RIGHT TO EDUCATION

ARTICLE 21 (A)

SUBMITTED TO- A. NAGESWARA RAO

NAME – KARTIK BHARGAVA
ROLL NO. – 2018044
SEM - III

1
 ACKNOWLEDGEMENT

I would like to thank my faculty, Prof. A. Nageswara Rao whose guidance helped me a lot
with structuring my project.

I owe the present accomplishment of my project to my friends, who helped me immensely

with materials throughout the project and without whom I couldn‟t have completed it in the
present way.

I would also like to extend my gratitude to my parents and all those unseen hands who
helped me out at every stage of my project.

2
 TABLE OF CONTENT
INTRODUCTION………………………………………………4
RIGHT TO EDUCATION……………………………………4
RIGHT TO EDUCATION UNDER INDIAN CONSTITUTION…8
RIGHT TO EDUCATION ACT…………………………………11
LEGAL PROVISIONS……………………………………………16
CASE LAWS………………………………………................19
CONCLUSION……………………………………………………..23
BIBLIOGRAPHY…………………………………………………….25

3
 INTRODUCTION
The original Constitution of India included the right to education as a directive principle of State
policy with a 10 year time-limit for implementation.

Subsequently, the Supreme Court of India Court affirmed the fundamental right to education in
two landmark cases, Mohini Jain v State of Karnataka and Unni Krishnan J.P. v State of Andhra
Pradesh.

In December 2002, the Constitution (Eighty-Sixth Amendment) Act was passed, entrenching the
right to education in Article 21A which reads: „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.‟ Article 21A is in Part III of the Constitution and therefore the right to education
is now considered a „fundamental right‟ under the Constitution.

Article 21A contemplated enabling legislation. The Right of Children to Free and Compulsory
Education Act, 2009 (RCFCEA) was enacted in August 2009 and entered into force on 1 April
2010.

RIGHT TO EDUCATION

The right to education has been universally recognised since the Universal Declaration of Human
Rights in 1948 (though referred to by the ILO as early as the 1920s) and has since
been enshrined in various international conventions, national constitutions and development
plans. However, while the vast majority of countries have signed up to, and ratified,
international conventions (such as the UN Convention on the Rights of the Child) far fewer have
integrated these rights into their national constitutions or provided the legislative and
administrative frameworks to ensure that these rights are realised in practice. In some cases the
right exists along with the assumption that the user should pay for this right, undermining the
very concept of a right. In others, the right exists in theory but there is no capacity to implement
this right in practice. Inevitably, a lack of government support for the right to education hits the
poorest hardest. Today, the right to education is still denied to millions around the world. As well

4
as being a right in itself, the right to education is also an enabling right. Education creates
the voice through which rights can be claimed and protected, and without education people
lack the capacity to achieve valuable functioning as part of the living. If people have access
to education they can develop the skills, capacity and confidence to secure other rights.
Education gives people the ability to access information detailing the range of rights that they
hold, and government‟s obligations. It supports people to develop the communication skills to
demand these rights, the confidence to speak in a variety of forums, and the ability to negotiate
with a wide range of government officials and power holders.

The Right to Education Project‟s indicators are based directly on the norms and standards
of international, regional and national law - indeed, this is what makes them uniquely
human rights indicators and distinguishes them from other more traditional education indicators.
Yet, they also build on the collective learning of the education community and the experience
of practitioners. This double-sided approach builds a needed bridge between development
and law. This major research project focuses on mapping out, developing and applying
a disaggregated list of indicators. Building consensus around them is crucial for
monitoring progress on education rights, developing advocacy strategies, and guiding social
mobilisation.

India is a land of diversity-of different castes, peoples, communities, languages, religions

and culture. Although the citizens enjoy complete political freedom, a vast part of the multitude
is illiterate and lives below the poverty lines. The state, with its limited resources, was unable
to fully develop the genius of people, very often the impersonal education that is imparted by
the state was devoid of adequate material content.

