Education is an eternal source of knowledge which gets humans to think and apply their mind. Such knowledge that is vested in an individual not only determines the betterment of their life but also intimate their Nation as well-developed in all spheres. Education is also a basic right guaranteed by Human Rights Law.
At first, the Constitutional Law of India directs the State to take care of children by ensuring compulsory and free education. Then the right to education was guaranteed by fundamental right in the Indian Constitution, 1950. Further, a separate clear distinct Act came into existence for protection and confirmation of the educational rights; to improve the qualities of free and compulsory education.
Education is a major key in the growth of a Nation in several and every field. Knowledge is also considered as the most important source for the personal development of an individual. It guarantees that even though a person is poor but if educated, he can survive with all wants in this competitive world. It increases the standard of life. Thus, education is an important tool for harmonious living in society and for the consistent development of a Nation.
WHAT IS THE RIGHT TO EDUCATION?
Education is the ultimate source of wisdom which makes a man ideal in all spheres of necessities. By understanding the needs of education, the want of education should be protected as a legal right. Hence it is observed that by declaring education as a right, the Nation, as well as its peoples, are benefited. As the world improves, the standard of living also improves. Considering these economical and other circumstances, education was made as a fundamental basic right of every person. The right to education is universal and intrinsic in nature for the betterment of the whole world.
In India right to free and compulsory education is protected under Article 21A of the Indian Constitution, 1950. This article was inserted by the 86th Constitutional Amendment Act, 2002, and came in effect from 1st April, 2010. Under article 21A, right to education is guaranteed as a fundamental right to every citizen of India and it obliges the State to provide free and compulsory quality education to all children between the age group of 6 to 14 years.
HUMAN RIGHTS ASPECT
Generally, human rights are the basic fundamental rights that protect the dignity of every person i.e. who lives and also, who dies. The phrase person is denoted to all living human beings irrespective of discriminatory divisions like nationality, religion, color, creed, etc. These human rights are accredited by all States under the United Nations which paved the way for a universally applicable document named Universal Declaration of Human Rights, 1948.
Article 26(1) of the Universal Declaration of Human Rights, 1948 document which is accepted and endorsed by all nations, pronounces that everyone has the right to education . And it should be free and compulsory until the elementary stage of education. Article 26(2) of this document strengthens the quality of education by directing that the given education should be at the standard of the full development of human personality . Thus, the right to education is an international or universal fundamental right protected by the Universal Declaration of Human Rights document under the United Nations.
EVOLUTION AS A FUNDAMENTAL RIGHT IN INDIA
Initially, the right to education was not a fundamental right under the Constitution of India, 1950. It was bestowed under article 45 of the Directive Principles of State Policy (DPSPs). Article 45 directs and endeavors the State to furnish the opportunity to children with free and compulsory education until the age of 14 years. The State is also obliged to provide free and compulsory education within 10 years from the outset of the Indian Constitution i.e. within 1960. In this phase, the right to education was looked implicitly in the Articles of 21, 21, 30(1), 39(e), and 39(f).
With reference to Re Kerala Education Bill , Article 30(1) gives the right to all minorities to institute and administer educational organizations/academies based on their religion or language. Since the education was free for primary stages, the respective State makes no alternate statutes for payment of subvention to substitute the loss of revenue caused to Schools. Finally, it went against Article 30(1). Further, the Court also highlighted that Article 45 does not require an obligation of the State to be discharged at the expense of the minority communities to provide free and compulsory education.
In Unnikrishnan, JP v. State of Andhra Pradesh , the Court clears that Directive Principles of State Policy and Fundamental Rights are complementary to each other, the scope and subject matter of Articles 41, 45, and 46 were deduced. Consequently, the subject matter of the right to education under the Directive Principles signifies:
(i) all children are guaranteed with basic right to free education until the age of 14 years either through governmental or private or aided Schools of particular States and,
(ii) then this right is confined by certain restrictions concerning the potential of economical position and evolution of the State.
The Court was also notified that concerning the limitation of the economical position of State it does not denote that article 41 of the right to education in Directive Principles should be modified as a fundamental right. And it was accepted that the right to education flows implicitly from the right to life under article 21 of the Indian Constitution, 1950.
