The legal basis for the Right to Education was given by Article 26 of the Universal Declaration of Human Rights 1948 and it was recognized as an enabling right that helps us develop as a society by providing pathways leading to other human and fundamental rights. Nobel Laureate Amartya Sen rightly quoted, Education is the backbone of India. There is a massive judicial and statutory framework regarding the RTE in India and worldwide, which promotes the idea of free and compulsory education but remains a distant dream for the nation’s underprivileged groups.

This article would thus focus on the varied legislative and judicial initiatives undertaken to achieve the long-term goal of availability, accessibility, acceptability, and adaptability of education and its need. It will highlight the prevalent lacunas in the issues mentioned above related to access to education and recommend solutions to the same.

Introduction

India became one of the countries to make education a fundamental right when the Right to Education Act was brought into effect where it was put at par with the Right to Life. This act bounds all the stakeholders like parents, schools, society, states as well as Central Government to provide and enable the children for free compulsory education if they are within the 6-14 years age bracket. The object of the Act was welcomed by the scholars and they believed it to be a momentous movement toward the universalization of elementary education throughout the nation among children of age between 6-14 years of age.

The Directive Principles of State Policy enumerated in the Constitution of India casts a responsibility on the State to ensure the education of children under Articles 45 and 46. These Articles have laid the basis for innumerable judicial pronouncements in favor of the RTE and its recognition as a fundamental right. The Right to Free and Compulsory Education Act was enforced in 2010 which is given the status of a fundamental right under 21A under the subpart of the right to life. Herein the children of the age group between 6-14 years are entitled to elementary education and any cost concerning same will be borne by the state as well as it is responsible for attendance and completion of 8 years of schooling. No denial of education on the grounds for want of documents, taking admission test, or for disability.

Legal background for Right to education

Article 28: It ensures freedom as to attending religious instruction or religious worship in private educational institutions including schools, colleges, etc. With consent from guardians if the child is minor. But no religious instruction shall be provided in educational institutions wholly maintained out of state funds. 

Article 29: Equality of opportunity in educational institutions to treat every student equally irrespective of caste, sex, background, creed, religion, etc. It further states that no citizen of India can be denied admission into any state-maintained educational institution. According to article 15(3), separate educational institutions for women can be established.

Article 30: It ensures the right of the minorities to establish and administrate educational institutions so that no discrimination as to minority class takes place. Herein the state cannot discriminate in giving funds to educational institutions if it’s maintained by the minorities.

Article 45: It casts a duty on the state to provide free and compulsory education for all children until they complete the age of 14 years till elementary school.

Article 46: It provides for special care to the promotion of education and economic interests of the scheduled caste, scheduled tribes, and the weaker sections of society that do not have access to an equitable form of education and thus need a special push by the state.

Article 337: This provides for special provision concerning educational grants for the benefit of the Anglo-Indian community that is counted in the minority groups of India.

Article 350A: It provides for instruction in the mother tongue at the primary stage so that a child is familiar with the language and diversity is preserved. The President may issue directions to any state as he considers necessary for the promotion of the same. 

Article 350B: It provides for a special offer for linguistic minorities that are minorities on basis of spoken languages.

Article 351: It provides for the development and promotion of the Hindi language which is majorly spoken across the country. The Central Government must promote the spread of the Hindi language in the entire country.

Right to Education Act, 2009 (RTE)

In a widely held discourse, learning begins at birth thus primary education must be universal and fundamental safeguarding basic learning in society. Many supplementary substitute programs including vocational training may help children, in the need of imparting theoretical as well as practical education. The scope of basic education has been extensively inclusive of early childhood care and initial education that is taking care of children before they reach school-going age. In this context, the RTE act was introduced to combat the lacuna of the current education system.

