Open Access Research Article
RIGHT TO EDUCATION IN INDIA: A FUNDAMENTAL RIGHT & A FREEDOM TO CARRY OCCUPATION
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Article Details
RIGHT TO EDUCATION IN INDIA: A
FUNDAMENTAL RIGHT & A FREEDOM TO CARRY OCCUPATION
AUTHORED BY - MS. SANJANA DWIVEDI
& DR. VIVEK KUMAR
Law College, ICFAI University,
Dehradun
Abstract
The right
to education and the ability to select one's occupation are essential rights
guaranteed by many international human rights treaties and many national
constitutions.
The right
to education is recognised as a fundamental human right in both Article 26 of
the Universal Declaration of Human Rights (UDHR) and Article 13 of the
International Covenant on Economic, Social, and Cultural Rights. It emphasises
that education should be available to all on an equal basis, without
discrimination, and should be designed to help individuals reach their greatest
potential.
Many
countries have also enshrined the right to education in their national
constitutions or legislation, ensuring free and compulsory primary education
and frequently expanding it to secondary and higher education as well.
Furthermore, the freedom to select one's employment is frequently linked to the
right to work, which is generally seen as a fundamental human right.
This
freedom indicates that individuals have the right to pursue their preferred
occupation or profession, subject to certain restrictions such as public
interest, public order, and the rights of others. Both of these rights are
essential for an individual's full growth and realization of potential, as well
as societal advancement and well-being. They are linked because schooling
frequently acts as a gateway to acquiring the skills and knowledge required for
one's chosen occupation or job.
Keywords- Education,
Occupation, Fundamental right, Constitution, Portals.
Introduction
The
Preamble to our Constitution aims to achieve justice in social, economic as
well as political aspects, and equality of status and opportunity within the
ambit our Constitution.
Education
does not itself find its presence in the Preamble, but a state of being
educated is undoubtedly achieved when the ‘State’ thrives to achieve the virtue
of equality and justice in the country. Therefore, education is a means to
achieve the idealistic state of equality and justice in our country.
This goal of
achieving justice and equality among all the citizens of India is facilitated
by the cordial co-existence and functioning of Part- III and Part- IV of our
Constitution. This is further supplemented by the amending powers of the
Parliament and the right to enforce these rights in the Constitutional Courts
established throughout the country.
Education
is a cardinal necessity for any society to progress and to protect itself from
any kind of unwanted subversive external forces. Education was limited to
Article 45 of our Original Constitution, and therefore was not a guaranteed
right under Part III of the Constitution. This right became justifiable in the
year 2002, when it was incorporated by inserting Article 21A of the
Constitution.
After due
deliberations and discussions in the Constituent Assembly, that was constituted
to give ourselves a constitution. The Assembly agreed on a provision of
education, but in Part IV of the Constitution, which indicated that this shall
not be an enforceable right but shall guide the State in making provisions for
education in the near democratic future.
Article 45
stated that “The State shall endeavour to
provide early childhood care and education for all children until they complete
the age of six years”[1].
The object
of inserting this as a socio- economic principle in our Constitution was to
achieve the goal of education for all in the near future, especially when the
State thinks it fit to be given a status as that of a right.
As soon as
the Constitution got enforced on January 26 1950, several litigations started
coming up before our Constitutional Courts. Especially with respect to the
right to education of deprived sections of the society. Most of these claims
were made with respect to the powers of Parliament to make special provisions
for socially and educationally backward classes of citizens (SEBC) or Scheduled
Castes (SC) and Scheduled Tribes (ST)[2].
The
Parliament came up with several constitutional amendments to protect the rights
of these deprived sections of population, by enforcing reservations in
educational institutions including the private educational institutions.
If for some
time, we keep aside the existing notion of right to education that prevails in
our country. We would observe that this was the very first interpretation of
right to education that was granted to SEBCs, SCs and STs by our Parliament.