In that scenario, private educational institution established by educationists, philanthropists

and religious and linguistic minorities, which provide quality education was imparted
with unproductive load on their back in the form of governmental control, by way of rules
and regulations, has thwarted the progress of quality education.

A number of petitions were filled by management of minority and non-minority

educational institutes. Their contention that the government must get off their back, and that they

5
should be allowed to provide quality education uninterrupted by unnecessary rules and
regulations, laid down by the bureaucracy for its own self-importance. The private educational
institutions, both aided and unaided, established by minorities and non-minorities, in their desire
to break free of the unnecessary shackles put on their functioning as modern educational
institutions and seeking to impart quality education for the benefit of the community for whom
they were established, and others, have filed the writ petitions and appeals asserting their right to
establish and administer educational institutions of their choice unhampered by rules and
regulations that unnecessarily impinge upon their autonomy.

On behalf of all these institutions, the petitioners submitted that the Constitution provides
a fundamental right to establish and administer educational institutions. With regard to non-
minorities, the right was stated to be contained in Article 19(1)(g) and/or Article 26, while in the
case of linguistic and religious minorities, the submission was that this right was enshrined and
protected by Article 30.

In T.M.A. Pai v State of Karnataka 1, held that unless an institution was established by a linguistic
or religious minority, just because for some reason or the other, a minority, begins to administer
the said institution, the said minority cannot claim the right guaranteed under article 30(1) of the
constitution. The establishment of an institution from its inception by a minority and carrying on
the administration of such institution forms the very basis for attracting the protection under
Article 30. The words 'establish' and 'administer' are, as held by the Supreme Court, conjunctive.
In the present case as admittedly the 2nd Petitioner institution was established by the Manipal
Engineering College Trust in the year 1957, the mere fact that the ownership and control of the
2nd Petitioner institution was transferred and is now vested in the 1st Petitioner formed with the
object of establishing and administering the educational institutions for the benefit of Konkani
speaking people, does not entitle the Petitioner to the right guaranteed under article 30(1) of the
constitution. Therefore if an institution though established by some one else is taken over by a
minority and it begins to administer it the minority can invoke Article 30. This position is

1
AIR 2003 SC 255

6
accepted by the Kerala High Court in Dr. Aldo Maria Patroni -v.- Assistant Educational
Officers2.

Thus, it was held that “the right to establish and maintain educational institutions may also
be sourced to Article 26(a) 3, which grants, in positive terms, the right to every
religious denomination or any section thereof to establish and maintain institutions for religious
and charitable purposes, subject to public order, morality and health.

In re Kerala Education Bill4, the Supreme Court said that fundamental right given to
all minorities under Article 30(1) to establish and administer educational institutions of
their choice does not militate against the claim of the State to insist that in granting aid the state
may not prescribe reasonable regulations to ensure the excellence of the institutions.
Accordingly, the court in this case upheld certain conditions designed to give protection and
security to the ill-paid teachers who were rendering service to the Nation and to protect backward
classes as permissible restrictions which the State can impose on minorities as a condition for
granting aid to their educational institutions.

In St Xavier’s College v State of Gujarat5, the facts of the case are, a Jesus Society
of Ahmedabad, was running the St Xavier College. Certain amendments in Gujarat
University act, 1949, violated their right under Article 30. The court held that the provisions of
the Gujarat University act, 1949, abridged the right of the minority to administer the educational
institution of their choice and, therefore, did not apply to minority institutions. The Court further
held that, autonomy in administration means the right to administer effectively the affairs of
the institutions. The choice in the personnel of management is a part of the administration. It
also includes right to choose teachers of its choice. The right, however, is subject to
permissible regulatory measures.

2
AIR 1974 KER 197
3
THE CONSTITUTION OF INDIA
4
AIR 1959 1 SCR 995
5
AIR 1958 SC 956.

7
RIGHT T0 EDUCATION UNDER INDIAN CONSTITUTION

The Founder Fathers of the nation recognizing the importance and significance of right
to education made it a constitutional goal and placed it under chapter IV Directive Principle
of State Policy of the Constitution of India.

