CHAPTER – III

RIGHT TO EDUCATION IN INTERNATIONAL INSTRUMENTS

3.1. Historical Development of Right to Education International Arena

Before the age of enlightenment, parents and churches were responsible for education. Prior

to the age of Enlightenment of the 18th and 19th century, education was the responsibility of

parents and church.1 It was only after the French and American Revolutions that education

became a public function. Only with the French and American Revolutions did education

establish itself also as a public function. The State realised that by assuming a more active

role in the education sector, they could promote the ideal of education being available and

accessible to all. It was realised at the State, by assuming a more active role in the sphere of

education, could promote the ideal of education begin available and accessible to all. Public

education was taken as a mean of realising 5e egalitarian beliefs upon which these revolutions

were based on, earlier education was available only for the upper social class. Public

education was perceived as a means of realising the egalitarian ideals upon which these

revolutions were based previously education had been prerogative of the upper social classes.

The English Bill of Rights of 1689, The American Declaration of Independence of 1776 and

French Declaration of the Rights of Man of 1789 did not safeguard the right to education,

instead they focused on civil and political rights, like freedom of speech, freedom from

arbitrary arrest, freedom of religion, et cetera. The English Bill of Rights of 1689, The

American Declaration of Independence of 1776 and French Declaration of the Rights of Man

of 1789 did not protect right to education, however, these instruments focused on civil and

political rights, like freedom from arbitrary arrest, freedom of expression, freedom of religion,

the right to life and security of the person, the right to property, equality and the right to vote.

The hands of behaviour of the period only let this instruments be spread. The Laissez-faire
1 Voeltzel, R., Religion and the Question of Rights; Philosophical and Legal Problems in European
Traditions, (World Yearbook of Education, 1966) p.218
56
spirit of the period permeated these instruments. The state was seen as a threat to an

individual’s liberty, and hence had to stop itself from interfering in the affairs of the civil

society. The state was seen as a potential threat to individual liberty and for that reason had to

withhold itself as far as possible from interfering in the affairs of civil society. A right to

education obligation on the state’s part would not fit their scheme.A right to education

concomitant obligation on the part of the state to provide such education did not fit in this

scheme of things. Half of the 19th century, educational rights were found in domestic bill of

rights.The half of the nineteenth century, educational rights found their way to domestic bill

of rights. Provisions on both educational rights and functional rights, reflected ideas on

human fights.Provisions on educational rights, like other functional right provisions, reflected

ideas on human rights.

Article 125 to 158 of the The Constitution of the German Empire of 1849, was

devoted to education. Constitution of the German Empire of 1849, better known as the Article

152 to 158, forming part of the constitution’s bill of rights, devoted to education. Striking a

fair balance between children, parents, the church, the state and those who operated

educational institutions was the aim of this part of the constitution, education was recognised

as a function of the state and not the church. They aimed at striking a fair balance between

children, parents, the church, the state and those who operational educational institutions,

education was recognized as a function of the state, independent of the church. Remarkably,

the poor were given a right to free education. Quite remarkable, the poor were proclaimed to

have a right to free education. The state was not specifically required to set up these

institutions, though. The state was not explicitly required, however, to setup educational

institutions. Instead, the Constitution preserved the right of the people to establish and operate

schools.Rather, the constitution protected the right of citizens to found and operate schools

57
and to give home instruction, it provided for freedom of science and teaching and it

guaranteed the right of everybody to choose his vocation and train for it.

In 19th century, Karl Marx and Friedrich Engels expounded their views on socialism.

The individual was recognized to have claim to basic welfare services against the state.

Education was viewed as one of the individual’s welfare entitlements. Liberalism has, as been

seen, regarded private sector as the prime providers of education. The socialist concept of

human rights shifted the prime responsibility of providing education to the state. Socialist

came to fruition in the wake of the Russian Revolution of 1917. Article 121 of the Soviet

Constitution of 1936 was the first provision in a Constitution which recognized a right to

receive education with a corresponding obligation of the state to provide such education. It

guaranteed free and compulsory elementary education at all levels, a system of state

scholarship and a system of vocational training in state enterprises, together with the right to

work and the right to social scrutiny, the right to education features as a prominent right in the

constitution of socialists states.

The state sets up and maintains a system of schools, makes primary education

compulsory and free, restricts child labour, become involved in the legal regulation of

curriculum and lays down minimum educational standards, many state protect right to

education in their constitutions. Some do so in the form of Fundamental Rights, enforceable

law, other do so in form of a “Directive Principles of State Policy”, which constitutionally

obliges the government but unenforceable. There are also few states whose constitutions do

not afford explicit recognition to the right to education. But, even in these instances,

education is seen as vitally important, in America; in the case of San Antonia Independent

School District Vs. Rodriguez2 held that the right to education was not a fundamental

2 411 U.S.1 (1973)

58
constitutional right. Nine years later, in 1982, in the case of Plyler Vs. Doe3 the court

commented as:

At the international level, educational rights were protected, for the first time, in a

serious of minority treaties, conducted after the First World War under the auspices of the

League of Nations. The treaties were concluded as an adjunct to the peace treaties between

the Allied and Associated powers and the defeated nations. This agreement sought the

religious, linguistic and educational rights of certain minorities in post-war Europe where

many national boundaries had been redrawn. The first such treaty was the Treaty between the

Principle allied and associated powers and Poland signed on 28 th June 1919, which in many

ways served as proto type for the agreements that would follow. Article 8 of the treaty

protected the right of Polish nationals belonging to racial, religious or linguistic minorities to

establish manage and control of their own expense schools, “with the right to use their own

language and to exercise their religion freely therein”.

In 1924, The League of Nations adopted the Declaration of Rights of Child, as known as the

“Declaration of Geneva.”4 The declaration was in the nature of a Charter of Child Welfare.

