What are the Salient Features of Right to Education Act, 2009?

Elucidate and Critically

examine it.

“Everyone has the right to education. Education shall be free, at least in the elementary and
fundamental stages. Elementary education shall be compulsory. Technical and professional
education shall be made generally available and higher education shall be equally accessible to
all on the basis of merit”.
-Article 26, Universal Declaration of Human Rights (UDHR), 1948.

Introduction

Education is the basis for development and empowerment of every nation and its individuals.
Education is the most powerful weapon which can be used to change the world. In fact,
education plays important role in almost all spheres of life. It is a powerful tool by which
economically and socially marginalized adults and children can lift themselves out of poverty
and participate fully as citizens.

According to ancient thinkers in India, Vidya or knowledge or learning or education is the ‘third
eye’ of man, which gives him an insight into all affairs and teaches him how to act; it leads us to
our salvation; in the mundane sphere it leads us to all round progress and prosperity.

In modern age of democracy, the Education is a fundamental human right and essential for the
exercise of all other human rights. It promotes individual freedom and empowerment and yields
important development benefits. Yet millions of children and adults remain deprived of
educational opportunities, many as a result of poverty.

India is home to 19% of the world’s Children. What this means is that India has the world’s
largest number of youngsters, which is largely beneficial, especially as compared to countries
like China, which has an ageing population. The not-so-good news is that India also has one-
third of the world’s illiterate population. It’s not as though literacy levels have not increased, but
rather that the rate of the increase is rapidly slowing. For example, while total literacy growth
from 1991 to 2001 was 12.6%, it has declined to 9.21%.

To combat this worrisome trend, the Indian government inserted the 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 and to implement the same enacted Right to Free
and Compulsory Education (RTE) Act, making education a fundamental and substantial right of
every child in the age group of 6 to 14.

The Background:

Till the nineteenth century, education in India was an exclusive right available only to a small
section of society . Under British rule, in spite of compulsory education laws, not much progress
was made in this direction . Post-independence, Article 45 of the newly framed Constitution
stated that “the State shall endeavor to provide within a period of 10 years from the
commencement of the Constitution, free and compulsory education to all children until they
complete the age of 14 years” . But nothing much happened towards universalisation of
elementary education.
National Policy on Education, 1968 was the first official document which attested Indian
Government’s commitment towards elementary education. This was further emphasized in the
National Policy on Education, 1986. In the review of the policy in 1990, it was recommended to
include Right to Education as a fundamental right in the constitution, on the basis of which
National policy on Education 1992 was formulated. In the meantime India signed the UN
Convention on the Rights of the Child (CRC), in 1992 and initiated the process of adopting
legislation to make education a fundamental right of the child. In roads in this direction were
already made in 1976 through amendment to the Constitution to enable the Government at the
centre to also make legislation for school education, the power for which until then, had solely
been in the hands of the state governments.
In 1992 itself, in the case of Mohini Jain Vs State of Karnataka, the Supreme Court of India held
that right to education is concomitant to fundamental rights enshrined under Part III of the
constitution and that every citizen has a right to education under the constitution1 . Subsequently,
in the case of Unnikrishnana, J.P. Vs State of Andhra Pradesh, the Supreme Court held that
“though right to education is not stated expressively as a fundamental right, it is implicit in and
flow from the right to life guaranteed under article 21 and must be construed in the light of the
Directive Principles of the constitution. Thus, right to education, understood in the context of
Article 45 and 41 means (a) every child/ citizen of this country has a right to free education until
he/she completes the age of fourteen years and (b) after a child / citizen completes 14 years,
his/her right to education is circumscribed by the limits of the economic capacity of the State and
its development” .
Finally, 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.

Salient features of RTE Act, 2009 (Source https://mhrd.gov.in/rte)

The RTE Act, 2009, which represents the substantial legislation envisaged under Article 21-A,
signifies that each child has a right to full-time basic education of suitable and reasonable quality
in a formal school which satisfies certain necessary norms and values. 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.

Under Section 12(1)(c) of the RTE Act, all schools—private, aided, unaided or special-category
—must reserve at least 25 percent of their seats at the entry level (class one) for students from
economically weaker sections (EWS) and disadvantaged groups (DG). As per the data available
on the web-site of Unified District Information System for Education (http://udise.in) in 2018–
19, more than 3.3 million students secured admission under this provision.
The resultant cost incurred by the schools is to be reimbursed by the central government. This
reimbursement, according to the Act, will be equal to either the per-child expenditure borne by
the state government or the fees charged by the private schools, whichever is lower.

In 2016-17, this provision resulted in the creation of more than 2.1 million seats for children
from the EWS and the DG. However, due to implementation hurdles including financial
allocations as well as varied state contexts, the fill rate of these seats has hovered only between
20-26 percent since 2013.

In nut-shell, the RTE Act, 2009, provides that:

 Each and every Child in the age group of 6 to 14, until the completion of basic
education, has a right to free and required education in a neighborhood school.
 The act prohibits payment, capitation charge, screening test/interview of child or
parents, corporeal penalty or mental nuisance, private teaching by teachers, and
running schools with no recognition.
 The Act provides the selection of properly skilled teachers. Norms and values of
teacher qualification and training are plainly laid down in the Act.
 The Act prohibits the operation of teachers for non-educational effort other than the
decennial sample, elections to a local authority, state legislatures and assembly, and
disaster help.
 The Act specifies the duties and responsibilities of suitable Governments,
neighborhood authority in providing free and necessary schooling, and distribution of
monetary and other responsibilities among the State and central Governments.

