Guha/An Overview of Right to Education in India with Critical Analysis of Right to Education Act

AN OVERVIEW OF RIGHT TO EDUCATION IN INDIA WITH CRITICAL ANALYSIS OF RIGHT TO EDUCATION ACT Bashudeb Guha1 Abstract- This article deals with the meaning and importance of education and the various constitutional and legal provisions ensuring free and compulsory education in India in relation our socio-economic needs. Previously, the right to education was present only in the directive principles of state policies which were not enforceable. It was only through the Constitution (Eighty-Sixth Amendment) Act, 2002 Article 21A was inserted as a fundamental right which states about free and compulsory education to all children between the ages of 6 to 14 years. The judiciary too played an extensive role in universalizing elementary education in India. Subsequently, the parliament also enacted the Right of Children to Free and Compulsory Education Act, 2009 which came into force on April 1, 2010. Though this is a welcoming step, the Act also contains many lacunas which are discussed further.

Key words: ‘human being’, ‘education’, ‘constitution’, ‘child’. Introduction Education can be regarded as a continuous and methodical procedure basically involving philosophy and sociology, which brings the growth of human being to the maximum level and also develops the society in such a manner that both individual and society gain maximum pleasure and prosperity and at the other side get minimum pain and suffering. In brief, education is the development of human being as per his requirements and demands in the civilized society, of which he is a related component. Education is a systematic process through which a human being acquires knowledge, experience, skill and sound attitude. Education has a huge impact on human civilized world. It can be safely presumed that a person is not complete till he is educated and thus it makes an individual civilized, refined, cultured and educated. Education inter alia trains the human brain to think and choose the right way. It is through education that knowledge and information is received and circulated throughout the world. The major role of education is to create an educated society. So we can say that in the present world the function of education is day by day becoming more important. It is very necessary for financial and societal development. Thus 1 B.A.LL.B. (Hons.), LL.M. (Environmental Law), Advocate, Calcutta High Court. E-mail: [email protected].

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education is an instrument for social development, which brings improvement in every aspect in the society. Therefore, the purpose of education is to teach a human being how to live his life by developing his mind and equipping him to deal with reality. Education paves the way to think, to understand, to integrate and to prove. The aim of education is to teach us how to think, rather than what to think, so as to enable us to think for ourselves, than to stack the memory with the views of other men. The term ‘education’ also received a wider interpretation in relation to its meaning in Sole Trustee, Lok Shikshana Trust v. C.I.T. 2 , where it was stated- “the systematic instruction, schooling or training given to the young in preparation for the work of life. It also connotes the whole course of scholastic instruction which a person has received.... what education connotes is the process of training and developing the knowledge, skill, mind and character of students by formal schooling.” In fact, the significance of education was given due recognition in the case of Francis Coraile v. Union Territory of Delhi3 where Justice Bhagwati observed that“We think that the right to life include, the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.” International Perspective Education is universally accepted as a fundamental human right and individuals with the aid of education can grow the skills, aptitude and confidence to secure other rights. Thus the right to education acts as a bridge that functions as the medium through which other rights can be claimed and preserved. It is therefore a significant stepping stone to develop the social state of affairs of the people. The right to education derived its legal foundation from the Universal Declaration of Human Rights, 1948 which speaks as “education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.”4 It also states that everyone shall have the right to free and compulsory elementary education. The right to education has been reaffirmed in the UNESCO Convention against Discrimination in Education, 1960 and the Convention 2 AIR 1976 SC 10, available at http://www.indiankanoon.org/doc/1045974/ (Last visited on June 27, 2013). 3 AIR 1981 SC 746, 753. 4 Article 26 (2) of the Universal Declaration of Human Rights, G.A. Res. 217A, U.N. Doc. A/810 (December 12, 1948).

