CONSTITUTIONAL LAW-1

TOPIC- RIGHT TO EDUCATION

SUBMITTED TO- PROF.DR. SHIJU M. VARGHESE

SUBMITTED BY- SNEHA

2ND BALL.B

DATE- 6TH NOV,2019

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 CERTIFICATE

This is to certify that the assignment titled “RIGHT TO EDUCATION” submitted to the
CHRIST ACADEMY INSTITUTE OF LAW, Bangalore by Sneha for the degree of law, is a
bonafide research work carried out by her under my guidance.

Bangalore PROF.DR. SHIJU M. VARGHESE

Date- CHRIST ACADEMY INSTITUTE OF LAW,

BANGALORE

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 DECLARATION

I hereby declare that the assignment titled ‘RIGHT TO EDUCATION’, which I am

submitting CHRIST ACADEMY INSTITUTE OF LAW is the outcome of the research
carried under guidance of Prof. DR.Shiju M Varghese. The extent of information collected
from existing literature has been cited and fully acknowledged at the appropriate places. I
further declare that this assignment wholly or impart has not been submitted to any other
college.

Bangalore Sneha

Date-

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 ACKNOWLEDGEMENT
First and foremost, I bow down with all my praise before my Lord Almighty for having
helped me to complete this task at the prestigious CHRIST ACADEMY INSTITUTE OF
LAW, Bangalore. I express my sincere and heartfelt gratitude to my guide Prof. Dr. Shiju M.
Varghese, for his helpful guidance, original ideas and encyclopedia knowledge to complete
this work and the insight throughout my research work. The idea of taking up this topic was
seeded in my mind by Prof. Dr. Shiju M. Varghese. More than anyone else, his influence has
contributed to my development in this field. Lastly I would like to express my gratitude
towards my parents and friends for their kind co-operation and encouragement which help me
in completion of this assignment.

SNEHA

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 TABLE OF CONTENTS

1. ABSTRACT…………………………………………………………………………………………………………………….6
2. INTRODUCTION…………………………………………………………………………………………………………….6
3. INTERNATIONAL LEGAL BASIS……………………………………………………………………………………….7
4. RIGHT TO EDUCATION IN INDIA…………………………………………………………………………………….8
5. CHALLENGES AND IMPLICATIONS………………………………………………………………………………….8
6. CONSTITUTION ON EDUCATION…………………………………………………………………………………….9
7. JUDICIAL APPROACH…………………………………………………………………………………………………....11
8. RIGHT TO EDUCATION ACT……………………………………………………………………………………………13
HISTORICAL BACKGROUND
MAIN FEATURES
9. SUGGESTIONS FOR MAKING RTE EFFECTIVE………………………………………………………………….15
10. CONCLUSION………………………………………………………………………………………………………………..16
11. REFERENCES………………………………………………………………………………………………………………….17

ABSTRACT

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This paper seeks to study about the Right to free and compulsory education. Right to
education act besides provides that no child shall be held back from education or required to
pass board examination. Education in the Indian constitution is concurrent issue the act lays
down specific responsibilities for the center state and legislative the results showed that in
male and female adults, whether they are residents of rural or urban area the awareness about
Right to Education was low. Results of the present study pointed towards the unfulfillment of
various objectives of Right to Education. Therefore it may be suggested that the aware people
must work for creating awareness about Right to education. Awareness programmes like
Lectures, Seminars, Club meetings, Adult Education Programme etc. Keywords: Right to
Education, Private Institution, Free and Compulsory Education, The Right to Education Act
2009, measures.

INTRODUCTION

The Education is a Process which engages many different actors, firstly those one who
provide education i.e. the teacher, the owner of an educational Institution, the parent.
Secondly, those one who receive the Education i.e. the child, the Pupil. Thirdly, those one
who is legally responsible for the one who receives the education through the parents, the
legal guardians, society and the state”. In pre-Independent era, the complexity and ambiguity
of the women’s struggle is evident in the arena of education. Education and law were seen as
key factors in the social reforms campaigns against child marriages and those in support of
widow remarriage and the abolition of sati. Everyone seemed to agree that education was
envisioned in Brahminical and elitist terms to enhance women’s ability to serve to family and
nation more effectively. Many reformist men who played a key role in widening the lives of
Indian women through education also fostered ambiguous attitudes among women towards
their own emancipation the freedom of their minds”. Therefore, the Education and the law are
critical dimensions of democratic governance”.

