Law and You > Constitutional Law > National Emergency (Articles 352-355, 358, 359)
A nation cannot flourish unless its population is educated, as citizens play a critical part in the country’s development. In this article, let us look into the constitutional provisions and certain amendments which resulted in the enactment of programmes and the Right to Education Act, 2009.
Education is not just about learning facts. The purposes of education are to:
- lead to the full development of the human personality and the sense of its dignity;
- strengthen respect for human rights and fundamental freedoms;
- enable everyone to participate effectively in a free society; and
- promote human rights, equality and non-discrimination and peace through understanding, tolerance, respect and friendship among all nations and all ethnic or religious groups.
Since education has a significant role to play in the lives of the people, efforts at the international, national, regional, and local level, have been made to ensure that people have a right to education.
International Conventions:
India is signatory to many International Conventions.
- Universal Declaration of Human Rights: The Universal Declaration of Human Rights states “everyone has the right to education which shall be free, at least in the elementary and fundamental stages”.
- The International Covenant on Economic Social and Cultural Rights (ICESCR): Articles 13 and 14 of the ICESCR set out detailed formulation of the right to education. Article 13 contains a general statement that everyone has the right to education and that education should contribute to the full development of the human personality.
- Convention of the Right of the Child (CRC): Articles 28 and 29 of the CRC deal with the rights of the child to education. Article 29 stipulates that the education of the child shall be directed towards the development of the personality, talents and mental & physical abilities to the fullest potential.
- UNESCO Convention Against Discrimination in Education: The UNESCO Convention stipulates that States must undertake to formulate, develop and apply a national policy which will tend to promote equality of opportunity and treatment, and in particular to make primary education free and compulsory.
- Other Charters: The right to education is recognised and guaranteed under several regional human rights instruments like African Charter on Human and People’s Rights and African Charter on the Rights and Welfare of the Child; the American Declaration of the Rights and Duties of Man and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, and the European Convention on the Legal Status of Migrant Workers, etc.
India’s Approach to Right to Education:
There are many Constitutional Provisions for providing education to children.
- According to Article 45 of the Constitution of India, 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.
- According to Article 39(f) of the Constitution of India, 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 15(3) of the Constitution of India, contains an exception to the rule given under clauses (1) and (2) of Article 15. It empowers the State to make special provisions for women and children. It states that nothing in Article 15 should prevent the State from formulating any special provision for women and children.
- According to Article 38(1) of the Constitution of India, the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life
- According to Article 30(1) of the Constitution of India, all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
- According to Article 29(2) of the Constitution of India, no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
- In Unnikrishnan J P v. State of Andhra Pradesh, AIR 1993 SC 2178 case, the Supreme Court held that education is a Fundamental Right flowing from Article 21.
- The first official document on the Right to Education was the Ramamurti Committee Report in 1990.
- Tapas Majumdar Committee (1999) was set up, which encompassed insertion of Article 21A.
- The 86 Constitutional Amendment in 2002, provided Right to Education as a fundamental right in Part-III of the Constitution. It provided for a follow-up legislation Right to Education Act 2009.
- According to Article 51A(k) of the Constitution of India, 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.
Article 21A:
The 86th Amendment Act of 2002 makes the Right to Education in India a fundamental right under Article 21A. The Article lays down 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.
In order to ensure the implementation of these changes, in the year 2009, The Right of Children to Free and Compulsory Education Act was enacted by the Parliament, which was implemented from April. 01. 2010.
‘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 groups. 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 Article 21A of the Constitution, in accordance with the provisions of the RTE Act.
Right to Education Act, 2009:
The Right to Education Act (RTE) is enacted to make the right to education a fundamental right in the country. In August 2009, Parliament passed the act and came into force in 2010. The Act is completely titled “the Right of Children to Free and Compulsory Education Act”. Following this, India became one among the 135 countries that have made education a fundamental right of every child.
Objects of the Right to Education Act:
- The main objectives of Right to Education Act is to ensure that every child in India, irrespective of their caste, creed, gender and socioeconomic status, gets a quality education.