Features of the RTE ACT

• Free and compulsory education to 6-14 years children in a neighborhood school till the achievement of elementary education in proper educational institutions.
• Children who have either dropped out from school or have not been present at any school will not be rejected if they take new admission to new schools.
• 25 percent of the seats in the private school must be reserved for EWS and disadvantaged sections of the society and in case the institution is a private-public partnership then the costs related to the same must be reimbursed by the government.
• All schools except government schools must be penalized if they fail to adhere to guidelines and also prohibits all unrecognized schools from practice 
• It makes provisions for no donation or capitation fees and no interview of the child or parent at the time of admission to enable admission on merits and not money.
• A birth certificate for admission must be issued by the provisions of the Births, Deaths and Marriages Registration Act, 1886 or based on such other document, as prescribed by the authorities or government.
• The National Commission for Protection of Child Rights (NCPCR) is responsible for the management and implementation of the provisions of the RTE act.
• All schools except private unaided schools must have 75 percent parents and guardians as members of the managing committee to meet the best interest of students.
• A child’s mother tongue as a medium of instruction and comprehensive and continuous evaluation must be deployed by the institutions to introduce the mother tongue to students at a young age.

Financial burdens must be divided between the Centre and the State governments in the ratio of 55:45 and this ratio is 90:10 for the northeastern states in case of management of such educational institutions.

Drawbacks of RTE ACT 2009

RTE provides free and compulsory education only for students who fall in the category of class I to class VII and has no provision for higher education that forms the professional background of the student. The education till eighth grade only develops a child’s already existing mental capacity from 3-4 years of age, but there is a need to increase the level of education and include the secondary level in the act. 

86^th Constitutional Amendment Act, 2002

86^th Amendment Act, 2002 facilitates the understanding of free and compulsory education for children in the following ways-

•  Inserted Article 21A in Part III initiating provision that every child has a right to equitable quality of education in a formal school that satisfies certain essential norms and standards.
• Modified Article 45, and added a new clause (k) under Article 51A that makes the parent or guardian responsible for providing an opportunity for education to their children between six and 14 years. 
• It introduces the concept of the 4-A’s that is- Availability – that education is free and funded by the government to ensure availability to a greater population of children across the country, Accessibility – that the system is non-discriminatory and available to all, and that it is weaker sections targeted, Acceptability – that the curriculum of education is appropriate, non-discriminatory and culturally appropriate, and of quality; and professional, Adaptability – that education is not stagnant and can modify according to the changing needs of society so that it can be adapted on a large scale.

Judicial enactments related to RTE

State of Madras v. Shrimati Champakam Dorairajan led to the First Amendment of the Constitution wherein it was held that providing reservations was an infringement of Article 29(2) of the Indian Constitution. The court held that Part 3 and 4 of the Constitution are not liable to be abridged by any Legislative or Executive act or order, except to the extent provided in the appropriate Article in Part III. Thus the right to education forming a part of the right to life that is a fundamental right cannot be abridged by any such act.

In Bandhua Mukti Morcha v. Union of India, the Supreme Court held that child exploitation must be banned and other support systems related to children should be developed including providing education, health care, nutrient food, shelter, and other means of livelihood concerning self-respect and dignity of the person.

The question of the right to free and compulsory education was put forward in the case of Mohini Jain (Capitation Fee Case). The division bench of the Supreme Court held that the right to life is the compendious phrase for the right to education as it is necessary to lead a dignified life. The court stated: The right to education flows directly from the right to life. The right to life under Article 21 and the dignity of an individual are not being assured unless it is accompanied by the right to education. Charging a capitation fee in consideration of admission to educational institutions amounts to a denial of such a right. Court mentioned that Article 45 must be read with Article 21.

The Supreme Court observed the accuracy of the verdict given by the court in the case of Unnikrishnan. The five Judges’ bench held that the right to education is a fundamental right under Article 21 of the Constitution as it is related to the right to life and dignity. Articles 41, 45 & 46 are essential parts of the constitution that the state can enforce either by establishing its institutions or by aiding itself or affiliating to private institutions as it is required to be fulfilled for the betterment of society and elimination of illiteracy.

M.C. Mehta v State of Tamil Nadu &Ors., the Supreme Court stated that Article 45 has been recognized as a fundamental right in the above case. In addition, the Court said that it is an implied fundamental right as it is not present in Part III of the Constitution but since parts three and four are complementary to each other.

