RIGHT TO EDUCATION

RIGHT TO EDUCATION

Education is at the base of all types of human development and progress. Education is said to be the
sharpest weapon and strongest shield against all human problems.

Human life becomes meaningless in the absence of education. It is through education, that we
acquire knowledge and skills which enable us to lead a fruitful life.

India is a democratic country and justice, equality and liberty are the guiding principles of our
Constitution.

To deprive someone of the right of obtaining education is a gross injustice, and hence,
universalization of at least primary education is of prime importance in a democratic and secular
country like ours.
Article 45 of the Constitution of India

The constitution of India takes care of every aspect of human development.

Article 45 of the Constitution provides for free and compulsory education to children in the age group
of 6-14 years. Provision for universalization of elementary education was part of all five years
plans.

Government, non-government agencies, voluntary organizations and private organizations are

engaged in this task but still the goal to provide education for all be achieved still remains.
THE CONSTITUTION (EIGHTY-SIXTH AMENDMENT) ACT, 2002

1. Short title and commencement-

(1) This Act may be called the Constitution(Eighty-sixth Amendment) Act, 2002.

(2) It shall come into force on such date as the Central Government may, by notification in the Official
Gazette, appoint.

2. Insertion of new article 21A- After article 21 of the Constitution, the following article shall
be inserted, namely:-Right to education.-”21A. 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.”

3. Substitution of new article for article 45- For article 45 of the Constitution, the following article
shall be substituted, namely:- Provision for early childhood care and education to children below
the age of six years.”45. The State shall endeavour to provide early childhood care and education for
all children until they complete the age of six years.”
The 86th amendment to the Constitution approved in 2002 providing free and compulsory education to all
children aged six to 14 years has been notified.

Along with this, the Right of Children to Free and Compulsory Education Act which was passed by
Parliament was also notified to enable the implementation of the 86th amendment.

In 2002, through the 86th Amendment Act, Article 21(A) was incorporated. It made the right to primary
education part of the right to freedom, stating that the State would provide free and compulsory education
to children from six to fourteen years of age.

Article 21 of the Constitution is related with protection of life and personal liberty. Article 21 A was added
after Article 21. Article 21 A makes the right of education of children of the age group of 6-14 years, a
fundamental right.

Article 51 A of the constitution includes 10 fundamental duties of citizens. By virtue of this amendment
11th fundamental duty is added which read as follows, ‘to provide opportunities for education to his/her
child or ward as the case may be, between the ages of 6 to 14 years. So to give education to
the children / wards has now become a fundamental duty of every citizen.
International Perspective Regarding Right to Education

The main international instruments have also recognized right to education as a basic human rights.
Article 26 of the Universal Declaration of Human Rights lays down that:

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.

Besides this the principal global treaty which covers this right in the International Covenant on
Economic, Social and Cultural Rights (ICESCR), which under Article 13 also recognizes the
general right to education enumerated by the Universal Declaration of Human Rights (UDHR). As
per this covenant, the states parties to the present covenant recognize the right of everyone to
education. The states parties to the covenant recognize that primary education shall be compulsory
and available free to all. Secondary education in its different forms, including technical and
vocational secondary education, shall be made generally available and accessible to all by every
appropriate means, and in particular by the progressive introduction of free education.
Constitutional Perspective Regarding Right to Education in India

Education is the most potent mechanism for the advancement of human beings. It enlarges, enriches
and improves the individual’s image of the future. The founding fathers of the nation recognizing the
importance and significance of right to education made it a constitutional goal, and placed the same
under the constitution of India. The commitment enshrined in the preamble and various articles of the
constitution.

- Article 15(3) enables the state to make special provisions.

- Article 21A deals with Right to Education.

- Article 24 prohibits employment of children below the age of 14 years in hazardous jobs.

- Article 39(f) recommends the protection of childhood again exploitation and moral and material
abandonment.
The founding fathers made these safeguards to protect interest of the weaker sections of the society.

- Article 45 directs the state to provide free and compulsory education to all the children under the
age of 14 years.

Further, Article 46 declares that state shall promote with special care the education and economic
interest of the weaker section of the people. It is important to mention here that among several Articles
enshrined in Part IV; Article 45 has been given much importance as education is the basic necessity
of the democracy. In simple words, compulsory education is one of the elements for stability of
democracy, social integration and to eliminate social evils.
Judicial Contribution towards Right to Free and Compulsory Education

The judiciary showed keen interest in providing free and compulsory education to all the children below
the age of 14 years.

In the year the Supreme Court of India decided two Public Interest Litigation cases i.e. Mohini Jain and
Unni Krishnan case in which the court enforced right to education.