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on the Elimination of All Forms of Discrimination against Women, 1981. Provisions of education can also be seen in Articles 13 and 14 of the International Covenant on Economic, Social and Cultural Rights. According to the International Covenant on Economic, Social and Cultural Rights the right to education includes free and compulsory primary education for all. In addition to these, right to education also encompasses the obligation to eliminate discrimination at all levels of the educational system, to set minimum standards and to improve quality. The European Convention guarantees civil and political dimensions of the right to education. The European Social Charter in 1996 added economic and social dimensions to the right to education. The Convention on the Rights of the Child, 1989 included the most comprehensive guarantee of the right to education encompassing its orientation and content as well as specific provisions for minority and indigenous children and children with disabilities, and has been ratified by almost all countries of the world. 5 Article 19(1) of the United Nations Convention on the Rights of the Child, 1989 clearly explains that the state parties shall take all appropriate measures, including educational measure, to protect the child from all forms of violence, injury, abuse, neglect, maltreatment or exploitation (sexual abuse), even when they are under the care of parents, legal guardians or any other person. These international treaties and conventions provide the global framework for securing the fundamental requirement of the right to education. The essence of the right to education is elucidated in wide terms by intercontinental legislations but fundamental nature is given to it only when national legislators incorporate it in their national legislations. It is to be remembered that the course of incorporation is more vital than to be merely present as an international treaty because it is only through incorporation people are entitled to claim for their right to education. Until and unless the international documents are incorporated into municipal law there would be no assurance of its enforceability because in general international documents even of high priority are not enforceable in law. For example, the Universal Declaration of Human Rights, 1948 are not binding due to its nature of declaration. However, owing to the natural rules of Jus Cognes some argue that it has acquired the status of binding nature not only on the signatory countries but also on the countries which have not ratified it. Nevertheless, as the Right to Education Act came into force, India has joined the confederation of over 130 nations which assures legal guarantee to endow with free and compulsory education to children. As per the UNESCO’s report- Education for All Global Monitoring Report 2010, about 135 countries have constitutional requirements for free and non-

5 Justice Dipak Misra, Right to Education, Nyaya Deep, Vol. VIII, Issue 1, 26 (January, 2007).

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discriminatory education for all. 6 However, the report also states an alarming fact that notwithstanding the legal assurance of free education, primary school fees is being continued to be charged in some countries. Constitutional Provisions One of the cherished goals of our Constitution is to make education open to all the people without any discrimination between class or caste, creed or religion, man or woman. To achieve this goal various measures have been undertaken by the government. Though studies on this aspect are few there is a general agreement that much changes have occurred in the degree of educational opportunity in the country.7 With the arrival of the East India Company in India the modern European education system came to India. The British rulers, motivated by the political- administrative and economic needs of Britain in India introduced Western Education. The modern education system soon became more definite in India as a number of primary, secondary, and tertiary centres for education mushroomed during the colonial era. The changes that had taken place in Great Britain in eighteenth and nineteenth century had their implications on Indian contemporary society. As new ideas emerged new concepts regarding modernizing of education system also came into hand. However, attempts to make provisions for free and compulsory education in India began a little more than a century ago. After independence, the Constitution of India came into force on January 26, 1950. The Constitution has given the following guidelines for the development of education in India: 1) Article 21A- Right to education. 2) Article 28- Religious education & religious worship in certain educational institutions. 3) Article 30- Right of minorities to establish & administer educational institutions. 4) Article 41- Right to work, to education and to public assistance in certain cases. 5) Article 45- Provision for education for children below the age of six years.

6 India joins list of 135 countries in making education a right, The Hindu (New Delhi) April 02, 2010. 7 D.C.Bhattacharyya, Sociology 527, Vijoya Publishing House (2005).

