SCHOOL OF LAW

LAW OF EDUCATION

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TOPIC: RIGHT TO EDUCATION AND PIL

Submitted by:- Submitted

to:-

PUSHKAR PATEL AST.PROFESSOR

MR.SAYAN DAS

16GSOL102043

1610102071
ARTICLE ON RIGHT TO EDUCATION AND PIL
The Right of Children to Free and Compulsory Education Act or Right to Education Act
(RTE), is an Act of the Parliament of India enacted on 4 August 2009, which describes
the modalities of the importance of free and compulsory education for children between
6 and 14 in India under Article 21a of the Indian Constitution. India became one of 135
countries to make education a fundamental right of every child when the Act came into
force on 1 April 2010.
 
The Act makes education a fundamental right of every child between the ages of 6 and
14 and specifies minimum norms in elementary schools. It requires all private schools to
reserve 25% of seats to children (to be reimbursed by the state as part of the public-
private partnership plan). Kids are admitted in to private schools based on economic
status or caste based reservations. It also prohibits all unrecognised schools from
practice, and makes provisions for no donation or capitation fees and no interview of the
child or parent for admission. The Act also provides that no child shall be held back,
expelled, or required to pass a board examination until the completion of elementary
education. There is also a provision for special training of school drop-outs to bring them
up to par with students of the same age.
 
The RTE Act requires surveys that will monitor all neighbourhoods, identify children
requiring education, and set up facilities for providing it. The World Bank education
specialist for India, Sam Carlson, has observed: "The RTE Act is the first legislation in the
world that puts the responsibility of ensuring enrolment, attendance and completion on
the Government. It is the parents' responsibility to send the children to schools in the US
and other countries."
 
The Right to Education of persons with disabilities until 18 years of age is laid down
under a separate legislation - the Persons with Disabilities Act. A number of other
provisions regarding improvement of school infrastructure, teacher-student ratio and
faculty are made in the Act.
 
Education in the Indian constitution is a concurrent issue and both centre and states can
legislate on the issue. The Act lays down specific responsibilities for the centre, state and
local bodies for its implementation. The states have been clamouring that they lack
financial capacity to deliver education of appropriate standard in all the schools needed
for universal education. Thus it was clear that the central government (which collects
most of the revenue) will be required to subsidise the states.
 
A committee set up to study the funds requirement and funding initially estimated that
INR 1710 billion or 1.71 trillion (US$38.2 billion) across five years was required to
implement the Act, and in April 2010 the central government agreed to sharing the
funding for implementing the law in the ratio of 65 to 35 between the centre and the
states, and a ratio of 90 to 10 for the north-eastern states. However, in mid 2010, this
figure was upgraded to INR 2310 billion, and the center agreed to raise its share to 68%.
There is some confusion on this, with other media reports stating that the centre's share
of the implementation expenses would now be 70%. At that rate, most states may not
need to increase their education budgets substantially.
 
A critical development in 2011 has been the decision taken in principle to extend the
right to education till Class X (age 16) and into the preschool age range. The CABE
committee is in the process of looking into the implications of making these changes.
 
The Ministry of HRD set up a high-level, 14-member National Advisory Council (NAC)
for implementation of the Act. The members included Kiran Karnik, former president of
NASSCOM; Krishna Kumar, former director of the NCERT; Mrinal Miri, former vice-
chancellor of North-East Hill University; Yogendra Yadav – social scientist. India
Sajit Krishnan Kutty, Secretary of The Educators Assisting Children's Hopes (TEACH)
India; Annie Namala, an activist and head of Centre for Social Equity and Inclusion;
and Aboobacker Ahmad, vice-president of Muslim Education Society, Kerala.
 
A report on the status of implementation of the Act was released by the Ministry of
Human Resource Development on the one year anniversary of the Act. The report
admits that 8.1 million children in the age group six-14 remain out of school and there’s
a shortage of 508,000 teachers country-wide. A shadow report by the RTE Forum
representing the leading education networks in the country, however, challenging the
findings pointing out that several key legal commitments are falling behind the schedule.
The Supreme Court of India has also intervened to demand implementation of the Act in
the Northeast. It has also provided the legal basis for ensuring pay parity between
teachers in government and government aided schools. Haryana Government has
assigned the duties and responsibilities to Block Elementary Education Officers–cum–
Block Resource Coordinators (BEEOs-cum-BRCs) for effective implementation and
continuous monitoring of implementation of Right to Education Act in the State.
 
It has been pointed out that the RTE act is not new. Universal adult franchise in the act
was opposed since most of the population was illiterate. Article 45 in the Constitution of
India was set up as an act: The State shall endeavour to provide, within a period of ten
years from the commencement of this Constitution, for free and compulsory education
for all children until they complete the age of fourteen years.
 
As that deadline was about to be passed many decades ago, the education minister at
the time, MC Chagla, memorably said: "Our Constitution fathers did not intend that we
just set up hovels, put students there, give untrained teachers, give them bad textbooks,
no playgrounds, and say, we have complied with Article 45 and primary education is
expanding... They meant that real education should be given to our children between the
ages of 6 and 14" - (MC Chagla, 1964).

In the 1990s, the World Bank funded a number of measures to set up schools within
easy reach of rural ommunities. This effort was consolidated in the Sarva Shiksha
Abhiyan model in the 1990s. RTE takes the process further, and makes the enrolment of
children in schools a state prerogative.