In reality, both cases concerned the impact of certain state laws on private educational institutions of
higher learning, the court took the opportunity to develop a precedent that also governed the public
provision of elementary education.
In Mohini Jain vs. State of Karnataka, popularly known as the ‘capitation fee case’, the Supreme Court
has held that the right to education is a fundamental right under Article 21 of the constitution which
cannot be denied to a citizen by charging higher fee known as the captivation fee. The right to
education flows from right to life. In the instant case the petitioner had challenged the validity of a
notification issued by the government under the Karnataka Education Institution (Prohibition of
Captivation Fee) Act 1984 passed to regulate tuition fee to be charged by the private medical colleges in
the state. The division bench of two judges held that the right to education at all level is a fundamental to
citizen under Article 21 of the constitution and charging captivation fee for admission to education
institutions is illegal and amount to denial to citizen’s right to education and also violative of Article 14
being arbitrary, unfair and unjust.
Subsequently, in Unni Krishnan vs. State of Andhra Pradesh, the Apex court was asked to examine the
correctness of the decision given by the court in Mohini Jain case.

The five judge bench by 3-2 majority partly agreed with the Mohini Jain Decision and held that
right to education is a fundamental right under Article 21 of the constitution as ‘it directly flows’ from
right to life. But as regards its content the court partly overruled the Mohini Jain’s case, and held that
the right to free education is available only to children until they complete the age of 14
years, but after the obligation of the state to provide education is subject to the limits of its
economic capacity and development. The obligation created by Article 41, 45 and 46 can be
discharged by State either establishing its own institutions or by aiding, recognizing or granting
affiliation to private institutions. Thus, 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.
In the case of Bandhuwa Mukti Morcha vs. Union of India and others, it has been held that it is the solemn
duty of the state to provide basic education to children also working in different industries or factories and
the court directed the government to take such steps and evolve scheme assuring education to all children
either by the industry itself or in co-ordination with it.

In the case of TMA Pai Foundation vs. State of Karnataka the scheme formulated by the court in the case
of Unni Krishnan was held to be an unreasonable restriction within the meaning of Article 19(6) of the
Constitution as it resulted in revenue shortfalls making it difficult for the educational institutions.
Consequently, all order sand directions issued by the state in furtherance of the directions in Unni
Krishnan’s case was held to be unconstitutional. The court observed that right to establish and administer
an institution includes the right to admit students; rights to set up a reasonable fee structure; right
to constitute a governing body; right to appoint staff and right to take disciplinary action.

TMA Pai foundation’s case for the first time brought into existence the concept of education as in
‘occupation’, a term used in Article 19(1)(g) of the Constitution. The majority held that Article 19(1)(g)
and Article 26 confer rights on all citizens and religious denominations respectively to establish and
maintain educational institutions.
Additionally, Article 30(1) gives the right to religious and linguistic minorities to establish and administer
educational institution of their choice.
In Islamic Academy of Education vs. State of Karnataka, another issue arose for the determination
of fees structure in private unaided professional educational institutions. It was submitted that
management has been given complete autonomy not only as regard to admission of students but also as
regards to fee structure which could include a reasonable revenue surplus for the purpose of development
of education and expansion of education.

The Apex Court also held that right of education further means that a citizen has a right to call upon the
state to provide educational facilities within the limits of its economic capacity and development. In
connection to this, the Supreme Court in the case of State of Bihar and others vs. Project Uchcha
Vidhya, Sikshak Sangh and others vs. Union of India, also observed that establishment of High Schools
may not be a constitutional function in the sense that citizens of India above 14 years might not have
any fundamental right in relation thereto, but education as a part of human development indisputably
is a human right. Chief Justice of India Dr. A.K. Lakshmanan rightly observed:

“Education is perhaps the most important function of state and a local government. It is required in
the performance of our most basic responsibilities, even service in the armed forces. It is the very
foundation of good citizenship. Today, it is the principal 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 and child may reasonable be expected to succeed in life if he
is denied the opportunity of education.”
The similar kind of observations regarding fundamental significance of education has also been made
by Justice S.B. Sinha in the case of Election Commission of India vs. Sant Merry’s School & Others.

In the case of Ashoka Kumar Thakur vs. Union of India and others rightly observed that India
has suffered in the past because of severe under investment in higher education. This has been
caused partly by the thinking that looks at primary and higher education in an either or manner. Thus,
truly speaking special care is needed to strengthen the nation to properly re-construct
education system. Justice K. Ramaswamy and Justice Sagar Ahmad, has observed:

Illiteracy has many adverse efforts in a democracy governed by rule of law. Educated citizen could
meaningfully exercise his political rights, discharge social responsibilities satisfactorily and develop
spirit of tolerance and reform.