The Constitution (Eighty-sixth Amendment) Act, 2002 inserted Article 21-A in the
Constitution of India to provide free and compulsory education of all children in the age
group of six to fourteen years as a Fundamental Right in such a manner as the State may, by
law, determine. The Right of Children to Free and Compulsory Education (RTE) Act, 2009,
which represents the consequential legislation envisaged under Article 21-A, means that
every child has a right to full time elementary education of satisfactory and equitable quality
in a formal school which satisfies certain essential norms and standards. Article 21-A and the
RTE Act came into effect on 1 April 2010. The title of the RTE Act incorporates the words
‘free and compulsory’. ‘Free education’ means that no child, other than a child who has been
admitted by his or 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 elementary education. ‘Compulsory education’
casts an obligation on the appropriate Government and local authorities to provide and ensure
admission, attendance and completion of elementary education by all children in the 6-14 age
group. With this, India has moved forward to a rights based framework that casts a legal
obligation on the Central and State Governments to implement this fundamental child right as
enshrined in the Article 21A of the Constitution, in accordance with the provisions of the
RTE Act.

INTERNATIONAL LEGAL BASIS

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On the foundation of international recognition “Right to education” enriched in international
law in Article 26 of the Universal Declaration of Human Rights, and considered basic need of
every human being. In many international events such as  Article 13 and 14, social and
cultural rights that everyone should have primary education right. In 1960 UNESCO, right to
education again strongly stated in the convention against discrimination in education,
in Europe convention which is held on 20 March 1952 states that right to education is a
human right and everyone shall have the access to primary education hence to established and
entitlement to education under Article 2.

United Nations universal declaration on human rights adopted in 1941 states that:

“Everyone human being has the right to education. Education must be free, at least in the
primary and fundamental stages. Moreover, primary education shall be compulsory. Advance
and professional education shall be made generally available and higher education shall be
accessible to all on the basis of merit and equality.”

Many other international human rights treaties affirmed the right to education protected and
propagate such as the following:

 United Nations pact on the rights of the Children in 1989 under article 28 and 29.
 Eradication of all type of discrimination against women 1981 under article 10.
 Convention against discrimination on the basis of employment and corruption in
1953 under article 3.

These international treaties have been working for access to the educational provision to all
and also try to an annulment of discrimination at all stages of the education system and
wanted to give good quality and standard of education that one should have it.

For the operation of these treaties, it’s a pleasure to mention India is a state party the CERD
convention, the CEDAW convention and the convention of the rights of the child.

Some international organizations working for the promotion of education

 UNESCO
 UNICEF
 Amnesty International
 The International Labor Organization

RIGHT TO EDUCATION IN INDIA

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Education is the process of making things learned and acquisitions of knowledge, skills,
beliefs, and habits and helps to lift those who belong to socially and economically
marginalized from poverty. 

India is known as the home to 19% of the world’s children. What does that mean? India is a
country where the majority of youngster lived. But it is also true that one- third of the world’s
illiterate population resides in India. It is not like that the rate of literacy has not been
increased, it is, but the rate of growth is rapidly very slow in contrast to decline. from 1991 to
2001 the rate was 12.6% while it has declined to 9.21%.

To tackle these alarming issues, the government of India introduced the right to free and
compulsory education act, RTE and making education as a fundamental right for the
children’s age group of 6-14.

The Right to education act is an act of parliament proposed on 4 august 2009 which shows
and highlights the model of the importance of free and compulsory education to children age
group 6-14 in India. India has become one of the 135th countries to implement the right to
education as a fundamental right guaranteed in our constitution under Article 21A to every
child. This act came into force on 1st April, 2010.

CHALLENGES AND IMPLICATIONS

Although the right to education becomes the fundamental right but still a parliamentary
process and largely expected to become a reality soon, determined to succeed for a country
who has witnessed policy failure for a decade. We observe that education is never
inexpensive, neither free nor compulsory. To make a move through legislative enactment is a
major shift for the state-guaranteed education provisions given to disadvantaged groups who
had witnessed the history of provisions that have consistently failed from protecting the
interest of minority class.

