LEGAL FRAMEWORK FOR FREE AND COMPULSORY EDUCATION IN INDIA: CONSTITUTIONAL PERSPECTIVE BY - DR. TANVIR KAUR & DR. JASKARAN SINGH
LEGAL
FRAMEWORK FOR FREE AND COMPULSORY EDUCATION IN INDIA: CONSTITUTIONAL
PERSPECTIVE
Introduction
There are certain necessities without
which a man cannot live a life of his own. One of these is education. Education is the most powerful tool which can shape
the destiny of an individual as well as the whole nation. The Greek
philosopher Aristotle says that life is not merely living, but living well and
living with dignity.[3] Thus
education is essential for every person, to live with basic human dignity.
Education liberates man from ignorance, exploitation and oppression. It
promotes freedom, progress and equal opportunities for all citizens.
The history of political thought
points to persistent belief in man that States ought to guarantee to
individuals the enjoyment of a certain basic human rights, which constitute
essential conditions of “the good life.” Therefore, education has been looked
upon as the most precious and meaningful investment for human development. The
States are under the constitutional obligation to secure right to education to
all citizens and for its equitable distribution in terms of opportunities.
Emile Durkheim defined education as,
“the action exercised by the older generations upon those who are not ready for
the social life. Its object is to awaken and develop in the child those
physical, intellectual and moral states which are required of him / her both by
his society as a whole and by the milieu for which he is specially destined.[4]
International Perspective Relating to Right to Education
Article 26 of Universal Declaration of Human Rights
also recognise right to education as basic human rights and states that:
“Everyone has the
right to education. Education shall be free, at least in the elementary and
fundamental stages. Elementary education shall be compulsory. Technical and
professional education shall be made generally available and higher education
shall be equally accessible to all on the basis of merit.”[5]
The right to
education has also been recognized as a human right in a number of
international conventions and documents, including the International
Covenant on Economic, Social and Cultural Rights[6] which
recognises a right to free, compulsory primary education for all, an
obligation to develop secondary education accessible to all, in
particular by the progressive introduction of free secondary education, as well
as an obligation to develop equitable access to higher education, ideally
by the progressive introduction of free higher education. It is fundamental duty of every
State to provide free and compulsory education to all especially children.
Constitutional
Provisions Relating to Right to Education
Right to education is not new to
Indian Constitution but has been provided even prior to 86th
Amendment Act of 2002. Article 15(3),[7] Article
24,[8] Article
39 (f),[9] Article
41[10], Article
45[11] and
Article 46[12] of
Indian Constitution are important in this concern and further to promote the
right to education Article 21A has been inserted to Indian Constitution by 86th
Amendment Act, 2002. A corresponding duty was imposed upon parents/guardian
under Article 51A (k). Article 29 and 30 further promotes educational rights of
children of minorities.
Judicial
Approach toward Right of Free and Compulsory Education
Supreme Court of India in
number of judgment has recognised right to education as part of fundamental
rights and basic human right for overall development of mankind. In case of Mohini
Jain vs. State of Karnataka[13]
a resident of Uttar Pradesh state challenged a notification issued by the
Karnataka government that permitted private medical colleges to charge higher
fees to students who were not allocated 'government seats'. The Supreme Court
of India 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
the absence of an express constitutional right, the Court interpreted a right
to education as a necessary condition for fulfilment of the right to life under
Article 21 of the Indian Constitution. In addition, the Court held that private
institutions, acting as agents of the State, have a duty to ensure equal access
to, and non-discrimination the delivery of, higher education.
The right to education up
to the age of fourteen years has been raised, by the decision of the Supreme
Court, in Unni Krishnan v. State of A.P.[14]
to the level of fundamental right. And by this
judgment, it became imperative for the Government to effect an amendment to the
Constitution to provide for free and compulsory education to all those under
the age of 14 as a clause within Article 21. The implication of the apex
court's verdict in the Unni Krishnan case was that in the event of the state
failing in its duty to provide the necessary infrastructure for primary
education, there is ground for legal remedy. Such remedy can be sought under
Article 32 or Article 226 (writ jurisdiction) by which the courts are vested
with the power to direct the executive to do or to refrain from doing
something. Such a remedy is not possible with the provisions of the Directive
Principles.
The
situation after Unni Krishnan led to the formation of an
eleven-judge bench of the Supreme Court TMA Pai Foundation v. State of Karnataka[15] to decide eleven
questions which included (a) the validity of the scheme framed by Unni
Krishnan and (b) the rights of non-minorities to establish
and administer educational institutions under Articles 19(1) (g) and 21. The
judgments of the Supreme Court since TMA Pai Foundation have protected the autonomy of
private institutions in administration and in respect of fees, which has
contributed to the increase in this number.