Thus, compulsory education is one of the duties 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, 2002 had added a new Article
21-A 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.”

It is submitted that on the basis of constitutional mandate provided in Article 41, 45, 46, 21A as well as, as
per the various judgments’ of the 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 schools for one or the other reasons.
RIGHT TO DIGNITY
“Dignity is the status of a person predicated on the fact that she is recognized as having the ability to
control and regulate her actions in accordance with her own apprehension of norms and reasons that
apply to her; it assumes she is capable of giving and entitled to give an account of herself (and
of the way in which she is regulating her actions and organizing her life), an account that others are to
pay attention to; and it means finally that she has the wherewithal to demand that her agency and her
presence among us as human being be taken seriously and accommodated in the lives of others,
in others' attitudes and actions towards her, and in social life generally”.

Kant, on the other hand, has initially used dignity as a 'value idea’, though in his later work he also talks
of 'respect' which a person needs to accord to other person, thereby speaking of it more as a matter of
status.
CONSTITUTIONAL VALUE:

The most important lesson which was learnt as a result of Second World War was the realization
by the Governments of various countries about the human dignity which needed to be cherished
and protected. It is for this reason that in the U.N. Charter, 1945, adopted immediately after
the Second World War, dignity of the individuals was mentioned as of core value. The almost
contemporaneous Universal Declaration of Human Rights (1948) echoed same sentiments.

Article 3 of the Geneva Conventions explicitly prohibits “outrages upon personal dignity”. There
are provisions to this effect in International Covenant on Civil and Political Rights (Article 7)
and the European Convention of Human Rights (Article 3) though implicit. However, one can easily
infer the said implicit message in these documents about human dignity. The ICCPR begins its
preamble with the acknowledgment that the rights contained in the covenant “derive from the
inherent dignity of the human person”. And some philosophers say the same thing. Even if this
is not a connection between dignity and law as such, it certainly purports to identify a wholesale
connection between dignity and the branch of law devoted to human rights. One of the key
facets of twenty-first century democracies is the primary importance they give to the
protection of human rights. From this perspective, dignity is the expression of a basic value
accepted in a broad sense by all people, and thus constitutes the first cornerstone in the edifice of
human rights.
Therefore, there is a certain fundamental value to the notion of human dignity, which some
would consider a pivotal right deeply rooted in any notion of justice, fairness, and a society based
on basic rights.

Within two years of the adoption of the aforesaid Universal Declaration of Human Rights
that all human beings are born free and equal in dignity and rights, India attained independence and
immediately thereafter Members of the Constituent Assembly took up the task of framing the
Constitution of this Country. It was but natural to include a Bill of Rights in the Indian Constitution and
the Constitution Makers did so by incorporating a Chapter on Fundamental Rights in Part III
of the Constitution. However, it would be significant to point out that there is no mention of
“dignity” specifically in this Chapter on Fundamental Rights.

So was the position in the American Constitution. In America, human dignity as a part of
human rights was brought in as a Judge-made doctrine. Same course of action followed as the
Indian Supreme Court read human dignity into Articles 14 and 21 of the Constitution.
HUMAN DIGNITY AS A HUMAN RIGHT UNDER INDIAN
CONSTITUION:

Articles 14 and 21 of the Indian Constitution read as follows:

“14. Equality before law. - The State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India.”

“21. Protection of life and personal liberty. - No person shall be deprived of his life or personal
liberty except according to procedure established by law.”

Apparently, there is no specific mention of human dignity as no such expression is used in the
aforesaid Article. Yet, Indian Supreme Court introduced a judge-made doctrine of human
dignity by reading the same into these articles of the Constitution, on the same lines as it was
crafted
by the American Supreme Court. In fact, as would be demonstrated hereinafter, in shaping
and giving true meaning to the fundamental rights enshrined in Part III of the Constitution of India
(which are nothing but the human rights) it is the concept of human dignity which has been
in the forefront as well as at the back of the mind of the Supreme Court.
For Indian Supreme Court has read “right to life” enshrined under Article 21 as “right to live life with
dignity”. And it is linked with right to grow as a human being. Likewise, human dignity is used as
lodestar for equality and to counter unfair discrimination while interpreting Article 14 of
the Constitution, thereby providing a clear linkage and connection between dignity, equality and
unfair discrimination under Article 14.