This right was restricted to grant reservations in admission to educational
institutions, whether public or private. One more restriction that prevailed
over this right was that granting reservation was the prerogative of the State,
and the State till now cannot be compelled to enforce reservation[3].
The
judgment of the Honourable Supreme Court in the case of Indira Sawhney v. Union of India[4],
further imposed a limit on this right by declaring that reservation for
SEBCs and SCs as well as STs shall not exceed 50% of the total number of
sanctioned strength of a particular institution, thereby defining its scope and
extent.
Through
article 15, several key initiatives were made to bring the deprived sections of
the population at par with the forward class of citizens, but this was not an
absolute right of education because it was derived from the right to equality
and was just ensuring equality among all citizens in relation to the resources
that State possessed. In addition to this, it was not available to all citizens
and was neglecting those people who were not part of the population recognised
under article 15.
Further, in
a country where poverty played its own role in determining the proper
enforcement of any justifiable right. The provisions were not sufficient to
ensure education to poor.
The
Parliament by inserting Article 21A by way of Constitution (Eighty Second)
Amendment Act of 2002 made education free and compulsory for children between
six to fourteen years of age. This amendment was made in light of the
prevailing high capitation fees charged by schools. Due to which poor were
deprived of admission in educational institutions. Prior to this amendment, the
Supreme Court in the case of Mohini Jain v. State of Karnataka[5]
expressly declared right to education to be a fundamental right and called the
charging of high exorbitant capitation fees as totally illegal.
For proper
implementation, enforcement of right to education and to give it a procedural
framework the Supreme Court in the case of Ashok Kumar Thakur v. Union of India[6]
laid down comprehensive guidelines. This was later incorporated by the
Parliament when it came up with the Right to Education (RTE) Act of 2010.
The Right to Education Act of 2009
Under the
act, a child between the age of six to fourteen years of age is made entitled
to elementary education in a school (whether aided or unaided), in his neighbourhood.
Further, a responsibility has been endowed upon the Central as well as State
Government or Local Authority to establish schools in the neighbourhood, where
a school does not exist.
Further it
is to be noted that such education is free and no child belonging to
disadvantaged or weaker section of the society, is charged for the education
that he/ she is provided by the school. Such schools are bound to admit at
least 25% of such students out of the total strength of that particular class,
and for imparting education under the act are reimbursed of the expenses from
the State[7].
As per the
Act, it is also the responsibility of parents and guardians to ensure that
their wards are admitted for elementary education, in a neighbourhood school[8].
A provision is also made for early childhood care and allows the appropriate
Government to provide for early childhood care and education for child above
three years of age till they attain the age of six years.
To ensure
safety and security of a school going child, physical punishment and mental
harassment to the child has been prohibited under Section 17. Further, a school
teacher is prohibited to engage in private tuition or private teaching activity,
thereby securing the interests of all school going children by ensuring that
the teacher does not engage in any activity of quid pro quo and resort to partial treatment to some students over
others[9].
In this
manner, the act of 2009 tries to achieve the fundamental right which has been
laid under Article 21A of the Constitution. The Act has seen a journey of more
than a decade and has made several noteworthy changes in our elementary school
education system so that the virtue of ‘justice’ and ‘equality’, which finds
its presence in our preamble, is achieved.
Imparting Education- An occupation
in India
While on
the one hand, getting educated is a fundamental right in India. On the other
hand, imparting education apart from being one of the primary obligations of
the State is also considered an occupation, trade or profession.
Being the
second largest populous country of the world and having the largest population
of youth in the world. It becomes significant for the country to produce enough
teachers every year, who are competent to fulfil the constitutional objectives.
As teacher to a student, is same as life to a human being.
Our
Constitution, considers freedom to establish educational institution and engage
in teaching activities as a fundamental right under Article 19(1) (g) of the
Constitution. This was explicitly stated by the Supreme Court in the case of Unni
Krishnan v. State of Andhra Pradesh[10].
