The Right of Children to Free & Compulsory Education Act, 2009

KUMAR KAUSTUBH MANI, a 5th Year Law Student at LPU School of Law has written this article explaining all about The Right of Children to Free & Compulsory Education Act, 2009.

INTRODUCTION

The Right to Education is a fundamental human right recognized by the United Nations. It guarantees every child’s right to education without discrimination or exclusion, and it is also an essential component of human development and societal progress. Education is the most crucial investment for developing an economically prosperous society. Moreover, education is an instrument for ensuring social justice and equity. The Right to Education Act came into force on 1st April 2010 after 62 years of independence. India, passed the Right to Free and Compulsory Education Act of 2009 to ensure that every child between the ages of 6 and 14 has access to quality education.

The Act’s provisions aim to eliminate discrimination in education, provide free and compulsory education, and improve the quality of education in the country. Despite the Act’s enactment, there are still challenges in its implementation, such as insufficient infrastructure, inadequate teacher training, and unequal access to education. This paper aims to examine the Right to Education, its significance in promoting child development and human rights, and the challenges in its implementation. It also proposes solutions to overcome these challenges and promote the realization of the Right to Education as a crucial aspect of human rights and societal progress.

HISTORY OF EDUCATION

The Right to Education has a long history in India, dating back to the drafting of the Constitution. During the drafting process, the Sub-Committee on Fundamental Rights considered the right to primary education as a fundamental right. However, the Advisory Committee of the Constituent Assembly rejected this proposal and placed it in the category of Directive Principles of State Policy.

Between 1950 and Unnikrishnan’s case judgment in 1993, various policies developed regarding the issue. One of the significant policy developments during this period was the Indian Education Commission, also known as the Kothari Commission, which reviewed the state of education in India between 1964 and 1968 and made several recommendations

Kothari Commission’s

The Kothari Commission’s recommendations included the establishment of a common school system to eliminate inequality in educational opportunities. The National Policy on Education was then formed in 1968. This was the first official document to demonstrate the Indian Government’s commitment to school education. Interestingly, the policy also required special schools to offer a proportion of free studentships to prevent social segregation in schools. However, the policy retained the status of “directive principles” and was not legally binding.

National Policy on Education in 1986

The National Policy on Education in 1986 reaffirmed the goal of universalizing school education and also promised to take measures to establish a common school system. In 1990, the Acharya Ramamurti Committee recommended the inclusion of a fundamental right to education, and subsequent political and policy changes influenced the course of Free and Compulsory Education (FCE) in India.

India’s participation in the World Conference on Education for All in 1990 and ratification of the UN Convention on the Rights of the Child in 1992 brought greater international attention to its FCE initiatives. The legal breakthrough came in 1992 when the Supreme Court of India held in the Mohini Jain case that every citizen has a right to education under the Constitution. The Court subsequently reconsidered this judgment in the Unnikrishnan case and held that the right to education is implicit in and flows from the right to life present under Article 21. It must be construed in the light of the Directive Principles of the Constitution.

Moreover, the Unnikrishnan judgment empowered people with a legal claim to FCE, leading to a spate of litigations that relied upon the principle of law laid down in the judgment. Pressure from different quarters, including support from the judiciary, greater international attention, and increased civil society and grassroots-level campaigns, led to the introduction of a fundamental right to education.

Constitutional Amendment bill

The Constitutional Amendment bill was introduced in parliament with the aim of including a fundamental right to education. The proposed Amendment suggested the introduction of Article 21A, the deletion of former Article 45, and the introduction of Article 51A (K). However, there was a lot of debate and criticism regarding the contents of the Act. In November 2001, the bill was renumbered as the 93rd Bill, and later the 83rd Bill was withdrawn. The 93rd Bill proposed the amendment of former Article 45 to provide for early childhood care and education. Despite criticism, the Bill was eventually passed in 2002 as the 86th Constitutional Amendment Act.

Since the enactment of the Act, there have been various efforts to improve education access and quality in India, including the Sarva Shiksha Abhiyan (Education for All) program launched in 2001 and the Rashtriya Madhyamik Shiksha Abhiyan (National Mission for Secondary Education) launched in 2009. However, there are still challenges in ensuring education access and quality for all children in the country, particularly those from marginalized communities.

86TH CONSTITUTIONAL AMENDMENT ACT

The purpose of the 86th constitutional amendment act of 2002 is to protect the right to education for citizens in India. The education system in India has faced numerous challenges, and therefore, policymakers have found it necessary to amend the constitution and modify the educational policy to provide education to more individuals in the country.

This amendment act has introduced three new changes to the constitution, which will help in the better functioning and comprehension of the right to free and compulsory education for children between the ages of six to fourteen.

