Author Profile

Noor Ameena

Posted On by &filed under Legal Articles.

Noor Ameena


Right to education of every child is clearly a human right. It enables the child to develop and realize its full potential as a human being. Education plays a major role in the character formation of a child and the subsequent development of personality. It develops in him the ability to think and act according to the circumstances. It also enables a child to develop a set of moral values, and to imbibe the spirit of nationalism. It trains the child to be a good citizen, develops civic sense and cultivates in him the values of participatory democracy.

Education has enumerable benefits. It has immense power to transform a society. The statistical surveys suggest that high literacy rate is corollary to high sex ratio. The lowering of female foeticide, fertility rate and morality rate; increased life expectancy and better health outcomes are the indirect benefits of education.

Basic education includes the key competencies of reading, writing and numeracy. Knowledge should be theoretical as well as practical. Learning process should also include basic life skills too. It is time for us to classify our basic necessities as four: Food, shelter, clothing and education. Education is indispensable to live a dignified life.

The right to education has got considerable recognition in the national as well as international arena. The Indian Constitution itself was amended so as to include right to education as a fundamental right. Moreover, the Parliament has enacted a statute to regulate the implementation of the said right. This is a humble attempt to evaluate the right to education of the children in India as available to them now and the changes that may come across in the near future.



Article 26 of Universal Declaration of Human Rights, the founding document of international human rights, recognizes the right to education. In 1993, over 170 countries including India reaffirmed their commitment to UDHR at the World Conference in Vienna. Everyone has the right to education and such education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory, technical and professional education shall be generally available and higher education shall be equally accessible to all on the basis of merit. Parents shall have a prior right to choose the kind of education that shall be given to their children.

The International Covenant on Civil and Political Rights (ICCPR), 1966 prohibits discrimination in education under Articles 2 & 24. Article 13 of International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966 also recognizes the right to education. Article 13 of ICESCR envisages right to education to everyone including free and compulsory primary education to all.

The Convention on the Rights of the Child (CRC), 1989 recognizes the right to education. All children shall have the right to free primary education provided (Art.28); a child is any person below the age of 18. It also encourages the states to review the age of majority if set below; and to increase the level of protection for all children under 18. The Convention envisages schools free from practices involving violence, abuse or neglect and with such discipline so as to account for the human dignity of the child. This Convention was ratified by India on 7th December, 2002.

UN Committee on Economic, Social and Cultural Rights has identified four components of the right to education. It includes availability, accessibility, acceptability and adaptability. Functioning educational institutions have to be available in sufficient quantity, including school buildings, trained teachers and teaching materials. There must be equal access for all to education, especially for the most vulnerable groups in society. This includes physical and economic access. Education, including curricula and teaching methods, must be relevant, culturally appropriate and of good quality. Education must also adapt to the needs of students within their diverse social and cultural settings.



The Supreme Court in Bandhua Mukti Morcha v. U o I has explicitly stated that the right to live with human dignity enshrines its life breath from Directive Principles of State Policy and therefore it must include educational facilities. In Mohini Jain v. State of Karnataka , the court observed that “‘Right to life’ is the compendious expression for all those rights which the court must enforce because they are basic to the dignified enjoyment of life. The right to life under Article 21 and the dignity of 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.”

As Gajendragadkar, J. has rightly pointed out in University of Delhi v. Ram Nath , education seeks to build up the personality of the pupil by assisting his physical, intellectual, moral and emotional development. The word ‘life’ in Article 21 in its wide interpretation is much more than a mere biological existence. Life also includes education, personality and whatever is reasonably required to give expression to life, its fulfillment and its achievements.

The question whether right to primary education as mentioned in Article 45 of the Constitution of India is a fundamental right Article 21 of the Constitution was discussed in detail in Unnikrishnan. J. P v. State of Andhra Pradesh. The court in this case has clearly held that the right to education flows directly from right to life. The fundamental rights in Part III of the Constitution will remain beyond the reach of the illiterate majority unless the ‘right to education’ mentioned in Article 41 is made a reality and the court went on to hold that every citizen has a ‘right to education’ under the Constitution.

