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ISSUE OF ILLITRACY

EDUCATION: A FUNDAMENTAL RIGHT

A Research Project Report

Submitted to

School of Law

Auro University

As a Course Work for continuous evaluation in the subject of

CONSTITUTION LAW - 1 [Law101]

Semester IV

[2013- 2018]

UNDER THE GUIDANCE OF

Prof. Ankita Kumar Gupta

School of Law

Auro University

RESEARCHERS

AALIYA PIRZADA

DHWANI VIVEK THAKKER

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TABLE OF CONTENT

SR.NO TOPICS PAGE NO

1. ACKNOWLEDGEMENT

3

2. OBJECTIVES AND HYPOTHESIS

4

3. INTRODUCTION

5

4. LEGAL PROVISONS 6-10

5. CASE LAWS BY VARIOUS COURTS

11-12

6. CONCLUSION 13

7. RECOMMENDATION & TESTING OF HYPOTHESIS

14

8. REFERENCES

15

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ACKNOWLEDGMENT

We take this opportunity to express our profound gratitude and

deep regrets to my guide Mrs Ankita Kumar Gupta for her

exemplary guidance, monitoring and constant encouragement

throughout the course of this research project. The blessing, help

and guidance given by her time to time shall carry us a long way in

the journey of life on which we are about to embark.

Lastly we thank almighty, my parents, brothers, sisters and friends

for their constant encouragement without which this assignment

would not be possible.

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OBJECTIVES

To study the concept of right to education as provided in the Indian Constitution.

To study The Constitution (Eighty-sixth Amendment) Act, 2002

To study the The Right of Children to Free and Compulsory Education (RTE) Act, 2009

To study various verdicts given by the Honorable Courts of Republic India.

HYPOTHESIS

Whether the concept of right to education is considered as a fundamental right under the

Indian Constitution?

Whether the concept of Right to Education is same in both Indian Constitution and The

Right of Children to Free and Compulsory Education (RTE) Act, 2009?

Whether the Courts of India had implemented Article 21(A) in its true sense?

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INTRODUCTION

Education is the most potent mechanism for the advancement of human beings. It enlarges,

enriches and improves the individual's image of the future. A man without education is no more

than an animal.

Education emancipates the human beings and leads to liberation from ignorance. According to

Pestalozzi, education is a constant process of development of innate powers of man which are

natural, harmonious and progressive. It is said that in the Twenty First Century, 'a nation's ability

to convert knowledge into wealth and social good through the process of innovation is going to

determine its future,' accordingly twenty first century is termed as century of knowledge .

The right to education is a universal entitlement to education, recognized in the International

Covenant on Economic, Social and Cultural Rights as a human right that includes the right to free,

compulsory primary education for all, an obligation to develop secondary education accessible to

all, in particular by the progressive introduction of free secondary education, as well as an

obligation to develop equitable access to higher education, ideally by the progressive introduction

of free higher education.

The right to education also includes a responsibility to provide basic education for individuals who

have not completed primary education. In addition to these access to education provisions, the

right to education encompasses the obligation to rule out discrimination at all levels of the

educational system, to set minimum standards and to improve quality of education.

The Indian constitution has provisions to ensure that the state provides education to all its citizens.

The Indian constitution in its original enactment defined education as state subject. Under Article

42 of the constitution, an amendment was added in 1976 and education became a concurrent list

subject which enables the central government to legislate it in the manner suited to it. Besides India

is signatory to a number of international covenants i.e. Jomtien declaration, UNCRC, etc.

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LEGAL PROVISIONS

The Constitution (Eighty-sixth Amendment) Act, 2002 inserted Article 21-A in the Constitution

of India to provide free and compulsory education of all children in the age group of six to fourteen

years as a Fundamental Right in such a manner as the State may, by law, determine. The Right of

Children to Free and Compulsory Education (RTE) Act, 2009, which represents the consequential

legislation envisaged under Article 21-A, means that every child has a right to full time elementary

education of satisfactory and equitable quality in a formal school which satisfies certain essential

norms and standards.