The Right of Children to Free and Compulsory Education ACT of 2009, which is popularly known
as RTE ACT 2009 completed its three years on the 31st March 2013. It is an important deadline
that went past us. The legislation was passed with a clear three-year target in mind to enact all
the necessary provisions like infrastructural facilities, teacher recruitment and other
mechanisms guaranteed under the ACT.

I was part of the National Level Stock Taking Convention on status of implementation of RTE
ACT, held in Delhi on the 3rd of April 2013. The convention was organized by the RTE Forum in
New Delhi.

RTE forum is a network of civil society organizations and individuals working on the issue of
Right to Education across India. This was the third National Convention held since the inception
of the ACT.

The convention was attended by the chairperson of National Commission of Protection of Child
Rights (NCPCR) Dr. Shanta Sinha, renowned educationists like Prof Yashpal, Prof Krishna Kumar,
RTE activist Dr. Vinod Raina, Mr. Harsh Mander, human rights lawyer Mr. Colin Gonsalves,
Country representative of UNICEF India Mr. Louis George Arsenault and different civil society
actors.

Among the various presentations made by the RTE forum that day, the one made on the status
of the implementation of the ACT so far was of utmost importance.<.p>

While the issue of justiciability of the RTE Act was lauded by many of the speakers, we are still
so far away from enacting the basic guarantees that the ACT spelt out.

Here is an example. As per the recent Economic Survey 2012-13, 95% of schools did not comply
with the RTE norm, which is also corroborated by the ASER school report card 2012.

It was also evident from both the reports that the issues of adequate financing, regulation of
private providers, setting up transparency and redressal mechanism have not been addressed
on the ground yet.

However, on a positive note, it was highlighted in the presentation of the RTE stock-taking
report that 77% of schools complied with the neighbourhood norms as required under the ACT
and were indeed within a three-kilometre radius of the community.

Involving the Judiciary

The civil society organisations (CSOs) working on the issue of Right to Education, in addition to
the communities that they often work with, have been constantly engaging with  two important
pillars of the state; the executive and the legislature for  the implementation of the Act, but in
the process leaving the other powerful pillar the Judiciary untouched.

Given that much need to be achieved even after the stipulated time frame, it is now important
to engage with the Judiciary in bigger and more effective ways.

To remind ourselves, it was indeed judicial activism that paved the way for the enactment of
RTE ACT in 2009. The Unnikrishnan vs. State of Andhra Pradesh judgment by the Supreme Court
of India in 1993 led to 86th constitutional amendment, which made the right to education as
one of the fundamental rights.

In this almost revolutionary interpretation of the Constitution, the Supreme Court stated that
Article 45 in Part IV of the Constitution must be read in “harmonious construction” with Article
21 (Right to Life) in Part III since Right to Life is meaningless if it is without access to
knowledge [Source: Counter Currents]

It is this much needed judicial activism that actually led the way to what we now know as the
RTE ACT, 2009.

All constitutional guarantees and legislative provisions such as RTE ACT are subject to judicial
review and in the case of their violation, the citizen of the country can approach the Court
against the state by filing Public Interest Litigation. The concept of Public Interest Litigation (PIL)
is in consonance with the objectives enshrined in Article 39A of the Constitution of India to
protect and deliver prompt social justice with the help of law.

Vinod Raina, a speaker at the event, pointed out that while the civil society has not yet taken
the judicial route for implementing the ACT, it has already been explored by the association of
unaided private schools, which pleaded before the Supreme Court to declare the RTE Act
unconstitutional.

This was an interesting correlation indeed. And an important one.

The association went to court citing that the RTE Act violates their fundamental right under
Article 19 (1) (g) of the Constitution of India. The said article guarantees the citizen of the
country “to practice any profession or to carry on any occupation, trade or profession
independently” without the interference by the state.

However the three-member bench, which went into the petition quashed it, while upholding
the constitutional validity of the ACT.
In its order the bench stated that the ACT will apply to all Government, Government aided and
private unaided schools except for the unaided minority private schools.

The group has re-appealed in the Supreme Court for reviewing its verdict by a larger
constitutional bench, which has already been accepted by the court.

At the convention, both Vinod Raina and Colin Gonsalves expressed their strong views, which
were in favor of taking the judicial route to get the ACT implemented.

It makes sense.

The civil liberties movement of the country already has good experience of taking the route of
judicial intervention in various issues. The Right to Food case, which is one of the longest-
running cases in the Supreme Court of India, is one such example. It is the intervention of the
Supreme Court that forced the government to accept the right to food as one of the rights of
the Indian citizen. The case also led to the issuance of many progressive orders, which not only
talked about the rights but also made the food delivery system robust throughout the country.
The route can also be explored by streamlining the implementation of the RTE Act in the
country, where the Government can be made answerable and accountable for its laxity.

Now it is the right time for the CSOs working on the issue of Right to Education to prepare for
the judicial route for the effective implementation of the Act. In the course of taking up judicial
intervention, it is important to document the cases of violation of the RTE ACT across the
country, whether it is related to policy or implementation. This can later on be turned in to a
Public Interest Litigation, which can be filed both in the High Courts across the states as well as
the Supreme Court.  We have many human rights lawyers having experience in dealing with PIL
across states which can also act as an asset. While exploring the judicial route the present work
of the CSOs with the Government and community also need to keep pace. The regular support
coming from the ground can further strengthen judicial intervention.

Act for Children

Act for Children is an initiative by ActionAid India to ensure children in marginalised and
vulnerable communities have access to their basic rights especially education, healthcare and
protection. The initiative is aimed at creating an enabling environment for children so they may
enjoy a childhood all children deserves.