Right to Education in Indian Constitutional Perspective

The Indian Constitution is known to be a document committed to social justice. As per expert opinion, literacy
forms the cornerstone for making the provision of equality of opportunity a reality. The Indian Constitution has
therefore recognized education as the essence of social transformation, as is evident from its education specific
Articles.

The judicial decision from which the right to education emanated as a fundamental right was from the one
rendered by the Supreme Court in Mohini Jain v. State of Karnataka. In this case the Supreme Court through a
division bench comprising of justice Kuldip Singh and R.M. Sahai, deciding on the constitutional of the practice
of charging capitation ee held that:

‘ the right to education flows directly from the right to life. The right to life and the dignity of an individual
cannot be assured unless it is accompanied by the right to education.’

The rationality of this judgment was further examined by a five judge bench in J.P. Unnikrishnan v. State of
Andhra Pradesh where the enforceability and the extent of the right to education was clarified in the following
words:

“The right to education further means that a citizen has a right to call upon the State to provide educational
facilities to him within the limits of its economic capacity and development.”

The same has also been reiterated by the Hon’ble Supreme Court in Bandhua Mukti Morcha, etc v. Union of
India specially referred to the earlier judgment made in this connection as under:

“In Maharashtra State Board of Secondary and Higher Education v. K.S. Gandhi, right to education at the
secondary stage was held to be a fundamental right. In J.P.Unnikrishnan v. State of Andhra Pradesh, a
constitution Bench had held education upto the age of 14 years to be a fundamental right…. It would be
therefore incumbent upon the State to provide facilities and opportunity as enjoined under Article 39 (e) and (f)
of the Constitution and to prevent exploitation of their childhood due to indigence and vagary.”
Space and Place for Claiming the Right to Education
The ‘right’ to education provides a framework for accepting that basic education is an entitlement of each and
every citizen regardless of religious, ethnic or caste affiliation or identity, gender or class, disability or ability.
However the focus on access, as argued earlier, limits the agenda to a very narrowly framed policy agenda
which is concerned more with meeting international targets for enrolment and universalisation, than with taking
into account some of the traditional relationships which have shaped exclusion. Little has been done to alter in a
meaningful way the relationships between state administrators, elite village leadership, teachers and the poorer,
low-caste groups within their communities (Subrahmanian 2000). Without an attempt to reorder these
relationships through building alternative spaces and processes for hearing the perspectives of those excluded
on what underpins their exclusion, what they feel about the education on offer, and how they see education
fitting into their economic and social survival strategies, the right to education will have limited teeth for those
who really would rely on it. Whilst many of these spaces are beginning to emerge in relation to education, far
greater consolidation of these different actor groups is required through processes that enable excluded groups
to develop and express voice. In this section, a brief assessment is made of the spaces and places within which
participation in education takes place, is absent or needs to be strengthened.

At present, legal spaces for holding the state accountable to its version of student ‘rights’ provide one option.
However, as discussed above, these spaces are in themselves insufficient to provide leverage, and further only
recognise the rights of those already ‘included’. Education ‘guarantee’ schemes, such as those in operation in
Madhya Pradesh (and now a national commitment under the new ‘umbrella’ policy for universalising
elementary education, the Sarva Shiksha Abhiyan), ‘guarantee’ schools in unserved areas that demand them, but
again, the type of schools, their quality and content fall outside the scope of citizen action and are controlled
solely by the state. With increasing levels of donor funding directed towards the state and the attempt to
consolidate policy spaces under sector and sub-sector approaches, there is the risk of further crystallising the
authority of the state over civil society and other organisations, and reducing transparency. While NGOs have
been important innovators in education, especially in recent times, many of their ‘models’ are being absorbed
directly into state programmes, without clear analysis of what it is these models offer and what insights they
provide into developing localised education strategies based on community ownership. Even where ‘community
participation’ is invoked, as it is increasingly in state programmes, there are insufficient attempts to address the
foundational bases of inequality that prevent the most disadvantaged groups from expressing their views (see
Subrahmanian, forthcoming). Village Education Committees (VECs), heralded as the new face of community
participation in education, are often bureaucratised forms of citizen voice formed with a view to rounding
children up and sending them to school rather than eliciting the views of parents on what education content and
delivery should be.
Right to Education Act
The Right of children to Free and Compulsory Education Act came into force from April 1, 2010. This was a
historic day for the people of India as from this day the right to education will be accorded the same legal status
as the right to life as provided by Article 21A of the Indian Constitution. Every child in the age group of 6-14
years will be provided 8 years of elementary education in an age appropriate classroom in the vicinity of his/her
neighbourhood.

The Constitution (Eighty-sixth Amendment) Act, 2002 inserted Article 21-A in the Constitution of India to
provide free and compulsory education of all children in the age group of six to fourteen years as a Fundamental
Right in such a manner as the State may, by law, determine. The Right of Children to Free and Compulsory
Education (RTE) Act, 2009, which represents the consequential legislation envisaged under Article 21-A,
means that every child has a right to full time elementary education of satisfactory and equitable quality in a
formal school which satisfies certain essential norms and standards.

