RIGHT TO EDUCATION IN INDIA: A STUDY
“RIGHT TO EDUCATION IN INDIA: A STUDY”
Dr. Ashish Shrivastava
[Assistant Professor of Law,
ABSTRACT:
This research
paper talks about ‘Right to Education in India’ . This paper
primarily aims to facilitate the creation of a
rights-framework which may be used to evaluate all existing policies,
schemes and judicial decisions. I believe that such a policy review using
rights-based indicators is an important
pre-legislative step. However, it is important to clarify that this paper
itself does not undertake such a review, and hence it does not provide a
descriptive narrative/critique of either existing policies and schemes or
judicial decisions. Further, one must also point out that even though this
paper attempts to analyze the different threads of a rights-based model of
school education, it certainly does not provide an exhaustive rights framework.
We urge all readers to view this as an effort at raising issues for a national
debate on a rights-based model of school education.
KEYWORDS:
Right to Education , Constitution, Law,
Government, Assembly etc
INTRODUCTION:
India is signatory to three key
international instruments that guarantee the Right to Education – Universal
Declaration of Human Rights, 1948, the International Covenant on Economic,
Social and Cultural Rights (Covenant), 1966 and the (UDHR) Convention on the
Rights of the Child (CRC), 1989. In
2002, India joined, albeit after fifty-two years of Independence, the host of
countries that provide a constitutional guarantee for Free and Compulsory Education
(FCE).
Article 21–A of the Indian Constitution
casts a duty upon the State to provide FCE to children in the age group of six
to fourteen years, ‘as the State may, by law, determine’. Historically, there has been a demand for a
law for FCE in India and several Central-level legislative attempts have been
taken towards this end.
The last of such attempts resulted in the
Draft Right to Education Bill, 2005. One of several oppositions to this Bill
came from private unaided schools. They lobbied against a provision that
required them to make a twenty-five per cent reservation for poor children. The
Centre kept this Bill in abeyance and circulated to all States a modified
version – the Model Right to Education Bill, 2006 (Model Bill).
FUNDAMNETAL
RIGHT TO EDUCATION IN INDIA:
The
demand for free and compulsory education in the
pre-constitution era:
A reading of Indian education history
reveals that it was notorious for its lack of social inclusiveness. The
legendary tale of Ekalavya from the India Epic of Mahabharata showcases such social exclusion. Till the
nineteenth century A.D., education was largely
considered a privilege restricted to persons at the higher end of the
caste and class spectrum. Religious
content of education, coupled with its elitist medium of instruction were two
factors that contributed to such exclusion. People from the lower castes, and
the so-called shudras (Dalit Bahujans) in particular were denied admission into
Gurukulas or Ashramas.
A small reprieve came when the dominance
of classic Vedic education was overthrown by Buddhism and Jainism; and
education was no longer confined to hermitages.
The Muslim rulers of the Indian Sub-continent also did not consider
education as a function of the State.
It was largely perceived as a branch of
religion and was entrusted to theologians called Ulemas. In short, in ancient
and medieval India, education was a privilege available only to a chosen few. The
British introduced modern education into the Indian-subcontinent.
However, being largely confined to Brahmins and higher
classes, this system of education also excluded the ‘masses’. For instance, while reporting about the
educational situation in Bellary (presently
in the State of Karnataka) in the early nineteenth century A.D., Campbell, the then
District Collector observed that “it cannot have escaped the government that of
nearly a million of souls in this district, not 7000 are now at school … In
many villages where formerly there were schools, there are now none.”
Similarly, missionary notice of 1856 stated that in all other parts of the
country “a school, either government or missionary is as rare as a light house
on our coast… there are four schools existing among three or four million of
people.” The neglect of education by the
British was also acknowledged by Wood’s Despatch.
The demand for a law on FCE which was made
during the freedom struggle, sought to break
the above-mentioned heritage of an inequitable and neglected education system.
In their evidence placed before the Education Commission (Hunter Commission)
appointed in 1882, Dadabhai Naoroji and Jyothiba Phule demanded State-sponsored
free education for all children for at least four years. This demand was
indirectly acknowledged in the Commission’s recommendations on primary
education. The Commission also recommended that schools should be open to all
castes and classes.
Thereafter, the first law on compulsory
education was introduced by the State of Baroda in 1906. This law provided for
compulsory education to boys and girls in the age groups of seven to twelve years
and seven to ten years respectively. In 1911, Gopal Krishna Gokhale moved a
Bill for compulsory education in the Imperial Legislative Assembly, albeit
unsuccessfully, and in the midst of stiff resistance. 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 school
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.