Article 21-A and the RTE Act came into effect on 1 April 2010. The title of the RTE Act

incorporates the words ‘free and compulsory’. ‘Free education’ means that no child, other than a

child who has been admitted by his or her parents to a school which is not supported by the

appropriate Government, shall be liable to pay any kind of fee or charges or expenses which may

prevent him or her from pursuing and completing elementary education. ‘Compulsory education’

casts an obligation on the appropriate Government and local authorities to provide and ensure

admission, attendance and completion of elementary education by all children in the 6-14 age

group. With this, India has moved forward to a rights based framework that casts a legal obligation

on the Central and State Governments to implement this fundamental child right as enshrined in

the Article 21A of the Constitution, in accordance with the provisions of the RTE Act.

The RTE Act provides for the:

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.

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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 93rd Amendment Bill was discussed and passed By Lok Sabha on 27 November 2001 and

Rajya Sabha on 14th 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 86th Amendment Act.

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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 86th 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 86th 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.

International cooperation related to what is now called 'the right to education' has a more limited

history. A private organisation, the International Bureau of Education, was established in Geneva

in 1924 and was transformed into an inter-governmental organization in 1929 as an international

coordinating centre for institutions concerned with education. A much broader approach was

chosen, however with the establishment of UNESCO in 1945. United Nations, on 10th December,

1998 adopted Universal Declaration of Human Rights. The Preamble to the UDHR stated that:

every individual and organ of society...., shall strive by teaching and education to promote respect

for these rights and freedoms...." In accordance with the Preamble of UDHR, education should

aim at promoting human rights by importing knowledge and skill among the people of the nation

states.

Article 26 (1) of UDHR proclaims that: Every one has a 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."1

Article 26 (2) states that Education shall be directed to the full development of the human

personality and to the strengthening of respect for human rights and fundamental freedoms; It shall

promote understanding, tolerance and friendship among all nations, racial or religious groups, and

shall further the activities of the United Nations for maintenance of peace. Further, Article 26 (3)

1 Section 26(1) of Universal Declaration of Human rights

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provides that parents have a prior right to choose the kind of education that shall be given to their

children."2

The right to education has also been recognized by the International covenant on Economic, Social

and Cultural Rights. Article 13(1) states that,: The states parties to the present covenant recognize

the right of everyone to education. They agree that education shall be directed to the full

development of the human personality and sense of its dignity, and shall strengthen the respect for

human right and fundamental freedoms.... Article 13 (2) further provides that the states Parties to

the present covenant recognize that, with a view to achieving the full realization of this right:

(a) Primary education shall be compulsory and available free to all;

(b) 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;

(c) Higher education shall be made equally accessible to all, on the basis of capacity, by every

appropriate means, and in particular by the

progressive introduction of free education;

(d) Fundamental education shall be encouraged or intensified as far as possible for those persons

who have not received on completed the whole period of their primary education;

(e) The development of a system of schools at all levels shall be actively pursued, an adequate

fellowship system shall be established, and the material conditions of teaching staff shall be

continuously improved.

During the general discussion by the committee on Economic, Social and Cultural Rights on the

right to education (1998), an agreement was reached that four elements define its core content:

(1) No one shall be denied a right to education;

(2) Everyone is entitled to basic (primary) education in one form or another; this includes basic

education for adults. Primary education must be compulsory and free. No one may withhold a

2 Section 26(2) of Universal Declaration of Human Rights

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child from primary education. A state has an obligation to protect this right from encroachment by

third persons;

(3) The minorities have the right to be taught in the language of their choice, in institutions outside

the official system of public education. UNESCO has adopted a number of normative documents,

conventions and recommendations ensuring the enjoyment of the right to education for everyone.

The best known among these is the Convention against Discrimination in Education, which was

adopted on 14th December 1960 by the General Conference and which entered into force in 1962.

The role of international organisation regarding the implementation of the right to education is just

not limited to the preparation of documents and conducting conferences and conventions but it

also undertakes the operational programmes assuring, access to education of refugees, migrants,

minorities, indigenous people, women and the handicaps. India participated in the drafting of the

Declaration and has ratified the covenant; Hence India is under obligation to implement such

provisions.

