Purpose of Study: The education system does not function in isolation from the society of which it is a part. Unequal social, economic and power equations, deeply influence children's access to education and their participation in the learning process. This is evident in the disparities in education access and attainment between different social and economic groups in India. There were an estimated eight million 6 to 14 year-olds in India out-of-school in 2009. The world cannot reach its goal to have every child complete primary school by 2015 without India. In 2010, India implemented the Right to Education Act (RTE), to legally support inclusive education. Today, 18 crore children are taught by almost 57 lakh teachers in more than 12 lakh primary and upper primary schools across the country. This notable spatial spread and physical access has, however, not been supported by satisfactory curricular interventions, including teaching learning materials, training designs, assessment systems, classroom practices, and suitable infrastructure. The present paper attempts to: (a) Understand the Indian perspective on child's right to education, (b) Analyse the feasibility of RTE and highlight the challenges in its implementation in India, (c) Present Case Studies to describe the present Indian scenario in education for the marginalised children in two progressive states of India that have the potential to show a way for the rest of the country.In this study, the common issues that emerged, in deterring inclusion in two states of India were: attitudinal barriers, lack of awareness of the legal provisions and subsequent schemes, accessibility of schools being meagre, lack of necessary infrastructure, lack of and retention of trained staff adaptation of curriculum and materials and lack of control systems.Though India has taken ownership for inclusive education by establishing legal provisions through theRTE, several issues continue to be faced. While many innovative programmes have been initiated, a stronger partnership between the government and the common man together is what is required to bring about the desired difference.
This particular document deals with the landmark cases related to Right to Education Act, 2009.
Brief about Right to Education Act, 2009
The Right of Children to Free and Compulsory Education Act or Right to Education Act (RTE), is an Act of the Parliament of India enacted on 4 August 2009, which describes the modalities of the importance of free and compulsory education for children between 6 and 14 in India under Article 21a of the Indian Constitution. India became one of 135 countries to make education a fundamental right of every child when the Act came into force on 1 April 2010.
The Act makes education a fundamental right of every child between the ages of 6 and 14 and specifies minimum norms in elementary schools. It requires all private schools to reserve 25% of seats to children (to be reimbursed by the state as part of the public-private partnership plan). Kids are admitted in to private schools based on economic status or caste based reservations. It also prohibits all unrecognized schools from practice, and makes provisions for no donation or capitation fees and no interview of the child or parent for admission. The Act also provides that no child shall be held back, expelled, or required to pass a board examination until the completion of elementary education. There is also a provision for special training of school drop-outs to bring them up to par with students of the same age.
The below mentioned cases are few important cases in eyes of EB which should be studied by the delegates to understand the Right to Education Act, 2009. It is encouraged that delegates should study these cases in detail. Some important points from each case have been provided along with case citation and case name.
- Vikas Sankhala v. Vikas Kumar Agarwal, (2017) 1 SCC 350
The Statement of Objects and Reasons of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as “the RTE Act”) recognizes one of the most profound underlying principles contained in the Constitution viz. the crucial role of universal elementary education for strengthening the social fabric of democracy through provision of equal opportunities to all has been accepted, since inception of our Republic. Other, and equally significant principle that it recognizes, is that, in order to ensure equal opportunities to all citizens, it is necessary that elementary education is provided to one and all. Keeping in view this spirit, obligation was imposed upon the State, as per Article 41, read with Article 45, of the Constitution to make effective provisions for securing the right to education, among other. Thus, it is one of the directive principles of State policy enumerated in the Constitution that the State shall provide free and compulsory education to all children.
Having regard to the aforesaid harsh realities, Parliament enacted the RTE Act with the following objects in mind:
“(a) that every child has a right to be provided full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards;
(b) ‘Compulsory education’ casts an obligation on the appropriate Government to provide and ensure admission, attendance and completion of elementary education;
(c) ‘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;
(d) The duties and responsibilities of the appropriate Government, local authorities, parents, schools and teachers in providing free and compulsory education; and
(e) A system for protection of the right of children and a decentralized grievance redressal mechanism.”
- Pramati Educational & Cultural Trust v. Union of India, (2014) 8 SCC 1
It is submitted that constitutional dispensation arising out of Article 21-A of the Constitution read with other fundamental rights mandates the State
- to provide free and compulsory education to all children aged 6-14 years,
- With an option to co-opt the private schools on conditions of autonomy, voluntariness and fairness in the least invasive manner.