A Constitution that recognizes both the right to receive
education and the right to impart education as fundamental rights, clash
between these two rights is imperative and it is also presumed that in some
time one shall prevail over the other.
In our
educational set-up, where we have both public as well private educational
institutions it becomes very important that we keep a fine balance between the
quality of educational and other ancillary activities that are provided to
school going children of respective institutions, otherwise the education shall
suffer as per the economic capacity of the guardians.
Though, RTE
2009 has tried to bring a child of disadvantaged or weaker section of the
society at par with the well-off children, but the problem of this age is now-
heavy reliance towards private coaching centres. These clusters of private
coaching centres in every city are no more than service providers. They are
governed by their own profit and loss business models and their primary
objective is to earn capital by advertising excellence of some students.
The transition
of education from traditionally being the source of knowledge and to develop a
conscience is now considered as a tool to secure seats in educational
institutions and to get jobs. Further, it is to be noted that the more we
objectify education as a service- the more it will lead to becoming what it was
never meant to be and in this exercise our students will only suffer.
In an era
where education has become an instrument towards capitalisation and marketing
it becomes necessary that the Government comes up with appropriate mechanism to
safeguard education sector from intense materialism that we are seeing in the
last decade or so. It is the responsibility of the State that it strives to
secure a social order in the society which reflects in our Constitution.
Education should be regulated and maintained in such a manner that it shows a
fine balance between the capitalistic thinking as well as socialistic attitude.
Article 21A: Re-defined
To
eliminate the socio- economic inequality that still prevails in our country,
the State needs to extend the ambit of Article 21A of our constitution[11].
By extending the ambit, the author here means that the existing provision
should be amended in such a manner that it incorporates education of the
eligible children under RTE in private coaching centres (in neighbourhood) as
well.
To bring
the coaching centres in line with the right under Article 21A, the coaching
centres should be first registered as an educational institution under their
respective State Governments and should be given recognition by including them
under the existing RTE Act of 2009.
Further, a
limit should be set to induct these students in their respective centres. To
initiate this process, several seminars and awareness campaigns should be
organised by the schools in collaboration with these coaching centres so that
interests and capability of every child is sought and the process becomes
voluntary.
To
encourage the coaching centres to take part in this good cause, respective
State Governments in coordination with the Central Government should grant
incentives to these institutions to induct more and more students in their
specialised courses. These incentives can be in the form of tax rebate,
education subsidies, financial support etc. Several Banking as well as Non-
Banking Financial Corporation can also be allowed to voluntarily take part in
funding and financing.
In today's
digital age, access to education has transcended physical boundaries, thanks to
the internet. Recognizing this transformative power, the Government of India
has embarked on numerous initiatives to make education accessible to all,
regardless of geographical location or socio-economic status. Through various
schemes and policies, India is striving to bridge the gap and ensure equitable
access to quality education for every citizen.
One of the
flagship initiatives introduced by the Government of India is the Digital India campaign. Launched with
the vision of transforming India into a digitally empowered society, Digital
India aims to provide digital infrastructure and services to every citizen.
Under this initiative, significant efforts have been made to expand internet
connectivity to rural and remote areas through initiatives like BharatNet. By laying optical fiber
cables to connect over 250,000 gram panchayats (village councils), the
government is facilitating access to high-speed internet, thereby enabling
online education even in the remotest corners of the country.
Furthermore,
the National Digital Literacy Mission
(NDLM) and Digital Saksharta Abhiyan
(DISHA) have been launched to promote digital literacy among the masses.
Through these programs, individuals are equipped with the necessary skills to
harness the potential of the internet for learning purposes. By imparting
digital literacy, the government aims to empower citizens to access educational
resources available online, thus democratizing learning opportunities.
In addition
to infrastructure and literacy programs, the government has initiated various
online education platforms to cater to diverse learning needs. The SWAYAM (Study Webs of Active Learning for
Young Aspiring Minds) platform offers free online courses from school level
to higher education, covering a wide range of subjects. Similarly, initiatives
like ePathshala, National Repository of
Open Educational Resources (NROER), and e-learning portals for various
state boards provide access to digital learning materials, textbooks, and
multimedia content.
