Right To Education – A Fundamental Right (Article 21-A)

Introduction

“Education is the primary key to unlocking other human rights”. -Katarina Tomasevski, Croatia, UN Special Rapporteur

Education, the key to unlocking the sense of justice and injustice, has long been serving the purpose of awakening the desire to be aware of other fundamental rights. The essence of education in human life is to bring stability and uplift problem-solving abilities and creative skills, including the elevation in critical analysis capacity and pursuing an undeniable passion. Henceforth, mandating overall access to education for every child irrespective of any social background and gender shall contribute to the generation of necessary skills, knowledge, ethics, and attitudes among children that would make them active and dutiful citizens of our country.

What are Fundamental Rights?

Fundamental rights have been stated in the Constitution of India as the basic human rights which are guaranteed to all citizens. They are applied without any discrimination based on race, religion, gender and caste.[1] Significantly, fundamental rights are justiciable rights. Therefore, they are enforceable by the courts, subject to certain conditions. The term fundamental right provides primarily two explanations for these rights are:

  1. Expressly mentioned in the Constitution, which in turn guarantees them.
  2. Enforceable in the court of law in the event of any violation.

Fundamental Rights are mentioned under Article 12 to Article 35 of the Indian Constitution. However, these Fundamental rights are not absolute. Therefore, they are subject to reasonable restrictions that are concerned with the security of the state, standards of public morality and decency and amicable relations with foreign countries. Constitutional Amendment by the Parliament could amend Fundamental rights so far, and the amendment is not altering the basic structure of the Constitution.[2]

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The Essence of Right to Education (Article 21-A)

Initially, the right to education was not a part of the fundamental rights enumerated in the Indian Constitution. However, the mention of the Right to Education long existed under Article 45 as the Directive Principle of State Policy. Article 45 expressly states that within 10 years from the Constitution’s commencement, the state has a duty to provide free and compulsory education for all children until they attain the age of 14 years.[3] However, such direction under Article 45 was not limited to only primary education but instead extended to providing free education to all children up to the age of 14 years, irrespective of the stage of education. Furthermore, the Supreme Court has mentioned that the state could discharge the foremost obligation under Article 45 through government-aided schools, and it is not required to be performed at the expense of the minority communities.

Effects of 86th Amendment (2002)

The Constitutional Amendment is made with the intent to protect the citizen’s rights to education, as well as to estimate the forthcoming and existing challenges in India concerning education. Three main provisions in Constitution that 86th Amendment, 2002 incorporates, which in turn promotes free and compulsory education to children between the age 6 to 14 years. They are as follows:-

  1. Incorporation of Article 21A as the Fundamental Right has expressly mentioned the right of every child to have access to full-time elementary education that would attain the standard of equality and quality through a formal school which would be satisfactory in terms of setting the norms and standard of the education.[4]
  2. Before the 86th Amendment 2002, Article 45 of Directive Principles of State Policy stated that free and compulsory education shall be provided to children up to the age of 14 years old. However, subsequent to the amendment, Article 45 was altered and modified, which entails that the state shall endeavour to impart early childhood care and education for every child till the age of 6 years instead of 14. The age limit has been lowered to emphasize the prominence of early childhood care and education.[5]
  3. Article 51-A(k) was added as the fundamental duties of the parents and guardians to provide and facilitate the opportunities for education to their children who are between the age group of 6 to 14 years.

Right to Education (RTE) Act 2009

The Parliament enacted the Right to Education Act 2009 (RTE Act) intending to regulate the degradation of the standard of the education system and to uplift the education imparting procedure by implementing specific provisions that required certain reformations to live up to the spirit of catering a quality and equitable education irrespective of caste, creed, gender economic and social background.[6] The Act was enacted on 4th August 2009 and came into force on 1st April 2010. The principal features of the Act are as follows:

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  1. The Act clearly mentions that education is the Fundamental Right of every child.
  2. Private schools must keep 25% of seats reserved for children belonging to the backward classes in terms of social background.
  3. The Act also assures educational rights for dropout students.
  4. Unrecognized schools are barred from interviewing a child or a parent for admission.
  5. Schools are barred from charging any capitation fees at any step while providing admission to a child.
  6. Children pursuing elementary education shall not be expelled, held back, or pressured to pass a board examination.
  7. The Act mandates that every government and aided schools create a School Management Committee composed of 75% of members as parents or guardians.
  8. The Act prohibited physical punishment, mental harassment and private tuition by the teachers.
  9. The Act states the provisions for a child’s admission to an appropriate class based on his/her age in the event that child has never been admitted to any school. To help keep up the child with other students, provisions relating to special training have also been mentioned in the Act.[7]

