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Posted: March 2nd, 2024
The importance of learning in enabling the individual to put his potential to optimal use is self-evident. Without education, the training of the human minds is incomplete. UNESCO believes that education is an essential human right and achieving this for all children is one of the biggest moral challenges of our times. In addition, the right to education is enshrined in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child.
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India has the largest student population in the world with over 13.5cr pupils in primary education followed by China at over 12.1cr pupils at this level. With a literacy rate of 61% India ranks a disappointing 172nd on this front. Educating such a large population is not only an expensive task but also a very difficult one. Of the nearly 200 million children in the 6 to 14 age group, more than half do not complete eight years of elementary education, as never enrolled or dropouts. Of those who do complete eight years of schooling, the achievement levels of a large percentage, in language and mathematics, is unacceptably low.
Firstly, there is the problem of access. School education is simply unavailable to the vast number of children in the country. During the last few decades, there has been some progress in improving enrolment. The gross enrolment ratio (GER) from Classes I to VIII was 94.9 per cent and from Classes I to XII, 77 per cent. [1] Even these enrolment figures are generally rigged and exaggerated for various administrative and political purposes. Moreover, the attendance has generally been found to be at least 25 per cent below enrolment and the drop-out rate from Classes I to X was 61.6 per cent; and in a State like Bihar it was above 75 per cent. Among those who drop out, the percentage of children belonging to the Scheduled Castes in the country as a whole was 70.6 and of the Scheduled Tribes, 78.5. In Bihar, the figure was close to 90 per cent for both the categories. The net result is that a sizeable percentage, as much as 30 per cent, of children in the school-going age in India are out of school; the percentage is as high as 50 in Bihar (1.5 crores out of three crore children in the school going age-group).
Even though nearly all educationally developed countries attained their current educational status by legislating free and compulsory education – Britain did so in 1870 – India has dithered and lagged behind in introducing such legislation, with grave consequences.
The Act is important because it is the first step in the direction of the government’s active role in ensuring implementation of the Constitutional Amendment. And as important, the Act:
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Legislates provision of free and compulsory elementary and secondary education
Provides for a school in every neighbourhood
Provides for a School Monitoring Committee – elected representatives of the community to ensure proper functioning
Mandates that no child in the age group 6-14 shall be employed
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All this are right steps to lay the foundation for the development of a common public school system that can provide quality education to all the children, thus preventing exclusion of socially and economically disadvantaged population.
Only 53 per cent of all habitations have a primary school
On an average, an upper primary school is 3 km away in 22 percent of habitations
More than 50 percent of the girls in the country do not enrol in schools
When working outside the family, children put in an average of 21 hours of labour per week, at the cost of education
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60 million children are thought to be child labourers
More than 35 million children in the 6-14 age group are out of school
Only 45.8 percent girls complete education in rural areas as compared to 66.3 percent boys. In urban areas, 66.3 percent girls complete education as opposed to 80.3 per cent boys
Of the seven lakh rural schools, only one in six have toilets
The first law on compulsory education was introduced by the State of Baroda in 1906. This law provided for compulsory education for boys and girls in the age groups of 7-12 years and 7-10 years respectively. The first documented use of the word right in the context of elementary education appears in a letter written by Rabindranath Tagore to the International League for the Rational Education of Children in 1908. In 1911, Gopal Krishna Gokhale moved a Bill for compulsory education in the Imperial Legislative Council, albeit unsuccessfully. The Legislative Council of Bombay was the first amongst the Provinces to adopt a law on compulsory education. Gradually, other Provinces followed suit as control over elementary education was transferred to Indian Ministers under the Government of India Act, 1919. However, even though Provincial Legislatures had greater control and autonomy in enacting laws, progress in universalising education was poor due to lack of control over resources.
