE Act and the Child Labour (Prohibition and Regulation) Act,1986, proper mitigation of social evils like child abuse, child labour will not become a thing of the past. Provisions curbing child labour along with their Right to Education will create stronger and better chances of bringing the children to the schools from their terrible workplaces.

The Right to Education (RTE) and Nation Education Policy (NEP)

National Educational Policy (NEP), though not devoid of criticisms, inter alia aims to reinforce some of the provisions and fill some of the lacunae of the Right to Education (RTE) Act. In the light of NEP, some of the provisions of the RTE Act are as follows:

  1. The RTE Act provides for free and compulsory education to children of age 6 to 14 and there is a possibility under NEP that the age bracket will be revised to 3-18 years. 
  2. The Central Government is becoming more involved in education through the NEP and this will help in better implementation of the Right to Education.
  3. NEP provides for better optimization of the pupil-teacher ratio (PTR), safe and proper school infrastructure and quality teacher training has been emphasised for creating access to quality education even in rural areas and thus fulfils the practical gaps of RTE.
  4. Child labour should have been a thing of the past by now because of the RTE but unfortunately, it still exists and now NEP aims a strong blow at the curse of child labour by skilling the children and making them industry/market-ready. From an employee manufacturing study model the shift to an employer building study model boosts the underlying principles of the RTE Act.
  5. RTE Act did away with corporal punishment in the interest of the psychological well-being of students and the NEP reinforces this idea with several of its provisions viz. the mandatory availability of counsellors in schools for the emotional wellbeing of the children.
  6. Also, the draft NEP of India recommends the addition of Early Childhood Care and Education (ECCE) within the scope of the RTE Act thereby strengthening the provisions of the RTE Act.
  7. The RTE Act was extremely crucial in curbing unrecognised schools and unregulated coaching and the NEP goes a step ahead and proposes to revise assessment frameworks and competitive exams to check the rat race of corporate coaching culture.
  8. Even though the RTE Act has provisions to improve the quality of education, the NEP further strengthens the goal of quality education and takes India a step closer to becoming a global superpower.

Amendments related to the Right to Education Act, 2009

86th Constitutional Amendment:

 The 86th Constitutional Amendment Act, 2002 brought in three key changes in the domain of education, viz:

Insertion of Article 21-A

With the insertion of Article 21-A under Part III of the Constitution, the Fundamental Right to Education as propounded in the Unni Krishnan, J.P & Ors v. state of Andhra Pradesh & Ors. (1993) case got laid down in stone. Unlike most developed countries, where it is the parents’ or guardians’ duty to make sure their children or wards are going to school, Article 21-A puts that burden on the state. According to Article 21-A, every child between the six to fourteen years of age group is entitled to receive free and compulsory education.

Insertion of Article 51-A(k)

In the list of fundamental duties, the 11th fundamental duty was added in the form of Clause(k) after Clause (j) under Article 51-A. According to Article 51-A(k), a parent or guardian is to provide opportunities for education to his child or ward, as the case may be, between the age group of six to fourteen years.

Amendment of Article 45

By substituting the old Article 45 with the new one under Part IV of the Constitution, the provisions for early childhood care and education for children below the age of six years were laid down. According to the new Article 45, the state shall endeavour to provide early childhood care and education for all children without any discrimination till the completion of the age of six years.

It may be noted in this regard that all these Amendments brought in by the 86th Constitutional Amendment Act, 2002 came into force on 1st April, 2010 along with the Right to Education Act, 2009.

Right of Children to Free and Compulsory Education (Amendment) Act, 2019

The Right of Children to Free and Compulsory Education (Amendment) Act, 2019 came into force on 1st March, 2019 and brought in a key change to the policy of no failing of students till class 8 by amending Section 16 of the RTE Act. The changes are as follows:

  • According to the amended Section 16, there shall be regular exams for all the students at the end of class 5 and class 8. 
  • Any students failing such exams will get a chance for re-examination within two months of such declaration of the result after getting additional instructions. 
  • In very rare cases, schools can fail students with the permission of the government after failure in the re-examination. But under no circumstances a student will be expelled till the completion of his or her elementary education.

Conclusion

The importance of education in today’s digital and fast-paced world is pretty evident. After more than sixty decades of India’s independence, the Right to Education got the solemn status of a fundamental right thereby turning the dream of the Constitution framers into a reality. This watershed legislation in the field of education is the crown jewel that other states only dream of. But unless the loopholes and the grey areas under this noble Act are patched up properly with due efficacy and its proper implementation is enforced, this great Act might inevitably meet the sad fate of an old toothless and clawless tiger.

References


Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

LEAVE A REPLY

Please enter your comment!
Please enter your name here