Hence the major propositions evolved through this decision are as follows. Right to education, understood in the context of Articles 45 and 41, means:

 Every child/ citizen of this country has a right to free education until he completes the age of fourteen years, and

 After a child/ citizen complete fourteen years, his right to education is circumscribed by the limits of the economic capacity of the State and its development.

This position has been reiterated in a number of judgements after the Unnikrishnan case. Murlidhar Kesekar v. Vishwanath Barde , Ganapathi Nath Middle School v. M.D.Kannan , K.Krishnamacharyulu v. Sri Venkateswara Hindu College of Engineering , State of Himachal Pradesh v. Himachal Pradesh State Recognized and Aided Schools Managing Committee and N.Kunchichekku v. State of Kerala are only few among them.



Article 45 of the Constitution of India states: “The state shall endeavour to provide free and compulsory education, within a period of ten years from the commencement of this Constitution, for all children until they complete the age of fourteen years.” Article 39 (f) stipulates that the state shall direct its policy towards securing facilities and opportunities for children to develop in a healthy manner and in conditions of freedom and dignity and to protect them from exploitation. Article 41 of the Constitution also directs the State to make effective provisions for securing right to education within the limits of its economic capacity.

The Committee to review the National Policy on Education, Ramamurti Committee in its report titled ‘Towards an Enlightened and Humane Society –NPE, 1986,- A Review’ criticized the government for its continued failure since independence to fulfill the Constitutional directive: “ The time has come to recognize ‘Right to Education’ as one of the fundamental rights of the Indian citizens for which necessary amendments to the constitutions may have to be made and more importantly, conditions be created in society such that this right would become available for all children of India.” This was the first official recommendation towards inclusion of a fundamental right to education.

The Supreme Court in J. P. Unnikrishnan v. State of Andhra Pradesh and others confirmed the fundamental right to education as a right flow from Article 21 read in the light of Articles 45 and 41. In the 1993 judgement of the Supreme Court in J. P. Unnikrishnan v. State of Andhra Pradesh and others, the court had declared, “The passage of 44 years – more than four times the period stipulated in Article 45 has converted the obligation created by the Article into an enforceable right. At least now the state must honour the command of Article 45 and make it a right.”The right to education was accorded the status of fundamental right in the above said decision.

In line of the judgement of SC in Unnikrishnan case, endeavours were made to bring about a Constitutional Amendment which ultimately resulted in inclusion of Art.21 A by the 86th Constitutional Amendment Act. In furtherance of this amendment, The Right to Free and Compulsory Education Act was passed in 2009 after discussions and deliberations which lasted for over 9 years.



The Constitution (86th Amendment) Act 2002 was a diplomatic measure taken by the Government of India when spate of litigations flowed to the courts of India relying on the Supreme Court judgement in Unnikrishnan case. It is evident from the above cited cases. The insertion of Article 21A through the said amendment recognizing Right to Education as a fundamental right was celebrated all over the world. The Act has indeed taken India to the list of a number of countries where education is recognized as a statutory right.

Article 21A states, “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.” The new Article 21A looks like a restatement of Article 45 of the Constitution with slight alterations in the literal sense, has indeed created a wide gap at the practical level. The Article 45 of the Constitution of India states that the state shall endeavour to provide within a period of ten years from the commencement of the Constitution for all children until they complete the age of fourteen years.

The directive of Article 45 and the rule evolved in Unnikrishnan case got diluted through the Constitution (86th Amendment) Act 2002.

 While Article 45 envisages right to education to all children under 14 years, the Amendment Act restricts it to an age group between 6-14 years.

 The added emphasis in the last clause ‘as the state may, by law determine’ is intended to provide wide unjustifiable discretion to the government.

 The inclusion of clause (k) in Article 51A imposing fundamental duty on parent/guardian thereby shifting the responsibility of state to parents and guardians.