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In 1937, at the All India National Conference on Education held at Wardha, Gandhi mooted the idea of self-supporting ‘basic education’ for a period of seven years through vocational and manual training. This concept of self-support was floated in order to counter the Government’s constant excuse of lack of resources. The plan was to not only educate children through vocational training/manual training by choosing a particular handicraft, but also to simultaneously use the income generated from the sale of such handicrafts to partly finance basic education. Furthermore, education was supposed to be in the mother tongue of the pupils with Hindustani as a compulsory subject. Two other interesting features of the Wardha Scheme are as follows:
First, within the ‘basic education course’, there were two divisions, the ‘lower basic’ or ‘primary’ corresponded to classes I-V. The ‘upper basic’ or ‘post-primary’ corresponded to classes VI-VII. The division between primary and post primary was created with a view to giving pupils the option of shifting to another form of education if they so desired after the first five years of ‘basic education’.
Second, a minimum wage for teachers was stipulated under the Wardha Scheme. Based on these ideas, the Wardha Scheme of Education was formulated for rural areas. The next landmark development in the history of FCE in India was the Post War Plan of Education + Educational Statistics at a Glance, 2005-06, the Ministry of HRD, 2008LDevelopment of 1944, also called the Sargent Plan, which recommended FCE for eight years (6-14 years’ age group).
Despite the consistent demand for FCE during the freedom struggle, at the time of drafting the Constitution, there was no unanimous view that the citizens of India should have a right to education, let alone a fundamental right. The Constitution Assembly Debates reveal that an amendment was moved to alter the draft Article relating to FCE, by removing the term entitled to ensure that it was merely a non-justiciable policy directive in the Constitution. See the amendment moved by Pandit Lakshmi Kanta Maitra [3] :
The period spanning between 1950 to the judgement in Unnikrishnan’s Case [4] in 1993 saw several legal developments. The Indian Education Commission2 (Kothari Commission) 1964-1968, reviewed the status of education in India and made recommendations. Most important amongst these is its recommendation of a common school system with a view to eliminating inequality in access to education. Immediately thereafter, the National Policy on Education, 1968 was formed.
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The 1968 Policy was the first official document evidencing the Indian Government’s commitment towards elementary education. The Policy dealt with issues of equalisation of educational opportunity and required the common school system to be adopted in order to promote social cohesion. However, it was not supported by legal tools that could enforce such policy mandates. Interestingly, it even required that special schools should provide a proportion of free-studentships to prevent social segregation in schools.
A second round of studies was conducted by the Ministry of Education in conjunction with the National Institute of Educational Planning and Administration, and this process contributed to the formation of the National Policy on Education, 1986. This policy, while re-affirming the goal of universalisation of elementary education, did not recognise the ‘right to education’. The 1986 Policy is also severely criticised for having introduced non-formal education in India. The 1986 Policy was reviewed by the Acharya Ramamurti Committee in 1990, and this review process contributed to the revised National Policy on Education of 1992.
The Acharya Ramamurti Committee recommended that the right to education should be included as a fundamental right in Part III of the Constitution. However, this recommendation was not implemented immediately.
A great legal breakthrough was achieved in 1992 when the Supreme Court of India held in Mohini Jain v State of Karnataka,32 that the ‘right to education’ is concomitant to fundamental rights enshrined under Part III of the Constitution” and that ‘every citizen has a right to education under the Constitution’.
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In the meanwhile, major policy level changes were made under the dictates of the IMF World Bank Structural Adjustment Programme and the World Bank-funded District Primary Education Programme (DPEP) was introduced in 1994. Under DPEP, the national commitment towards FCE up to 14 years was reduced and primary education for the first five years was introduced. Further, the concept of multi-grade teaching and para-teachers was also introduced.
The Judiciary showed keen interest in providing free and compulsory education to all the children below the age of fourteen years. In case of Mohini Jain V State of Karnataka , the Supreme Court held that right to education is fundamental right under Article 21 of the Constitution.
The right to education springs from right to life. The right to life under Article 21 and the dignity of the individual cannot fully be appreciated without the enjoyment of right to education.
The Court observed:
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Right to life is compendious expression for all those rights which the Courts must enforce because they are basic to the dignified enjoyment of life. It extends to the fully range of conduct which the individual is free to pursue. …. The right to life under Article 21 and the dignity of the individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to provide educational facilities at all levels to its citizens.