These are:

1. Insertion of new Article 21A in part III of the Indian constitution, which provides that every child has the right to free and compulsory education of equitable quality and subject to some norms and standards.
2. Bring alteration and modification in Article 45 and substituted as the State shall endeavour to assure early childhood care and free and compulsory education for all children until they complete the age of six years.
3. Adding the new clause, (K) under Article 51A, the result of this new fundamental duty is added which states that whosoever is a parent or guardian must furnish opportunities for education to his child or, as the case may be, ward between the age group of six to fourteen years.

Shyam Sundar case[1] 

In the Shyam Sundar case, the court emphasized that the right to education for children is more than just free and compulsory education. Instead, it should also extend to quality education without any discrimination based on the child’s economic, social, or cultural background. The court recognized that education is a fundamental right, and every child has the right to access education that is not only affordable and accessible but also of good quality. The court stressed that the State has to ensure that the right to education is not just available but is also accessible, acceptable, and adaptable to the diverse needs of children, including those from disadvantaged backgrounds. The decision highlights the importance of providing equal opportunities in education to all children, regardless of their background or circumstances

SALIENT FEATURES OF THE RIGHT TO EDUCATION

The Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) is a landmark legislation passed by the Indian parliament to ensure free and compulsory education to all children in the age group of 6 to 14 years. The salient features of the RTE Act are as follows:

Free and compulsory education:

The Act makes education a fundamental right of every child in the age group of 6 to 14 years and mandates that it shall be the duty of the government and local authorities to ensure that every child receives free and compulsory education.

No discrimination:

The Act prohibits discrimination on the basis of gender, caste, religion, ethnicity, or any other grounds in admission, retention, and completion of elementary education.

No donation or capitation fee:

The Act prohibits the demand of any kind of donation or capitation fee in the admission process.

Neighbourhood schools:

The Act mandates that every child is entitled to be admitted to a school in the neighborhood and that the government shall ensure that there is a sufficient number of schools in every locality.

Quality education:

The Act emphasizes the quality of education and mandates that every school should have a specified number of teachers with the necessary qualifications.

Curriculum and evaluation:

The Act prescribe a curriculum framework for elementary education and mandates that there shall be no board examination till the completion of elementary education.

Teacher qualifications:

The Act lays down the minimum qualifications required for teachers in schools and mandates that all teachers should be trained.

Monitoring and redressal:

The Act provides for the constitution of School Management Committees (SMCs) in every school and mandates that SMCs shall have the power to monitor the functioning of the schools and address grievances.

Financial provision:

The Act mandates that the government shall provide adequate funds for the implementation of the Act and that the central government and state governments shall share the financial burden in the ratio of 55:45.

Overall, the RTE Act seeks to promote the universalization of elementary education and ensure that every child in India has access to quality education.

IMPORTANT SECTION OF THIS ACT

The Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) has several important sections that are crucial for ensuring free and compulsory education for all children in India. Some of the important sections of the Act are:

Section 3 –

Right to Free and Compulsory Education: This section of the Act provides for the right of every child to free and compulsory education between the ages of 6 and 14 years. It makes it the duty of the government and local authorities to ensure that every child is able to exercise this right.

Section 12 –

Prohibition of Private Schools from Running Without Recognition: This section of the Act prohibits unaided private schools from operating without recognition or without fulfilling the prescribed norms and standards.

Section 13 –

Norms and Standards for Schools: This section of the Act provides for the norms and standards that schools must adhere to in order to ensure quality education. It includes provisions for infrastructure, pupil-teacher ratios, teacher qualifications, and other important aspects of schooling.

Section 15 –

Curriculum and Evaluation Procedure: This section of the Act provides for a flexible and child-centered curriculum that takes into account the diversity of learners. It also prohibits any form of physical punishment and makes continuous and comprehensive evaluation an integral part of the teaching-learning process.

Section 16 –

Teacher Qualifications and Training: This section of the Act provides for minimum qualifications for teachers and prescribes a training program for all teachers.

Section 21 –

Constitution of School Management Committees: This section of the Act provides for the constitution of School Management Committees (SMCs) in every school. The SMCs are responsible for monitoring the functioning of the school, preparing school development plans, and addressing grievances.

Section 23 –

Protection of Children’s Right to Free and Compulsory Education: This section of the Act provides for the protection of the child’s right to education and prohibits any form of physical or mental harassment of the child. It also provides for penalties for non-compliance with the provisions of the Act.

Overall, these sections of the RTE Act are critical in ensuring that all children in India have access to quality education and can exercise their right to free and compulsory education.