Viewing on these lines, it is felt that the amendments made by the Constitution (86th Amendment) Act are not in consonance with the fundamental right to education as part of right to life under Article 21 declared in Unnikrishnan v. UoI

Constitutionality of Constitution (86th Amendment) Act: A Miscellany

To the extent these provisions are inconsistent with the law so declared by the constitution bench, they are liable to be struck down as violative of article 21 of the Constitution on the analogy of People’s Union of Civil Liberties v. UoI, wherein the Supreme Court held that S. 33-B of Representation of the People Act (1951) which was inserted by the Representation of People (3rd Amendment) Act, 2002 as unconstitutional in as much as S. 33-B tried to nullify the effect of the Supreme Court judgement in Union of India v. Association for Democratic Reforms .

The SC in this case has strongly stated that merely because certain rights are implied as they have been read into Article 21, would not make it less fundamental and are equally enforceable as fundamental rights. It was held that “there cannot be any distinction between the fundamental rights mentioned Chapter III of the Constitution and the declaration of such rights on the basis of judgements rendered by this court.”

The Court in this case clearly stated that Article 13 does not permit the state to make any law which takes away or abridges the rights conferred by Part III (fundamental rights). It further declares that any law made in contravention of this clause to the extent of contravention is void.

The constitutionality of the Constitution (86th Amendment) Act, 2002 was specifically challenged in writ petition No.231 of 2007, Citizens of Equality v. U o I & Ors., one of the writ petitions heard by the Constitution bench in the batch reported as Ashoka Kumar Thakur v. U o I . The Supreme Court in this case held that The Constitution (Ninety-Third Amendment) Act, 2005 does not violate the “basic structure” of the Constitution so far as it relates to the state maintained institutions and aided educational institutions. Question whether the Constitution (Ninety-Third Amendment) Act, 2005 would be constitutionally valid or not so far as “private unaided” educational institutions are concerned, is left open to be decided in an appropriate case.


The Right of Children to Free and Compulsory Education Act, 2009 is a milestone in the history of law making in India. Despite the recognition of right to education as a fundamental right in J. P. Unnikrishnan v. State of Andhra Pradesh and others which eventually led to the inscription of Article 21A followed by this legislation. The traces of RCFCEA, 2009 can be witnessed in the Post War Pan of Education Development of 1944, also called Sargent Plan. It recommended free and compulsory education for eight years in the six to fourteen age groups.

The Right of Children to Free and Compulsory Education Act, 2009 finally received the assent of the President on 26th August, 2009 to provide for free and compulsory education to all children of the age of six to fourteen years. The Act came into force on 1st April, 2010 as per Section 1 clause (3) of the said Act. The right to education has thus attained the same legal status as the right to life as provided by Article 21A of the Indian Constitution.

The Act provides every child of the age of six to fourteen years a right to free and compulsory education till the completion of elementary education in a neighbourhood school. Special provisions are envisaged for children who were not admitted in any school or who have not completed the elementary education.


The Right of Children to Free and Compulsory Education Bill, 2008 which was approved by both the Houses of the Parliament and that which finally received the assent of the President on 26th August 2009 was proposed to be enacted with the following objects.

1. To establish the right of every child to be provided full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards.

2. To provide Compulsory Education, i.e., to cast an obligation on the appropriate Government to provide and ensure admission, attendance and completion of elementary education.

3. To provide Free Education, i.e., no child, other than a child who has been admitted by his/ her parents to a school which is not supported by the appropriate Government, shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing education.

4. To provide the duties and responsibilities of the appropriate Governments, local authorities, parents, schools, and teachers in providing free and compulsory education.

5. To provide a system for protection of the right of children and a decentralized grievance redressal mechanism.


 Free and compulsory education

Right of Children to free and compulsory admission, attendance and completion of EE. The Act defines ‘free’ as removal of any financial barrier by the state that prevents a child from completing eight years of schooling and ‘compulsion’ as compulsion on the state, rather than targeting parents. Not enrolled/dropout children be admitted to age appropriate class.