The Declaration did not expressly recognize the right to education; such a right was implied,

however, in three of its five operative principles Principle I stated, “The Child must be given

the means requisite for its normal development”. Principle II stated, “The child that is

backward must be helped” and Principle IV “The Child must be put in a position to earn a

livelihood.” The Declaration represented the first step towards the development of general

international norms for the protection of the child. Earlier instrument had focused on

particular problem concerning children, such as child labour. The Declarations five basic

principles formed the foundation of the Declaration of the Rights of Child, 1959. The

instrument was an inspirational document, imposing moral duties; Members were to be

3 457 U.S. 202 (1982)

4 Philip E. Veerman, The Rights of the Child and the changing Image of Childhood, (Martinus Nijhoff
Publishers) p.17-20
59
guided in the child welfare efforts by the principle of Declaration. Several rationales can be

invoked to support the argument that education should be recognized as a fundamental right. 5

The Supreme Court of United States of America emphasised the importance of the education

for society in the case of Brown Vs. Board of Education6 and stressed the importance of

education for the performance of public responsibilities and for the due exercise of citizen

rights; A minimum level of competence is considered to be required to effectively exercise

one’s right to vote and to participate in political activity in a meaningful way. A well

educated citizenry is seen as critical for the maintenance of democratic structure and ideals.

Education is further held to be the primary means for transmitting the values of society to the

next generation.

The argument, that education in a prerequisite for individual development, the

consideration is that without education the individual is unable to develop as a person and

realize his potential. Many international human rights instruments refer to this role of

education. Article 26(2) of the Universal Declaration of Human Rights of 1948 requires that

‘education shall be direct to full development of human personality’ Article 29(1) (a) of the

Convention on the Rights of the Child, 1989 lays down, in more specific terms, the education

of the child shall be directed to the development of child’s personality talents and mental

physical abilities to their fullest potential, this approach to education should be recognized as

fundamental human rights as only education makes it possible to realise one’s abilities.

The International Covenant on Economic and Social Cultural Rights in Article 13

establishes the link between education and dignity quite clearly. Article 13(1) stipulates that

“education shall be directed to the full development of the human personality of the sense of

its dignity.” Accordingly, the covenant views education as a prerequisite for a dignified

existence. Education that makes available knowledge and skills and trains the individual in

5 Ibid.
6 347 U.S.483 (1954)
60
logical thought and reasoned analysis is seen as requirement of dignity. Hence human dignity

should be perceived as the ultimate reason for recognizing education as a human right.

The right to take part in cultural life is protected in Article 15 of ICESCR of 1966. The

link between educational and cultural rights is very close to considerable extent, the measure

of realization of the right to education reflects the status of the enjoyment of cultural rights.

For religious linguistic ethnic minorities, education is the important means to preserve their

cultural identity. The committee on Economic, Social and Cultural Rights, which is

responsible for the supervision of the International Covenant on Economic Social and

Cultural Rights, has confirmed the above observations on the nature of the right to education,

commenting as follows:

Education is both a human right in itself and an indispensable means of realizing other

human rights. As an empowerment right, education is the primary vehicle by which

economically and socially marginalized adults and children can lift themselves out of poverty

and obtain the means to participate fully in their communities. Education has a vital role in

empowering women, safeguarding children from exploitative and hazardous labour and

sexual exploitation, promoting human rights and democracy, protecting the environment, and

controlling population growth. Increasingly, education is recognized as one of the best

financial investments States can make. But the importance of education is not just practical, a

well educated, enlightened and active mind, able to wander freely and widely, is one of the

joys and rewards of human existence.7

3.2. Right to Education and Compulsory School Attendance

Education is compulsory up to a certain age in most countries, compulsory education

constitute a fundamental tenet of International Human Rights Law. Article 13(2) of the

ICESCR, 1966 states, for example that primary education shall be compulsory and available
7 CESCR. General Comment No.13 (Twenty-First Session, 1999) [UN Doc.E/2000/22] The Right to
Education Article .13 ICESCR) [Compilation, 2004, pp.71-86], para.1
61
free to all, it has been argued by certain writers on human rights that the right to education

cannot be considered an inalienable human right as its exercise, at least at the primary level,

has become compulsory. The compulsory nature of education is said to irreconcilable with the

classical notion of human rights in terms of which the freedom to refuse The compulsory

nature of education is said to be irreconcilable with the classical notion of human rights in

terms of which the freedom to refuse to exercise a right must be maintained at all times.

Making school attendance compulsory is a way of guaranteeing that nobody can withhold

children from going to school. The term “compulsory” really means “a protection of the

rights of the child, who may claim certain rights that nobody, neither the State nor even the

parents, may deny.”8 Compulsory schooling is intended to protect the child’s interests against

negative influences of its parents, the family or the state. As has been stated above, Education

is vitally important for the full development of the child’s personality and to empower the

child to exercise all its human rights. The principle of equal opportunities and compulsory

schooling goes to ensure that everybody has equal chances in further education and in society.

By making education compulsory, the state and the child’s parents duty is to act in the Childs

best interests and to protect it against its own immaturity.

The issue of the universal acceptance of the right to education concerns the question

whether the value of right to education is accepted by all political, social, religious and

cultural communities, the inquiry relates to whether all communities support the individuals

claim to be educated. In western regards the right to education as an important entitlement

the individual9 the right to education is protected in the constitution of many of these

countries. Moreover, the European Convention for the Protection of Human Rights and

Fundamental Freedoms,1950 and in Article 2 of its First Protocol of 1952 states that no

person shall be denied the right to education.”

