Evolution of the Right to Education as a Fundamental Right

Education builds the foundation for the future of a child. Education accustoms a child to acquire knowledge, values, and skills and trains them to face competitions and hence, there is certainly a great need to get educated. So the children of India must exercise their constitution conferred Right to get an education. But this right did not emerge as a Fundamental Right with the commencement of the Constitution. It wasn’t even a legal right earlier. It had a long history behind the establishment of the Right to Education as a legal and a Fundamental Right and this takes us back to the historico-legal events in the 19th century.

The British Empire bought modern education along with them and introduced it in the Indian Sub-continent by only reserving it for the Brahmans and the higher castes excluding the masses. In 1882[1], Dadabhai Naoroji and Jyothiba Phule demanded the Education Commission for a ‘state-sponsored free education for all the children for at least four years”. Later the first law on compulsory education was introduced in Baroda. Gopal Krishna Gokhale, in 1911, bought a bill to the Imperial Assembly with the demand to make education compulsory but later was unsuccessful. Gandhiji used all his moral support to convince the Minister of Education of all the provinces in British India, to prioritise the basic education of 7 years and dedicate funds for assistance. But the Ministry replied back saying that it has no funds for the allocation. Though there was persistent demand for free and compulsory education for all the children during the independence struggle, the majority of the drafting committee members have voted for not making the ‘Free and Compulsory Right to Education’ a Justiciable Fundamental Right[2] (or generally called Fundamental Rights) and instead included in the Non-Justiciable Fundamental Rights under Article 45 of the Constitution where in other words, such a Non-Justiciable Fundamental Right couldn’t be contested in the court. From 1964-1968, the Indian Education Commission or the Kothari Commission examined the functioning of educational institutions in India and many recommendations were made. The most important of such recommendations was the implementation of the Common School System (CSS) to eradicate differences of gender, caste, creed, race, etc. while undergoing educational training. Later the National Policy of Education was formed being the 1st policy committed towards education to implement CSS. In 1990, the Acharya Ramamurti Committee recommended the inclusion of the Right to Education under Fundamental Rights but was not implemented.

For the 1st time, in the case Mohini Jain v State of Karnataka[3] the Supreme Court held that the “right to education is concomitant to the fundamental rights enshrined in the Constitution”. Supreme Court again reconsidered this decision in Unnikrishnan, J P v State of Andhra Pradesh[4] where the court said that non-explicitly mentioning the Right to Education as a Fundamental Right was not stopping the court to consider it as a fundamental right as this right flows from Article 25 of the constitution which talks about the right to life. This succinct judgement allowed people to claim legally for the right to free and compulsory education. So, pressure from the litigants, and support from the judiciary and the international attention forced the government to introduce a Constitutional Amendment Bill in the parliament to include the Right to Education as a Fundamental Right. The bill was passed against the resistance of the people upon the contents of the bill. Article 21(A)[5] says that all the children belonging to the age group of 6-14 years have the right to access free and compulsory education ‘in the manner the state may, by law, determine’. Article 51 (A) was also added imposing a fundamental duty upon the parents to furnish educational opportunities to their children. To adopt consequential legislation on granting and regulating the right to free and compulsory education, the NDA government in 2003-04 bought 3 drafts under the Right to Education Bill but was unsuccessful. Later 6 drafts were formulated by the UPA government where the 6th draft which was introduced in the Rajya Sabha in 2008 was adopted.

Right to Education Act 2009, provides every child with a full-time elementary education of contended and unbiased quality in a formal school. These schools have to comply with some rules laid down in the Act and non-compliance with the norms would earn fines and refusal of recognition from the government. A free and compulsory education is not all that the Fundamental Right grants for the children, and hence a good qualitative and a strong structural educational system is what the constitution impliedly provides. Many provisions are provided in the Act related to the promulgation of the Fundamental Right to Education. Some of them are to establish government schools within the neighbourhood of children, allocate funds to the educational system, provide reservations for the socially and economically weaker sections, and disadvantaged groups, institute School Management Committees to look over the functioning of the school, prohibit corporeal punishments, abide certain norms and standards for maintenance of schools, executing proper grievance redressal mechanism, etc[6].

Since the enforcement of the Act, there has been some development in the educational industry. The enrolment rate of the students is to have increased after the implementation of the RTE Act and the number of the upper-primary students enrolled was high. The annual average drop-out rate as the statistics explain, reduced from 9.1% to 4.7%. There has been infrastructural development in the schools with the providence of facilities like sanitation, drinking water, etc. There has been an increase in the number of teachers than before in the government-aided schools.

  [1] Niranjanaradhya, Aruna Kashyap, The ‘Fundamentals’ of the Fundamental Right to Education in India, ActionAid India 3 (2006), http://www.pecuc.org/Upload/CenterOfRight/46.pdf

[2] The Constitution offers the most important rights to its citizens which have a high degree of protection from encroachment. These rights are essential for existence and overall-development of individuals.  

[3] MANU/SC/0357/1992

[4] MANU/SC/0333/1993

[5] INDIA CONST. art. 21(A) amended by The Constitution (Eighty-sixth Amendment) Act, 2002

[6] P.P. Rao, Fundamental Right To Education, 50 Journal of the Indian Law Institute, 586, 592 (2008)

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

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