  •  Special training to enable such children to be at par with others
  •  Child so admitted entitled to completion of EE even after age 14

The new act softens barriers like birth certificate, transfer certificate, etc. No child shall be psychologically abused by calling him/her ‘failed’ in any class upto class 8, or expelling him/her from school and bars corporal punishment, mental harassment.


RTE Act does not specify anything regarding the funding for the implementation of the Act. The amount that was suggested for the successful implementation of the Act was 2, 31, 000 crores. The issue of insufficient funds was raised by the state governments. The Expenditure Finance Committee has now come up with a 68:32 funding formula between Centre and States for the implementation of the said Act. The Centre has now allocated financial assistance to all states so that the cost of the Sarva Shiksha Abhiyan (SSA) could be allocated with the implementation of the RTE.

The amount allotted is still grossly inadequate to comply with the norms prescribed in the Act including a student teacher ratio of 30:1 in primary level, 35:1 in upper primary level and 40:1 for schools with more than 200 students (SSA). The Act also prescribe atleast one classroom for a teacher and separate teachers for Social Science, Languages and Science and Mathematics. This eventually results in increase in the number of classrooms as well as teachers. But the anomaly here is that 33% of the Indian schools are single teacher schools and 50% of the schools are in fact schools only for the namesake.

The mechanism of finance sharing between Centre and States as provided in the Act is as under;

• Central Government shall prepare the estimates of capital and recurring expenditure,

• Central Government shall provide to the State Governments a percentage of the expenditure as GIA of revenues. This percentage shall be determined from time to time in consultation with the States,

• Central Government may make a request to the President to make a reference to the Finance Commission to examine the need for additional resources to be provided to any State Government for carrying out the provisions of the Act.

Role of Parents/ Guardians

Article 51A of the Constitution of India was supplemented with an additional clause (k) by the 83rd Constitutional Amendment Act which makes it a duty of the parent/guardian to provide opportunities for education for all children between the age of six and fourteen years. The RTE Act specifies that the School Management Committees should be constituted of which 75% shall be parents and 50% of the total member shall be women. Adequate representation is sought from weak and disadvantaged groups. This step would result in the increase in transparency as well as accountability.

This indeed was instituted with a good objective, but has in effect put the parents in burden especially poor parents. The SMCs have to perform a variety of functions including the monitoring of fund, performance of teachers etc. and require much time and effort.

 Qualified teachers

Teacher raining can be accurately described as the centre of India’s educational depression. While we intuitively accept that a teacher can indeed ‘make or break’ a child, why then do we invest so little in creating excellent teachers? Asks Aruna Sankaranarayanan, Director, PRAYATNA, Centre for Educational Assessment and Intervention. It is time for us to invest heavily on teacher training and mentoring programmes. Upgradation of teacher education programmes and Elevation of the status of teachers as professionals is the need of the day.

The present status of teachers reminds us of the famous quote of George Bernard Shaw, “Those who can does, those who cannot teaches” given by him under the title ‘Maxim for Revolutionists’ in his renowned play ‘Man and Superman’,1903. When meritorious students of the day go behind professional courses and campus placements to foreign or international companies, the teaching profession is neglected. Only a good teacher with due commitment to the profession can make the teaching-learning process an enjoyable learning experience, for which training programmes play a remarkable role.

. The problem regarding teachers has two phases.

• Number

• Quality

The Act makes it mandatory for schools to have one trained teacher for a maximum of thirty students. The pupil – teacher ratio which is normally set as 30:1 and for schools with students exceeding two hundred, the same shall not exceed 40:1. The Act strictly provides that for the purpose of maintaining such ratio, no teacher posted in one school shall be made to serve in any other school or office or deployed for any non-educational purpose. The appointing authorities of a school owned or established, controlled or substantially financed directly or indirectly by the appropriate Government or by a local authority shall ensure that the vacancy of teachers shall not exceed ten per cent.

The Human Resource Development (HRD) Minister, Mr. Kapil Sibal, is said to have admitted that the shortage of trained teachers is a big challenge. According to him, it has to be a collaborative effort of centre as well as the states

In a research study conducted by Government of Pakistan and UNESCO on the best practices to achieve quality education for all in South Asean Countries, it was found that most of the countries concentrate on improving the learning process through better curriculum and assessment methods and teacher development programmes.