Article 45 of the Constitution of India requires state to make provisions within 10 years for free
and compulsory education for all children until they complete the age of 14 years.

Further, Article 46 of the Constitution of India declares that the state shall promote with
special care the educational and economic interests of the weaker section of the people.

It is significant to note that among several Articles enshrined under Part IV of the
Indian Constitution, Article 45 had been given much importance as education is the basic
necessary of the democracy and if the people are denied their right to education then democracy
will be paralyzed; and it was, therefore, emphasized that the objective enshrined under Article 45
in Chapter IV of the Constitution should be achieved within ten years of the adoption of
the Constitution. By establishing the obligations of the state, the Founder Fathers made it
the responsibility of coming governments to formulate a programme in order to achieve the
given goals, but unresponsive and sluggish attitude of the government to achieve the
objective enshrined under Article 45 belied the hopes and aspirations of the people. However,
the Judiciary showed keen interest in providing free and compulsory education to all the
children below the age of fourteen years.

In case of Mohini Jain V State of Karnataka6, the Supreme Court held that right to education is
fundamental right under Article 21 of the Constitution. The right to education springs from right
to life. The right to life under Article 21 and the dignity of the individual cannot fully
be appreciated without the enjoyment of right to education. The Court observed:

Right to life is compendious expression for all those rights which the Courts must
enforce because they are basic to the dignified enjoyment of life. It extends to the fully range of

6
1992 AIR 1858, 1992 SCR (3) 658

8
conduct which the individual is free to pursue. .... The right to life under Article 21 and the
dignity of the individual cannot be assured unless it is accompanied by the right to education.
The State Government is under an obligation to provide educational facilities at all levels to its
citizens.

In case of Unni Krishan V State of Andhra Pradesh7, the Supreme Court was asked to
examine the decision of Mohini Jain's case. In the present case the Apex Court partly overruled
given in the Mohini Jain case. The Court held that, the right to education is implicit in the right to
life and personal liberty guaranteed by Article 21 and must interpreted in the light of
the Directive Principle of State Policy contained in Articles 41, 45 and 46.

The Apex Court, however, limited the State obligation to provide educational facilities
as follows.

i. Every Citizen of this Country has a right to free education until he completes the age of
fourteen years;

ii. Beyond that stage, his right to education is subject to the limits of the economic capacity of
the state.

Further the Supreme Court in M.C. Mehta V State of Tamil Nadu8, the Supreme Court
observed that, to develop the full potential of the children they should be prohibited to do
hazardous work and education should be made available to them. In this regard the Court held
that, the government should formulate program offering job oriented education so that they may
get education and the timings be so adjusted so that their employment is should not be affected.

Again, in Bandhua Muti Morcha V Union of India9, Justice K. Ramaswamy and Justice
Sagir Ahmad, observed, illiteracy has many adverse effects in a democracy governed by rule of
law. Educated citizens could meaningfully exercise his political rights, discharge
social responsibilities satisfactorily and develop sprit of tolerance and reform.

7
1993 AIR 217, 1993 SCR (1) 594, 1993 SCC (1) 645, JT 1993 (1) 474, 1993 SCALE (1) 290
8
AIR 1997 SC 699; (1996) 6 SCC 756; 1996 (9) SCALE 42; JT 1996 (11) SC 685
9
1984 AIR 802, 1984 SCR (2) 67

9
Therefore, education is compulsory. Compulsory education is one of the states for stability
of democracy, social integration and to eliminate social evils." The Supreme Court by rightly
and harmoniously construing the provision of Part III and Part IV of the constitution has
made right to education a basic fundamental right.