Prior
to TMA Pai however, the Court’s priority was to
ensure that education was accessible to all. The autonomy of private
institutions was a lesser concern and the Court even held that there was no
fundamental right to set up educational institutions. In practice, this
approach severely affected the growth of private institutions and also ran
contrary to the policy of the government, which under Article 41 of the
Constitution of India, has a duty, subject to economic capacity, to make
effective provision for securing the right to education.
Although TMA
Pai sought to put to rest all questions surrounding higher education
and its regulation, there were still some ambiguities that arose from the
judgment, especially in relation to the fixation of fees, the eligibility of
institutions to fill all the seats according to their choice, and the admission
procedure.
Five-judge
bench in Islamic Academy v. State of Karnataka,[16] sought to iron out
these creases. In answering these questions, the Court found that (a) fee
structure can be fixed subject to the condition that there is no profiteering
or capitation, (b) private institutions have full autonomy in administration so
long as admissions are merit-based and merit can be satisfied through a common
entrance test run by the state or by an association, and (c) the state can
provide reservation in favour of financially or socially backward sections of
society. In order to ensure transparency in admission and fee structure, the
Court resorted to the setting up of two committees, one to give effect to the
judgment in TMA Pai and to approve the fee structure and the
other to oversee the tests conducted by associations of institutions.
The
setting up of the committees in Islamic Academy, the extent of
quotas and state reservation in private institutions, and the regulation of
fees was once again challenged before the Supreme Court and a larger bench of
seven judges was set up in PA Inamdar v. State of Maharashtra,[17] in order to clarify
the ratio of the judgment in TMA Pai. Ten years after this judgment
was delivered, one can conclusively state that this was the last in a long line
of judgments that settled the questions surrounding private education and the
rights of institutions.
Basic
Features of the Right of Education Act (RTE), 2009
To give effect to this 86th
Amendment Act to Constitution the Right of Children to Free and Compulsory
Education Act (RTE) has been passed by Parliament in the year of 2009, which
provides for free and compulsory education to children between 6 and 14 year of
age. Basic features of the Act are:
·
The
RTE Act 2009 envisages quality and compulsory education to every child in the
age group of 6-14 years in neighbourhood school till the completion of
elementary education.
·
No
child is liable to pay any kind of fee or charges or expenses which may prevent
the child from pursuing and completing elementary education.
·
The
Act also makes provisions for a non- admitted child to be admitted to an
appropriate class.
·
Action
on the part of the government and local authority to establish a school within
the limits of the neighbourhood, within a period of three years from the
commencement of this Act: also to ensure and monitor admission, attendance and
completion of elementary education by every child.
·
With
a view to prepare children above the age of three years for elementary
education and to provide early childhood care and education for all children
until they complete the age of six years, the appropriate government may make
necessary arrangement for providing free pre- school education for such children.
·
It
stipulates that no school should refuse admission to any child on any grounds.
·
Any
school or person, while admitting a child shall not collect any capitation fee
and subject either the child or his/her parents to any kind of screening
procedure.
·
The
Act also provides for adequate number of qualified and trained teachers.
·
All
the schools to ensure proper infrastructure.
·
Maintenance
of teacher-student ratio as per prescribed norms, provision of necessary
facilities in the schools, student friendly education etc.
·
With
an aim to promote inclusive growth, the Act also provides for 25% reservation
for children belonging to marginalized sections of society.
·
There
are also provisions in the Act like prohibiting corporal punishment, detention
and expulsion till the completion of elementary education.
·
The
Act provides for the development of curriculum in consonance with the values
enshrined in the Constitution and for all round development of the child.
·
The
curriculum should provide for learning through exploration; building up child’s
knowledge, talent and potentialities; development of physical and mental
abilities to the fullest extent; learning through activities, discovery and
exploration in a child- friendly and child- centered manner; making the child free
of trauma, fear and anxiety and helping the child to express views freely;
comprehensive and continuous evaluation of child’s understanding of knowledge.
·
Making
it a duty of parents/guardians to admit their child, in the neighbourhood
school.
Implementation
of Right to Education
After the enactment of RTE India now
became one of 135 countries to make education as fundamental right. The
government schools shall provide free education to all the children and the
schools will be managed by School Management Committees (SMC). Private schools
shall admit at least 25% of the children in their schools without any fee.
Billions were spent on education by centre and states on sharing basis since
2010 to fulfill the objectives of the Act. The ministry of Human Resources and
Development set up a high level committee to look into the implementation of
this Act.