8 Mehedi, 1999b, para. 59 (UN Doc.E/CN.4/Sub.2/1999/10)

9 Ibid. p.262
62
 African communities perceive education as a group function. Family, village and tribe

take part in educating children. The child’s education is directed to its role as a responsible

member of the group. Apart from local communities, national governments play a central role

in education. Governments accept the value of education. However, education has collective

characters, it is not regarded as an individual right, Education is viewed as an instrument for

promoting economic development. It is seen as a means for eradicating illiteracy and for

advancing nation-building. In consequences, the state exercised substantial influence in the

sphere of education. A tendency to monopolize education is discernible. Fair-reaching

controls exist with regard to private educational institutions. 10 Article 17 of the African

Charter should be mentioned on Human and Peoples’ Rights, 1981 recognizes in a summary

of fashion that every individual shall have the right to education.

The Islamic faiths consider the right to education should be a basic right to which is

important for the exercise of other rights. Education should transmit much knowledge and

skills as are required to live in accordance with the principles of the Islamic teachings and to

perform the task of daily life. Article XXI of non-binding Universal Islamic Declaration of

Human Rights, 1981, Islam further guarantees equality between men and women in the

exercise of the right to education. Equality, however, means equality in consonance with

Islamic principles. These accord women a subordinate position in society. In effect, therefore

women enjoy neither equal opportunity nor equal treatment in the field of education. A clear

conflict exists with Article 10 of the Convention on Elimination of All Forms of

Discrimination Against Women, 1979 which guarantees to women equal access to quality

education. In Islamic states, the state seeks to enforce Islamic education in state schools. It

10 A Similar approach is adopted in many Southeast Asian states. In many states belonging to the Association
of Southeast Asian Nations (ASEAN) (Brunei, Darussalam, Cambodia, Indonesia, Laos, Malaysia, Myanmar,
the Philippines, Singapore, Thailand and Vietnam), rather as a means of promoting economic development,
no regional human rights mechanisms exists with regard to the area concerned so far.
63
comes as no surprise, therefore, that private schools were abolished in Iraq and Iran in 1975

and 1979, respectively.

The ICESCR, 1966 which protects the right to education in its Article 13 and 14 has

been ratified by 151 out of 194 states. This constitutes 78% of the community of states. It is

important, further more that states from all parts of the world, representing different

economic, social and cultural systems have ratified the treaty, Reservation to Article 13 are

few. Reservations have been expressed by Algeria, Barbados, India, Ireland, Japan,

Madagascar and Zambia11

3.3. Primary Education

In almost every western European country without exception, however, this primary

education or elementary education as it was so often called was a kind of mass education,

intended solely for the working class, and it was kept quit separate and distinct from the kind

of primary education received by the boy or girl of non-working class parents which usually

started in the primary department of a grammar school and so led naturally and easy into the

main fields of academic work. The boy or girl educated in the elementary school moved

rarely to the secondary school. The elementary school, in effect, led nowhere. Once a child’s

education had been completed in it there was little or no further full-time education for him,

unless he elected to train as an elementary school teacher, only gradually, throughout the first

decades of the twentieth century, was the way made easier for the elementary school child to

transfer to the secondary school, and only in the present post war period have the rigid

barriers of the dual system of education been finally lowered.

11 See “Status of the International Covenant on Economic, Social and Cultural Rights and reservations,
withdrawals, declarations, and objections under the covenant,” On 1 st October 2001, UN. Doc. E/C.12/1993/3/
Rev.6
64
“Open a school and close a jail” 12 became the 19th century slogan, and the elementary school

was expected to produce not only a more literate and capable workman, but also to discipline

him and shape him both morally and socially for his lowly task. The 3R’s – (Reading, Writing

and Arithmetic) were the basic tools needed by the future employee in industry, and it was

generally held that the methods employed in teaching the 3R’s were salutary. An intellectual

and moral discipline was expected to result from the effort required at learning by rote and

from constant repetitive drilling. Order and method was watchword. Flushed by victory over

the French in 1870, the Prussians felt that the qualities the German army sergeant had shown

during the campaign should not be wasted, and they therefore recruited such men to teach in

their elementary school, and most other European countries if less opened and usually to a

lesser degree followed suit through the strict regimentation they imposed on the training of

the elementary school teacher either at pupil teacher centers or in teacher training colleges.

There was one undeviating way of doing things. The “fold-yourarms school,” as it has been

often called, was not interested in the child but in the techniques involved in teaching

children. Good figuring, well-kept exercise books, copper-plate hand writing, were essential

parts of the drilling of the child, and the copy book used by the child gave him a whole series

of moral maxims to be copied laboriously many time, and therefore fixed for all time in his

mind.

It was only at the very end of the 19th century that new subjects crept into the curriculum in

the shape history, geography, elementary science, and what came to be called “object lesson”

usually some simple form of nature study. Even then, however, the emphasis was still on

imparting skill and information, a child would be shown a sticky bud and brought to study its

growth and development day by day but he also had to draw what he saw with exactitude and

meticulous detail. He had to learn by heart the names and dates, in strict chronological order,

12 Thomas S. Popkewitz, Cosmopolitan and the Age of School Reform: Science, Education and Making
Society by Making the Child, (Rutledge Publication, 2008) p.57
65
of kings and queens and decisive battles. He could chant like a litany the name of bays, capes,

promontories and great rivers around his native country.

The various countries were in a position, economically, to make enforcement if their laws on

compulsory primary education really effective. A gradual reduction in hours of labour, thus

making for more leisure time for all, was also a prerequisite. To make the teaching child

centered and to give each child the individual attention he needed, demanded a much longer

period of schooling. These are important points that are often over looked as Sir Michael

Sadler rightly pointed out the child should be given opportunity new things to love and

admire only then radical changes will acquired and the children will be properly trained.