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6) Article 46- Education of the socially & educationally backward classes of citizens. 7) Article 51A(h)- To develop scientific temper, humanism and the spirit of inquiry and reform. 8) Article 51A(k)- Parent or guardian to provide opportunities for education to his child or ward between the age of six to fourteen years. 9) Article 350A- Facilities for instruction in mother tongue at primary stage. 10) Article 351-Promotion of Hindi. 11) List I, List II and List III including Forty Second AmendmentEducation functions of State & Central government. Thus, it can be observed that the various constitutional provisions regarding education in India are in accordance with our political, economic, social & cultural needs. These provisions aim at fulfilling the aspiration of the people through the medium of education. The Constitution (Eighty Sixth Amendment) Act, 2002 has added a latest Article 21A which says 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”. Accordingly, the journey of the ‘Right to Education’ from the directive principles to a specific fundamental right has been a huge struggle and a triumph for activists, human rights advocates and educationists working on education all over the country. Legal Provisions on Education Keeping in mind the due importance of education many laws have been made for securing and promoting compulsory education in India. Many people even the educational administrators are unknown of the fact that India has a number of Acts in the above area. They are in fact not aware of the existence of education Acts in their states. But the main lacuna is that they are nor Central Act but are State Acts. The below table8 presents a list of the Acts which are presently in force in different states and union territories making education free and compulsory:

8 Nalini Juneja, Constitutional Amendment to Make Education a Fundamental RightIssues for a Follow-up Legislation, March 2003, available at http://www.nuepa.org/Download/Publications/Occasional%20Paper-33njuneja.pdf (Last visited on June 15, 2013).

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SL. NUMBER 1 2 3 4 5 6 7 8 9 10 11

12 13

14 15 16 17 18

19

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STATE/ UNION TERRITORY Andhra Pradesh Assam

NAME OF THE ACT

Andhra Pradesh Education Act, 1982 The Assam Elementary Education (Provincialisation) Act, 1974 Bihar Bihar Primary Education (Amendment) Act, 1959 Delhi The Delhi Primary Education Act, 1960 Goa The Goa Compulsory Elementary Education Act, 1995 Gujarat Gujarat Compulsory Primary Education Act, 1961 Haryana Punjab Primary Education Act, 1960 Himachal Pradesh The Himachal Pradesh Compulsory Primary Education Act, 1953 Jammu and The Jammu and Kashmir Education Kashmir Act, 1984 Karnataka The Karnataka Education Act, 1983 Kerala The Kerala Education Act, 1958 (As amended by Acts 35 of 1960, 31 of 1969 and 9 of 1985) Madhya Pradesh The Madhya Pradesh Primary Education Act, 1961 Maharashtra The Bombay Primary Education Act, 1947 (As modified up to 30th April, 1986) Punjab Punjab Primary Education Act, 1960 Rajasthan The Rajasthan Primary Education Act, 1964 Sikkim The Sikkim Primary Education Act, 2000 Tamil Nadu The Tamil Nadu Compulsory Elementary Education Act, 1994 Uttar Pradesh United Provinces Primary Education Act, 1919 and United Provinces (Dist. Boards) Primary Education Act, 1926 (Adapted and modified by the Adaptation of Laws Order 1950) West Bengal West Bengal Primary Education Act, 1973

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Although many states in India have passed legislations for compulsory primary education but those Acts do not make education compulsory. In fact they only left the option to the local authorities to do so. Therefore, it can be asserted that the present Acts are mere enabling legislations and can be applied only to a local area for which proper schemes are necessary. Hence, it cannot be said that education is obligatory for the states having so called compulsory education Acts. In such a situation it was of extreme necessity to have a central Act ensuring free and compulsory education and which at the same time would have a strong constitutional back up for better implementation. It was only in early 1990s that this proposal got duly recognized and the required course of action was being initiated for including the ‘Right to Education’ within the jurisdiction of fundamental rights for which necessary constitutional amendments were also necessary. Subsequently, the Eighty Sixth Amendment of the Constitution recognized the ‘Right to Education’ in accordance with the new Article 21A. The justiciable right, which obligates the State to provide free and compulsory education to children between six to fourteen years of age, became a landmark in universalisation of elementary education in India. The National Commission to review the working of the Constitution not only recommended to incorporate right to primary education as a fundamental right, but also quite importantly stated, “The responsibility for the universalisation of elementary education should be entrusted to Panchayats and local self-government institutions.” It emphasised the aspects of duties of citizens and community in support of this mission. 9 This new constitutional provision was accompanied by a statutory enactment by the Central Government namely, Right of Children to Free and Compulsory Education Act, 2009 which came into force across the country on April 1, 2010. Popularly known by its short name, the Right to Education Act which came following long sixty five years of independence made elementary education free and compulsory for every child in the age group of six to fourteen years. Now India is among one of those countries in the world which provides free and compulsory education, a constitutional guarantee. For successful implementation of this Act, it is the responsibility of both the Central Government and State Governments to make available free and compulsory elementary education to all children.

