Right To Education

(Business Line Aug 4 09)

The Constitution of India was adopted by the Constituent Assembly on November 26, 1949. Article 37, forming a part of the section (Part IV) containing the Directive Principles of State Policy, states that “the provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.”
Article 45, dwelling on the “provision for free and compulsory education for children,” lays down that “the State shall endeavour to provide, within a period of 10 years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of 14 years.”

A 50-year stretch


The original Constitutional stipulation of a decade for the policy to be implemented has been stretched, in reality, to nearly 60 years, and it is only now that there is a strong possibility of the Directive Principle in question becoming a part of the evolving legal corpus of the Republic as a fundamental right.

On July 20, the Rajya Sabha passed the Right to Education Bill, which, in the words of the Union Minister for Human Resources Development, Mr Kapil Sibal, is a “historic” event since it would, “technically . . . when enacted . . . give two things: the right to every child for free and compulsory education, and the Government to provide it.”
In fact, the Government “getting” the right to provide education to children is perhaps less important than the citizens of the Republic being conferred it under the Bill in question.

This is because while the Government has always been aware of its responsibility in this direction as per the Directive Principles — a responsibility which has not been carried into effect (as the Constituent Assembly envisioned in 1949) for a variety of reasons — the children of the nation have been deprived of such a critical benefit in terms of the right to a decent life enjoyed by any and every Indian citizen, and over a period long enough for conditions to have been created for effective implementation of Article 45.

What it offers


It is expected that the Education Bill will be passed by the Lok Sabha this week, which will clear the passage for it to be made into a full-fledged law of the Republic. Among other things, the measure will provide free and compulsory education to every child in the age-group of six to 14 years and from Class 1 to 8. Schools (including government-run, government-aided, unaided and those in specified categories such as Kendriya Vidyalayas, Navodaya Vidyalayas and Sainik Schools) will also have to reserve at least a quarter of the total seats available for children from the Scheduled Castes, Scheduled Tribes and educationally or economically backward classes.

As reported, private schools will also have to “set aside at least 25 per cent of the seats in Class 1, with the Government making up for the fee shortfall.”However, schools receiving “financial aid, land or buildings at concessional rates from the Government” will not be assisted. The Bill also proposes to ban capitation fees, admission interviews and private tuition, aspects which are certain to be challenged in court in the days ahead.
Mammoth task


There is little doubt that, after the law takes concrete shape, it will be a long haul to full implementation of the objectives contained in the document.Indeed, there is absolutely no problem agreeing with the HRD Minister that the “intellectual assets” which implementation of the expected Act will create would become “a part of the national wealth.” But they will become so only after the intended beneficiaries pass through the planned educational process.

The question is — in view of the actual performance during the past few decades and the mammoth task awaiting the Government given the huge volumes involved — will the Centre be able to effectively allot funds on the scale desired, ascertain that the States fully cooperate with it where cooperation is necessary, and also make sure that the schooling imparted to the kids in the remotest regions of the country will be of a quality that will do proper justice to the indispensability of the scheme to the future growth of India?

Right direction


These are imponderables which, fundamentally, will depend on the quality of the administrators looking after the project and, of course, on the supply of the wherewithal with which to finance it.
But as far as the Constitutional right of citizens to free and compulsory education is concerned, there is little doubt that, over the years, the progression has been towards a clearer enunciation of it, with both the courts and legislatures doing their bit in reflecting the trend.

Thus, while the 1949 Constitution restricted mention of free and compulsory education to the Directive Principles, the 86th Constitution Amendment (2002) added a clause (A) to Article 21 (Fundamental Rights), which stated clearly that the State “shall provide free and compulsory education to all children of the age of six to fourteen years in such a manner as the State may, by law, determine.”

In 2005, the emphasis on this specific attribute of the Constitution was strengthened further by the 93{+r}{+d} Amendment, which added a sub-clause (2) to clause 3 of Article 15 (Fundamental Rights), which focussed on “Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.”

The new sub-clause laid down that “Nothing in this Article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes insofar as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30.”

Judicial interpretation


As far as the judicial interpretation of the Constitution is concerned, in 1993 the Supreme Court (Unnikrishnan versus State of Andhra Pradesh) came out with a clear view on the place of education in the Indian firmament when it pronounced unequivocally that “the right to education, understood in the context of Articles 45 and 41, means: (a) every child/citizen of this country has a right to free education until he completes the age of 14 years, and (b) after a child/citizen completes 14 years, his right to education is circumscribed by the limits of the economic capacity of the State and its development”.

The judgment added, quintessentially: “Article 45 assures right to free education for all children until they complete the age of 14. Among the several Articles in Part IV [Directive Principles], only Article 45 speaks of a time-limit; no other article does. This is very significant. The State should honour the command of Article 45. It must be made a reality. A childhood has a fundamental right to free education up to the age of 14 years.”