T.M.A Pai Foundation v. the State of Karnataka held that the state governments and universities cannot regulate the admission policy of unaided educational institutions run by linguistic and religious minorities but may identify educational qualifications for the same.

In the case of Avinash Mehrotra v. Union of India and Others, the court held that Articles 21 and 21-A of the Constitution oblige that children must be entitled to obtain education in safe schools. The court pointed out that primary education is made compulsory and free but secondary education and other higher levels are still unaddressed. 

Suggestions and recommendations

• The Right to Education act should eliminate its limitation that provides free and compulsory education to the age of 14 years and further may raise the standard from elementary education to secondary education. 
• The government must introduce and encourage specialization in subjects like diplomas/degrees with specialization in IT, mobile communication, media, entertainment, telecommunication, automobile, and construction which are ever-growing fields and hold prospects.
• MSS (Model school system) must be applied wherein the education should be provided free of cost and on private institute patterns that further eliminate the need for common schooling.
• Parents and other stakeholders need to encourage students to attend school and schools shall have in-house counseling sessions that listen to the problems faced by children, in general, to address them and provide a safe environment.
• Awareness about the RTE Act must be spread through pamphlets campaigns, hoardings, rallies, etc. That enables citizens and children to know their fundamental rights.
• Schemes like mid-day meals, SSA, RMSA along with world organization UNICEF must target the welfare of weaker sections of the society, whether economically or educationally to enable children to study in school rather than work at a budding age.
• Most importantly local governing bodies like gram panchayats and municipalities shall take upon themselves the responsibility to register childbirths and enroll them in educational institutions after they attain a specified age bracket.
• Provision for severe punishment regarding the abuse of this Act shall be implemented on any person who hinders in the application of the act.
• Child Abuse must be taken seriously so that any child facing such abuse is rehabilitated and sent to school instead of engaging in forced labor.
• Unemployment is the root cause of the lack of implementation of the education act as parents are not willing to send their children, especially the girl child to school as they cannot afford education and need as many hands at work as there can be to earn a living income. Government shall provide incentives and schemes to address their needs and focus on girl child education separately.
• Literacy programs are crucial as it lays the foundation of other life skills which in turn supports the identity and legacy of the community and its people.
• The right to education must be taken at par with the right to life in practical terms too besides being merely on paper. Lack of enforcement and proper checks and balance system is responsible for the undue implementation of the act. 
• Besides the RTE act 2009, much other specific legislation on education must be enacted.

Conclusion

In conclusion, it can be inferred that mare passing an act does not eliminate the need for a proper education system but there needs to be a proper check on the functioning and implementation of the act. The victory or the defeat of RTE would largely depend on consistent political care and public will. The financial allocation of funds should be directed towards educating the youth who are in turn the future of our country. Nationally, for rural areas, ASER findings show that for the children in the age group 6-14 years, enrollment levels have been 96% or more for the last four years. But the children who are still out of school pose a problem and hinder India to achieve universal enrollment.

In Uttar Pradesh and Rajasthan, 10% of the girls in this age bracket have not been enrolled. In Odisha, Jharkhand, and Gujarat, this percentage is more than 6%. Various initiatives like Five-year plans, Sarva Siksha Abhiyan (SSA), Mid Day Meal Scheme, and Rashtriya Madhmayak Siksha Abhiyan (RMSA) were launched by the central government to promote the universalization of primary education that needed to be implemented and enforced seriously to work with RTE act to eradicate the illiteracy in the country. 

Everyone irrespective of age or background should come forward and spread the utility of education to illiterate parents who are unable to appreciate the significance of education in eliminating the evil of illiteracy. Social differences and monopolistic practices must be kept in check and Educational institutions must not turn into business forums. Right to education for all and free education is successful enforcement and can serve as a key to a developed nation is that its citizens are literate enough to earn their bread and to contribute the economy. The right to education is a fundamental right and UNESCO has aimed that the goal of education for all shall be achieved worldwide in a short time. Let us come together and provide the underprivileged with the gold called education.