- To provide a justifiable legal framework that entitles all children between the ages of 6-14 years to an education of reasonable quality, based on principles of equity and non-discrimination.
- To provide for children’s right to free and compulsory admission, attendance and completion of elementary education
- To provides for the child’s right to education that is free from fear, stress and anxiety.
- To ensure that the teaching-learning process is free from stress and anxiety with obvious implications for curricular reform.
- To revise testing and grading systems to motivate children to deepen and widen their learning.
- To lay down the responsibilities and accountability of teachers.
- To ensure that children are learning and that their right to learning in an environment that is free from stress and anxiety is not violated
Provisions of the Act:
Right to Free and Compulsory Education:
Chapter II containing Sections 3 to 5 deals with the Right to Free and Compulsory Education
- The RTE Act aims to provide primary education to all children aged 6 to 14 years.
- The Act provides for free and compulsory education to children until they complete their elementary education in a school in the neighbourhood.
- ‘Free Education’ means no school fees, capitation fees, charges or expenses are to be paid by a child to get elementary education. i.e., removal by the state of any financial barrier that prevents a child from completing eight years of schooling.
- ‘Compulsory Education’ implies that it is an obligation on the part of the government to ensure the admission, attendance and completion of elementary education of children. i.e., the Act ensures the State that no child has left to get elementary education. It is also parental duty to send children to school.
- The child or his parents are not to be subjected to any screening procedure for admission to school.
- When a child of above six years has not been admitted to any school or, if admitted, is unable to continue studies, that child shall be admitted to a class appropriate to his age. He will be also given special training (minimum of 3 months; maximum 2 years) to bring him at par with his class. He can continue beyond 14 years in order to complete receiving elementary education.
- If a school does not provide facility to complete elementary education, then a child of that school can take a transfer to any other government or government-aided school.
- No child shall be failed or expelled from school up to class VIII (corresponds to the age group 6-14).
- Each child is also entitled to free text books, writing material and uniform.
Duties of Appropriate Government, Local Authority and Parents:
Chapter III containing Sections 6 to 11 deals with the Duties of Appropriate Government, Local Authority and Parents
The RTE Act defines “appropriate government” as –
- the Central government, for schools owned or controlled by the Central government or a Union Territory (UT) Administration without legislature; and
- the State and UT government with legislature, for schools established in the territory of that State/UT.
The appropriate govt. or the local authority (meaning a municipal corporation or municipal council or equivalent body in urban areas or a Panchayati Raj Institution – PRI – in rural areas) has to provide:
- a school within 1 km walking distance for children in classes I to V and within 3 kms for those in classes VI to VIII.
- In densely populated areas, depending on the number of children between the ages of 6 to 12, more than one school may be necessary.
- For remote areas, where distances are more than the prescribed kms, facility should be provided for free transportation or residence as required. Such a school is termed a ‘neighbourhood school’.
- The appropriate govt. or local authority has to undertake school mapping to determine the locations of neighbourhood schools.
- The location of each school has to be made known to the community it is meant to serve.
- All private schools (those that do not seek any govt. grants to impart education) in a neighbourhood are required to enroll 25% students from the weaker and disadvantaged sections of society and provide free education to them. These schools can then claim reimbursement from the govt. for the expenditure incurred, provided that, per child expenditure does not exceed the amount a govt. school spends to educate a child.
- The Central and State Governments have concurrent responsibility to provide funds for execution of the RTE Act.
- The Central govt., apart from carrying out the mandated functions of the appropriate govt. in respect of schools owned/controlled by it, is also responsible for
- preparation of the National Academic Curriculum,
- developing and enforcing standards for teachers’ training, and
- providing technical support to the State govt.’s for promoting innovations, research, planning and capacity building.