The Founder Fathers of the nation recognizing the importance and significance of right to

education made it a constitutional goal, and placed it under chapter IV Directive Principle of State

Policy of the Constitution of India. Article 45 of the Constitution requires state to make provisions

within 10 years for free and compulsory education for all children until they complete the age of

14 years.3

Further Article 46 declares that the state shall promote with special care the educational and

economic interests of the weaker section of the people.... It is significant to note that among several

Articles enshrined under Part IV of the Indian Constitution, Article 45 had been given much

importance as education is the basic necessary of the democracy and if the people are denied their

right to education then democracy will be paralyzed; and it was, therefore, emphasized that the

objective enshrined under Article 45 in Chapter IV of the Constitution should be achieved within

ten years of the adoption of the Constitution. By establishing the obligations of the state the

Founder Fathers made it the responsibility of coming governments to formulate a programme in

order to achieve the given goals, but unresponsive and sluggish attitude of the government to

3 Development of Education in India by S.P Agrawal, J.C. Aggarwal, Vol.5 Pg. 348

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achieve the objective enshrined under Article 45 belied the hopes and aspirations of the people.

However, the Judiciary showed keen interest in providing free and compulsory education to all the

children below the age of fourteen years.

CASE LAWS

In case of Mohini Jain V State of Karnataka4 , the Supreme Court held that right to education is

fundamental right under Article 21 of the Constitution.

The right to education springs from right to life. The right to life under Article 21 and the dignity

of the individual cannot fully be appreciated without the enjoyment of right to education.

The Court observed Right to life is compendious expression for all those rights which the Courts

must enforce because they are basic to the dignified enjoyment of life. It extends to the fully range

of conduct which the individual is free to pursue. .... The right to life under Article 21 and the

dignity of the individual cannot be assured unless it is accompanied by the right to education. The

State Government is under an obligation to provide educational facilities at all levels to its citizens.

In case of Unni Krishan V State of Andhra Pradesh5 the Supreme Court was asked to examine

the decision of Mohini Jain's case. In the present case the Apex Court partly overruled given in the

Mohini Jain case. The Court held that, the right to education is implicit in the right to life and

personal liberty guaranteed by Article 21 and must be interpreted in the light of the Directive

Principle of State Policy contained in Articles 41, 45 and 46

The Apex Court, however, limited the State obligation to provide educational facilities as

follows.

(i) Every Citizen of this Country has a right to free education until he completes the age of fourteen

years;

(ii) Beyond that stage, his right to education is subject to the limits of the economic capacity of the

state.

4 Mohini Jain V State of Karnataka, 1992 AIR 1858 5 Unni Krishan V State of Andhra Pradesh, 1993 AIR 2178

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Further the Supreme Court in M.C. Mehta V State of Tamil Nadu6 the Supreme Court observed

that, to develop the full potential of the children they should be prohibited to do hazardous work

and education should be made available to them. In this regard the Court held that, the government

should formulate programme offering job oriented education so that they may get education and

the timings be so adjusted so that their employment is should not be affected. Again in Bandhua

Muti Morcha V Union of India7 , Justice K. Ramaswamy and Justice Sagir Ahmad, observed,

illiteracy has many adverse effects in a democracy governed by rule of law. Educated citizens

could meaningfully exercise his political rights, discharge social responsibilities satisfactorily and

develop sprit of tolerance and reform.

Therefore, education is compulsory...., compulsory education is one 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) Act, 2002 had added a new

Article 21A 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". And further strengthened

this Article 21A by adding clause (K) to Article 51-A which provides ?who is a parent or guardian

to provide opportunities for education to his child or ward between the age of 6 and 14 years.?On

the basis of Constitutional mandate provided in Article 41, 45, 46, 21A and various judgments of

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 school for

one or the reasons. Some of these programmes are National Technology Mission, District Primary

Education Programme, and Nutrition Support for Primary Education, National Open School, Mid-

Day Meal Scheme, Sarva Siksha Abhiyan and other state specific initiatives. Besides, this several

states have enacted legislation to provide free and compulsory primary education such as- the

Kerala Education Act 1959, the Punjab Primary Education Act 1960, the Gujarat Compulsory

6 M.C. Mehta V State of Tamil Nadu, 1991 AIR 417 7 Bandhua Muti Morcha V Union of India, 1984 AIR 802

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Primary Education Act 1961, U.P. Basic Education Act 1972, Rajasthan Primary Education Act

1964, etc.