The
financial year 2015-16 saw a shocking cut in budgetary allocations for
education, with a 29% cut in Sarva Shiksha Abhiyan (SSA) budget, reduced from
27,758 crores (2014-15) to 22,000 crores (2015-16). It is fact that in 2014 at
least 3.77 crore children between the age of 6 to14 years were not in schools.[18]
Issues with
Implementation of Act
·
Despite
the enactment of the Right to Free and Compulsory Education Act, 2009 which
guarantees free and compulsory education, several schools are charging
capitation fees for education in pre-primary.
·
The
existing teacher‘s training and education programs are ill suited to meet the
contemporary understanding of students’ needs.[19]
·
The
no fail policy of the RTE Act, according to which no child from Class 1 to 8
will fail irrespective of how poorly he or she fares in exams - as under the
Right To Education (RTE) Act it has become a mandatory to pass all students up
to middle class.
·
The
present evaluation system in the higher education lays emphasis on the
development of scholastic aspects at the cost of co-scholastic aspects.
Unfortunately, the non-cognitive learning outcomes, which are equally
important, are tested neither comprehensively nor continuously.
·
Under
the pressure to meet the national and international commitment, the progress
towards universalisation of elementary education is being viewed unduly in
terms of meeting quantitative targets.
·
Reports
of committee admit that millions of children remain out of school. The reason
as to why the dropout rate has grown alarmingly after the implementation of the
RTE Act and the dream associated with the ambitious RTE Act of bringing in the
poor to share the common dream of quality education for children - two years
after its implementation still remains elusive for the poor. Instead of
imposing the vague concept of education on the children of the poor to show
improve statistics, work should first be done to improve their living
conditions, for children who lose the earning members of their family; concerns
of survival precede the concerns of education.[20]
·
There
are other shortcomings in schools and educational set up. Thus till date this
Act fails to achieve its objectives and has not been implemented as it was
expected.
Conclusion
Inspite of the various steps by the
government in India to promote right to education, right to free and compulsory
education is still implemented in true sense. The governments have also consistently failed to provide
adequate resources for the financing of the RTE. The public school system must
step up and improve the quality of education it provides. Unless the RTE Act is
not implemented in totality in letter and spirit, the “real education”, would
not exist in practice. It is, therefore, important not just to count the
existence of schools, but also to go into the running of schools, involving
physical facilitates as well as teacher participation. The poor implementation
of the Act is only symbolic of lack of commitment on the part of our
governments to make this world a better place for our children.
[1] Assistant Professor in Law, Chandigarh Law
College, Chandigarh Group of Colleges, Jhanjeri, Mohali.
[2] Assistant Professor in Law, Chandigarh
Law College, Chandigarh Group of Colleges, Jhanjeri, Mohali.
[3] Aristotle, Nicomachean Ethics (2004), ed. Hugh Treddenick.
London: Penguin.
[4] Emile Durkhem, Education et.
Sociologie (1992) T.B. Bottomore, Society (1986) p. 262.
[5] Dr. Sanjay Sindhu, “Fundamental
Right to Education in India: An Overview”, Global Journal of Interdisciplinary
Social Sciences, Vol. 3(5), September- October 2014, pp. 92-95, at p. 92.
[6] Article 13 of International
Covenant on Economic, Social and Cultural Rights
[7] Article 15 (3) provides for power
of State to make special provisions for women and children.
[8] Article 24 prohibits employment of
children below the age of 14 years in hazardous jobs
[9] Article 39(f) recommends the
protection of childhood again exploitation and moral and material abandonment.
The founding fathers made these safeguards to protect interest of the weaker
sections of the society.
[10] The state shall, within the
limits of its economic capacity and development, make effective provision for
securing the right to education.
[11] State shall provide early
childhood care and compulsory education for all children until they complete
the age of six years.
[12] It requires the State to
promote with special care the educational and economic interests of the weaker
sections of the people, specially of the Scheduled Castes and Scheduled Tribes
and to protect them from social injustice and all forms of exploitation.
[13] (1992) 3 SCC 666
[14] (1993) 1 SSC 645
[15] (2002)
8 SCC 481
[16] (2003)
6 SCC 687
[17] (2005) 6 SCC 537
[18] Anurag Bhaskar, “Status of
Implementation of Right to Education Act, 2009: Reflections and Inferences from
Uttar Pradesh” October 11, 2017, available at: www.livelaw.in
[19] Mona Kaushal, Implementation of
Right to Education in India: Issue and Concerns, Journal of Management and
Public Policy, Vol. 4, No. 1, December 2012, pp. 42-48, p. 44.
[20] “No Charity, Please! Education is
a Social Commitment” The Tribune (2012).