Deepanshu Ashava, Student, IMS Law College Noida
“We are committed to ensuring that all children, irrespective of gender and social category, have access to education. An education that enables them to acquire the skill, knowledge, values, and attitudes necessary to become responsible and active citizens of India”.
(Former, Prime minister, Dr. Manmohan Singh)
The Right to Education
The right to education was initially not included as a fundamental right in the constitution and was included as a Directive Principle under Article 45 which required the state to endeavors to provide, with in a period of 10 years from the commencement of the constitution, for free and compulsory education for all children until they complete the age of 14 years. The directive in Article 45 was not confined merely to primary education; it extends to providing free education up to the age of 14 years, whatever the stage of education it came to. Therefore, education for children of this age group should have been free. During this period the Supreme Court imply the ‘Right to education' from other Articles of constitution such as Article 21, 24, 30(i), and 39(e) & (f). The Court emphasized that the solemn obligation placed on the state by Article 45 “to provide for free and compulsory education for children” can be discharged by it through government and aided school and that Article 45 does not required that obligation to be discharged at the expense of the minority communities.
86th Constitutional Amendment Act (2002)
The Constitutional Amendment is made with regards for protecting the citizen’s rights of education, as well as know the challenges in India regarding education; 86th Amendment act 2002, makes three exact provisions in Constitution to facilitate understanding of free and compulsory education to children’s between age 6 to 14 years as a Fundamental Right. These are as follows:-
· Adding Article 21A in part III initiated 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.
· Bring alteration and modification in Article 45 and substituted as the state shall endeavors to assure early childhood care and free and compulsory education for all children until they complete the age of 6 years.
· The insertion of new clause in Article 51 A, clearly mandates the parents or guardians to furnish opportunities for education of their children between the age group of 6 to 14 years.[Article 51A (k)]
Reasons behind RTE Act 2009
· 1950, Constitution of India provided under article 45, as one of the Directive Principles of state policy.
· 1968, First National Commission established for education under the supervision of Dr. Kothari and submits its reports (several changes).
· 1976, Constitutional Amendment for making education in a concurrent subject (responsibility of central and state)was passed.
· 1986, The National Policy on Education (NPE) supports to common school system (css) and was formulated but not implemented.
· 1993, The Supreme Court in the case of Mohini Jain and Unnikrishnan vs state of Andhra Pradesh ruled that the right to education is a fundamental right that flows from the Right to life in article 21 under Indian constitution.
· 1997, Constitutional Amendment for making education as a fundamental right was introduced.
· 2002, 86th Constitutional Amendment took place and insertion of Article 21A and brings changes in Article 45 and also added a new fundamental duty under Article 51A (k).
· 2005, CABE committee report established to draft the right to education bill submits its report.
The Right of Children to Free and Compulsory Education Act (2009)
The Right of children to free and compulsory education or Right to education Act, 2009 was enacted to give effect to Article 21A of the constitution. It made the right to primary education part of the right to freedom, stating that the state would provide free and compulsory education to children between 6 to 14 years of age. Six years after an Amendment was made in the Indian constitution, the cabinet cleared the Right to education bill in 2008. The bill was approved by the cabinet on 2 July 2009. Rajya Sabha passed the bill on 20th July 2009 and the lokh sabha on 4 August 2009. It received President assent and was notified as law on 3 September 2009 as “The children’s right to free and compulsory education Act”. The law came into effect in the whole of India except the state of Jammu and Kashmir and from 1 April 2010 the law came into force.The Act provides following things:-
· Every child of India between 6 to 14 years of age has a right to free and compulsory education in the school till the achievement of elementary education.
· Children who have either dropped out from the school or have not been present at any school will be enrolled in the schools and no school can reject them for taking admissions.
· Private and unaided education institutes will have to reserve 25% of the seats for the students belonging to economically weaker section and disadvantaged section of the society in admission to class 1st.
· For the purpose of admissions in a school the age of a child shall be determined on the basis of certificate issued in accordance with the provisions of the Birth, Death and Marriage registration act 1856 or on the basis of such other documents, as may be prescribed.
· The National Commission for Protection of child Rights (NCPCR) and state commission will monitor the implementation of the act.
· All schools except private unaided schools are to be managed by school managing committees with 75% parents and guardians as member.
· Child’s mother tongue as medium of instruction and comprehensive and continuous evaluation system of child’s performance will be employed.
· Financial burdens will be shared by the Centre and the state government in the ratio of 55:45 and this ratio is 90:10 for the northeastern state.
· No of teachers for class 1st to 5th.
i. Admitted children (up to 60) no. of teachers required is 2.
ii. Children between (61-90) no. of teachers required are 3.
iii. Children between (91-120) 4 teachers required.
iv. Above 150 children 5 teachers + 1 head teacher.
i. Atleast one class room for every teacher and one office-cum-store-cum-head teacher’s room.
ii. Separate toilet for girls and boys.
iii. A kitchen where mid-day meal is prepared.
iv. One playground.
v. Safe and adequate drinking water facility.
· Minimum no. of working days.
i. 200 working days for 1-5th class.
ii. 220 working days for 6-8th class.
· Instructional hours.
i. 800 Instructional hours per academic year for 1st-5th class.
ii. 1000 Instructional hours per academic year for 6th-8th class.
There shall be a library in each school providing newspapers, magazines & books.
· The RTE Act provides children access to elementary schools with in the “defined area or limits of neighborhood”.
i. Primary school with in 1km.
ii. Elementary schools with in 3km.
· The Right to Education of persons with disabilities until 18 years of age is laid down under a separate legislation.
· It Prohibits.
i. Physical punishments and mental harassment.
ii. Screening procedures for admission of children.
iii. Capitation fees.
iv. Private tuition by teachers.
v. Running of schools with out recognition.
Landmark Cases and Judgements.
Case: - 1 Mohini Jain vs State of Karnataka.
In this case Miss Mohini Jain, a resident of Meerut applied for admission to the MBBS course in the session commencing in 1991 to a private medical college located in the state of Karnataka. The college management asked her to deposit a sum of Rs 60000/- as the tuition fee for the first year and also to show a bank guarantee of the amount equal to the fee for the remaining year. When Miss Jain’s father intimated the management that the asked amount was beyond his reach, the management denied Ms. Jain’s admission to the medical college. Miss Jain informed the court that the management demanded an additional amount of Rs 450000/- however the management denied the allegation.
· ‘Right to education' guaranteed to the people of India under the constitution.
· Whether the charging of Capitation fees is violative of Article 14 and 21.
In this case the Supreme Court held that although the right to education as such has not been guaranteed as a fundamental right under the constitution, it becomes clear from the preamble of the constitution and its Directive Principles contained in part 4 that the framers of the constitution intended the state to provide education for its citizens. They also held that the charging of a capitation fee by the private educational institutions violated the right to education as implied from the right to life and human dignity and the right to equal protection of the law. In additional the court held that private institutions, acting as agent of the state have a duty to ensure equal access to and non discrimination the delivery of higher education.
Case:-2 Unni Krishnan, J.P & Orsvs State of Andhra Pradesh
The case comes into subsistence through petitions filed by the private educational institutions to challenge the state laws. These state laws were enacted to regulate the capitation fee charges in the states of Tamil Nadu, Karnataka, Andhra Pradesh and Maharashtra. The Laws mentioned that any person involved in the management taking additional fees will be considered as capitation fees.
Whether Right to education under Article 21 extends to technical education.
A constitutional bench held that education up to the age of 14 years to be a fundamental right….. “It would be therefore incumbent up on 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”.