- The State govt. or local authority has to
- prescribe curriculum and courses for study for elementary education,
- ensure admission, attendance and completion of elementary education of the children and maintain records of children up to the age of 14 years,
- provide infrastructure including school buildings, teaching staff and learning equipment,
- see that children from the weaker and marginalized sections of the society are not discriminated against in school,
- provide special training facility for children not admitted to any school or those who have not completed elementary education,
- provide training to teachers and ensure each school follows the academic calendar,
- ensure good quality elementary education according the specified standards and norms (see Heading 5 below) and
- ensure that no new school is either started or allowed to function without obtaining a certificate of recognition form a designated authority and schools, already existing before the RTE Act came into effect, obtain such certificate within 3 years of the Act’s commencement
- It is the duty of every parent to admit their children or ward to school and ensure that they receive elementary education.
- The appropriate govt. has to make necessary arrangements to provide one year of free pre-school training for children.
Responsibilities of Schools and Teachers:
Chapter IV containing Sections 12 to 28 deals with the Responsibilities of Schools and Teachers
Duties of Teachers:
They have to:
- be regular and punctual in attendance,
- ensure completion of curriculum within specified time,
- assess the ability of each child and recommend special training, if required, and
- conduct parent-teacher meetings to apprise parents on attendance, learning ability and actual progress of each child
School Norms and Facilities:
- There should be one teacher for every 30 students for class I to V and one teacher for every thirty-five students for class VI to VIII.
- For upper primary section (Classes VI to VIII), there should be one teacher each for teaching (i) Science & Mathematics (ii) Social Sciences and (iii) Languages.
- A full-time Head Teacher is recommended for a school with more than 100 students.
- Classes I to V should have 200 working days & Classes VI to VIII 220 working days per academic year, with a 45-hour work week.
- Each school should have
- an all-weather building with one classroom for every teacher,
- an office cum store cum Head Teacher’s room,
- separate toilets for boys and girls,
- safe and hygienic drinking water facility,
- a kitchen to prepare mid-day meals,
- playground,
- fencing for the premises,
- a library, and
- teaching learning equipment & play & sports equipment.
All schools owned or aided by the govt. need to obtain a certificate of recognition
School Management Committees:
- Each govt. and govt.-aided school is mandated to set up a School Management Committee (SMC).
- 75% of the SMC members have to be from among parents and guardians of the students of the school.
- Proportionate representation has to be given to parents/guardians of disadvantaged students or students from weaker sections of society.
- Of the remaining 25% members, one third will be from among the elected representatives of the local authority, one third from among the teachers of the school and remaining one third from among local educationists/children of the school.
- 50% of the SMC members should be women.
- From among the parent members, SMC has to elect the Chairperson and Vice Chairperson while the Head/Most Senior Teacher shall function as the Member-Convener of the SCM.
- SMC will meet once a month and the minutes of meeting need to be made available to the public
- The SMC will oversee the working of the school, prepare school development plan and monitor the utilization of the govt. grant, among other things. The sanction of grants to a school is dependent on the school development plan developed.
- It is also the responsibility of the SCM to effectively communicate to the population in the neighbourhood of the school the rights of the child as defined by the RTE and protect children’s rights while in school.
Curriculum and Completion of Elementary Education:
Chapter V containing Sections 29 and 30 deals with the Curriculum and Completion of Elementary Education.
- The State Council for Educational Research & Training (SCERT) will be the academic authority to develop the age-appropriate academic curriculum keeping in mind the following:
- All round development of the child.
- Developing of child’s knowledge, potentiality and talent.
- Development of both physical and mental abilities.
- Learning through discovery, exploration and activities in a child friendly manner and environment.
- Medium of instruction should be the child’s mother tongue.
- Comprehensive and continuous evaluation of the understanding and application of child’s knowledge shall be adopted instead of periodical examinations
Chapter VI containing Sections 31 to 34 deals with the Protection of Right of Children. Chapter VII containing Sections 35 to 39 contains miscellaneous provisions.
Case Laws:
In Bandhua Mukti Morcha v. Union of India, case, the Supreme Court held that while exploitation of the child must be gradually banned; other substitutes to the child should be developed including providing education, health care, nutrient food, shelter and other means of livelihood with self-respect and dignity of person.