Article 21-A and the RTE Act came into effect on 1 April 2010. The title of the RTE Act incorporates the words
‘free and compulsory’. ‘Free education’ means that no child, other than a child who has been admitted by his or
her parents to a school which is not supported by the appropriate Government, shall be liable to pay any kind of
fee or charges or expenses which may prevent him or her from pursuing and completing elementary education.
‘Compulsory education’ casts an obligation on the appropriate Government and local authorities to provide and
ensure admission, attendance and completion of elementary education by all children in the 6-14 age group.
With this, India has moved forward to a rights based framework that casts a legal obligation on the Central and
State Governments to implement this fundamental child right as enshrined in the Article 21A of the
Constitution, in accordance with the provisions of the RTE Act.
The RTE Act provides for the:
· Right of children to free and compulsory education till completion of elementary education in a
neighbourhood school.

· It clarifies that ‘compulsory education’ means obligation of the appropriate government to provide free
elementary education and ensure compulsory admission, attendance and completion of elementary education to
every child in the six to fourteen age group. ‘Free’ means that no child shall be liable to pay any kind of fee or
charges or expenses which may prevent him or her from pursuing and completing elementary education.

· It makes provisions for a non-admitted child to be admitted to an age appropriate class.

· It specifies the duties and responsibilities of appropriate Governments, local authority and parents in providing
free and compulsory education, and sharing of financial and other responsibilities between the Central and State
Governments.
· It lays down the norms and standards relating inter alia to Pupil Teacher Ratios (PTRs), buildings and
infrastructure, school-working days, teacher-working hours.
· It provides for rational deployment of teachers by ensuring that the specified pupil teacher ratio is maintained
for each school, rather than just as an average for the State or District or Block, thus ensuring that there is no
urban-rural imbalance in teacher postings. It also provides for prohibition of deployment of teachers for non-
educational work, other than decennial census, elections to local authority, state legislatures and parliament, and
disaster relief.

· It provides for appointment of appropriately trained teachers, i.e. teachers with the requisite entry and
academic qualifications.

· It prohibits (a) physical punishment and mental harassment; (b) screening procedures for admission of
children; (c) capitation fee; (d) private tuition by teachers and (e) running of schools without recognition,

· It provides for development of curriculum in consonance with the values enshrined in the Constitution, and
which would ensure the all-round development of the child, building on the child’s knowledge, potentiality and
talent and making the child free of fear, trauma and anxiety through a system of child friendly and child centred
learning.
Major provisions of Right to education Act
Every child between the age of six to fourteen years, shall have the right to free and compulsory education in a
neighbourhood school, till completion of elementary education.
For this purpose, no child shall be liable to pay any kind of fee or charges or expenses which may prevent him
or her from pursuing and completing elementary education.
Where a child above six years of age has not been admitted to any school or though admitted, could not
complete his or her elementary education, then, he or she shall be admitted in a class appropriate to his or her
age.
For carrying out the provisions of this Act, the appropriate government and local authority shall establish a
school, if it is not established, within the given area, within a period of three years, from the commencement of
this Act.
The Central and the State Governments shall have concurrent responsibility for providing funds for carrying out
the provisions of this Act.
This Act is an essential step towards improving each child's accessibility to secondary and higher education.
The Act also contains specific provisions for disadvantaged groups, such as child labourers, migrant children,
children with special needs, or those who have a disadvantage owing to social, cultural, economical,
geographical, linguistic, gender or any such factor. With the implementation of this Act, it is also expected that
issues of school drop out, out-of-school children, quality of education and availability of trained teachers would
be addressed in the short to medium term plans.

The enforcement of the Right to Education Act (External website that opens in a new window) brings the
country closer to achieving the objectives and mission of the Millennium Development Goals (MDGs) and
Education for All (EFA) and hence is a historic step taken by the Government of India.
Benefits of Right to Education Act, 2009
RTE has been a part of the directive principles of the State Policy under Article 45 of the Constitution, which is
part of Chapter 4 of the Constitution. And rights in Chapter 4 are not enforceable. For the first time in the
history of India we have made this right enforceable by putting it in Chapter 3 of the Constitution as Article 21.
This entitles children to have the right to education enforced as a fundamental right.
Conclusion
To quote Justice PN Bhagwati, Former Chief Justice of India:
“The child is a soul with a being, a nature and capacities of its own, who must be helped to find them, to grow
into their maturity, into a fullness of physical and vital energy and the utmost breadth, depth and height of its
emotional, intellectual and spiritual being; otherwise there cannot be a healthy growth of the nation.”

Every generation looks up to the next generation with the hope that they shall build up a nation better than the
present. Therefore education which empowers the future generation should always be the main concern for any
nation. It is now an undisputed fact that right to education can be realized on a national level only through
compulsory education, or better say, through free compulsory primary education. However due to the
widespread poverty and various prejudices in the society, the efforts to develop an educational system in India
with full access, equality and quality of education has not been achieved. The inability to check the dropout
rates among the marginalized sections of the population is another cause of worry.