INTERNATIONAL LEGAL BASIS OF RIGHT TO EDUCATION[2]

The right to education is recognized as a fundamental human right under international law. The legal basis for the right to education can be found in various international instruments, including:

• Universal Declaration of Human Rights (UDHR) – Article 26 of the UDHR recognizes the right to education as a fundamental human right.
• International Covenant on Economic, Social and Cultural Rights (ICESCR) – Article 13 of the ICESCR recognizes the right to education as a fundamental human right and requires states to provide free and compulsory primary education, to develop secondary education and to make higher education accessible to all.
• Convention on the Rights of the Child (CRC) – Article 28 of the CRC recognizes the right of the child to education and requires states to make primary education compulsory and free for all.
• Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) – Article 10 of CEDAW recognizes the right of women to education and requires states to eliminate discrimination against women in education.
• African Charter on Human and Peoples’ Rights – Article 17 of the African Charter recognizes the right to education as a fundamental human right and requires states to promote education and ensure its accessibility.
• Inter-American Convention on Human Rights – Article 13 of the Inter-American Convention recognizes the right to education as a fundamental human right and requires states to promote and ensure access to education.

CASE LAWS RELATED TO THE RIGHT TO EDUCATION

The Unni Krishnan, J.P. v. State of Andhra Pradesh (1993)[3]

This case recognized the right to education as a fundamental right under Article 21A of the Indian Constitution, making education a right for children aged 6 to 14. The court held that education was essential for the development of an individual and society, and that it was the state’s responsibility to provide education. The case also mandated that private educational institutions receiving aid from the government must reserve 25% of their seats for students from economically and socially disadvantaged backgrounds. This landmark decision paved the way for the Right to Education Act of 2009, which ensured free and compulsory education for all children in India between the ages of 6 and 14.

The Mohini Jain v. State of Karnataka (1992)[4]

This case dealt with the issue of a student being denied admission to a professional college on the grounds of non-payment of fees. The Supreme Court of India held that the right to education is a fundamental right guaranteed by the Indian Constitution, and cannot be denied to anyone on the grounds of inability to pay fees. The court also observed that the state has a duty to provide education to all its citizens, and that the government and private institutions receiving aid from the government must take steps to ensure that education is accessible to all, irrespective of their financial background. The judgment has been significant in ensuring that education is not denied to students due to financial constraints.

Society for Unaided Private Schools of Rajasthan v. Union of India case (2012)[5],

The Supreme Court of India, in the case, upheld the constitutional validity of the Right of Children to Free and Compulsory Education Act, 2009. The act mandates free and compulsory education for all children aged between 6 and 14 years, and it was challenged by some private schools who argued that it violated their right to operate their institutions without government interference. However, the court held that education is a fundamental right of every child and the act is a reasonable restriction on the right to operate private educational institutions. The decision ensured that all children in India have access to education, regardless of their economic status

In Pramati Educational and Cultural Trust v. Union of India (2014)[6],

The Supreme Court of India ruled on the applicability of the Right of Children to Free and Compulsory Education Act (RTE Act) to unaided minority schools. The court held that the Act would apply to such schools, but with certain exceptions. Minority schools could still retain their autonomy in matters of admission and teacher appointments, but they would have to comply with the Act’s other provisions, such as providing free education to a certain percentage of students from economically weaker sections. The court emphasized that the RTE Act’s objective was to ensure education for all, including disadvantaged sections of society

In the State of Tamil Nadu v. K. Shyam Sunder[7]

In this case, the Supreme Court of India affirmed that the right to education is not only a fundamental right but also includes the right to receive a quality education. The court ruled that it is the responsibility of the government to ensure that the standard of education provided meets a certain level of quality. The case also emphasized the importance of effective monitoring and evaluation mechanisms to ensure that the quality of education is maintained. The decision highlights the significance of providing access to education of good quality as a means of promoting social justice and equality in society.

In the Modern School v. Union of India case[8]

The Supreme Court of India clarified that the right to education under Article 21-A of the Constitution is not merely an aspirational goal but a positive right. The court held that this right imposes a duty on the state to ensure access to education for all children of the age of six to fourteen years. The judgment emphasized that education is a key to the development of the individual and society and is essential for the growth of a democratic and secular country like India. The decision highlights the importance of the state’s duty to ensure that every child has access to education without any discrimination.

In the Govt. of NCT of Delhi v. Mohd. Yasin[9]

In this case, the Supreme Court of India held that the right to education under Article 21-A of the Constitution is a justiciable right. The court ruled that the state has a duty to ensure that every child has access to education and is not denied this right due to a lack of infrastructure or resources. The judgment emphasized that the state must take affirmative steps to fulfill its obligation to provide education to all children, especially those from marginalized communities. The decision highlights the importance of ensuring that the right to education is enforceable and that the state is held accountable for its obligations to provide education to all children.

