Right to Education in India

At present, there are five articles in the constitution of India which have Children as their special focus. These articles are Article 21A, 24, 39 & 45 and 51A (k). Thus special provisions for children find place in our constitution in Fundamental Rights, Directive Principles as well as Fundamental Duties.

• Article 21A: The Right to Education inserted in constitution via 86^th amendment act.
  
• Article 24: No child below the age of 14 years shall be employed to work in any factory or mine or engaged in hazardous employment.
  

• Article 39 (f): The State shall, in particular, direct its policy towards securing—
  

  (f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
  

• Article 45 : The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.
  
• Article 51A(k): who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.
  

The changes in constitution by 86^th amendment Act

The 86^th Amendment Act 2002 had made the following changes in our constitution:

Change in Fundamental Rights:

• A new article 21A was inserted below the Article 21 which made Right to Education a Fundamental Right for children in the range of 6-14 years. This article reads:

  “The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine”
  

Change in DPSP:

Article 45 which originally stated:

The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.

Was substituted as

The State shall endeavor to provide early childhood care and education for all children until they complete the age of six years.”

Change in Fundamental Duties

Article 51A was also amended and after clause (J), the clause (k) was added which says:

“who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.”.

As per the above amendments, the 86^th Amendment Act came up with the following:

• It made Right to Education a Fundamental Right for Children from Age 6-14.
• It made education for all children below 6 years a Directive Principle for State Policy (DPSP).
• It made the opportunities for education to child a Fundamental duty of the parents of the children.
  

Thus, we see that Right to Education is acquired by a child when he / she attains the age of 6 years. The day this 86^th Amendment Act was passed, a huge crowd of 70,000 people gathered at the capital and demanding that education be made a fundamental right also for children up to six years of age.

Background to RTE

• The 1986 National Policy of Education DID NOT make the education compulsory.
• The first official document on the education right of children was Ramamurti Committee Report in 1990 which reviewed the National Education Policy 1986. This committee mentioned that not paying attention to the right to education was the most fundamental problem of our education system. Ramamurti Committee also noted that “the time has come to recognize “Right to Education’ as a fundamental right of the Indian Citizens.
• In 1991, a book by Myron Wiener titled ” The Child and State in India: Child labour & Education in comparative perspective” noted states failure to eradicate child labour and enforce compulsory education.
• In 1992, India became signatory to the UN Convention on Rights of the Child. Article 28 of this Convention “asks the states to recognize right of education for every child and make primary education compulsory”. At that time, it was not in line with the constitution’s provision in article 51(c) which says: State shall endeavor to foster respect for international law and treaty obligations. (DPSP)
• In 1993, Supreme Court Gave its landmark judgment in the Unnikrishnan JP vs State of Andhra Pradesh & Others. In this case, SC held that Education is a Fundamental right flowing from Article 21.
• In 1994, The United Front Government set up Saikia Committee to examine the proposal of making right to free and compulsory education.
• In 1997, the Saikia Committee Reported that Constitution of India should be amended to make the right to free education up to 14 years of age a compulsory right. It also recommended making an explicit fundamental duty of every parent to provide opportunities for elementary education.
• In 1997, the United Front Government introduced 83rd Amendment Bill, 1997 which encompassed insertion of article 21A & omitting article 45 of the Constitution. This amendment bill had an additional financial memorandum that outlined the costs that would go into making education for children in the six to 14 age groups a fundamental right for a 10-year period.
• Tapas Majumdar Committee was set up by the NDA Government in 1999 to look into the financial implications of operationalising the 83rd Amendment Bill introduced by the United Front government in 1997, seeking to make the right to free and compulsory education up to the age of 14 a fundamental right. The 83rd Amendment Bill was renamed the 93rd Amendment Bill and significant changes were incorporated in it. The tapas majumadar committee recommended that even children belonging to the poorest sections of society must receive education that was comparable in quality with the best. It did not advocate low-cost alternatives.
• The 93^rd Amendment Bill was discussed and passed By Lok Sabha on 27 November 2001 and Rajya Sabha on 14^th May 2002. The date of the bill was to amended from 2001 to 2002 so it again went to Lok Sabha.
• After ratification by the President, it became Constitution 86^th Amendment Act.
• In pursuance with article 21A, which says that “The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine“
  and Constitution 86^th amendment act, it was now up to the state (means central government) to determine how and in which manner the Free & compulsory education is to be provided.
• The 86^th amendment provided for a follow-up legislation, which culminated in Right to Education Bill 2005, Right to Education Bill 2008 and finally Right to Education Act 2009.