9 P.Ishwara Bhat, Law and Social Transformation 653, Eastern Book Company (2009).

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The Salient Features of the Right of Children to Free and Compulsory Education Act, 2009 The Right of Children to Free and Compulsory Education Act, 2009 has finally been notified, after much debate, only after receiving the assent of the President of India. Article 21-A, as inserted by the Constitution (Eighty Sixth Amendment) Act, 2002, provides for free and compulsory education of all children in the age group of six to fourteen years as a fundamental right. However, the salient features of the Act are as follows: 1) All children are entitled to free and compulsory education between six to fourteen years of age group in a neighbourhood school;10 2) No discrimination should be allowed in schools with respect to caste, creed, religion, financial status, social status etc;11 3) It is the responsibility of Government to provide the pre-school education facility to all those children in between three to five years;12 4) No child shall be held back or expelled until completion of elementary education;13 5) When a child above six years of age has either not been admitted in any school or though admitted could not complete his elementary education then he shall be admitted in a class appropriate to his age. Where a child is directly admitted in a class appropriate to his age then he in order to be at par with others, shall have a right to receive special training, and the elementary education will continue even after fourteen years of age;14 6) Where there is no provision for completion of elementary education in a school, the child has the right to seek transfer from one school to other for completing elementary education;15 7) A child who completes elementary education shall be awarded a certificate;16

10 Section- 3(1). 11 Section- 8(c) and 9(c). 12 Section- 11. 13 Section- 16. 14 Section- 4. 15 Section- 5(1). 16 Section- 30(2).

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8) The Act lays down the norms and standards relating to fixed studentteacher ratio, buildings and infrastructure, school-working days and teacherworking hours; 9) The provisions of this Act apply to all over India except Jammu and Kashmir;17 10) This Act provides for 25 percent reservation for economically disadvantaged communities in admission to ‘Class One’ in all private schools through a random selection process. The government will fund education of these children. However, no seats in this quota can be left vacant or unfilled. These children will be treated at par with all the other children in the school;18 11) This Act mandates on the improvement in quality of education 19 and abolishes non-formal type of education and stresses on recognized schools. One of the big achievements of this Act is that it has taken a decision to do away with para-schooling and para-teachers. It calls for a general and uniform education system in definite and fixed terms. In the last two decades, the mushrooming of unrecognized schools supported by multilateral agencies had brought about severe dilution in the conception of ‘School’. The Act and the Schedule attached to it clearly defines that a school has to observe certain criteria as to the appointment of qualified teachers, teacher- pupil ratio, good infrastructure, etc; 12) It says that only appropriately skilled persons with necessary academic qualifications can be appointed as a teacher;20 13) All schools except government schools are required to be recognized by meeting specified norms and standards within three years to avoid closure and all private schools will have to apply for recognition, failing which they will be penalized up to a sum of Rupees one lakh and in case of continuing contraventions, to a fine of Rs 10,000 for each day during which such contravention continues;21 14) All schools except private unaided schools are to be managed by School Management Committees consisting of elected representatives of the local