Studies have uniformly shows that those who have excluded from the education reflects
largely inequality with social, political and economic fabric likely of caste, class, and gender.
Edges of exclusion are broadly possessed in occupational and social classification.

For example children of upper sophisticated class, or small families and households who are
economically stable and depend on non- agricultural profession has better educated.

One of the biggest reasons which impediments India’s progress and could not enable it to
achieve its high level of illiteracy, especially when the gap between discourse, debate and
structural framework in all policy effort in education, and more prominently development
have been the main genesis for India’s poor performance in securing the equitable
educational opportunity for all. Despite the variety of commitments and right laid down in
Indian constitution regarding equality is constantly failed to satisfy the ambition developed
by the birth it comes to women and girls. Despite several attempts and efforts through

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educational reforms by the government, the most recent census (2011) reports that overall
youth literacy is at 74.04% – 82.14% among males and only 65.46% for females. This data
clearly shows that the dramatic disparity and indifferences in the literacy levels between
genders, amounting to a gap of 16.68%. The situation is even more shoddy for women
residing in rural areas. Another more crucial factor which always a wall against any policy is
“Poverty” and can be blamed for many problems in India, including that of a low female
literacy rate. More than two-thirds of India’s population lives below the poverty line.
although the government is putting many efforts to make primary education free, many
families are still not ready to send their children to school. As parents think instead of going
to school which is located at a far distance from their villages or homes to go to work and
earn a livelihood.

There are many more challenges, but the above discussed are creating more problems before
the government while the formulation of the RTE Act.

CONSTITUTION ON EDUCATION

The basic structure gives every citizen social justice and, education is a social aspect, which
needs to be addressed by policymakers if the population is lacking behind literacy level than
there will be no equality of opportunity to be a real provision. And if the person is not given
the chance to make his/her life, free from misery and problems than one cannot be attained
social transformation, which is the cornerstone of education. 

 The Right to education is now become the fundamental right and included in part III of the
Indian constitution under article 21-A. This was done in the case of Mohini Jain vs. state of
Karnataka . Supreme Court division bench decide this case. Justice comprising of Kuldip
Singh and R.M Sahai held that:

“Right to education is the essence of the right to life and directly flow and interlinked with it,
and life living with dignity can only be assured when there is a significant role of education”.

Later, the validity of this judgment re-examined in by five judges’ bench in J.P. Unnikrishnan

v. State of Andhra Pradesh  and held that:

“Right to education means citizen has the right to call up the state to provide the facilities of
education to them in according to the financial capacity”.

The above-stated cases enumerate the right to education to be in part III being as a
fundamental right. There are many more cases which seeks that right to education is a
fundamental right, in the case of Maharashtra State Board of Secondary and Higher
Education vs. K.S. Gandhi , the Supreme Court referred above judgment in relation to case
Bandhua Mukti Morcha, etc. v. Union of India.

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  It would be therefore the necessary duty of the State to ensure the
facilities and opportunity to children enjoined under article 39(e), 39 (f) of the
Constitution and to prevent exploitation of their childhood due to extreme poverty
and notion.

These all international organizations and treaties made out hard their efforts to eliminate the
problem of poverty through education, although there are many international problems but to
attain them first we have to accomplish the task of education and for this it is very crucial that
every child must have access to standard quality of education (primary) and should get a
chance of higher and advanced education.

Provisions given in the Constitution promoting and strengthening the educational framework
in India 

 Article 28: In our Constitution Article 28 provides freedom to attend any religious
instruction or religious worship in educational institutions.
 Article 29: This article gives equality of opportunity in educational institutions.
 Article 30: Acknowledge the right of minorities to establish and administer
educational institutions.
 Article 45: This article mandate the state shall dispense to provide within a period
of  ten years from the inception of this Constitution for free and compulsory
education for all children of this country until they complete the age of 14 years.
The responsibility for providing elementary education lies with the scope under
state Government, the central Government, the Local Bodies and authorities, and
voluntary organizations or any other government organization.
 Article 46: Talks about the special care for the furtherance of education and
economic interests of the Scheduled Tribes, Scheduled Caste, OBC and the weaker
sections of society.
 Article 337: This article regulates the special provision with respect to educational
grants for the benefit of the Anglo-Indian community.
 Article 350B: It provides for grants and offers for linguistic minorities.
 Article 351: This article deals with the development and promotion of the Hindi
language.