Right to Education Act: Main Features

Education as Fundamental Right:

• Every Child of the age group of 6-14 years shall have right to free and compulsory Education.
• No child is liable to pay any kind of fee/ capitation fee/ charges. A collection of capitation fee invites a fine up to 10 times the amount collected.

  Children from Disadvantaged Group:
  

• This right provides that ” child belonging to disadvantage group” means a child who

1. Belongs to SC & ST
2. Socially backward class.
3. Geographical, Linguistic, Gender or such other matters.
4. Is differentially abled.

The Right to Education Act 2009 did not initially talk about “Physically disabled” children. To enable such provisions, the Right of Children to Free & Compulsory Education (Amendment) Bill 2010 was introduced in the Rajya Sabha on April 16, 2010. This bill was later referred to a standing committee on Human Resource Development. The bill was passed in both the houses of the parliament by May 2012 thus expanding the definition of “Child belonging to disadvantaged group”. Now this group shall also include the children with disability. Disability means blind, leprosy cured, hearing impaired, locomotor disabled and mentally ill. It also includes autism, cerebral palsy, mental retardation & multiple disabilities. These children have the same right as of other children. Please note that Right to Education of persons with disabilities until 18 years of age is laid down under a separate legislation- the Persons with Disabilities Act. A number of other provisions regarding improvement of school infrastructure, teacher-student ratio and faculty are made in the Act.

Teachers:

This act provides that the states will ensure that no non-teaching work is given to the teachers. The act recommends quality teachers and mandates that untrained teachers will have to upgrade themselves in 5 years.

Schools:

The act has listed minimum infrastructure requirements as a part of the schools and mandates the states to ensure that schools have these requirements. The schools which don’t conform to the quality standards as mentioned in the act, will upgrade themselves in 3 years or face derecognition.

Reservation:

The act mandates 25% reservation for disadvantage sections of the society as defined by the act.

Management Committees:

The act mandates that parents are to constitute the 75% members in the management committees. The School management committees are to have 50% women members.

Screening:

This act makes the screening of students / parents unlawful. It invites fine up to ` 25000 in the first instance and double in every successive violations.

Examinations:

No child can be put through any exam, not even class V & Class VIII board examinations.

Number of Teachers:

The act mandates number of teachers as follows: (please note that in newspapers, different news have written different ratios. The following list is reproduced from the official document)

Class I to Class V

• Up to 60 children : 2 teachers (Pupil Teacher Ratio: 30:1)
• 61 to 90 children : 3 teachers (Pupil Teacher Ratio: 30:1)
• 90 to 120 : 4 teachers (Pupil Teacher Ratio: 30:1)
• 121-200 : 5 teachers (minimum Pupil Teacher Ratio: 40:1)

Class VI to Class VIII

• One teacher per class each for 1. Science and math 2. Social Studies 3. Languages.
• One teacher for 35 children
• If there are more than 100 children then 1. A full time teacher 2. Part time instructors for Art, Health and Physical Education, Work Education.
  

Corporal punishment:

The Right to Education Act 2009 makes corporal punishment unlawful.

Private Teaching / Tuitions:

Clause 28, Chapter 28 of the act mandates that no teacher shall engage himself / herself in private teaching.

Monitoring:

The act states that National & State Commissions for protection of Child rights would monitor the effective implementation of measures in this act and inquire into complaints.

National Advisory Council:

The act provides that the central Government shall constitute a National Advisory Council of maximum 15 members which shall advise the central government on implementation of the various provisions of the act.