The idea of compulsory education was reiterated in
1937, at the All India National Conference on Education held at Wardha where 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 persistent excuse of lack of
resources.
The next landmark development in the
history of FCE in India was the Post War Plan of Education Development of 1944,
also called the Sargent Plan, which recommended FCE for eight years (six to
fourteen 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 in favour of a fundamental right to
education. The Constituent Assembly Debates reveal that an amendment was moved
to alter the draft Article relating to FCE. By this amendment, the term
‘entitled’ was removed from the draft Article to ensure that education remained
a non-justiciable policy directive in the Constitution. Therefore, FCE made its
way into the Constitution as a Directive Principle of State Policy under former
Article 45,30 whereby States were required to ensure the provision of FCE to all children till the age of
fourteen years within a period of ten years of the commencement of the
Constitution.
The
demand for a fundamental right to education:
The period spanning between 1950 to the
judgement in Unnikrishnan’s Case in 1993 saw several policy developments. The
Indian Education Commission (Kothari Commission) 1964–1968, reviewed the status
of education in India and made several recommendations. Most important amongst
these is its recommendation of a common school system with a view to
eliminating inequality in educational opportunities.
Immediately thereafter, the National Policy on
Education (NPE), 1968 was formed. This Policy was the first official document
evidencing the Indian Government’s commitment towards school education.
It dealt with issues of equalisation of
educational opportunity and sought to adopt a common school system in order to
promote social cohesion. Interestingly,
it even required special schools to provide a proportion of free studentships
to prevent social segregation in schools. Nevertheless, it retained the
status of FCE as a ‘directive principle’. Subsequently, the National Policy on
Education, 1986, re-affirmed the goal of universalisation of school education
and promised to take measures to achieve a common school system.
This policy document once again did not
discuss or aim to alter the legal status of FCE in India, i.e., FCE continued
to remain a non-justiciable Directive Principle of State Policy. On the
contrary, the 1986 Policy has been criticised for having introduced non-formal
education into India, and therefore having reduced the constitutional
obligation of full-time schooling.
The first official recommendation for
the inclusion of a fundamental right to education was made in 1990 by the
Acharya Ramamurti Committee. Thereafter,
several political as well as policy level changes influenced the course of FCE.
The country witnessed an increased international focus on its initiatives
regarding FCE after its participation in the World Conference on Education for
All in 1990. India also ratified the UNCRC in 1992. The World Bank funded
District Primary Education Programme (DPEP) was introduced in 1994 under the
auspices of the IMF-World Bank Structural Adjustment Programme. DPEP introduced
a five-year ‘primary education’ programme and a system of appointment of
para-teachers. From the point of view of a ‘right’ to education, this five-year
programme and the appointment of para-teachers have been criticised as having
diluted the constitutional norm of quality compulsory schooling for children
till the age of fourteen.
The use of the phrase ‘primary
education’ and its corresponding five-year programme under DPEP may be contrasted with Dr B R
Ambedkar’s observations at the time of drafting the Constitution. He opposed the introduction of
the phrase ‘primary education’ in draft Article 36 (corresponding to former
Article 45) on the ground that the State was obliged to keep children below the
age of fourteen years in an educational institution to prevent them from being
employed as child labour.
A great legal breakthrough was achieved
in 1992 when the Supreme Court of India held in Mohini Jain v State of
Karnataka 1,
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”.
The Supreme Court subsequently
reconsidered the above- mentioned judgement in the case of Unnikrishnan, J P v
State of Andhra Pradesh. The Court (majority judgement) held that “though right
to education is not stated expressly as a fundamental right, it is implicit in
and flows from the right to life guaranteed under Article 21… (and) must be
construed in the light of the Directive Principles of the Constitution. Thus, ‘right to education’ understood in the
context of Article 45 and 41 means: (a) every child/citizen of this country has
a right to free education until he completes the age of fourteen years and (b)
after a child/citizen completes fourteen years, his right to education is
circumscribed by the limits of the economic capacity of the State and its
development.”
The Unnikrishnan Judgement empowered
people with a legal claim to FCE. This is evidenced by a spate of litigations
that relied upon the principle of law laid down in the Unnikrishnan Judgement.
A combination of forces from different quarters, viz, support from the
judiciary, greater international attention and increased civil society and
grass-roots level campaigns exerted
tremendous pressure on the Government to introduce a fundamental right to education.
A Constitutional Amendment bill for the
inclusion of a fundamental right to education was moved in the Parliament
amidst much criticism and debate regarding the contents of the Bill.46 The said
amendment proposed that Article 21–A (fundamental right to free and compulsory
education for children in the age group of six to fourteen years) be introduced,
former article 45 (the then existing directive principle on FCE) be deleted and
Article 51–A(k) (fundamental duty on parents) be introduced. In November 2001
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.