On the question: Was there a `right to education’ guaranteed to the people of India under the Constitution? If so, did the concept of `capitation fee’ infract the same?
Supreme Court held: The dignity of man is inviolable. It is the duty of the State to respect and protect the same. It is primarily the education which brings-forth the dignity of a man. The framers of the Constitutions were aware that more than seventy per cent of the people, whom they were giving the Constitution of India, were illiterate. They were also hopeful that within a period of ten years illiteracy would be wiped out from the country. It was with that hope that Articles 41 and 45 were brought in Chapter IV of the constitution. An individual cannot be assured of human dignity unless his personality is developed and the only way to do that is to educate him. Article 41 in Chapter IV of the Constitution recognises an individual’s right “to education”.
It says that “the State shall, within the limits of its economic capacity and development, make effective provision for the securing the right….to education….” Although a citizen cannot enforce the directive principles contained in Chapter IV of the Constitution but these were not intended to be mere pious declarations.
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Without making “right to education” under Article 41 of the Constitution a reality the fundamental rights under Chapter III shall remain beyond the reach of large majority which is illiterate.
The “right to education”, therefore, is concomitant to the fundamental rights enshrined under Part III of the Constitution. The State is under a constitutional man-date to provide educational institutions at all levels for the benefit of the citizens. The educational institutions must function to the best advantage of the citizens. Opportunity to acquire education cannot be confined to the richer section of the society.
Every citizen has a `right to education’ under the Constitution. The State is under an obligation to establish educational institutions to enable the citizens to enjoy the said right. The State may discharge its obligation through state-owned or state-recognised educational institutions.
When the State Government grants recognition to the private educational institutions it creates an agency to fulfil its obligation under the Constitution. The students are given admission to the educational institutions – whether state-owned or state-recognised in recognition of their `right’ to education’ under the Constitution. Charging capitation fee in consideration of admission to educational institutions is a patent denial of a citizen’s right to education under the Constitution.
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“Right to life” is the compendious expression for all those rights which the Court must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make endeavour to provide educational facilities at all levels to its citizens.
Nature of the case: Constitutional challenge querying whether the “right to life” in Article 21 of the Constitution of India guarantees a fundamental right to education to citizens of India; role of economic resources in limiting right to education; interplay between Directive Principles and State Policy in the Constitution and Fundamental Rights; whether the right to education includes adult professional education.
The college management was seeking enforcement of their right to business through the charging of “capitation” fees from students seeking admission. The court expressly denied this claim and proceeded to examine the nature of the right to education specifically the following articles of the constitution:
Article 45: The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.
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Article 41: The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education…
Article 21: No person shall be deprived of his life or personal liberty except according to procedure established by law.
Article 46: The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
Result of case: The Court held that the right to basic education is implied by the fundamental right to life (Article 21) when read in conjunction with the directive principle on education (Article 41). The Court held that the parameters of the right must be understood in the context of the Directive Principles of State Policy, including Article 45 which provides that the state is to endeavour to provide, within a period of ten years from the commencement of the Constitution, for free and compulsory education for all children under the age of 14.
Article 41 indicates that after the age of 14, the right to education is subject to the limits of economic capacity and development of the state. Indeed it was found that there is no fundamental right to education for a professional degree that flows from Article 21.
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Quoting Article 13 of the International Covenant on Economic, Social and Cultural Rights, the Court stated that the state’s obligation to provide higher education requires it to take steps to the maximum of its available resources with a view to achieving progressively the full realization of the right of education by all appropriate means.
Enforcement of the decision and other outcomes: The state responded to this declaration nine years later by inserting, through the Ninety third amendment to Constitution, Article 21-A, which provides for the fundamental right to education for children between the ages of six and fourteen. In addition, several States in India have passed legislation making primary education compulsory.
These statutes “have however remained un-enforced due to various socio-economic and cultural factors as well as administrative and financial constraints. There is no central legislation making elementary education compulsory.”
Although the Court in Unni Krishnan stated specifically that it was not transferring Article 41 from Part IV to Part III, in the subsequent case of M.C. Mehta v State of Tamil Nadu & Ors [8] , the Supreme Court stated that Article 45 had acquired the status of a fundamental right following the Constitutional Bench’s decision in Unni Krishnan.