Economical and technological reasons might demand that the teacher should be really skilled

and well versed in the subjects he taught. But it had to go much further than that. Beauty and

truth are in the eye and brain of the beholder. Then the teacher must be trained to perceive,

and in consequence give an education that taught him to see so that he might bring others to

see. It is at this point that the philosophical ideas of Henri Bergson have a particular

relevance. Similarly, it was necessary that the elementary and primary schools should cease to

be grim barrack like buildings, and should be transformed if they could not entirely be

abandoned in to something gayer and freer and that really would help to open the windows of

the mind.

The compulsory primary education for all became a reality and until the schoolleaving

age could be extended to give the child at least eight full years of education. It is significant to

note that the school leaving age was raised to 14 in Belgium in 1914, in England in 1918, in

France in 1936, and that not even to-day can Italy (particularly in

Calabria) compel full attendance much beyond the years of primary education (5 to 11). Even

in America it was not until 1920 that Mississippi came into line with the other states by

making its primary education at long last compulsory for all. On the other hand, America has

66
been the pioneer for the gradual raising of the school leaving age, and the ultimate aim has

been the education of all to the age of 18.

Recognizing a right as a human right raises the status of that right to one with

universal applicability and articulates a norm of action for the people, the institutions, the

State and the international community on which that claim is made. This recognition confers

on the implementation of that right a first priority claim to national and international

resources and capacities, and furthermore obliges the State and the International community,

as well as other agencies of society including individuals, to implement that right.

3.4. Principle of Universality and Indivisibility of Rights

The human rights must conform to the principles of universality. Universality implies

that every individual is endowed with human rights, by virtue of being human, irrespective of

their cultural background or citizenship. There are two implications which flow from this

universality:

 The obligations related to such rights are universal, to be implemented to the best of their

possibility by all agents who are in a position to help, whether they are the State

authorities or other belonging to the same country or other states and international

organizations.

 They should receive the highest priority in the use of resource and capacities of all these

agents in fulfilling these obligations, ‘trumping’ all other demands on them.

Invisibility is associated with the principle of interdependence. Two rights are

indivisible if one cannot be enjoyed if the other is violated. Two rights are inter-dependent if

the level of enjoyment of the other. For the Right to Development, which is a composite of all

civil, political, economic, social and cultural rights, its indivisibility implies that for an

improvement of the right, at least one of the constituent rights improves while no other right

deteriorates or is violated. Similarly, the condition of interdependence implies that each right

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is function of all other rights, and if the policy for realizing a right results in the violation of

another right, that policy cannot be included in a programme for realizing the right to

development.13

3.5. Right to Education

Before the enlightenment of the eighteenth and nineteenth century, education was the

responsibility of parents and the church in Europe. With the French and American

Revolution, education was established as a public function. It was thought that the state, by,

assuming a more active role in the sphere of education, could help to make education

available and accessible to all. Education had thus far been primarily available to the upper

social classes and public education was perceived as a means of realizing the egalitarian

ideals underlining both revolutions. However neither the American Declaration of

Independence (1776) nor the French Declaration of the Rights of Man (1789) protected the

right to education as liberal concepts of human rights.

In the nineteenth century, it is visualized that parents retain the primary duty of

providing education to their children. It was State’s obligation to ensure that parents complied

with this duty, and many states enacted legislation making school attendance compulsory. In

“On liberty” John Stuart Mill wrote that “education established and controlled by the State

should only exist. It exists at all, carried on for the purpose of example and stimulus to keep

the others up to a certain standard of excellence. Liberal thinkers of the nineteenth century

pointed out the dangers of too much state involvement in the sphere of education, but relied

on the state intervention to reduce the dominance of the church, and to protect the right to

education of children against their own parents. With the development of socialist theory in

nineteenth century it was held that the primary task of the state was to ensure the economic

and social well being of the community through government interventions and regulations.
13 Fourth Report of the independent Expert (Arjun Sengupta) to the Human Rights Commission,
E/CN:4/2002/WG.18/4, 20th December 2001. para 25 (modified)
68
The individuals had claim to basic welfare services against the State and education was

viewed as one of these welfare entitlements.

Thus, in the later half of the nineteenth century, education rights were included in

domestic bills of rights. In 1849, the Constitution of the German Empire strongly influenced

subsequent European Constitutions and devoted Article 152 to 158 of its bill to ‘right to

education’. The Constitution recognized education as a function of the state, independent of

the church. It is remarkable that the Constitution proclaimed the right to free education for the

poor, but the constitution did not explicitly require the state to set up educational institutions.

Instead the Constitution protected the rights of citizens to start and operate schools and to

provide home education. The constitution also provided for freedom of science and teaching

and it guaranteed the right of everybody to choose a vocation and get training for the same.

Socialist ideals were enshrined in the 1936 Soviet Constitution, which was the first

constitution to recognize the right to education with a corresponding obligation of the state to

provide such education.14 The Soviet Constitution guaranteed free and compulsory education

at all levels, a system of state scholarships and vocational training in state enterprises.

Subsequently the right to education featured strongly in the constitutions of socialist states15.

The Second World War, the Function of Education was perceived as being essentially

to teach and to transmit knowledge and values that varied little from generation to generation

in societies. In most countries remained relatively stable within national frontiers. Teaching

was rendered limited to conditions to access. The responsibility of the state and public

education authorities were often being made limited. It was to prevent the takeover education

by dictatorial regimes that the Conference of Allied Ministers of Education was created in

14 The Right to Education was, according to Manfred Nowak, first categorically upheld as a human right in the
Constitution of the Soviet Union in 1936. It guaranteed free and compulsory education through a system of
scholarship and vocational training in state enterprise.
15 Beiter, Klaus Dieter, The Protection of the Right to Education by International Law, (Martinus Nijhoff
Publishers, 2005) p.23
69
London in 1942, a body that would subsequently give birth to United Nations Educational,

Scientific and Cultural Organization (UNESCO) in 1945.