Article 21-A is placed after Article 21. Right to education is read into Article 21 by this Hon’ble Court in Unni Krishnan and reaffirmed by T.M.A. Pai. On a plain reading, Article 21-A puts the obligation and the responsibility on the State to provide free education, Article 15(5) does not provide for the matter pertaining to the responsibility of payment of fee or the responsibility to incur cost for education. If Article 15(5) is read to empower the State to legislate passing the burden of contributing for the fee for socially and educationally backward classes or for the Scheduled Caste and Scheduled Tribe students, which it is submitted is obviously not enabled or permitted by Article 15(5), the same would also be in conflict with Article 21-A. If the educational institution is held under Article 15(5) or under Article 21-A, liable to bear the burden of part of the fees, it is submitted that it would amount to levying a tax inasmuch as, this would result into extraction of money from private individual (private unaided institution). Furthermore, in view of the law laid down in T.M.A. Pai, an educational institution is not entitled to profiteer, which would only mean that the contribution from the other students will have to be increased to sustain the deficiency/shortfall for accommodating reservation under Article 15(5), which it is submitted would not be permissible.
- State of Karnataka v. Associated Management of English Medium Primary & Secondary Schools, (2014) 9 SCC 485
Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. In Unni Krishnan, J.P. v. State of A.P a Constitution Bench of this Court has held that under Article 21 of the Constitution every child/citizen of this country has a right to free education until he completes the age of 14 years. Article 21-A of the Constitution provides that 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. Under Articles 21 and 21-A of the Constitution, therefore, a child has a fundamental right to claim from the State free education up to the age of 14 years. The language of Article 21-A of the Constitution further makes it clear that such free education which a child can claim from the State will be in a manner as the State may, by law, determine. If, therefore, the State determines by law that in schools where free education is provided under Article 21-A of the Constitution, the medium of instruction would be in the mother tongue or in any language, the child cannot claim as of right under Article 21 or Article 21-A of the Constitution that he has a right to choose the medium of instruction in which the education should be imparted to him by the State. The High Court, in our considered opinion, was not right in coming to the conclusion that the right to choose a medium of instruction is implicit in the right to education under Articles 21 and 21-A of the Constitution.
- National Legal Services Authority v. Union of India, (2014) 5 SCC 438
Further, there seems to be no reason why a transgender must be denied of basic human rights which includes right to life and liberty with dignity, right to privacy and freedom of expression, right to education and empowerment, right against violence, right against exploitation and right against discrimination. The Constitution has fulfilled its duty of providing rights to transgenders. Now it is time for us to recognize this and to extend and interpret the Constitution in such a manner to ensure a dignified life for transgender people. All this can be achieved if the beginning is made with the recognition of TG as third gender.
- Maharishi Mahesh Yogi Vedic Vishwavidyalaya v. State of M.P., (2013) 15 SCC 677
Article 26 of the Universal Declaration of Human Rights declares:
Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.”
The same concept has been repeated in the UN Declaration of the Rights of the Child, which seeks to ensure:
“Right to free and compulsory education at least in the elementary stages and education to promote general culture, abilities, judgment and sense of responsibility to become a useful member of society and opportunity to recreation, and play to attain the same purpose as of education.”
The role of international organizations regarding the implementation of the right to education is just not limited to the preparation of documents and conducting conferences and conventions, but it also undertakes the operational programs assuring, access to education of refugees, migrants, minorities, indigenous people, women and the handicaps. India participated in the drafting of the Declaration and has ratified the covenant. Hence, India is under an obligation to implement such provisions. As a corollary from the human rights perspective, constitutional rights in regard to education are to be automatically ensured.
Having briefly analyzed the International Conventions, we would like to refer to the provisions in our own Constitution, which provides for the significance and need for education. The Founding Fathers of the nation, recognizing the importance and significance of the right to education, made it a constitutional goal, and placed it under Chapter IV Directive Principles of State Policy of the Constitution of India. Article 45 of the Constitution requires the State to make provisions within 10 years for “free and compulsory education” for all children until they complete the age of 14 years.