The Government of India by Constitutional (86th Amendment Act) Act, 2002 had added a new
Article 21A which provides that "the state shall provide free and compulsory education
to all children of the age of 6 to 14 years as the state may, by law determine". And
further strengthened this Article 21A by adding clause (K) to Article 51-A which provides
who is a parent or guardian to provide opportunities for education to his child or ward between
the age of 6 and 14 years. On the basis of Constitutional mandate provided in Article 41, 45, 46,
21A and various judgments of Supreme Court the Government of India has taken several steps
to eradicate illiteracy, improvement the quality of education and make children back to
school who left the school for one or the reasons. Some of these programmes are National
Technology Mission, District Primary Education Programme, and Nutrition Support for
Primary Education, National Open School, Mid- Day Meal Scheme, Sarva Siksha Abhiyan and
other state specific initiatives. Besides, this several states have enacted legislation to provide free
and compulsory primary education such as- the Kerala Education Act 1959, the Punjab
Primary Education Act 1960, the Gujarat Compulsory Primary Education Act 1961, U.P.
Basic Education Act 1972, Rajasthan Primary Education Act 1964, etc.

However, the Constitution of India and Supreme Court have declared that the education is now a
fundamental right of the people of India, but it does not speak about millions of children who are
in the age group of 0-5 years. It is needed that the Constitution should again be amended and the
children of age group of 0 -5 years should be included; as by the time the child reaches the age of
6 years he/she gets in to the child labour due to the poverty. Moreover, the Constitution only
ensures that the state shall provide primary education to the children up to the age of 14 years,
and the secondary and higher education is contingent and conditional upon the economic
capacity of the state. The right to education will be meaningful only and only if the all the levels
education reaches to all the sections of the people otherwise it will fail to achieve the target set
out by our Founder Father to make Indian society an egalitarian society.

10
 RIGHT TO EDUCATION ACT

Every child between the ages of 6 to 14 years has the right to free and compulsory
education. This is stated as per the 86th Constitution Amendment Act added Article 21A. The
right to education act seeks to give effect to this amendment. The government schools shall
provide free education to all the children and the schools will be managed by school
management committees (SMC). Private schools shall admit at least 25% of the children in their
schools without any fee. The National Commission for Elementary Education shall be
constituted to monitor all aspects of elementary education including quality.

The salient features of the Right of Children for Free and Compulsory Education act are

i. Free and compulsory education to all children of India in the six to 14 age group;

ii. No child shall be held back, expelled, or required to pass a board examination
until completion of elementary education;

iii. A child above six years of age has not been admitted in any school or though
admitted, could not complete his or her elementary education, then, he or she shall be
admitted in a class appropriate to his or her age; Provided that where a child is directly
admitted in a class appropriate to his or her age, then, he or she shall, in order to be at par
with others, have a right to receive special training, in such manner, and within such
time limits, as may be prescribed: Provided further that a child so admitted to
elementary education shall be entitled to free education till completion of elementary
education even after fourteen years.

iv. Proof of age for admission: For the purposes of 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 the Births. Deaths and Marriages Registration Act, 1856 or on the basis of such
other document, as may be prescribed. No child shall be denied admission in a school for lack
of age proof;

11
 v. A child who completes elementary education shall be awarded a certificate; Calls for a fixed
student-teacher ratio;

vi. Will apply to all of India except Jammu and Kashmir;

vii. Provides for 25 percent reservation for economically disadvantaged communities

in admission to Class One in all private schools;

viii. Mandates improvement in quality of education;

ix. School teachers will need adequate professional degree within five years or else will lose job;

x. School infrastructure (where there is problem) to be improved in three years,

else recognition cancelled;

xi. Financial burden will be shared between state and central government.

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

12
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 mid2010, 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

13
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 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).

14
In the 1990s, the World Bank funded a number of measures to set up schools within easy
reach of rural communities. 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.

15
 LEGAL PROVISIONS

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.

The RTE Act provides for the:

• The 1986 National Policy of Education DID NOT make the education compulsory.