Education, according to General Comment 13 (GC 13) of the CESCR, is an end in

itself and a means for realizing their rights. It is regarded as an empowerment right, which

enables marginalized persons and communities to transcend poverty and obtain the means to

participate fully in community life (GC 13, 1999). That is perhaps why it has been the focus

of a great deal of attention in development policy at the national and international levels.

All children, young persons and adults have the human right to benefit from an education

that will meet their basic learning needs. This includes ‘learning to know, to do, to live

together and to be’, and seeks to tap and develop each individuals talents, Potential and

personalities, so that they can ‘improve their lives and transform their societies’.

The right to education was, according to Manfred Nowak, first categorically upheld as

a human right in the Constitution of the Soviet Union in 1936. It guaranteed free and

compulsory education through a system of scholarships and vocational training in state

enterprises.

3.6. Right to Education in Universal Declaration of Human Rights, 1948 and the
ICESCR, 1966

Article 26 of the UDHR clearly states that ‘everyone has the right to education’.

Education, according to the UDHR and the ICESCR, should be directed at the full

development of the human personality, strengthening respect for human rights and

fundamental freedoms and promotion of understanding, tolerance and friendship. Both the

UDHR and ICESCR, talk about making primary education compulsory and available free to

all, while higher levels of education should be generally available and accessible to all. The

two Documents also give parents the right to choose the kind of education they want to give

their children. The US Supreme Court also sets an example before the world by rightly

70
promulgating the importance of education where in unanimously overturns the Plessy Vs.

Ferguson’s16 decision in Brown Vs. School Board of Topeka17 delivered by Chief Justice Earl

Warren stressing upon the importance of education in the consciousness of American life by

stating:

“Education is perhaps the most important function of state and local governments; it
is the very foundation of good citizenship. Today, the education is a principle instrument
in awakening the child to cultural values, in preparing him for later professional training,
and in helping him to adjust normally to his environment. In these days, it is doubtful that
any child may reasonably be expected to succeed in life if he denied the opportunity of an
education. Such an opportunity, where the state has undertaken to provide it, is a right
which must be made available to all an equal terms”.18

At the International level, the right to education has been upheld in various

international agreements and instruments including Article 13 and 14 of the International

Covenant on Economic, Social and Cultural Rights, 1966 also recognizes the right of every

one to education and maintains that primary education shall be compulsory and available free

to all. The State Parties to the Covenant recognize the right of everyone to education. They

agree that education shall direct to the full development of the human personality and sense of

its dignity, and shall strengthen the respect for human rights and fundamental freedom. In

addition, Article 14 of ICESCR obligates those State parties which do not have free and

compulsory education at the time of the signing of the covenant, to undertake to adopt, within

two years, a detailed plan of action for the progressive implementation of free and

compulsory education within a reasonable time frame.

3.7. Right to Education in the Conventions on the Elimination of all forms of

Discrimination Against Women (CEDAW)

16 163 U.S. 537 (1896)

17 347 U.S.
483 (1954) 18 Ibid.
71
 The CEDAW which was adopted and entered into force on 3rd September 198118 the

most comprehensive set of legally enforceable commitments concerning both rights related to

gender and equality to education nevertheless, discrimination against women in pervasive in

most societies and in education more generally. The provision of the 1952 convention covers

the civil rights of women and their legal status. Women’s rights to non-discrimination in

education, employment and economic and social activities are affirmed. The provisions are

specially emphasized with regard to the situation of rural women. Whereby women are

guaranteed the right to human rights legislation has only partial success in delivering equality.

To stimulate action, a number of political instruments have been agreed.19

3.8. Right to education in UN Convention on the Rights of the Child (CRC)

The United Nation Convention on the Rights of the Children, 1989 has also been

recognized as the complete Code of the children’s rights i.e., the development of child

personality, talents, mental and physical abilities with the force of international law as

compared to the earlier instruments which proved to be a toothless exercise. India made an

international commitment on 11th December 1992 by ratifying the convention. The

Government of India has subject to resources undertaken to take positive measures to

progressively implement the provision of the CRC, which mainly focus attention on certain

priority issues affecting children, like child labour and compulsory education. It implies that

the learning experience should be not simply a means but also an end in itself, having

intrinsic worth. It suggests an approach to teaching that upholds the idea of a child-centered

education, using teaching processes that promote or at least do not undermine children’s

rights. Corporal punishment is deemed here to be a clear violation of these rights.

18 General Assembly Resolution 34/180 of December 1979

19 Almost 187 out of 194 countries ratified http://www.womenstreaty.org/index.php/about-cedaw/faq visited
on 25/01/2014
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 Article 28 of the Rights of the Child, 1990 emphasizes the child’s right to education

on the basis of equal opportunity, and the State’s duty to ensure that at least primary

education is made free and compulsory for every child. The access to secondary and higher

education should likewise be provided on the basis of equal opportunity. Article 29 is an

affirmation of the aims of education. It emphasizes the child centered education. The state

recognizes that the key goal of education is the development of the individual child’s

personality, talents and abilities, in recognition of the fact that every child has unique

characteristics, interests, abilities, and learning needs.” Education should be directed at

developing a child’s personality and talents, preparing the child for active life as an adult,

fostering respect for basic human rights and developing respect for the child’s own cultural

and national values and those of others.

3.9. Right of Education in International Covenant on Civil and Political Rights

(ICCPR)

The right to education finds more specific expression in the ICCPR, 1996. Article

18(4) of the ICCPR recognizes the fundamental role of parents in directing their children’s

education. States Parties undertake to have respect for the liberty of parents and legal

guardians to ensure the religious and moral education of their children in conformity with

their own convictions.