RTE Implementation Issues: Share of Burden

The Right to Education Act has made state and local bodies accountable for its implementation by 2013. Right from the day one of its enactment, the states have been clamouring that these bodies do not have the financial capacity to cover all the schools needed for universal education. Thus it was clear that the central government (which collects most of the revenue) will be required to subsidize the states.

Consequently, the Anil Bordia Committee was set up by the HRD ministry in 2009-10 to harmonise the Sarva Shiksha Abhiyan and the RTE.

The Anil Bordia committee was asked to study the funds requirement and funding initially estimated that Rs 171,000 crores would be required in the next five years to implement the Act. This committee argued for a higher financial burden for the centre. The committee said that said that sharing ratio of 55:45 (for the current year) and 50:50 (in 2011-12 ) would be unfavourable to the states as they would have to practically double their allocation.

However, in April 2010 the central government agreed to share the funding for implementing the law in the ratio of 65 to 35 between the centre and the states, and a ratio of 90 to 10 for the north-eastern states.

However, later, this figure was upgraded to Rs. 231,000 crores. When the ` 24,000 crore awarded by the Finance Commission is also taken into account, the centre’s share effectively works out to 68% while that of the states’ 32%.

A report on the status of implementation of the Act was released by the Ministry of Human Resource Development on the one year anniversary of the Act. The report admits that 8.1 million children in the age group 6-14 remain out of school and there’s a shortage of 508,000 teachers country-wide.

A RTE Forum report representing the leading education networks in the country, however, challenging the findings pointing out that several key legal commitments are falling behind the schedule. The Supreme Court of India has also intervened to demand implementation of the Act in the Northeast. It has also provided the legal basis for ensuring pay parity between teachers in government and government aided schools.

RTE Challenged by Private Schools

This Right to Education Act defines the schools as recognized schools-

• that are aided by the government and local authorities.
• that are not aided by the government and school authorities.

This means that private schools have not been ruled out by the act. This mandate is for all schools without exception. The private schools are for making profits. Those who are anti this act can say there this affects their business and their fundamental right provided by article 19 (1g) (to practice any profession, or to carry on any occupation, trade or business). When we analyse this issue we can easily figure out that the above clause (g) to practice any profession or business is virtually controlled by article 19 (6) which says that nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred. Still the RTE was challenged in the Supreme Court as an unconstitutional infringement on the rights of private and minority schools. An association of schools had challenged the constitutional validity of RTE Act in the Supreme Court saying the government was trying to enforce reservation and regulate affairs of private unaided and minority educational institutions.

On 12 April 2012, a three judge bench of the Supreme Court delivered its judgement by a majority of 2-1. Chief Justice SH Kapadia and Justice Swatanter Kumar held that providing such reservation is not unconstitutional, but stated that the Act will not be applicable on unaided private minority schools and boarding schools. However, Justice KS Radhakrishnan dissented with the majority view and held that the Act can not apply to both minority and non minority private schools which do not receive any aid or grant from the government.

Admission Issues

The Model Rules don’t provide many details on the implementation of 25 per cent reservation in private schools. It does not specify the definition and verification of the weaker and disadvantaged sections. How to select the children and in which class they shall be admitted. How they will gap the admission demand and seats available? What can be the vigilance mechanism? How the schools (private) would be reimbursed? etc. There is no clear instruction for private schools for formation of the school management committee.

Free Education

This is the most basic issue, which caused lot of confusion. It was earlier stated by Kapil Sibal that ” It could mean free books, free uniform or anything as defined by the states”. This confusion prevails because of the hastily framed document.

Madarsa and Vedic Pathshalas

Madarsas & Vedic Pathshalas have been clearly kept out of the purview of the Right of Children to Free and Compulsory Education Act.

Extension to Class X

In 2011, it was reported that entre is keen on extending the provisions of the Right of all Children to Free and Compulsory Education Act to Class X (age 16) instead of VIII. Nothing substantial has been decided in this context so far.