• The first official document on the education right of children was Ramamurti
Committee Report in 1990 which reviewed the National Education Policy 1986. This committee
mentioned that not paying attention to the right to education was the most fundamental problem of
our education system. Ramamurti Committee also noted that “the time has come to recognize
“Right to Education‟ as a fundamental right of the Indian Citizens.

16
• In 1991, a book by Myron Wiener titled ” The Child and State in India: Child labour & Education
in comparative perspective” noted states failure to eradicate child labour and enforce
compulsory education.

• In 1992, India became signatory to the UN Convention on Rights of the Child. Article 28 of
this Convention “asks the states to recognize right of education for every child and make primary
education compulsory”. At that time, it was not in line with the constitution‟s provision in
article 51(c) which says: State shall endeavor to foster respect for international law and
treaty obligations. (DPSP)

• In 1993, Supreme Court Gave its landmark judgment in the Unnikrishnan JP vs State of
Andhra Pradesh & Others. In this case, SC held that Education is a Fundamental right flowing
from Article 21.

• In 1994, The United Front Government set up Saikia Committee to examine the proposal
of making right to free and compulsory education.

• In 1997, the Saikia Committee Reported that Constitution of India should be amended to
make the right to free education up to 14 years of age a compulsory right. It also recommended
making an explicit fundamental duty of every parent to provide opportunities for elementary
education.

• In 1997, the United Front Government introduced 83rd Amendment Bill, 1997
which encompassed insertion of article 21A & omitting article 45 of the Constitution. This
amendment bill had an additional financial memorandum that outlined the costs that would go into
making education for children in the six to 14 age groups a fundamental right for a 10-year period.

• Tapas Majumdar Committee was set up by the NDA Government in 1999 to look into
the financial implications of operationalising the 83rd Amendment Bill introduced by the
United Front government in 1997, seeking to make the right to free and compulsory education up
to the age of 14 a fundamental right. The 83rd Amendment Bill was renamed the 93rd Amendment
Bill and significant changes were incorporated in it. The tapas majumadar committee

17
recommended that even children belonging to the poorest sections of society must receive
education that was comparable in quality with the best. It did not advocate low-cost alternatives.

• The 93rd Amendment Bill was discussed and passed By Lok Sabha on 27 November 2001
and Rajya Sabha on 14th May 2002. The date of the bill was to amended from 2001 to 2002 so
it again went to Lok Sabha.

• After ratification by the President, it became Constitution 86 th Amendment Act.

• In pursuance with article 21A, which says that “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 and Constitution 86th amendment act, it was now up to the state
(means central government) to determine how and in which manner the Free & compulsory
education is to be provided.

• The 86th amendment provided for a follow-up legislation, which culminated in Right to Education
Bill 2005, Right to Education Bill 2008 and finally Right to Education Act 2009.

18
 CASE LAWS

In case of Mohini Jain V State of Karnataka10, the Supreme Court held that right to education
is fundamental right under Article 21 of the Constitution.

The right to education springs from right to life. The right to life under Article 21 and the
dignity of the individual cannot fully be appreciated without the enjoyment of right to
education. The Court observed Right to life is compendious expression for all those rights which
the Courts must enforce because they are basic to the dignified enjoyment of life. It extends to
the fully range of conduct which the individual is free to pursue. .... The right to life under
Article 21 and the dignity of the individual cannot be assured unless it is accompanied by the
right to education. The State Government is under an obligation to provide educational facilities
at all levels to its citizens.

In case of Unni Krishan V State of Andhra Pradesh11 the Supreme Court was asked to
examine the decision of Mohini Jain's case. In the present case the Apex Court partly overruled
given in the Mohini Jain case. The Court held that, the right to education is implicit in the right
to life and personal liberty guaranteed by Article 21 and must be interpreted in the light of the
Directive Principle of State Policy contained in Articles 41, 45 and 46.

The Apex Court, however, limited the State obligation to provide educational facilities
as follows.