3.10. New Initiatives by the Governments and International Agencies.

Article 1 of the World Declaration Education for all 1999 (Jometin Declaration) 20

added the aims of building upon collective cultural, linguistic and spiritual heritage,

promotion of the education of others and achieving environmental protection.

20 World Declaration on Education for All: Meeting the Basic Learning Needs, adopted at the World
Conference on Education for All Convened at (Jomtein, Thailand, in March 1990)
73
 Further in the year of 2000, the Millennium Development Goals (MDGs) for the

signatory countries.22 One of the goals amongst these is providing universal primary

education to all by 2015. Though achieving universal primary education is one of the MDGs

seem to be distant dream. So there was an adequate force at international level and it was

obligatory for Government of India to endeavour to foster respect for international law and

treaty obligations.

Paragraph 2 of the Plan of Action for United Nations Decade for Human Rights Education,

1993, categorically states that promoting gender equality should be one of the aims of

education. The World Education Forum held at Dakar in 2000 added the aims of

comprehensive early childhood care and education, gender equality in education and quality

education with special focus of vulnerable children.

The ICESCR has conceptualized the right to education in terms of different levels of

education primary, secondary, higher and fundamental education.

3.11. UN Decade of Education for Sustainable Development (2005-2014)

Education for Sustainable Development (ESD) is a vision of education that seeks to

balance human and economic well-being with cultural traditions and respect for Earth’s

natural resources. ESD emphasizes aspects of learning that enhance the transition towards

sustainability including future education, citizenship education, education for a culture of

peace, gender equality and respect for protecting and preserving natural resources, and

education for sustainable consumption. Pursuing sustainable development through education

requires educators and learners to reflect critically on their own communities. A holistic

understanding for sustainable development has been developed around three key areas:

society, environment and economy; with culture as an underlying dimension. On this basis,

education for sustainable development (ESD) means learning throughout life to acquire

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22
The Millennium Declaration was signed by 147 countries
values, knowledge and skills which help children, young people and adults find new solutions

to social, economic and environmental issues which affect their lives21

It means the learning values, behaviours and knowledge which will enable us to

develop now without robbing our children and grand-children of that possibility too. The

Decade will promote these ideas by:

 Making people aware that education is a good basis for a sustainable way of life;

 Making sure that ideas about sustainable development are part of schools, colleges,

universities and other ways of learning;

 Making sure that organizations and governments worldwide work together, so that they

can learn from new experiences and from activities in different parts of the world.

The ESD tackles more than education. It addresses the way we live, our values and

our behavior, because, of that, education for life, our values and our behavior, because of that,

education for sustainable development is not a subject to teach, but rather cuts across many

subjects. It also means that education must be of a high quality, not merely passing on

knowledge but changing the way people think. The principles of sustainable development

must find their place in children’s schooling; higher education, non-formal education and

community based learning activities. This means education will have to change so that it

addresses the social, economic, cultural and environmental problems that we face in the 21 st

century.

3.12. Need for Universalisaton of Elementary Education

Primary education occupies significance in the reconstructions of a developing

country. It is at this stage that the child starts going to a formal institution. The education,

21 http://unesdoc.unesco.org/images/0018/001818/181864e.pdf visited on 31/08/2014

75
which he receives there, provides the foundation of his physical, mental, emotional,

intellectual and social development.

The programmes and practices of primary schools contribute in one way or another to the

child’s achievement of the developmental task. Thus, the curriculum helps or hinders the

accomplishment of every task. Every school is thus a laboratory for working out of these

tasks. Consequently it seems useful to regard the developmental tasks as objectives or goals

of primary education. Successful achievement of these tasks can be described in terms of

observable behavior and these descriptions may be used in evaluating the progress of a child.

The objectives of primary education are thus synonymous with the achievement of

developmental tasks. Has, therefore, said: “Elementary Education is not complete in itself. It

is preparatory. It prepares the pupil to go on to something else and put his foot on the first

step of the leader of knowledge.”22 Unless the schools properly discharge their responsibilities

and help the pupils to achieve their developmental tasks very well, they fail in their

fundamental duties and also the entire generation of the future citizens would suffer with

irreparable loss to the society.

Article 5 of the Jomtein Declaration describes primary schooling as the main delivery

system for imparting basic education to children outside the family. Primary education must

be universal and satisfy the ‘basic learning needs’ of the child while considering the culture

and needs of the community involved. Article 1 of the Declaration defines basic learning

needs as essential learning tools and the basic learning content required by human beings to

be able to survive, to develop their full capacities, to live and work in dignity, to participate

fully in development, to improve the quality of their lives, to make informed decisions, and to

continue learning’.

22 Dr.B.B.Rao Kandregula, Elementary Education, First Edn (A.P.H. Publishing Corporation, New
Delhi,2008) p.2
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 ‘Primary’ education is not synonymous with ‘basic’ education but there is a close

correspondence between the two. According to the United Nations International Children’s

Emergency Fund’s (UNICEF) Advocacy Kit, 1999, ‘Primary education is the most important

component of basic education.’ Primary education has two features. It is compulsory, which

implies that the decision to send a child to primary school is not optional for parents,

guardians or the State. This compulsory element reinforces the prohibition of gender

discrimination in access to education. Moreover, the education offered should be adequate in

quality, relevant and must promote the realization of other rights. It is available free to all,

which implies that fees and other direct costs imposed by the government, local bodies or

school authorities is a ‘disincentive’ to the enjoyment of the right to education. The CESCR’s

Plan of Action for primary education recommends that some in direct costs should be

eliminated while others may be permitted on a case-by-case-basis.