UNDER ARTICLE 21
The apex Court noticed that the phrase ‘life’ under article 21 of the Indian Constitution, 1950 implicitly includes the phrase ‘education’. Since the source of knowledge provided by education upgrades the quality standards of a dignified life. In Mohini Jain v. State of Karnataka , the conflict arose due to the charge of high tuition fees by the private medical college according to the enacted Act of Karnataka’s State Legislature. The Supreme Court quashed the Act because it was against Article 14. The Court agreed that the right to education was not expressly guaranteed and protected by the Indian Constitution. It was propounded by the Court that the ultimate aim of the framers of the Constitution was to make the State obliged to provide education for its citizens through a comparative analysis of Article 21 along with Articles 38, 39(a), 41, and 45. The right to life in Article 21 denotes the right to live with human dignity. Education is primary to every person to live with dignity.
Hence the right to education directly flows from and accompanied by the right to life. Thus, the right to education is associated with a fundamental right. It is a herculean task for the State to provide free education to all citizens. But high tuition fees charged by unaided private educational institutions were accepted by the Supreme Court and it should not exceed the ceiling fixed. Further, it was stated that article 14 binds the State institutions, and even the private institutions are required to admit students only on a merit basis. Consequently, a scheme was framed by the Court to regulate the admission process of students those who are enrolled in private medical, dental, or other courses related to medical colleges, and private engineering colleges.
AS A FUNDAMENTAL RIGHT
Understanding the aim of the framers of the Constitution and the supreme source of knowledge i.e. education must be available to all citizens of India. The Court eventually from the verdicts of Unnikrishnan’s Case  introduced Article 21A which makes the right to education as a fundamental right through the Constitution (Eighty-Sixth Amendment) Act, 2002 on 12th December 2002. Under PART – III of the Indian Constitution, Article 21A compels the State to provide free and compulsory education to every child of India from the age of 6 to 14 years. Additionally, it is to be noted that in the case of Pramati Educational & Cultural Trust v. UOI , the Court ruled that Article 21A imposes an obligation to provide free and compulsory education only on the State and its organs and there is no obligation on private unaided educational institutions.
At this stage, the 86th Amendment binds the parents or guardians as a fundamental duty under Article 51A of PART – IVA through introducing a new clause 51A(k) to furnish opportunities for education to their wards between the age of 6 to 14 years. A new article was also inserted as a substitute for Article 45 in PART – IV in Directive Principles of State Policy that directs the State to stride and to provide early childhood care and early education for all children until they complete the age of 6 years.
THE RTE ACT, 2009
The Right of Free and Compulsory Education (RTE) Act, 2009 enacted by the Parliament expounds the modalities of the significance of the right to free and compulsory education provided by the State to children between the ages of 6 to 14 years. It guarantees and protects the educational right vested within every child in India. India is one of the 135 countries in the world to furnish the right to education as a fundamental right. The Act compels all the private educational institutions to reserve 25% of seats to poor children below the line of weak economic position. There are certain provisions of this Act concerning the quality and enhancement of the educational institution’s infrastructure and good teacher-student ratios that are made for better circumstances for children to study peacefully. The right to education for persons with disabilities guaranteed by a particular statute named “The Person with Disabilities Act, 1995”
The phrase education comes under the concurrent list hence both Centre and State can enact laws according to it. This Act forces the Centre, State, and other local authorities with some responsibilities to implement free education to all. When the State becomes insufficient to provide free education due to the inadequacy of financial capacity, the Centre should subsidize the State. The Department of Health Resource Development Ministry constituted a high-level fourteen members of the National Advisory Council in order to implement the working provisions of the Act.
After noticing and getting required feedback from the public, the Central Advisory Board of Education committee drafted and submitted the Right to Education Bill to the Health Resource Development Ministry in June 2005. The Ministry forwarded the draft to the National Advisory Committee then it was acknowledged by the Prime Minister of India. But the finance and planning committee declined the bill because it could create an unnecessary loss of funds to the State and Centre. After the plea from the social reformer and educationist Gopala Krishna Gokhale and justified with the 25% of the reservation, the bill was officially accepted by the Cabinet on 2nd July 2009. The Right to Education Bill was first passed by Rajya Sabha on the 20th of July 2009 and after that it was passed by Lok Sabha on 4th August 2009. Finally, the bill got assent from the President of India, and the Right of Free and Compulsory Education (RTE) Act, 2009 came into effect from 1st April 2010.