(i) Every Citizen of this Country has a right to free education until he completes the age of
fourteen years;

(ii) Beyond that stage, his right to education is subject to the limits of the economic capacity of
the state.

10
1992 AIR 1858
11
1993 AIR 2178

19
Further the Supreme Court in M.C. Mehta V State of Tamil Nadu12 the Supreme Court
observed that, to develop the full potential of the children they should be prohibited to do
hazardous work and education should be made available to them. In this regard the Court held
that, the government should formulate programme offering job oriented education so that they
may get education and the timings be so adjusted so that their employment is should not be
affected.

Again in Bandhua Mukti Morcha V Union of India13 , Justice K. Ramaswamy and Justice
Sagir Ahmad, observed, illiteracy has many adverse effects in a democracy governed by rule of
law. Educated citizens could meaningfully exercise his political rights, discharge social
responsibilities satisfactorily and develop sprit of tolerance and reform.

Therefore, education is compulsory...., compulsory education is one of the states for stability
of democracy, social integration and to eliminate social evils." The Supreme Court by rightly
and harmoniously construing the provision of Part III and IV of the constitution has made right
to education a basic fundamental right.

The Government of India by Constitutional (86th Amendment Act) Act, 2002 had added a
new Article 21A which provides that "the state shall provide free and compulsory education to
all children of the age of 6 to 14 years as the state may, by law determine". And further
strengthened this Article 21A by adding clause (K) to Article 51-A which provides? Who is a
parent or guardian to provide opportunities for education to his child or ward between the age of
6 and 14 years? On the basis of Constitutional mandate provided in Article 41, 45, 46, 21A and
various judgments of Supreme Court the Government of India has taken several steps to
eradicate illiteracy, improvement the quality of education and make children back to school who
left the school for one or the reasons. Some of these programs are National Technology Mission,
District Primary Education Programs, and Nutrition Support for Primary Education, National
Open School, Mid- day Meal Scheme, Sarva Siksha Abhiyan and other state specific initiatives.
Besides, this several states have enacted legislation to provide free and compulsory primary

12
1991 AIR 417
13
1984 AIR 802

20
education such as- the Kerala Education Act 1959, the Punjab Primary Education Act 1960, the
Gujarat Compulsory Primary Education Act 1961, U.P. Basic Education Act 1972, Rajasthan
Primary Education Act 1964, etc.

The case P.A.Inamdar v state of Maharashtra14 discusses the merit and the further
considerations taken by the constitutional bench of supreme court in the matter of T.M.A. pai
foundation v. state of Karnataka (2002).

The pai foundation case was a landmark 11 judge bench decision given by the supreme court in
regards to setting up of educational institution along with few other matters in regard to
education as a fundamental right. One of the leading academician found flaws in the pai
foundation case, and soon the supreme court was flooded with writ petitions. The decisions had
to be broadly discussed and dissected. The cases that were discussed during the decision of pai
foundation case were yet to be reconsidered.

All the petitions were allowed and sent before the regular benches for hearing. Article 30(1) was
discussed in various facets. A general outline with directions to the central government was
made and sent to the regular benches.

In case of Avinash Mehrotra v Union of India15 This case arose out of a fire that started in a
middle-school in Madras. The school, a single thatched roof building with no windows and one
entrance and exit was a private school that was said to have „sprung up in response to drastic cuts
in government spending on education‟. The fire started in a nearby makeshift kitchen where
cooks were preparing a midday meal, and killed 93 children and injured many others.

An instant writ petition was filed under Public Interest Litigation in order to protect school
children against similar future tragedies and to improve the conditions of the schools in the
country.

14
(2004) 8 SCC 139
15
(2009) 6 SCC 398

21
The Supreme Court issued notices to the Union of India, State Governments and the Union
Territories. Twenty-seven States and Union Territories filed affidavits admitting that many
schools did not meet their self -determined safety standards (which were in any event below the
standards of the National Building Code of India, 2005).