3.13. Right Based Approach and Education

In nineties two approaches ‘Livelihood Approach’ (LA) and Human ‘Right Based

Approach’ (RBA) emanated to supplement poor in accessing their rights. The distinguish

characteristic of HRBA was to enable claim-holders to claim their rights and duty bearers 23 to

meet their obligations under international law. RBA had considered the role of State and

citizens as a focal point in the development had been explained way back in 1948 under

Universal Declaration of Human rights (UDHR). The two forces i.e., Political and Civil

Rights (identified as core human rights) versus Economical, Social and Cultural rights (Closer

to welfare or development ideas) maintained a gap for longer period of time. But the surge in

the poverty during the fall of the Soviet Union had invited the attentions of academicians and

practitioners to ponder over these two forces. As a result of these long deliberations, a new

approach had emerged which was denoted with ‘Right Based Approach’ (RBA). At that time
23 The primary duty bearer is the government (National, State, Local Level) the secondary duty-bearers are
private individuals and institutions but the major responsibility remains with primary duty bearers.
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this approach became vital for the official development agenda especially for UN agencies.

RBA entitled the individuals to claim their rights against the state. Prof. Mool Chand Sharma,

a know scholar of law and educationalist defines it as; Human Rights Approach removes the

charity dimension inherent in basic need strategies, however valuable this may, be and

emphasizes rights and responsibilities. It recognizes beneficiaries as active subjects and claim

holders and established duties or obligations for those against whom a claim can be held to

ensure that needs are met. That moves the focus to where it should be; development by people

themselves, not for them. The concept of claim-holders and duty bearer’s introduces an

important element of accountability holds the key for improved effectiveness of action and as

such others the potential for added value flowing from the application of ‘Rights Based

Approach’.24

India has considered the importance of this approach since last decade. In recent past various

instances have taken place in India like MNREGAs, women reservation, as a practical part of

‘Rights Based Approach’. The enactment of RTE Act is another step of the ‘Right Based

Approach’ in India. The present landmark judgment is coined with a revolutionary step as

first it is based on the RBA and second the right is given for a thing which is soft in nature.

In India there is a strong framework to strengthen the Education for all including equity and

equality through various laws, policies and commission, committee, foundations, NGO’s and

schemes. National Human Rights Commission, National Commission for Women and

National Commission for Minorities also protect, help and support the marginalized and

vulnerable section of the society in accessing their rights. But a huge gap is considered in

implementing and accessing those rights to individual however the government is spending

huge amount of money and sources for the social welfare. During Dakar Declaration in 2000 25

various head of world’s Government including India observed that absence of commitment at
24 Prof. Mool Chand Sharma, ‘Basic Needs in Need of Rights-based Approach” in Human Rights, Development
and Environmental Law – An Anthology, Ed. Prof. Shastri Bharat Law,( Jaipur, 2007)
25 http://unesdoc.unesco.org /images/0012/001211/121147e.pdf visited on 28/08/ 2014
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implementation part, weak political will, limited resource, lack of attention, is considered as

denial of right to education to millions of people. Right Based Approach (RBA) aims to

enable claim holders to claim their rights and duty bearers. The primary duty bearer is the

government (National, State, Local Level) the secondary duty-bearers are private individuals

and institutions but the major responsibility remains with primary duty bearers, to meet their

obligations under international law. One of the models of RBA is decentralization of the

education to local governmental level for participation between civil society and public sector

to ascertain right based outcome. A case study at NGO Sankalp, Decentralizing planning and

management of elementary education is a goal set by the NEP in 1986 to involve direct

community participation in form of Village Education Committees (VECs) for management

of elementary education. In this context plays a vital role. Empowering people and creating

employability is another model of right based approach to education. The pull factors of

economic agents for making the active participation of the child in the production process

may be one of the causes of drop out. Poverty is violation of all human rights which forces

parents to send their children for work. The Rights Based Approach prohibits the

development policies which violate social and economic rights. It strengthens the legal force

by providing right to the citizens and thus protects the interest of most marginalized and

disadvantaged group.

3.14. Brief Chronology of Right to Education In International Perspective 26

In 1946, The Constitution of UNESCO proclaims that:’ The State Parties in full and

equal opportunities for education for all’ and defines one of UNESCO’s main functions in the

following terms: ‘Give fresh impulse to popular education and to the spread of culture by

instituting collaboration among the nations to advance the ideal of equality of educational

opportunities without regard to race, sex or any distinctions, economic or social’.29

26 http://www.unesco.org/education/educprog/50y/brochure/maintrus/28.htm last visited on
31/08/2014 29 Ibid. Art.1,2b
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 1948, The Universal Declaration of Human Rights adopted by the United Nations

General Assembly in 1948 identifies education as a human right: ‘Everyone has the right to

education. Education shall be free, at least in the elementary and fundamental stages.

Elementary education shall be compulsory.27’

1959, The Declaration of the Right of the Child, adopted by the General Assembly in

November 1959, reads:’ The child is entitled to receive education, which shall be free and

compulsory.’

1960, Twelve years after the Universal Declaration of Human Rights, the Convention

against Discrimination in Education adopted by the General Conference of UNESCO in

December 1960 set out the principles of ‘equality of opportunity and of treatment’ in

education. Articles 1 and 4 state, and in particular:

Article 11 For the purposes of this Convention, the term ‘discrimination’ includes any

distinction, exclusion, limitation or preference which, being based on race, colour, sex,

language, religion, political or other opinion, national or social origin, economic condition or

birth, has the purpose or effect of nullifying or impairing equality of treatment in education

and in particular:

Article 4 The States Parties to this Convention undertake furthermore to formulate,

develop and apply a national policy which, by methods appropriate to the circumstances and

to national usage, will tend to promote equality of opportunity and of treatment in the matter

of education.