ACCOMPLISHMENTS OF THE RIGHT TO EDUCATION ACT, 2009[10]

• The legislation has managed to raise the enrollment in the upper primary level education.
• Stricter infrastructure norms resulted in improved school infrastructure, especially in the countryside.
• More than 3.3 million students secured admission under 25% quota norms under this legislation.
• It led to a type of education that is all-inclusive, comprehensive, and reachable nationwide.
• Removal of the “no-detention policy” brought answerability in the system of elementary education.
• The Government has launched a consolidated scheme for improvement in school education. It is Samagra Shiksha Abhiyan. It incorporates three schemes of school education:
• Sarva Shiksha Abhiyan (SSA) ;
• Rashtriya Madhyamik Shiksha Abhiyan (RMSA) ;
• Centrally Sponsored Scheme on Teacher Education (CSSTE).

STEPS OF GOVERNMENT TO IMPROVE THE EDUCATION SYSTEM

There are several steps that a government can take to improve the education system. Here are some of them:

• Increase funding: One of the most important steps a government can take to improve education is to increase funding. This can be done by allocating more money to schools and universities, or by providing more scholarships and grants to students.
• Improve infrastructure: A government can also invest in improving the infrastructure of schools and universities. This could include building new classrooms, libraries, and laboratories, or upgrading existing facilities.
• Hire qualified teachers: Another important step is to hire qualified teachers and provide them with ongoing training and support. This can help to improve the quality of education and ensure that students are receiving the best possible instruction.
• Implement educational reforms: A government can also implement educational reforms to improve the curriculum and teaching methods. This could involve revising textbooks, introducing new teaching techniques, and providing more opportunities for experiential learning.
• Provide equal access: A government can also work to ensure that all students have equal access to education. This could involve providing financial assistance to low-income families, improving transportation to schools, and eliminating barriers to enrollment.
• Support research: Governments can also invest in research to improve the education system. This could include funding studies on effective teaching methods, or researching new technologies that can enhance learning.

SUGGESTION ON THE RIGHT TO EDUCATION

The right to free and compulsory education is a fundamental human right that ensures that all children have access to education without discrimination and with no cost. To promote and protect this right, it is important to make education compulsory for all children within a certain age range and make it free of cost, ensuring accessibility to all. Additionally, quality education should be provided, which can be achieved through adequate teacher training, appropriate curriculum, and adequate resources.

Discrimination in education based on any grounds should be eliminated, and education should be made affordable for all, especially for those from low-income families. Safe and secure learning environments should be ensured, and inclusivity should be promoted by catering to the needs of learners with disabilities and special educational needs. Regular monitoring and evaluation of the education system can identify areas of improvement, and international cooperation can support the development of education systems in developing countries and promote the right to free and compulsory education globally.

CONCLUSION

The Right of Children to Free and Compulsory Education Act 2009 is a landmark legislation in India that provides for free and compulsory education to all children between the ages of 6 and 14. The Act aims to ensure that every child in the country has access to education without any discrimination, and it provides for the establishment of schools, teacher training programs, and other infrastructure to support the implementation of the Act..

Overall, the Right to Education Act 2009 is an important step towards ensuring that every child in India has access to education, and it has the potential to make a significant impact on the lives of millions of children. However, there is a need for continued efforts to address the challenges in the implementation of the Act and to ensure that the right to education is fully realized for all children in the country.

Reference

[1] State of Tamil Nadu v. K. Shyam Sunder civil appeal nos.6015-6027/2011 available at: https://indiankanoon.org/doc/48937/ (last visited on March 24, 2023)

[2] International legal basis of Rights to Education available at: https://www.un.org/en/about-us/universal-declaration-of-human-rights (last visited on March 28, 2023)

[3] Unni Krishnan, J.P. v. State of Andhra Pradesh 1 SCC 645 (1993)

[4] Mohini Jain v. State of Karnataka AIR 1858, 1992 SCR (3) 658

[5] Society for Unaided Private Schools of Rajasthan v. Union of India case (2012)

[6] Pramati Educational and Cultural Trust v. Union of India. Writ Petition (civil no) 416 of 2012 available at: https://www.barelaw.in/case-brief-on-pramati-educational-cultural-trust-ACC-v-union-of-india-ors/ (Last Visited on  March 28, 2023)

[7] State of Tamil Nadu v. K. Shyam Sunder civil appeal nos.6015-6027/2011 available at: https://indiankanoon.org/doc/48937/ (last visited on March 28, 2023)

[8] Modern School v. Union of India case, the Supreme Court of India Appeal (civil) 2699 of 2001 available at: https://www.casemine.com/judgement/in/5609adefe4b0149711412959 (last visited on March 28, 2023)

[9] Govt. of NCT of Delhi v. Mohd. Yasin SCR (2) 999, 1983 SCC (3) 229 available at: https://www.casemine.com/judgement/in/56090afbe4b014971117379d (last visited on March 28, 2023)

[10] Accomplishments of the rights to education act 2009 available at: https://www.orfonline.org/research/ten-years-of-rte-act-revisiting-achievements-and-examining-gaps-54066/ (last visited on March 28, 2023)