Moreover,
recognizing the importance of digital classrooms in enhancing the quality of
education, the government has introduced initiatives like the SWAYAM Prabha DTH
channels and DIKSHA (Digital Infrastructure for Knowledge Sharing). These
platforms facilitate the delivery of educational content through digital
mediums, enriching the teaching-learning process and fostering interactive and
engaging learning experiences.
Furthermore,
amidst the COVID-19 pandemic, when traditional modes of education were
disrupted, the government accelerated its efforts to promote online learning.
Various educational institutions and organizations collaborated to develop
online learning platforms and resources. The SWAYAM MOOCs (Massive Open Online
Courses) platform witnessed a surge in enrolments, indicating the growing
acceptance and adoption of online education among learners.
However,
despite these commendable efforts, challenges persist in ensuring universal
access to online education. Disparities in internet penetration, digital
literacy levels, and availability of digital devices remain major hurdles,
especially in rural and marginalized communities. Moreover, issues related to
the quality of online content, pedagogical approaches, and assessment
mechanisms need to be addressed to ensure the effectiveness and relevance of
online education.
Conclusion
In the
complex landscape of education in India, where rights intersect with
obligations and where the aspirations of the individual meet the needs of the
society, it becomes paramount to strike a delicate balance. The Right to
Education Act of 2009 represents a significant milestone in this journey
towards educational equity and justice. By ensuring free and compulsory
education for children between the ages of six to fourteen, regardless of their
socio-economic background, the Act lays down a foundation for a more inclusive
society.
Moreover,
the Act underscores the dual nature of education in India—as both a fundamental
right and a profession. While individuals have the right to receive education,
there is an equally important obligation for the state and educators to impart
education effectively and ethically. However, challenges persist, particularly
with the rise of private coaching centers and the commercialization of
education.
To address
these challenges and further strengthen the educational landscape, there is a
need for continual reform and adaptation. Reimagining Article 21A to encompass
education in private coaching centres under the RTE Act is a step in the right
direction. By integrating these centres into the educational framework and
incentivizing their participation in serving the needs of disadvantaged
children, we can move closer to achieving the constitutional ideals of justice
and equality.
Furthermore,
it is imperative for the government to regulate and maintain the education
sector in a manner that aligns with the principles of social justice and
egalitarianism. Education should not be reduced to a commodity but should
remain a transformative force for individual empowerment and societal progress.
In
conclusion, the journey towards achieving universal access to quality education
is ongoing. It requires collaboration, innovation, and a steadfast commitment
to the constitutional values of justice, equality, and fraternity. Only through
collective efforts can we build a society where every child has the opportunity
to realize their full potential and contribute meaningfully to the nation's
development.
[1] Constitution of India 1950, art.
45
[2] Constitution of India 1950, art.
15(4)
[3] Janhit Abhiyan v. Union of India,
2022 SCC OnLine SC 1540
[4] India Sawhney v. Union of India,
AIR 1993 SC 477
[5] Mohini Jain v. State of Karnataka,
AIR 1992 SC 1858
[6] Ashok Kumar Thakur v. Union of
India, (2008) 6 SCC 1138
[7] Right of Children to Free and
Compulsory Education Act 2009, s. 12
[8] Right of Children to Free and
Compulsory Education Act 2009, s. 10
[9] Right of Children to Free and
Compulsory Education Act 2009, s. 28
[10] Unni Krishnan v. State of Andhra
Pradesh, AIR 1993 SC 2178
Article Information
RIGHT TO EDUCATION IN INDIA: A FUNDAMENTAL RIGHT & A FREEDOM TO CARRY OCCUPATION
Authors: MS. SANJANA DWIVEDI, DR. VIVEK KUMAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/10
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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