In 1966, The International Covenant on Economic, Social and Cultural Rights of the

United Nations, in which the States ‘recognize the right of everyone to education’.28

1978, The International Charter of Physical Education and Sport, adopted by the

General Conference of UNESCO in November 1978, stating that: ‘Every human being has a

27 Ibid. Art.26, 1
28 Ibid Art.13, .1
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fundamental right of access to physical education and sport, which are essential for the full

development of his personality. The freedom to develop physical, intellectual and moral

powers through physical education and sport must be guaranteed both within educational

system and in other aspects of social life’.29

1989, The Convention on the Rights of the Child, adopted by the General Assembly of

the United Nations, November 1989, stating, inter alia, that:

‘State Parties shall respect and ensure the rights set forth in the present Convention to

each child within their jurisdiction without discrimination of any kind, irrespective of the

child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political

or other opinion, national, ethnic or social origin, property, disability, birth or other status’30.

States Parties ‘shall take all appropriate legislative, administrative, social and

educational measures to protect the child from all forms of physical or mental violence, injury

or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse,

while in the care of parents, legal guardians or any other person who has the care of the

child’.31

‘Recognizing the special needs of a disabled child, assistance shall be provided free of

charge, whenever possible, taking into account the financial resources of the parents or others

caring for the child, and shall be designed to ensure that the disabled child has effective

access to and receives education, training, health care services, rehabilitation services,

preparation for employment and recreation opportunities in a manner conducive to the child’s

achieving the fullest possible social integration and individual development, including his or

her cultural and spiritual development’. 32

29 Ibid Art. 1, .1
30 Ibid. Art. 2, 1
31 Ibid. Art.19, 1
32 Ibid. Art. 23, 3
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 1990, The World Declaration on Education for All adopted by the World Conference

on Education for All, March 1990, Jomtien (Thailand), declaring in Article 1, para. 1, that:

‘Every person either child or youth or adult shall be able to benefit from educational

opportunities designed to meet their basic learning needs. These needs comprise both

essential learning tools (such as literacy, oral expression, numeracy, and problem solving) and

the basic learning content (such as knowledge, skills, values, and attitudes) required by

human beings to be able to survive, to develop their full capacities, to live and work in

dignity, to participate fully in development, to improve the quality of their lives, to make

informed decisions, and to continue learning. The scope of basic learning needs and how they

should be met varies with individual countries and cultures, and inevitably, changes with the

passage of time’.

1995, The ILO’s Administration Council, which in November 1995, reiterated its

determination to fight against child labour and promote essential human rights agreements. It

was agreed that efforts to eradicate child labour, would be intensified, while all governments

were called upon to implement measures designed to eliminate the worst types of abuse that

may be inflicted upon children, namely childhood servitude, slavery, prostitution and

engaging in work activities that pose a threat to their physical integrity. The Council

recommended the inclusion of the child labour problem in the agenda of the ministerial

meeting during the International Work Conference (CIT) of 1996, and among the main issues

to be discussed at the Conference of 1998.

Article 1733 of European Social Charter in 1996 with a view to ensuring; the effective

exercise of the right of children and young person’s to grow up in an environment which

encourages the full development of their personality and of their physical and mental

capacities, the parties undertake, either directly or in co-operation with public and private

organizations, to take all appropriate and necessary measures designed: To provide children
33 http://conventions.coe.int/Treaty/en/Treaties/Html /163.htm last visited on 31-08-2014
82
and young person’s a free primary and secondary education as well as to encourage regular

attendance at schools.

In 2000, Governments and international agencies decided to adopt for new initiatives to work

together for development and for education as follows.

a. The Millennium Development Goals (MDG) 2000

b. Education for All (EFA) 2000

c. The United Nations Literacy Decade (UNLD) 2003-2012.

d. The United Nations Decade of Education for Sustainable Development 2005-2014.

The Indian education system is the second largest in the world and is perhaps the most

complex in terms of its spatial outreach and presents the most diversified system of students

and teachers in there, linguistic, social, economic and cultural background. It comprises of

6,27,000 primary, 1,90,000 upper primary schools and about 25,000 non-formal education

centers, having 19,00,000 teachers and 11,10,000 students in these schools. According to an

estimate, out of 200 million children in 6-14 age groups there were about 42 millions who

were expected to be out of schools. Further, among school going children high percentage of

dropouts is also a major problem, the goal of universal elementary education was reviewed in

World Education Forum (U.N. World Conference) at Dakar, the capital of Senegal in West

Africa in 2000 (10 years after Jomtein) When certain goals remained unachieved, Resultantly,

Dakar set revised targets for the countries where the goals of EFA (Education for All) could

not be achieved and made a commitment to achieve it by 2015.34 With the following

objective:

(i) Early Childhood care and education: expanding and improving comprehensive

early childhood care and education, especially for the most vulnerable and

disadvantaged children.

34 Anitha Pathania, Kulwant Pathania, Primary Education and Mid-Day Meal Scheme Results, Challenges
and Recommendations, (Deep and Deep Publications Pvt. Ltd,2006) p.33
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(ii) Free and Compulsory primary education by 2015: ensuring that by 2015 all

children, particularly girls children in difficulties circumstances and those

belonging to ethnic minorities, have access to complete, free and compulsory

primary education of good quality;

(iii) Life skills for adolescent and youth: ensuring that the learning needs of all young

people and adults are met through equitable access to appropriate learning and

life-skill, programme;

(iv) Elimination gender disparities: eliminating gender disparities in primary and

secondary education by 2005, and achieving gender equality in education by 2015,

with a focus on ensuring girls, full and equal access to and achievement in basic

education of good quality.

84