Despite continued criticism against the
altered version, the Bill was passed in 2002 as the 86th Constitutional
Amendment Act. Currently, under Article 21–A of the Constitution, every child
between the ages of six and fourteen has a fundamental right to ‘free and
compulsory’ education, which the State shall provide ‘in such manner as the
State may, by law, determine.’
Early childhood care and education (for
children up to six years of age) is provided for as a Directive Principle of State
Policy under Article 45 of the Constitution. Furthermore, Article 51–A(k)
imposes a ‘fundamental duty’ on parents to provide educational opportunities to
their children in the age group of six to fourteen years.
Education
transferred from state list to concurrent list:
Since the State laws are obsolete and
also require uniformity, the question that needs to be examined is how can one ensure uniformity in
the enforcement of standards in school
education? This can be answered only after a brief description and
analysis of legislative powers that are vested with the Centre and States with
respect to school education. The Constitution, based on the principle of
federalism, adopts a three-fold distribution of legislative powers. Different
subjects for legislation find mention in one of three lists namely the Union
List (List I), State List (List II) and Concurrent List (List III) in the
Seventh Schedule to the Constitution. While the Parliament and State
Legislatures have exclusive legislative power over entries in the Union List
and the State List respectively, both the Parliament and State Legislatures have the power to
legislate over entries in the Concurrent List.The three identified rationales underlining
the placement of certain entries in the Concurrent List are as follows:
● Secure
uniformity in the main principles of law .
● Guide
and encourage local efforts.
● Provide
remedies for mischief arising in the local sphere, but extending, or liable
to extend beyond the boundaries of a
single province. Interestingly,
education was enlisted as a legislative item originally in the State List.
It was subsequently transferred to the Concurrent
List by means of a Constitutional Amendment in 1976. Today, entry 25 of the
Concurrent List reads as follows: “Education, including technical education, medical education and
universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and
technical training of labour.” The exclusion of entries 63–66 from the
Concurrent List is immaterial for the purposes of this paper.
Purpose
and implication of the transfer of education from state list to concurrent list:
The significance of the 1976 amendment
and its implications are discussed in the National Education Policy of 1986 and
1992. The Policy clearly refers to the “substantive, financial and administrative” implications of the
amendment. The Policy states as follows:
“…the Union Government would accept a larger responsibility to reinforce
the national and integrative character of education, to maintain quality and
standards (including those of the teaching profession at all levels), to
study and monitor the educational requirements of the country as a whole in
regard to humanpower for development, to cater to the needs of research and
advanced study, to look after the international aspects of education, culture
and Human Resource Development and, in general, to promote excellence at all
levels of the educational pyramid throughout the country.”
Therefore, clearly, the Department of
Education (Government of India) envisaged standard-setting by the Centre as one
of the outcomes of this amendment. Interestingly, such an argument was even
made at the time of drafting the Constitution,
where Mr Frank Anthony strongly argued for Central control over school
education to build a strong uniform cohesive policy on education: “…I feel that
my proposal that education throughout the country should be controlled
from the Centre will have the approval
and endorsement of eminent educationists, men of vision and of men with
statesmanship. What is happening today? On the threshold of independence (I
cannot help saying it) certain provinces are running riot in the educational
field. Provinces are implementing not only divergent but often directly
opposing policies.
And it is axiomatic that a uniform, synthesised, planned
education system is the greatest force to ensure national solidarity and
national integration. Equally, divergent, fissiparous, opposing educational
policies will be the greatest force for disintegration and the disruption of
this country. It may be inferred from the above discussion that the 1976
transfer from the State List to the Concurrent List had a specific purpose and
significance. It created an avenue for Centre’s intervention in the field of
school education.
RIGHT TO EDUCATION (RTE) ACT, 2009 OF
CHILDREN TO FREE AND COMPULSORY EDUCATION ACT:
Provides for free and compulsory
education to all children of the age of six to fourteen years.
The Right of children to
Free and Compulsory Education Act came into force from April 1, 2010. This is
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 neighborhood.
Any cost that prevents a
child from accessing school will be borne by the State which shall have the
responsibility of enrolling the child as well as ensuring attendance and
completion of 8 years of schooling. No child shall be denied admission for want
of documents; no child shall be turned away if the admission cycle in the
school is over and no child shall be asked to take an admission test. Children
with disabilities will also be educated in the mainstream schools. The Prime
Minister Shri Manmohan Singh has emphasized that it is important for the
country that if we nurture our children and young people with the right
education, India’s future as a strong and prosperous country is secure.