The Right of children to Free and Compulsory Education Act clearly lays down that the qualification for appointment of teachers is to be laid down by the academic authority authorized by Central Government. In order to address the problem of untrained teachers, the Act lays down academic responsibilities of teachers. It is made the duty of the appropriate Government and the local authorities to provide training facilities for the teachers. The Act prohibits private tuition by teachers as well as the deployment of teachers for non-education purpose except for decennial census, disaster relief and elections.

School Recognition

The RTE Act lays down norms and regulations with regard to infrastructure, PTR, the number of working days for teachers, the number of school days and the other facilities. The Act stipulates a time period of three years for private schools for setting right the infrastructural facilities as per the Schedule under the Act. But the conditions of government schools in India except Navodayas and Kendriya Vidyalayas are no better. The provision of the Act penalizing the private institutions for the lack of infrastructure as prescribed in the Schedule is in a way discriminatory since the government schools of the same kind do not attract any penalty.

The Act requires a government action for closure of such private schools which lack the prescribed facilities, infrastructural and otherwise within a period of three years. The viable option would have been to raise the quality of such schools with adequate mechanisms of state funding. The problem of insufficiency of schools cannot be meted out by closure of schools. On the other hand, the bringing up of new schools in addition to the raising of standards of existing schools would save the situation to a greater extent.

Reservation in private schools

The provision of the Act making it mandatory for private schools, aided as well as unaided, to provide 25 % reservation of their seats for economically weaker and socially disadvantaged sections appears to be a welcome step from the surface. Those students will learn in the private institutions without paying the tuition fees. The private schools will be reimbursed by the government on the basis of per-child expenditure. The government will pay the tuition fee of the student or per-child expenditure in government schools whichever is less.

The implementation of this provision has a number of procedural hurdles.

• The selection procedure of students is to be laid down.

• The clause ‘weaker and disadvantaged section’ needs clarity in definition.

• The monitoring process of government is to be laid down.

• The admission criteria are to be as a whole or separate for each neighbourhood schools is to be addressed.

• It is to be laid down that in case of a private school as well as a government school, which should be considered as the neigbourhood school

Implementation of the said provision shall be done without overburdening the private management as the 75% students in the unreserved category. Any kind of financial crisis in the private management would end up in charging of heavy fees on the children of unreserved category.


The curriculum and the evaluation procedure for elementary education shall be laid down by the academic authority to be specified by the appropriate Government.

Curriculum by prescribed academic authority should:

• Conform to constitutional values.

• Make child free from fear, trauma and anxiety.

• Be child centred, child friendly; provide for learning through activities.

• Medium of instruction – child mother tongue to the extent possible.

• Provide for comprehensive and continuous evaluation.

Act makes it mandatory hat no child shall be required to pass any Board examination till the completion of elementary education. Examinations are known to produce mental trauma. Fear of failure, particularly at a tender age, leads to loss of self esteem. The policy of no Board exams does not mean that there is no strategy to evaluate the student performance. A system of continuous and comprehensive evaluation is laid down which will enable individual attention to each and every student by the concerned teachers. The records so made shall be used by the teachers as a guide in helping each child reach desired levels of educational achievement.

Grievance Redressal Mechanism

The RTE ACT assigns NCPCR/SCPCR additional functions. It includes the following.

• Examine and review safeguards for rights under this Act, recommend measures for effective implementation.

• Inquire into complaints relating to child’s right to free and compulsory education .

• .NCPCR/SCPCR has powers assigned under Section 14 and 24 of the Commissions for Protection of Child Rights Act.

Where SCPCR not constituted, appropriate Government may constitute an Authority.

The parties shall also seek redressal of grievances by making a written n complaint to the local authority having jurisdiction. The local authority shall decide the matter within a period of three months after giving opportunities to be heard for both the parties. The right to appeal shall also be used by a person aggrieved by the decision of the local authorities. The appeal will be heard by the State Commission for Protection of Child Rights or any other authority prescribed by the Act.