We are of the considered opinion that only such an interpretation to the unamended Section 4(i) would be the only way of interpretation that can be accorded to the said provision. Once, we steer clear of the interpretation of the said provision in the above said manner, we find that the amendment, which was introduced by Act 5 of 2000, was clearly intended to purposely do away with its original intendment and thereby, restrict the scope of activities of the appellant University to the learning of the Vedas and its practices and nothing else. The restriction so created by introducing the amendment was self-destructive and thereby, the original object and purpose of establishing the appellant University was done away with. In this context, the framing of Ordinance 15, which provided for the study of various courses in the Appellant University was consciously approved by the State Government without any inhibition. A perusal of the course contents in the Ordinance discloses that there were as many as 49 courses connected with Vedic learning and practices and about 33 courses on other subjects. By introducing the amendment under Act 5 of 2000 and thereby, insisting that imparting of education in the appellant University can be restricted only to Vedic learning and that the science and technology should also be only for the purpose of learning the Vedas and its practices, will have to be stated unhesitatingly as creating a formidable restriction on the right to education, which is a guaranteed constitutional right and thereby, clearly violating Articles 14 and 21 of the Constitution. Equally, the addition of the expression “in the above fields and in these fields may …” while deleting the expression “dissemination of knowledge”, in our considered opinion, drastically interfered with the right to education sought to be advanced by the University by its creation originally under the 1995 Act, which restriction now sought to be imposed can never be held to be a reasonable restriction, nor can it be held to have any rationale, while creating such a restriction by way of an amendment to Section 4(i).
Having regard to our fundamental approach to the issue raised in this appeal and our conclusion as stated above, we are convinced that the arguments based on the legislative competence also pales into insignificance. Even without addressing the said question, we have inasmuch found that by virtue of the amendment introduced to Section 4(i), an embargo has been clearly created in one’s right to seek for education, which is a constitutionally protected fundamental right. Therefore, there was a clear violation of Articles 14 and 21 of the Constitution and consequently, such a provision by way of an amendment cannot stand the scrutiny of the Court of Law. To support our conclusion, we wish to refer to the following decisions rendered by this Court, right from Mohini Jain caseviz.
(i) Society for Unaided Private Schools of Rajasthan v. Union of India
(ii) Bhartiya Seva Samaj Trust v. Yogeshbhai Ambalal Patel
(iii) State of T.N. v. K. Shyam Sunder
(iv) Satimbla Sharma v. St. Paul’s Senior Secondary School, and
(v) Ashoka Kumar Thakur v. Union of India,
Wherein, this Court has consistently held that right to education is a fundamental right.
- Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645
On the first question, the Bench held, on a consideration of Articles 21, 38, 39(a) and (f), 41 and 45 of the Constitution:
(a) “The framers of the Constitution made it obligatory for the State to provide education for its citizens”
(b) The objectives set forth in the preamble to the Constitution cannot be achieved unless education is provided to the citizens of this country;
(c) The preamble also assures dignity of the individual. Without education, dignity of the individual cannot be assured;
(d) Parts III and IV of the Constitution are supplementary to each other. Unless the ‘right to education’ mentioned in Article 41 is made a reality, the fundamental rights in Part III will remain beyond the reach of the illiterate majority;
(e) Article 21 has been interpreted by this Court to include the right to live with human dignity and all that goes along with it. ‘The “right to education” flows directly from right to life.’ In other words, ‘right to education’ is concomitant to the fundamental rights enshrined in Part III of the Constitution. The State is under a constitutional mandate to provide educational institutions at all levels for the benefit of citizens. The benefit of education cannot be confined to richer classes.
(f) Capitation fee is nothing but a consideration for admission. The concept of ‘teaching shops’ is alien to our constitutional scheme. Education in India has never been a commodity for sale.
(g) “We hold that 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-recognized educational institutions. When the State Government grants recognition to the private educational institutions it creates an agency to fulfill its obligation under the Constitution. The students are given admission to the educational institutions — whether State-owned or State-recognized — 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.”
- Mohini Jain (Miss) v. State of Karnataka, (1992) 3 SCC 666
Right to life” is the 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 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 endeavor to provide educational facilities at all levels to its citizens.
The fundamental rights guaranteed under Part III of the Constitution of India including the right to freedom of speech and expression and other rights under Article 19 cannot be appreciated and fully enjoyed unless a citizen is educated and is conscious of his individualistic dignity.
The “right to education”, therefore, is concomitant to the fundamental rights enshrined under Part III of the Constitution. The State is under a constitutional mandate to provide educational institutions at all levels for the benefit of the citizens.
Delegates are encouraged to study these cases and also other cases related to RTE, 2009 so that a good discussion can take place on the same in the committee