In addition, the Court said that, in order to treat a right as fundamental right, it is not necessary that it should be expressly stated as one in Part III of the Constitution: “the provisions of Part III and Part IV are supplementary and complementary to each other”. The Court rejected that the rights reflected in the provisions of Part III are superior to the moral claims and aspirations reflected in the provisions of Part IV.
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Example of how the right to life can be interpreted as including the right to livelihood and in this case explicitly the right to education (at least primary education). It should be noted that the Indian courts have thus far been unique in reading the right to education directly into the right to life.
Significance of the case: The Court in Unni Krishnan expressed its disagreement with the finding in the earlier case of Mohini Jain v State of Karnataka 1992 AIR 1858 that the right to education at all levels is guaranteed by the Constitution. In the subsequent case of M.C. Mehta v State of Tamil Nadu & Ors (1996) 6 SCC 756; AIR 1997 SC 699, the Supreme Court stated that Article 45 had acquired the status of a fundamental right following the Constitutional Bench’s decision in Unni Krishnan.
In addition, the Court said that, in order to treat a right as fundamental right, it is not necessary that it should be expressly stated as one in Part III of the Constitution: “the provisions of Part III and Part IV are supplementary and complementary to each other”. The Court rejected that the rights reflected in the provisions of Part III are superior to the moral claims and aspirations reflected in the provisions of Part IV.
While policy level changes had diluted the quality of FCE, the Unnikrishnan Judgement empowered people with a legal claim to FCE. Several public interest litigation petitions were filed in different High Courts to enforce the Unnikrishnan Judgement and acquire admission into schools. This created tremendous pressure on the Parliament and thereafter a proposal for a Constitutional amendment to include the right to education as a fundamental right was made in 1996.
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Accordingly, the Constitution (Eighty-Third) Amendment Bill was introduced in the Rajya Sabha in July 1997. The 83rd Amendment proposed the following:
Insertion of Article 21A: A new Article 21A to be inserted, namely: “21A. The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.”
Substitution of new article for article 45.- For article 45 of the Constitution, the following article shall be substituted, namely:- . Provision for early childhood care and education to children below the age of six years. “45. The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.”
Amendment of article 51A.- In article 51A of the Constitution, after clause (J), the following clause shall be added, namely:- “(k) who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.”. Between 1997 and 2001, due to change in Governments, the political will that was required to bring about the amendment was absent. In November 2001 however, the Bill was re-numbered as the 93rd Bill and the 83rd Bill was withdrawn. The 93rd Bill proposed that former Article 45 be amended to provide for early childhood care and education instead of being deleted altogether. This Bill was passed in 2002 as the 86th Constitutional Amendment Act.
India on Tuesday (5th August 2009) [9] , joined a select global club with the passage of the Right to Free and Compulsory Education Bill1, setting in motion an ambitious, if much-delayed, scheme of providing education to every child in the age bracket of 6-14 years. [10]
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The Act provides that children between the ages of six and 14 years have the right to free and compulsory education in a neighbourhood school. The government shall ensure that all children have this right. Children with disabilities including mental illness, mental retardation, blindness, and hearing loss, shall also have this right.
A child above six years of age who is not enrolled in school or was unable to complete his education shall be enrolled in an age appropriate class. Furthermore, these children have a right to receive special training in order to reach their peer group level. Elementary education shall be free until completion, even if the child is older than 14 years.
No child shall be held back, expelled, or required to pass a board examination until the completion of elementary education. A child who completes elementary education shall be awarded a certificate as prescribed.
No child shall be subject to physical punishment or mental harassment. Those officials that contravene this provision shall be liable for disciplinary action under the applicable service rules.
Curriculum and Recognition: The appropriate government (central or state government) shall specify an academic authority to develop the curriculum and evaluation procedure for elementary education. The academic authority shall consider Constitutional values, child-centred and trauma-free learning, and instruction in the mother tongue when developing the curriculum.