The key-highlights of this Act are as follows:
- This major aim of this Act is to provide free and compulsory education to every child in India.
- It ensures that the out of school child shall join a suitable class in proportion to his/her age.
- The child is not required to pay any donation, management, capitation charges for elementary education.
- It guarantees education to all children without any considering any discrimination of caste, creed, colour, religion, gender, place of birth, etc.
- The process of admission should not be based on an interview or questioning method with the child or with the child’s parents.
- This Act prohibits the mental and physical harassments against the children in all educational institutions.
- The Act fabricates opportunity to all children without any exception as it reserves 25 % of seats in all educational institutions whether private or government-aided.
- All students are granted with free books, uniforms, and other accessories.
- It imposes a burden on the Central Government to form National Academic Curriculum, teacher training guidance, and to support the State for promotion and implementation of free education.
- This Act ensures the quality of education but also ensures qualities of study place by providing good infrastructure, hygienic canteens, and to maintain proper clean and separate toilets for boys and girls.
- A standard full-time teacher is endorsed for educational institutions having strength more than a hundred children. And one separate teacher should be appointed for every 30 students in lower primary classes (I-V) and one teacher for every 35 students in upper primary classes (VI-VIII).
BRIEF OF PROVISIONS
The Right of Free and Compulsory Education Act, 2009 comprises 7 chapters, 38 sections, and a schedule. The preamble confirms that this is an Act enacted by Parliament in the 60th year of the Republic of India which provides for free and compulsory education to all children between the ages of 6 to 14 years.
CHAPTER – I (ss. 1 and 2 )
The sections of this Act contains two sections that explain the name, extends to all territories India, and commenced form notification is given on Official Gazette by the Central Government with certain definitions under this Act.
CHAPTER – II (ss. 3 to 5)
It consists of three sections that expound the right to free and compulsory education with special provisions for children who haven’t completed their primary education and the right of a student to transfer to another school.
CHAPTER – III (ss. 6 to 11)
It elaborates on the duties of appropriate State or Central Government or local authorities to establish and maintain the education institutions. It also recalls the parents or guardians to do their duty to provide opportunities to their children.
CHAPTER – IV (ss. 12 to 28)
It imposes responsibilities on teachers and schools to provide free education without capitation fees. There must be no denial of admission and no screening method should be conducted for admission. Sections 19, 21, and 22 of this Chapter require the schools to provide a quality standard of education with good infrastructure as a study place.
CHAPTER V – (ss. 29 to 30)
It deals with development processes like curriculum, evaluation, examination, and completion of the elementary education of children.
CHAPTER – VI (ss. 31 to 34)
It protects the educational rights of children through the National Advisory Council and State Advisory Council by administering the working of this Act in various States.
CHAPTER – VII (ss. 35 to 38)
This miscellaneous chapter deals with the authority to give directions and rules according to this Act. It gives sanctions only for the previous prosecution. Section 37 protects any action taken by Central or State governments and educational institutions only in good faith.
Further, the Schedule describes norms which should be followed, standards of schools, the number of teachers divided subsequently to strengths of the students, endorses a head-teacher for schools more than 100 students, regulates and administers the whole campus of educational institutions.
In today’s world education plays a dominant role and is a much-needed source of knowledge to carry a standard of a dignified life. Education pulls out the poverty stage in one’s life. The ways of communication are made better throughout the world with the help of an educated mind so that a clear mutual understanding between countries develops a peaceful era. Education not only develops the total personality of an individual but also improves the country in all aspects. Thus, education is protected as a right in India and many other countries. In India, it is protected under ‘Article 21A’ as a fundamental right under the Indian Constitution, 1950 and also accompanied by a separate Act named ‘The Right of free and compulsory Education Act, 2009’.
 Universal Declaration of Human Rights, 1948, art. 26(1).
 Universal Declaration of Human Rights, 1948, art. 26(2).
 AIR 1958 SC 956.
 (1993) 1 SCC 645.
 AIR 1992 1858.
 AIR 1993 SC 2178.
 (2014)8 SC 1.
BY HARI HARAN.V | SCHOOL OF EXCELLENCE IN LAW , PERUNGUDI