In reality, this Act is a milestone which provides for institutional instructions so that education as
a fundamental right spreads to all children between the age group of 6-14 years. Some unique
aspects of this invaluable right can be further elucidated under the following headings:

a) Physical infrastructure and other resources: The Act says that school building should
be an ‘all weather’ structure, and should include an office cum store for the head teacher,
separate toilets for boys and for girls, a kitchen for cooking the free mid day meal that
 children are provided, have access to safe drinking water, a library, a playground, and
barrier free access.

b) Age appropriate classrooms: Act provides children above six years, who have never
been admitted to any school or, having been admitted have not completed elementary
education and have dropped out, the right to be admitted to a school in a class appropriate
to his/her age for completing elementary education. The Act facilitates a child admitted to
an age appropriate class to be given Special Training to enable him/her to be at par with
other children.

c) Access to education: In order to provide access to education, the RTE Act, 2009
mandates year round admission, no screening and documents, no capitation fees, easy
transfer certificate. As per the RTE Act no school can deny admission or transfer
certificate to any child.

d) Teacher training: The Act demands for qualified teachers and also makes way for
teachers to receive in service training to enable them to acquire the requisite certifications
within a period of 5 years. The in service teacher training helps the teachers to be more
systematic and logical in their teaching style.

e) No detention policy: Originally, the Section 16 of RTE Act prohibited holding back and
expulsion of a child from school till the accomplishment of elementary education. A
January, 2019, amendment to the RTE Act modified the erstwhile policy of “not
detaining” students from classes one to eight. Subsequent to this amendment, the students
in classes five and eight must now appear for regular annual examinations. In case of
failure, a student must be provided additional training and a re-examination is conducted
within two months. If the student fails for a second time, they can be detained. This
amendment came after several states argued that children cannot be assessed adequately
without exams, and learning levels were frequently found to be wanting after class eight.

f) Exercise of rights: The rights of pupils to education include right in education and in the
classroom. This Act not only bans the corporal punishment of children but has also made
it an offence to subject them to mental harassment. The Act makes provision of the
establishment of the National/ State Commissions for Protection of Child Rights.
NCPCR/SCPCR is also made responsible for monitoring out-of-school children to
facilitate their access and participation in the schooling system. This would include
 children who have never enrolled or have dropped out, children who are temporarily
absent, and children who are permanent migrants, who migrate seasonally with their
parents.

g) Flexibility to make Rules: The RTE gives flexibility to the states and each state is
allowed to frame its own rules with regards to the eligibility and income levels for the
EWS and DG, further classification of the 25-percent reservation, level of entry, and the
kind of documents required for admission. The essence of this provision goes beyond the
ideal of ‘education for all’. It strives for social integration: its constitutional mandate is to
bring children “from different backgrounds to share interests and knowledge on a
common platform.”

Critical Assessment of RTE:

It has been a decade since the parliament of India passed the RTE Act, making education
a fundamental right, and ensuring free and compulsory schooling and education for
children from the age of six to 14.

Since its enactment, the RTE Act has achieved success in overall enrolment rates but has
faced criticism for administrative and structural lapses. While some of the provisions have
failed due to implementation hurdles, others have remained only on paper due to a lack of
coordination between centre and states, the paucity of funds or delay in allocation of same.
Budget allocation for the implementation of this Act is not adequate considering
requirements of quality of education, trained staff in schools, establishing new schools
wherever required, proper facilities in the proximity of the school, etc. Moreover, the Act
has since undergone certain amendments that tend to run contrary to the law’s spirit.

Prima facie the RTE Act suffers from legal lacunae as it narrows down the definition of
Child. The United Nations Convention on Rights of the Child (UNCRC) defines any
individual below 18 years of age as a child. While the Juvenile Justice Act in our country
considers persons below 14 years of age to be children, the RTE Act 2009, narrows the
definition down to persons between six to 14 years.

Not only does the Act fail to cover all children, it does not provide definite timelines for
many provisions. Several of the provisions such as ‘neighborhood schools’, ‘infrastructure
development’ and ‘sanitation’ are left to be implemented by states and the Act provides no
definite timelines for these.
Besides, a major problem in India is the lack of incentives faced by teachers either in terms
of carrot or stick. In the RTE Act, proper disciplinary channels for teachers have not been
defined. An average of 25 percent teachers are absent from schools at any given point of
time and almost half of those who are present are not engaged in teaching activity.

Most important, no mechanism has been marked in this Act to address the huge problem of
dropouts in the schools. In India, in a very large number of cases education is not the first
priority of the family. Survival is their topmost priority, hence, the main reason for
dropping out is to supplement the family income.

Conclusion

It took India 62 years after Independence to guarantee school education as a fundamental

right for its young children.  With implementation of RTE Act, there has been substantial
increase in access to elementary education, with reduced class, caste and sectional disparities.
However due to the widespread poverty and various prejudices in the society, the efforts to
develop an educational system in India with full access, equality and quality of education has not
been achieved. The inability to check the dropout rates among the marginalized sections of the
population is another cause of worry. Enrolments in the schools have certainly increased but so
have the number of out of school children. It should be a cause of concern that the country today
has one of the largest illiterate populations in the world..

The educational administration in most states and UTs has yet to effectively tackle endemic
problems concerning shortage of teachers, teacher absenteeism, inadequate and improperly
designed school buildings, lack of teaching/learning equipment, need-based teacher training, and
a curriculum related to real life requirements. Despite substantial achievements, the task of
universal elementary education (UEE) is far from complete. The RTE Act must now focus on
improving the quality of education. It must also be ensured that any further amendments
to the Act are well thought out to avoid complexities in implementation.

Its current lacunae notwithstanding, the RTE Act remains one of the most important
reforms in India’s school education, and its future may yet determine how India
overcomes its most fundamental problems of poverty and exclusion. It is now an
undisputed fact that right to education can be realized on a national level only through
compulsory education, or better say, through free compulsory primary education.