All private schools shall
be required to enroll children from weaker sections and disadvantaged
communities in their incoming class to the extent of 25% of their enrolment, by
simple random selection. No seats in this quota can be left vacant. These
children will be treated on par with all the other children in the school and
subsidized by the State at the rate of average per learner costs in the
government schools(unless the per learner costs in the private schools are
lower).
All schools will have to
prescribe to norms and standards laid out in the Act and no school that does
not fulfill these standards within 3 years will be allowed to function. All
private schools will have to apply for recognition, failing which they will be
penalized to the tune of Rs 1 lakh and if they still continue to function will
be liable to pay Rs 10,000 per day as fine.
Norms and standards of
teacher qualification and training are also being laid down by an Academic
Authority. Teachers in all schools will have to subscribe to these norms within
5 years.The National Commission for Protection of Child Rights (NCPCR) has been
mandated to monitor the implementation of this historic Right. A special Division
within NCPCR will undertake this huge and important task in the coming months
and years. A special toll free helpline to register complaints will be set up
by NCPCR for this purpose.
NCPCR welcomes the formal
notification of this Act and looks forward to playing an active role in
ensuring its successful implementation.NCPCR also invites all civil society
groups, students, teachers, administrators, artists, writers, government
personnel, legislators, members of the judiciary and all other stakeholders to
join hands and work together to build a movement to ensure that every child of
this country is in school and enabled to get at least 8 years of quality
education.
CONCLUSION:
This paper has briefly traced the demand
for FCE. Starting from the period around the freedom struggle, there has been a
consistent demand for FCE. The Constitution originally provided for FCE as a
Directive Principle of State Policy, and now provides for a fundamental right
to FCE, ‘as the State may by law determine.’ Therefore, the details and content
of such a right are to be regulated by the State. Under the Constitution, both
the Centre and the States have concurrent legislative powers with respect to
education. However, in order to maintain uniform standards across India and to
create a ‘common language’, it is imperative to enact skeletal Central-level
legislation in such a manner that it allows room for local need-based
innovations.
Further, there have been concerns that
the freedom given to the State to enact a law (implementing the right to
education) may be used to dilute the scope of the right itself. In order to
respond to such concerns, this paper has explored some elements that form the backbone
of a rights-based approach. Therefore, these elements may be used to evaluate policies
and proposed laws to ensure that they fall within a rights framework. Legislation,
if viewed as the sole method implementing a human right, will not be successful
in achieving its objective.
Therefore, any model of implementing
human rights should incorporate coercive as well as non-coercive rules.
Moreover, the first step in any legislative process is the formulation of clear
policy directives. Before enacting skeletal legislation, the Centre should
undertake a detailed evaluation of all existing educational policies and schemes
using the suggested rights-based approach. This will help identify aspects of such
policies that fall within and outside a rights framework. There is an urgent
need to consolidate the experiences of providing school education in the last
five decades and evolve a realistic pro-child rights-based policy on education,
which may then be translated Into legislation.
The institutional framework required to
implement such a policy can be determined only after the policy itself is
evaluated and updated using a rights matrix. The following aspects provide some
guidelines in defining the non-negotiable minimum matrix of rights, which is
useful not only for policy analysis but also for developing an institutional
framework for implementation:
●Identifying minimum entitlements
related to availability and accessibility.
●Identifying minimum entitlements
related to acceptability and adaptability.
●Respecting
and implementing non-negotiable principles such as equality,
non-discrimination, survival and development of the child, child participation
and best interests of the child.
● Creating an enabling framework
where solutions to barriers against FCE are provided.
●Ensuring that barriers against FCE
are not punished.
●Ensuring that relationships
between child–State, parent–child, parent–State and
community–child/parent–State are clearly
defined.
●Locating
social accountability of different actors and creating a grievance redressalmechanism.
This would entail clear identification of duty-bearers at different levels –
Centre, State, District, Local level bodies and school.
●Capacity building of the
right–holders as well as the duty–bearers.
A clear rights-based policy should
be translated into skeletal Central legislation. Such skeletal legislation
should be supplemented by Model Statutory Rules that will operate in the
absence of State Rules. Such a model of legislation will allow for State-level
flexibility without compromising on non-negotiable minimum standards.
BIBLIOGRAPHY
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The ‘Fundamentals’
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Court of India (1992 AIR 1858)
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Study on Right
to Education in India Article for Blog Post Writing Competition 2011 | by Akansha Rai and
Shivani Rana May 26th, 2011
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