17 Section- 1(2). 18 Section- 12(1) (c). 19 Section- 8(g) and 9(h). 20 Section- 23(1). 21 Section- 18 and 19.

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authority, parents and teachers with 75 percent parents and guardians as members;22 15) Economic responsibility will be shared among Central Government and State Government and it also points out the duties and responsibilities of appropriate government, local authority and parents in providing free and compulsory education;23 16) It prohibits: (a) Running of schools without recognition;24 (b) Screening procedures during admission; 25 (c) Private tuition by teachers; 26 (d) Capitation fee;27 and (e) Physical and mental punishment;28 17) It ensures that the specified pupil- teacher ratio is maintained in each school and it also prohibits deployment of teachers for any non educational purpose, except population census, disaster relief duties or duties relating to election of Parliament, State Legislatures or local authority;29 18) The Schedule of the Act clearly states that the school building shall be an all-weather building consisting of at least one classroom for every teacher and an office- cum- store- cum- Head teacher’s room, barrier-free access, separate toilets for girls and boys, safe and adequate drinking water facility to all children, a kitchen where the mid-day meal is cooked in school, a playground and arrangements for securing the school building by a boundary wall or fencing; 19) The Schedule of the Act also states that for first class to fifth class there shall be: (a) Two teachers, if the number of admitted children are up to sixty; (b) Three teachers, if the number of admitted children are between sixty one to ninety; (c) Four teachers, if the number of admitted children are between ninety one to one hundred and twenty; and (d) Five teachers, if the number of admitted children are between one hundred and twenty one to two hundred. It also contains that there shall be five plus one head teacher if the number of admitted children are above one hundred and fifty and if there are more than two hundred admitted children then the Pupil- Teacher Ratio (excluding Head teacher) shall not exceed forty;

22 Section- 21(1). 23 Section-7, 8 and 9. 24 Section- 18. 25 Section- 13. 26 Section- 28. 27 Section- 13. 28 Section- 17. 29 Section- 25 and 27.

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20) The Schedule of the Act also asserts that for sixth class to eighth class there shall be: (a) At least one teacher per class so that there shall be at least one teacher each for Science and Mathematics, Social Studies and Languages; and (b) At least one teacher for every thirty five children. It also states that where admission of children is above one hundred, there shall be one full time head teacher and part time instructors for Art Education, Health and Physical Education, and Work Education; 21) As per the Schedule of the Act, minimum number of working days or instructional hours in an academic year shall be: (a) Two hundred working days or eight hundred instructional hours for first class to fifth class; and (b) Two hundred and twenty working days or one thousand instructional hours for sixth class to eighth class; 22) The Schedule of the Act also states that: (a) Minimum number of working hours per week for the teacher shall be forty- five teaching hours including preparation hours; (b) Teaching learning equipment should be provided to each class as required; (c) There shall be a library in each school providing newspaper, magazines and books on all subjects, including story books; and (d) Play material, games and sports equipment shall be provided to each class as required; 23) For monitoring of child’s right to education, the National Commission for Protection of Child Rights has been entrusted to monitor the implementation of this significant right. It shall also examine and review the safeguards for rights provided by this Act and recommend measures for their effective implementation, inquire into complaints relating to child’s right to free and compulsory education and take necessary steps for protection of child rights.30 Thus, it can be perceptively observed that the Act provides for an atmosphere in conformity with the ethics implanted in the Constitution and also certifies the overall progress of the child, including knowledge, potentiality and talent and making the child free from anxiety, fear and trauma through a child friendly system. The value of education has also been reflected in Mohini Jain v. State of Karnataka31, where the apex court observed that- “The three prolonged justice (social, economic and political) promised by the preamble is only an illusion to the teeming-millions who are illiterate. It is only the education which equips a citizen to participate in achieving the objectives enshrined in the preamble”. However, there are many criticisms centring the Act. 30 Section- 31(1) (a), (b) and (c). 31 AIR 1992 SC 1858, 1863.