The Act also stipulates formulation of National as well as State Advisory Councils, consisting of such number of members not exceeding fifteen, to be appointed amongst persons having knowledge and practical experience in the field of elementary education and child development. The function of the Advisory Councils shall be to advise the Centre and State respectively for the effective implementation of the provisions of the act.


Compulsory Attendence

The emphasis on compulsory attendance is an indirect way of curbing child labour. The best way to prevent child labour would be to ensure the presence of children in some other places, say, educational institutions. There are provisions in RTE Act which makes it obligatory for the appropriate Government and the local authorities to ensure and monitor admission, attendance and completion of elementary education by every child.


Removal of class or caste consciousness

The RTE Act makes it a duty of the appropriate Government and the local authorities to ensure that the child belonging to weaker section and child belonging to the disadvantaged group are not discriminated against and prevented from pursuing education on any grounds. This is an answer to the dilemma put out by the University Education Commission (1948-49) which had Dr. Radhakrishnan as its chairperson.

“In a democratic society, opportunity for learning must be open not only to the elite, but to all those who have to carry the privilege and responsibility of citizenship. Education is a universal right, not a class privilege. The educational attainments of our people are far below what is necessary for effective individual living or for the satisfactory maintenance of the society. For the great majority of our boys and girls, the kind and amount of education they may hope to get depends not own their own abilities, but on the economic status of their family or the accident of their birth.”



The idea of a Common School System is as old as Kothari Commission. Kothari Commission or Indian Education Commission, 1964-66 emphasized on the expansion of educational institutions broadly with an accent on equalization of educational opportunities. The committee had recommended education to people of all straits of society and envisaged a Common School System of public education. A recent trend of double standard of education is alarming. The students from government schools are in no way at par with the students from private educational institutions and international schools. The government schools in India remain as an instrument of job security for teachers and peons rather than an accessory to quality education. The campaigning of government teachers at the time of admission as well as inspection irrespective of the lack of infrastructure and other amenities clearly depicts the existing scenario.

Acharya Ramamurti Committee which was instituted to review the National Policy of Education has clearly laid down the need to end the disparities between schools by upgrading the quality of ordinary schools and providing amenities for minimum levels of learning towards attaining the goal of Common School System. The suggested determined action of both Centre and States in this regard.

The Common School System was enshrined and passed by m the Parliament in every National Policy on Education since Independence viz. 1968, 1986, 1992


1. Performance based pay scales shall be considered as a way to improve teaching.

2. Assist private unrecognized schools to improve their facilities including infrastructure so as to comply with the norms and standards prescribed by the Act, thereby avoiding closure, within three years.

3. Bring about more clarity in the implementation of 25% reservation in private schools.`

4. Conduct awareness campaigns so as to raise the awareness about the RTE Act among the common mass thereby increasing the grassroot pressure. Schools need to be made aware of provisions of the 25% reservations, the role of SMCs and the requirements under the Schedule. This can be undertaken through mass awareness programs and enlightened moves of the local authorities.

5. Restructure the current licensing and regulatory policy in the government sector. Let the policies be structured in such a way as to encourage the well-intentioned `edupreneurs’ from opening more schools. Starting a school in Delhi, for instance, is a mind-numbing, expensive and time-consuming task which requires clearances from four different departments totaling more than 30 licenses. The need for deregulation is obvious.



As Alexander Pope has rightly said, “Legislation is only the first step; the real step is execution.” Kapil Sibal, the Union Human Resource Development Minister said to journalists on the historic event of bringing RTE Act into effect. “ For the first time, education will become a constitutional right. It is a tryst with destiny in the area of education.” He alleged it was the accountability of all the stakeholders to effectively implement it. He further added “But to think that we have passed a law and all children will get educated is not right. What we have done is preparing a framework to get quality education. It is for the entire community to contribute and participate in this national endeavor.”

Leave a Reply

Be the First to Comment!

Notify of