The basic spirit of our Constitution is to provide each and every person of the nation equal
opportunity to grow as a human being, irrespective of race, caste, religion, community and social
status. Granville Austin while analyzing the functioning of Indian Constitution in first
50 years has described three distinguished strands of Indian Constitution:
(i)protecting national unity and integrity, (ii) establishing the institution and spirit of democracy;
and (iii) fostering social reforms. The Strands are mutually dependent, and inextricably
intertwined in what he elegantly describes as “a seamless web”. And there cannot be social reforms
till it is
ensured that each and every citizen of this country is able to exploit his/her potentials to the
maximum. The Constitution, although drafted by the Constituent Assembly, was meant for the people
of India and that is why it is given by the people to themselves as expressed in the opening words “We
the People”. What is the most important gift to the common person given by this Constitution
is “fundamental rights” which may be called Human Rights as well.
Courts in India have translated this human dignity in action, while enforcing human rights
in various fields. Few such categories are highlighted below:

(I) PRISONERS' RIGHTS : The Supreme Court has held that even prisoners are to be
treated with human dignity and they are not deprived of their rights merely because they are
in prisons as undertrials or even as convicts [D.K. Basu v. State of West Bengal¹⁰, Sunil Batra v.
Delhi Administration, etc.].

In D.K. Basu, the Court laid down the procedure which is to be followed even at the time of arrest
of a person to ensure that due dignity of the person arrested is maintained. Most notably among
others, the Court directed that such a person shall not be handcuffed, unless he is hardened
criminal and in that case also previous permission of the concerned Judicial Magistrate shall
have to be taken.
In Sunil Batra's case, a habeas corpus petition based on am written complaint was made by a
prisoner to a Judge of the Supreme Court informing brutal assault by a Head Warder on a co-
prisoner, Justice V.R. Krishna Iyer observed as under:

The constitutional imperative which informs our perspective in this habeas corpus proceeding
must first be set out. The rule of law meets with its Waterloo when the State's minions
become law-breakers and so the court, as the sentinel of the nation and the voice of the
Constitution, runs down the violators with its writ and secure compliance with human rights even
behind iron bars and by prison warders. This case is at once a symptom, a symbol and a signpost
vis a vis human rights in prison situations. When prison trauma prevails, prison justice must
invigilate and hence we broaden our 'habeas' jurisdiction. Jurisprudence cannot slumber when
the very campuses of punitive justice witness torture.”

The Supreme Court has gone to the extent of protecting certain rights of even death convicts in
Shabnam v. Union of India & Ors., holding that they cannot be executed till they exhaust all
available
constitutional and statutory remedies. In the process, the Court held as under:
Once we recognize this aspect of dignity of human being, it does not end with the confirmation of
death sentence, but goes beyond and remains valid till such a convict meets his/her destiny.
Therefore, the process/procedure from confirmation of death sentence by the highest Court till
the execution of the said sentence, the convict is to be treated with human dignity to the extent
This right to human dignity has many elements.

First and foremost, human dignity is the dignity of each human being 'as a human being'.
Another element, which needs to be highlighted, in the context of the present case, is that human
dignity is infringed if a person's life, physical or mental welfare is armed.

It is in this sense torture, humiliation, forced labour, etc. all infringe on human dignity. It is in
this context many rights of the accused derive from his dignity as a human being. These may
include the presumption that every person is innocent until proven guilty; the right of the
accused to a fair trial as well as speedy trial; right of legal aid, all part of human dignity. Even
after conviction, when a person is spending prison life, allowing humane conditions in jail is part
of human
dignity. Prisons reforms or Jail reforms measures to make convicts a reformed person so that they
are able to lead normal life and assimilate in the society, after serving the jail term, are motivated
by human dignity jurisprudence.
Further, in Smt. Selvi & Ors. v. State of Karnataka, while dealing with the involuntary
administration of certain scientific techniques, namely, narcoanalysis, polygraph examination
and the Brain Electrical Activation Profile test for the purpose of improving investigation efforts in
criminal cases, a three Judge Bench opined that the compulsory administration of the
impugned techniques constitute 'cruel, inhuman or degrading treatment' in the context of Article
21.

Likewise, custodial torture or custodial deaths and fake encounters are deprecated by the
courts as violating human dignity. Thus, even those who are accused of any offences and are
subjected to investigation cannot be maltreated. The Supreme Court noted that
inhuman treatment has many a facet. It fundamentally can cover such acts which have been
inflicted with an intention to cause physical suffering or severe mental pain. It would also include a
treatment that is inflicted that causes humiliation and compels a person to act against his will
or conscience.