The issue was whether there is a fundamental right to receive education free from fear of security
and safety, and whether the State is obliged to ensure minimum safety standards in schools.

The Court decided that there is a fundamental right to receive education free from fear of
security and safety, and the right to education incorporates the provision of safe schools pursuant
to Articles 21 and 21A of the Constitution. No matter where a family seeks to educate its
children (i.e. including private schools), the State must ensure that children suffer no harm in
exercising their fundamental right to education.

State Governments and Union Territories were directed to ensure that schools adhere to basic
safety standards and that school buildings are safe and secure according to the safety norms
prescribed by the National Building Code and affidavits of compliance were required to be filed
by authorities concerned.

In interpreting the right to education Dalveer Bhandari, J. reasoned: „Educating a child requires
more than a teacher and a blackboard, or a classroom and a book. The right to education requires
that a child studies in a quality school, and a quality school certainly should pose no threat to a
child's safety.‟

In case of University of Delhi And Another v. Anand vardhan Chandal16 , it was held that there
is no dispute that the right to education is a fundamental right to the extent it has been spelt out
by the Constitution Bench in Unnikrishnan case.

16
(2000) 10 SCC 648

22
It is necessary to ensure that the students after being admitted will have a reasonable time to join
the students' union including elections to it.

In case of Purushottam Lal Singhania v. Delhi Public School & Ors 17 was held that by simply
alleging infringement of fundamental right, the student does not acquire a right to automatic
admission of his writ petition.

CONCLUSION

Education is a powerful tool which lifts economically and socially marginalized adults and
children out of poverty and participate fully as citizens.

In the context of globalisation, education assumes greater meaning. Greatness of a nation should
not be measured by its ranking in global economic order, but by its ability to provide quality
education. The last two decade have shown enormous improvement in the literacy scene in the
country as reflected by the average literacy figures. Education is perhaps the most vital
requirement for inclusive growth, empowering individual and society, opening up opportunities
and promoting true public participation in the development process. It is an important factor that
fuels both social change and economic growth.

How much education does India need, and for what purpose? We can readily agree that universal
good quality basic education is a requisite and moral requirement of all modern societies, for the
sake of social equity, cultural values, and economic functionality. India is actively pushing
forward with its agenda for revamping and restructuring education in the country. It is submitted
that though the judiciary has made education as a fundamental right yet it is for the State to

17
2006 AIR CAL 313

23
secure it for all people. It is beyond any doubt that education is of fundamental significance to
the life of an individual and the nation.

However, realization of the objective of „Education to All‟ is not going to be very easy- not when
the school system in the country, especially those rural areas continue to be plagued by problems
of poor infrastructure, shortage of teachers, their lack of training motivation besides poverty and
livelihood issues that are responsible for the huge drop out of rates. It is estimated that there is a
shortage of nearly five lakh teachers, while about three lakh of them are untrained at the
elementary school stage. Over 50% of schools have a student teacher ratio much poorer than the
1:30 prescribed under the RTE Act. About 46% schools do not have toilets for girls, which is
another reason why parents do not send girl children to schools.

24
 BIBLIOGRAPHY

CASES

1. Unni Krishnan, J.P. v. State of Andhra Pradesh AIR 1993 SC 2178: (1993)
1 SCC 645
2. Mohini Jain v. State of Karnataka, AIR 1992 SC 1858: (1992) 3
SCC 666

BOOKS

1. DD Basu, Commentary on the Constitution of India

2. M.P. JAIN, Indian constitution law
3. H.M. Seervai, Constitutional law of India
4. J.N. Pandey, Constitutional law of India

WEB LINKS

1. http://www.lawyersclubindia.com/articles/Right-to-Education-A-Brief-Analysis-
2. http://www.legalservicesindia.com/article/article/right-to-education-1925-1.html
3. https://www.nls.ac.in/ccl/cclmedia/ER/miles.pdf
4. http://ijepr.org/doc/V1-IS2_Oct12/ij4.pdf

25