This constitutional amendment is made with regard for protecting the citizens right of
education, as we know the challenges in India regarding education, so it is quite necessary for
the policymakers of this country to amend the constitution and bring some changes in
educational policy, so that more people in India will get the right of education, and
transforms their lives towards a better future.

86th constitutional amendment act, 2002 brings three new changes in our constitution, for the
better functioning, and to facilitate a better understanding of the right to free and compulsory
education to the children age group between six to fourteen. (6-14)

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These are:

1. Insertion of new Article i.e, 21A in part III of the Indian constitution, which
provides that every child has the right to free and compulsory education of
equitable quality and subject to some norms and standards.
2. Bring alteration and modification in Article 45 and substituted as the State shall
endeavor to assure early childhood care and free and compulsory education for all
children until they complete the age of six years.
3. Adding the new clause, (K) under Article 51A, the result of this new fundamental
duty is added which states that whosoever is a parent or guardian has a duty to
furnish opportunities for education to his child or, as the case may be, ward
between the age group of six to fourteen years.
4. In Shyam Sundar case 

Court held that the “right of a child should not confines only to free and compulsory
education, but should be enhanced to have quality education without any
discrimination on the basis of their economic, social and cultural background.

JUDICIAL APPROACH

The State of Madras v. Shrimati Champakam Dorairajan , in this case the supreme court
gives a landmark judgment. This judgment results in the First Amendment of the
Constitution. Here the court held that providing such contradictory reservations was the
reason for infringement of Article 29(2) of the Indian Constitution. Court held:

Fundamental rights are sacred and can not be a subject to abridged by any legislative or
executive action or order except provided in part III. directive principles of state policy have
to be uniform and should be run on a subsidiary basis related to a fundamental right.
However, if there is no infringement/violation of rights conferred by part III of the Indian
constitution, there can be no objection over, the state acting in accordance with the directive
principles of state policy.

The observation of the right to free and compulsory education was put up in the case
of Mohini Jain in 1992, which famously known as “capitation fee case”.

The questions to be observed in this case were:

1. Is there a clause of ‘right to education’ guaranteed to the people of India provided

in the Constitution? 
2. If so, does the aspect of ‘capitation fee’ implied in the same?
3. Whether putting of capitation fee in regard to admission to educational institutions
is arbitrary, unjust, and unfair and such violates the equality clause provided
in Article 14 of the Constitution?

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The division bench of the Supreme Court said that the ‘right to life’ is an essential element
for all those rights which the Courts must enforce as they are important to the dignified
enjoyment of life. The right to education moves directly from the right to life. The right to
life provided under Article 21 and the dignity of an individual life is not being achieved
unless it is tossed and coupled with the right to education.

Education in India can not be a product for sale. We hold that every citizen of India has the
‘right to education’ under the Constitution. The State is under a legal obligation to formed
educational institutions to enable the citizens to enjoy the right mentioned above. The State
may discharge its duty through State-owned or State-recognised educational institutions.
When the State Government gives grants recognition to the private educational institutions it
mandates an agency to fulfill its duty given and mentioned under the Constitution. The
students must be given admission to the educational institutions – whether State itself owned
or State recognized in bearence of their ‘right to education’ under the Constitution. Charging
capitation fee for the purpose of admission to an educational institution is a violation of a
citizen’s right to education under the Constitution.

        

Court also observed that the Constitution made it compulsory to give education to all its
citizens. This interpretation solely would assist the people to metamorphose the objectives of
political economic and social justice. And charging capitation fee of large sums by
institutions of higher education is a repudiation of the right to education.

The Supreme Court observed the validity of the verdict given by the court in Mohini Jain in
the case of Unnikrishnan.