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Important Criticisms 1) The free and compulsory education scheme is limited to education from only Class one to eight and not further; 2) The children only between six to fourteen years of age group can claim the benefits under the Act. This is certainly an example of shallow philosophy; 3) The Act is gender neutral and does not try to make any special provision for ensuring or encouraging education of girls; 4) The Act is also silent about right to education for the children with physical and other disabilities. The exclusion of such right from the Act has in fact jeopardized the right of children with disabilities. 5) Section 16 of the Act states that no child shall be failed in any class or expelled from school till he or she completes elementary education. Therefore, as per the Act, every student will be promoted to the next class irrespective of their performance. This will only encourage idleness and insincerity among children towards their studies and inattention and negligence between the teachers. This will generate a structure with no motivation for students to try to advance themselves, or to behave within the degree of limitation. It will lower down their capability to endure stress and strain and struggle harder in order to excel. Hence, this will certainly lower the educational standards; 6) As per Section 17(1) of the Act physical punishment or mental harassment of students is prohibited. While prohibition of physical punishment is appreciable, what is ‘mental harassment’ is not completely defined. It has been unanimously agreed that when rules are not properly defined, they are subject to manipulation and misuse which may result in errant behaviour from students because any sort of correctional admonishment can be even (mis)interpreted as mental harassment; 7) With rare exceptions, teachers in India, especially in government schools, have been known for their absenteeism and lackadaisical attitude towards teaching. Student performance in examinations offered one last instrument to evaluate not just students but teachers as well. Therefore, it was widely predicted that the Act which unnecessarily wishes to do away with Board Exams entirely in the period of elementary education, 32 would definitely

32 Section- 30.

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undermine by weakening the very foundation of education at primary and basic level; 8) The Act provides for 25 percent reservation of seats for poor children in the neighbourhood schools, including private unaided schools for which the government will pay back the money towards these seats. But how the government will compensate towards the seats had not yet been stated; 9) The statute does not make it mandatory for the government to provide early childhood protection and education i.e. below six years of age, which can lead to the encouragement of child labour, exploitation, abuse etc; 10) While the Act provides for free education to all children within six to fourteen years of age, it fails to ensure that children (particularly poor children) do not drop out of school once the free scheme of education expires i.e. after passing class eight. 11) The Act is silent on the aspect of actual competence and quality of monitoring by the national and state commissions for protection of rights of the children; 12) This Act does not have jurisdiction over the state of Jammu and Kashmir, which means that children living in that state do not require education or they are all well educated and in view of the above it may be stated that both of such assumptions are wrong. Further, it may also be interpreted as political and social negligence, which is just not acceptable. The current patchwork of laws on compulsory education is insufficient. To be brief, the lacuna in the Act are inter alia non inclusion of the right to pre-primary education, ignoring the principle of access to real neighbourhood of school, continued differences between public and private schools, allowing of the trend of privatization and commercialization, and mechanisms for time-bound implementation of the law, etc. Role of Judiciary The Indian Judiciary has played a crucial role in the development of civil, educated society in general and in ensuring good governance by those holding reigns of power in particular. The Supreme Court is a shining example of objectivity, independence, impartiality and commands the faith of common man. The intervention of the judiciary in the field of education caused the passing of various regulations through successive cases. The significance of education has been accepted through numerous judicial decisions throughout the world. Few decades back in USA in the legendary