CONCLUSION

According to Article 21A of Indian Constitution every citizen have a right to education under our

Constitution. It is also a fundamental human right of every citizen, without which capabilities for

a decent life and effective participation in society are less likely to be developed. Since the RTE

Act has provided us the tools to provide quality education to all our children, it is now imperative

that we, the people of India, join hands to ensure the implementation of this law in its true spirit.

The Government is committed to this task though real change will happen only through collective

action and we must come forward willingly for the same. However, the Constitution of India and

Supreme Court have declared that the education is now a fundamental right of the people of India,

but it does not speak about millions of children who are in the age group of 0-5 years. It is needed

that the Constitution should again be amended and the children of age group of 0 -5 years should

be included; as by the time the child reaches the age of 6 years he/she gets in to the child labour

due to the poverty. Moreover the Constitution only ensures that the state shall provide primary

education to the children up to the age of 14 years, and the secondary and higher education is

contingent and conditional upon the economic capacity of the state. The right to education will be

meaningful only and only if the all the levels education reaches to all the sections of the people

otherwise it will fail to achieve the target set out by our Founder Father to make Indian society an

egalitarian society.

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RECOMMENDATION

1. It should be made mandatory in real terms to make all the deaths, births and marriages registered

and monitored by the state. Unfortunately not all the births and deaths are registered in our country.

The registrar general of India may be directed to ensure inclusion of all the births death and

migration as well as marriages registered for monitoring their well being and school enrolment.

2. 6 percent of GDP or 20 percent of Government expenditure should be provisioned for education,

and half of this public spending on education needs to be targeted towards elementary education.

3. To ensure quality of education, regular and trained teachers should be recruited in place of

untrained and Para teachers. Para teachers recruited so far should be trained and regularized.

4. The existing laws for protection of child rights should be enforced suitably and implemented

strictly for total eradication of the menace of child labour, child servitude and child trafficking,

and all the children of age group 0-18 years are enrolled in schools.

5. Provisions should be made in the said legislation for quality education system with measurable

indicators so that parents and community can monitor the quality of education.

6. All efforts should be geared to ensure the common schooling system for all the children

irrespective of their parent’s socio-economic status.

7. All forms of privatizations including the Public Private Partnership or franchise to corporate

bodies that leads to profiteering, commoditization and weakening the public education system

should be dropped.

TESTING OF HYPOTHESIS

Yes, the concept of Right to Education is considered as fundamental Human Rights not

only under the Indian Constitution but also under the Universal Declaration of Human

Rights, Right to Education Act.

Yes, the concept is same in both, but the Right to Education Act provides that all children

under the age of 14 should be given free education.

Yes, the hon’ble Supreme has implement the right very strictly.

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REFERENCES

BOOKS

1. Introduction to constitution of India by DR. DD BASU, ED. 20

2. Constitution law of India, DR. JN PANDEY, 51st Ed

3. Constitution of India, P.M. BAKSHI, 12th Ed

4. Constitution of India, H.M. SERVAI, 4th Ed

5. Development of education of education in India by S.P AGRAWAL, J.C. AGGARWAL, vol.5

ARTICLES

6. India Joint Report on India - Submission by National Coalition for Education and World Vision

India For Universal Periodic Review, 13th session, 2012

7. Right to Education by Sangeeta S Godbole

8. Education: A Fundamental Right in India by Vijay Pal Singh

OTHERS

8. http://mhrd.gov.in/rte

9. http://www.legalserviceindia.com/articles/edu_pes.htm

10. http://www.azimpremjifoundation.org/Right_to_Education

11. http://www.icbse.com/right-to-education-act

12. http://www.nesri.org/programs/what-is-the-human-right-to-education

CASES

13. Mohini Jain V State of Karnataka, 1992 AIR 1858

14. Unni Krishan V State of Andhra Pradesh, 1993 AIR 2178

15 M.C. Mehta V State of Tamil Nadu, 1991 AIR 417

16 Bandhua Muti Morcha V Union of India, 1984 AIR 802

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