The bench of five Judges by 3-2 majority partially agreed with the Mohini case decision and
held that right to education is a fundamental right under Article 21 of the Constitution as it
directly flows from “right to life”. As considered, the court partially overruled the Mohini
Jain’s decision and observed that the right to free and compulsory education is available only
to children until they complete the age of 14 years, after that the responsibility of the State to
provide education is subject to the limits of its economic capacity. “Thus it is well observed
by the decisions of this Court that the provisions of Part III and Part IV are complementary
and supplementary in nature to each other and fundamental right means to achieve the goal
inculcate in Part IV of Indian constitution, It is also observed that the fundamental rights
should be established in the light of the directive principles”.

RIGHT TO EDUCATION ACT, RTE 2009

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HISTORICAL BACKGROUND

 1950: Constitution of India provided under Article 45, as one of the directive
principles of State policy, which states that: The State shall endeavor to provide for
a period of ten years from the inception of the Constitution, for free and
compulsory education for all children until they reached the age of fourteen.
 1968: First National Commission established for education under the supervision of
Dr. Kothari and submits its reports. It introduced several far-flight changes as a
uniform syllabus for both boys and girls, mathematics and science should be made
as compulsory subjects and It is also proposed a common school system.
 1976: Constitutional amendment for making education in a concurrent subject
(responsibility of central and state) was passed.
 1986: The National Policy on Education (NPE) supports to Common School
System (CSS) and was formulated. Subsequent NPE’s endorsed CSS but it has
never been implemented.
  1991: A book is written Myron Wiener bearing the title The Child and State in
India: Child labour & Education in comparative perspective highlighting the states’
failure to swap up child labour and exploitation on child and enforce compulsory
education in India.
 1993: The Supreme court in the case of Mohini Jain and Unnikrishnan vs State of
Andhra Pradesh ruled that the right to education is a fundamental right that flows
from the Right to life in Article 21 under Indian Constitution.
 1997: Constitutional Amendment for making Education as a fundamental right was
introduced.
 2002: 86th Constitution Amendment takes place and insertion of Article 21A has
been done, which states that “The State shall be bound to provide free and
compulsory education to all children of the age group between six to fourteen years
in such as a law, determine.” This 86th Amendment also brings changes in Article
45 which reads as “The state shall endeavor to dispense early childhood care and
free education for all children until they reached the age of 6 years”. And also
added a new fundamental duty under Article 51A(K).
 2005: CABE committee report established to draft the Right to Education Bill
submits its report.
 Every time a new phase or version was placed until it was presented in Parliament
in 2008.
 The bill was approved by the cabinet members on 2 July 2009.
 Lok Sabha passed the bill on 4 august 2009 and the Rajya Sabha on 20 July 2009.
 It received President assent and was conferred as the law on 3 Sept 2009 as The
Children’s Right to Free and Compulsory Education Act RTE, 2009. 

After many schedules of meetings, drafting and redrafting the right to education act was
made which is a genuine instrument to full fill the basic demand and securing social justice
for every child. This policy work on 4A’s which tells about what education means to them
and their present situation in the context of this ideology.

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Availability – In that sense education is free and the government is bound to fund the
education and expert teachers in his/her subject and well qualified are there and sufficient
infrastructure able to support educational framework.

Accessibility – Means the education is for all, there is no sense of discrimination especially to
support the weaker section of the society.

Acceptability – That the value of education is appropriate, there is no discriminatory and

culturally acceptable, and subject to some quality; that the school place which is harmless and
teachers are well qualified.

Adaptability – That education dynamic and develop with the changing needs of society and
its people and contribute to overcome the inequalities, such as sex discrimination.