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case of Brown v. Board of Education33 it was observed- “Today, education is perhaps the most important function of State and Local Governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later profession training, and in helping him to adjust normally to his environment.” In University of Delhi v. Ram Nath 34 , Justice Gajendragadkar observed that education is enlightenment. It is the one that lends dignity to a man. To quote him: “Education seeks to build up the personality of the pupil by assisting his physical, intellectual, more and emotional development.” In Ahmedabad St. Xaviers College Society v. State of Gujarat35 it was observed that- “The minorities are given protection under Article 30 in order to preserve and strengthen the integrity and unity of the country. The sphere of general secular education is intended to develop the commonness of boys and girls of our country. This is in the true spirit of liberty, equality and fraternity through the medium of education...” In Bandhua Mukti Morcha v. Union of India 36 , educational facilities were included in the sphere of right to life by the Supreme Court. The court held that- “It is the fundamental right of every one in this country assured under the interpretation given to Article 21 by this Court to live with human dignity, free from exploitation. Therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, education facilities, just and humane conditions of work and maternity relief.” In Bapuji Education Associations v. State of Karnataka37, Justice Rama Jois of the Karnataka High Court found right to education to be an essential attribute of personal liberty. He observed that “the right of an individual to have and or to impart education is one of the most valuable and sacred rights” and further observed that “among various types of

33 347 U.S. 483 (1954), available at http://www.indiankanoon.org/doc/1775396/ (Last visited on 18/05/2013). 34 (1964) 2 SCR 703, 710. 35 (1974) 1 SCC 717, 743-744. 36 (1984) 3 SCC 161, 183-184. 37 AIR 1986 Kant 119.

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personal liberties which can be regarded and included in the expression ‘Personal liberty’ of Article 21, education is certainly the foremost.” Now, coming to Mohini Jain v. State of Karnataka 38 , Supreme Court observed that- “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 endeavour to provide educational facility at all levels to its citizens.” In the landmark judgment of Unnikrishnan v. State of Andhra Pradesh39, the five judges’ bench by ‘three by two majority’ partly agreed with the Mohini Jain decision and held that right to education is a fundamental right under Article 21. The Supreme Court further held that ‘Right to Education’ up to the age of fourteen years is a fundamental right within the meaning of Article 21 of the Constitution. But thereafter the obligation of the State to provide education is subject to the limit of its economic capacity. The right to education flows already from right to life, the court declared. In Modern School v. Union of India 40 , the Supreme Court expressed an opinion reaffirming right to education. It stated that- “The States have a duty to impart education and particularly primary education having regard to the fact that the same is a fundamental right within the meaning of Article 21 of the Constitution of India.” In State Of Bihar & Ors v. Project Uchcha Vidya, Sikshak Sangh , the Supreme Court giving due recognition and importance to education observed that imparting education is a sovereign assignment of the State. It further stated that Article 21A of the Constitution of India envisages that children of age group six to fourteen have a fundamental right of education and Clause 3 of Article 15 of the Constitution envisages special protection and affirmative action for women and children. This makes the fact beyond doubt that right to education is a fundamental right of every children of India. 41

38 (1992) 3 SCC 666, -679-680. 39 AIR 1993 SC 2178. 40 AIR 2004 SC 2236. 41 (2006) 2 SCC 545.

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Thus, it can be observed that over the years we have fine-tuned the judicial administration so as to meet the needs of changing time and aspirations of modern India. Therefore, we can see that the Indian Judiciary has really played a great role in realising the goals of modern India by proactively and over-zealously guarding the right to education of citizens of India for human existence. Suggestion1) The scheme of free and compulsory education should as a minimum continue from class one to class ten. If proper resources including financial aid and good infrastructure are available then it should extend up to class twelve. In a country like India, where the certificates of class ten and class twelve are so vital, it should be the duty of the government to extend the scheme of free schooling up to class twelve, if not, then at least up to class ten and make sure that all children are benefitted under this scheme. 2) The Act should contain special provisions for the education of the female because in our country, particularly in rural areas, parents are very much reluctant in sending their daughters to school and insists them on doing household chores. Thus, the female education ratio as compared to male is very low and embarrassing. 3) The Act should contain specific provisions for education of the children with physical and other disabilities. 4) Failing in class should be allowed. It acts as an important mechanism in assessing the quality of the students and also the teaching capability of the teachers. It acts as an important feedback mechanism. 5) The government must strictly guarantee early childhood care and education for all children until they complete the age of six years. 6) The National Commission for Protection of Child Rights should make public aware of its role under this Act through electronic and print media, information campaigns and make the right to education more accessible to the general public and should also update status and minutes of its meetings on the website. 7) The Act should clearly define the term “Mental Harassment”. As both physical and mental harassment is prohibited, what is “Mental Harassment” has not been defined in the Act. The teachers are under pressure while teaching because even mild scolding for not completing homework can be misinterpreted as “Mental Harassment”.