The Act requires all schools to comply with pupil-teacher ratio norms. All private schools must also comply with infrastructure and teacher norms, failing which, they shall lose their recognition (and need to shut down).
No school shall be established or recognised unless they satisfy these norms. Schools already established shall have three years to comply. Recognition shall be withdrawn only after schools have had the opportunity to represent their case. The penalty includes fines of up to Rs one lakh or Rs 10,000 per day for continuous infractions.
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Responsibilities of Schools and Teachers: The Act states that government schools shall provide free and compulsory education to all admitted children. Similarly, aided schools shall provide free and compulsory education proportionate to the funding received, subject to a minimum of 25%.
Kendriya Vidyalayas, Navodaya Vidyalayas, Sainik Schools, and unaided schools shall admit at least 25% of the students from SCs, STs, low-income and other disadvantaged or weaker groups. Unaided schools shall be reimbursed for either their tuition charge or the per-student expenditure in government schools, whichever is lower.
The act requires teachers to attend regularly and punctually, complete curriculum instruction, assess learning abilities, hold regular parent-teacher meetings, and any other duties as prescribed. Teachers are prohibited from giving private tuitions and undertaking non-teaching duties except for census, disaster relief, and election work.
Schools shall constitute School Management Committees (SMC) comprising local authority officials, parents and guardians, and teachers. The SMC shall monitor the school and utilization of government grants, prepare a school development plan, and perform any other functions as prescribed.
Government Authorities and Committees: The act demarcates functions of the central and appropriate governments and the local authority. The central government shall constitute a National Advisory Council of 15 members from the field of elementary education and child development. The Council shall advise the government on the implementation of the act.
Create a national curriculum framework with assistance from the academic authority;
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develop and enforce teacher training standards;
provide state governments with technical assistance for innovation, research, and capacity building;
amend the schedule by notification.
provide free and compulsory elementary education for children ages 6-14 years;
ensure compulsory admission, attendance, and completion of elementary education;
provide for availability of neighbourhood schools;
prevent discrimination of children from weaker sections or disadvantaged groups;
provide infrastructure including staff equipment, teacher training facilities, special student training facilities, and school building;
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ensure admission, attendance, and completion of elementary education;
maintain quality education as per the standards and norms specified;
ensure timely prescription of curriculum and courses; and
appoint an academic authority.
Provide free and compulsory education and a neighbourhood school to every child;
ensure children from weaker sections are not Authority discriminated against or prevented from completing elementary education;
maintain records of all children up to 14 years;
ensure admission, attendance, completion of elementary education, infrastructure, teaching training facilities, and student training facilities;
ensure timely prescription of curriculum and courses;
provide admission for migrant children; and
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monitor schools and decide the academic year.
Admissions and Transfers: For admissions purposes, a child’s age shall be determined by a birth certificate or another document as specified. A child shall not be denied admission for lack of age proof. Furthermore, a child shall not be denied admission even if it is requested after the start of the academic year.
The act prohibits schools from using a screening process for admissions or from charging a capitation fee. Both offences are punishable with a fine.
A child required to move shall have the right to transfer to any state or local government or aided school. Lack of a transfer certification shall not be grounds for denying or delaying admissions.
Grievances: The National Commission for the Protection of Child Rights (established by the Commissions for Protection of Child Rights Act, 2005) shall review the safeguards for rights provided under this Act, investigate complaints, and have the powers of a civil court in trying cases. The appropriate government may also constitute a State Commission for Protection of Children Rights to carry out these functions.
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Any person wishing to file a grievance claim shall submit a written complaint to the local authority, which shall make a decision as early as possible. Appeals shall be decided by either the State Commission for Protection of Child Rights or the specified authority. Prosecution of offences for capitation fees and recognition require the sanction of an officer authorised by the appropriate government.
Finances: The act states that the central and state governments shall share financial responsibility. The central government shall prepare estimates of expenditures and provide the state government with a percentage of these costs, in consultation with the state government. The central government may request the Finance Commission to consider providing additional resources to the state governments in order to carry out provisions of the act. The state government shall be responsible for providing the remaining funds needed to implement the act.
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