Main features of the Right to Education Act 

 Compulsory and absolutely free education to all children of India, between the age
group of 6 to 14.
 No child shall be put off, expelled and scold or required to pass a board
examination until he reached up to elementary education.
 If a child above the age of 6 years has not been admitted to any school or may not
complete his or her elementary education, then he or she shall be admitted to a
class which is according to his or her age. However, if the case may be where a
child supposed to be admitted in a class according to his or her age, then, in order
to comparison with others, he or she shall have a right to receive special training
and special care within such time limits as may be prescribed. Provided further that
a child so admitted must have the right to elementary education and guaranteed free
education till he/she completes the elementary education even after he/she reached
the age of 14 years.
 Proof of age to take admission: For admission to elementary education, the age of a
child shall be determined on the basis of the birth certificate issued in accordance
with the Provisions of Birth. Marriages and death Registration Act 1856, or on the
basis of such other documents as may be provided in the annexure. however, no
child shall be left out for admission in a school for lack of age proof or other
documents.
 When a child who completes his/her elementary education shall be given a
certificate
 Call needs and attendance need to be taken for a fixed student-teacher ratio.
 Twenty-five percent reservation for economically disadvantaged and weaker
communities in admission to Class I in all private schools is to be compulsory.
 Improvement in the quality of education should be dynamic and important.
 School teachers will need adequate professional degree within five years or not
fulfill the condition might lose the job.

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  School infrastructure (if there is a problem) need to be improved in every 3 years,
else recognition to that particular school will be canceled.
 The Financial burden will be shared between the central and the state government
as an educational subject comes under the concurrent list.

SUGGESTION FOR MAKING RTE EFFECTIVE

1. The scope of the Right to Education act should not be limited to the age of 14
years it should be extended to the secondary level also. The government should
make some modifications like introducing diplomas/degrees/courses with
specialization in IT, software mobile communication, media, entertainment,
telecommunication, automobile, construction or need of the requirement.
2. CSS ( Common School System) was an important step and go hand in hand
for attaining equality decades ago, however now it must be changed into MSS
(Model school system) based on the dynamic nature and demands of the society
where education should be provided free of cost and on joint venture with private
institute patterns.
3. Parents need to play a ruthful role in making RTE policy to be a success in
India and, for this regards government mandate this as a fundamental duty of
guardians and parents. Moreover, it can be done only by motivating them through
counseling and guidance, and they must be made alarming about the RTE Act
through media, pamphlets campaigns, hoardings, rallies, etc. only then we can
aware all people about the importance of education and should expect that our
future generations will be well educated.
4. Schemes like mid-day meal, SSA, RMSA accompanied by the world
organization like UNICEF are playing an important role in increasing the massive
enrollment ratio. By securing beginning and basic education to Indian children.
However these international and national agencies should more be focused over
weaker sections of the society, economically backward, females and highly
populous states of India, these states should be a topmost priority to improve the
quality of this act.

CONCLUSION

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 Generally, education covers 5% of the GDP of any country to support their social
transformation. Education is a key to grow finer or one step ahead who is not
educated. Education is a powerful tool to provide an opportunity for a human being to
develop to the fullest. for the advancement and promotion of the right to education
UN human declaration, many more conventions mention about right to education.
UNICEF, UNESCO and AMNESTY international organization made tremendous
efforts to promote education right to education worldwide. After adopting the right to
education India becomes the 135th country to have this law.
Parliament of India through an 86th constitutional amendment made the right to
education as a fundamental right under Article 21-A . and for better formulation of the
educational framework also enacted an act that is right to the education act. Which
provide free and compulsory education to children age group 6-14. And have some
features which mandate state and local bodies to provide a right to education to every
child of this country and if not, they all are accountable for that. The rate of literacy is
still under construction so in order to make this rate on increasing then there should be
more act and ordinance of right to education will be accompanied. Then only India
can transform into a developing nation, and will never set back as the citizens are
educated.

REFERENCES

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1. Kapadia SH, CJI KS. Radhakrishnan and Swatanter Kumar JJ. Supreme Court on Right to
Education, published by Asia Law housing, Hyderabad, 2012.

2. Pylee MV. Our Constitution Government & Politics - Delhi: Universal Law Publishing
Co. Pvt. Ltd, 2002.

3. Basu, Durga Das Introduction to the Constitution of India -New Delhi: Wadhwa and
Company Law Publishers, 2002.

4. Bakshi PM. The Constitution of India -Delhi: Universal Law Publishing, 2002

5. Basu DD. Introduction to the Constitution of India. Agra: wadhwa and company law
publishers, 2002

6. timesofindia.indiatimes.com › India date 21 October 2017

7. https://www.lawctopus.com/academike/right-educationindia, dated, 2018.

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