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Guha/An Overview of Right to Education in India with Critical Analysis of Right to Education Act

8) Board Exams should be included within the purview of this Act. It acts as an important assessment indicator for the performance of schools in the country, particularly of the children and also the teachers. The various class tests and the board exam will no doubt help to assess both the studentteacher performance. 9) To ensure that children do not drop out from school after the scheme of free education expires i.e. after fourteen years of age, the government should give incentives for schooling i.e. economic help for underprivileged children who hope to study further than the age of fourteen years e.g. scholarships for children from needy families, mid-day meal schemes, etc. 10) The awareness among people about the Act should be increased for its successful implementation. Currently, awareness among people is low. Unless people realize that it is their right to have their children admitted to school for attaining elementary education free of cost, there will be narrow initiative and participation on their part. Media, public campaign and local NGOs can play a much wider role in bringing this awareness. These suggestions have been prepared from diverse perspectives, based on careful and extensive study. As evident from various facts and data, there are several issues that call for adjustment for successful implementation of the Right to Education Act. Some of these can be adjusted by bringing minor changes in policy while others will need to be addressed seriously in parliament as it involves making certain amendments in the Act. Conclusion India today continues to survive amongst paradoxical forces. We are proud of our accomplishments in the field of science and technology, social and economic reforms, education and prosperity. The significance of compulsory education for supporting the social basics of democracy has been acknowledged unanimously since the foundation of our nation. Education benefits the individual, society, and the world as a whole. Education helps to overcome traditional exploitative customs viz. inequalities of caste, class and gender. Education of good quality is among the most powerful instruments known to reduce poverty and inequality. There is no value of life if it is led with mere animal existence without proper education. Right to education is not only a human right itself, but it is also an instrument for realising other human rights. Not only India, but many countries of the world have recognized this right and others are to follow in the interest of their bonafide citizens. For all these values the Constitution framers decided to incorporate the ‘right to education’ in part

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International Journal of Legal Studies and Research (IJLSR)

III of the Constitution. But the financial condition of our country prevented from doing so as India was under the exploitative colonial rule for almost 200 years. The constituent Sub-Committee on Fundamental Rights suggested including the right to primary education within the sphere of fundamental right. However, the Advisory Committee of the Constituent Assembly rejected this proposal and placed it in the category of Directive Principles of State Policy. Therefore, Right to Education had been a part of the Directive Principles of State Policy (Article- 45) of the Constitution and was not enforceable. But after much struggle, the Parliament in exercise of the constituent power added through Eighty Sixth Amendment of the Constitution in 2002, Article 21A in part III of our Constitution making provisions for free and compulsory education for all children. Besides, with the formulation of National Policy on Education, India initiated a wide range of programmes for achieving the goal of Universal Elementary Education through several schematic and programme interventions, such as Sarva Siksha Abhiyan, Operation Black Board, Shiksha Karmi Project, Lok Jumbish Programme, Mahila Samakhya, District Primary Education Programme etc. The Indian judiciary also very actively participated in upholding the true essence of Article 21A in a number of cases. Subsequently, the ‘Right of Children to Free and Compulsory Education Bill’ was drafted in 2005. It was finally passed in 2009 and came into effect on April 1, 2010 and thus the dream of the framers of the Constitution was achieved on paper which needs proper implementation at grass root level for the benefit of bonafide citizens of India.

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