The RTE Act 2009 acted as a catalyst in accelerating the spirit of imparting free and compulsory elementary education to children between the age group of 6 to 14 years. Subsequent to the inception of the Act, a drastic change came about in the standard of education both in access and enrolment levels; literacy rates of the states also elevated at large. However, lately, due to a lack of an appropriate regulatory framework, the practical application and compliance with the provisions of the Act are facing repeated failure.[8]

Intake of Indian Judiciary on Article 21-A

The Supreme Court of India has repeatedly upheld the impact of Article 21-A in several Public Interest Litigation cases, such as:

Mohini Jain v. State of Karnataka 1992 AIR 1858

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The Court, in the absence of any Constitutional Provision for the Right to Education, held that the right to life and personal liberty under Article 21 includes the Right to Education as education is required for the overall development of personality, without which one would not be able to have the enjoyment of his right to life. The purpose of the right to life is baseless without the Right to Education.

Unni Krishnan, J.P & Ors. v. State of Andhra Pradesh & Ors. 1993 AIR 217

By narrowing the approach taken by the Mohini Jain case, the Supreme Court held that the Right to Education is undoubtedly a Fundamental Right that stems from Article 21. However, the right to free education is available to children until they attain the age of 14 years; after that, the obligation of the state to provide education is subject to economic capacity and development.

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Avinash Mehrotra v. Union of India 6 SCC 398 (2009)

The Court held that it is a fundamental right to have access to education free from the fear of security and shall have appropriate safety measures in case of any threat to life. Therefore, the right to education includes providing safe schools in accordance with Articles 21 and 21A of the Constitution. No matter where a family seeks to educate its children, even if it is a private institution, the state must ensure that children suffer no harm in exercising their fundamental right to education.

Conclusion

One of the pivotal roles of the Indian Legislature in Indian history is to ensure that every child must receive a primary education which is the fundamental right of every child. The nation’s future lies with its children. Education is, therefore, a tool for introducing a child to cultural and ethical values, thereby preparing him for future professional training and assisting him in making a normal adjustment to his surroundings. A child today cannot succeed in life without education. The fundamental right to education applies to everyone equally. The most crucial component of higher education is elementary education, which should be upheld with prominence to bring about the nation’s overall welfare.

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Frequently Asked Questions (FAQs)

Who introduced Article 21-A?

Article 21-A was inserted in the Indian Constitution by the Tapas Majumdar Committee, which was established in 1999, to insert the article in the Constitution. In the year 2002, the 86th Amendment to India’s Constitution designated education as a fundamental right in Part III of the Constitution.

What is the difference between Article 21-A and Article 45?

Article 21-A states that the state shall mandatorily impart free and compulsory elementary education to children belonging to the age group of 6 to 14 years. On the contrary, Article 45 states that the state is not obligated to provide the same; rather, the state shall endeavour to provide every child upto 6 years of age an early childhood education and care. Therefore, Article 21-A is a guaranteed fundamental right, while Article 45 is a directive principle of state policy.
For example, any person of age group between 6 to 14 years can approach the court of law under Article 21-A if he or she has been deprived of free and compulsory education since Article 21-A is a Fundamental Right under Part III of the Constitution. However, asimilar case shall not prevail in the case of Article 45. The aggrieved person cannot move to a court of law against the state in the event of not providing early childhood care and education by the state to children upto 6 years of age. No cause of action shall lie in the event of non-compliance of the state with Article 45 unless the executive frames any policy or the legislature makes a definite law in that regard since it falls under Part IV, Directive Principle of State Policy.

What is the legal remedy in the event of a breach of Article 21-A?

The right to education was initially a Directive Principle of State Policy and was not enforceable in a court of law. Later, judicial decisions held it as an integral part of Article 21 as a Fundamental Right and are now necessary for a stable life. Therefore, the right to education then attained the level of being enforceable in a court of law.
In 2009, although RTE Act vividly discussed the rights of citizens and the state’s obligation in implementing the Act’s objectives, the state and the private institutions repeatedly violated the right. Violation of RTE by private schools and institutions, lack of penal action against such schools and institutions and a massive failure to establish regulatory bodies for teachers are the primary reasons for the failure of the objectives of the RTE Act 2009. Proper compliance with the RTE Act 2009 is impossible without an appropriate regulatory framework.

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[1]Gursharan Singh Kainth “Right to education” Bharti publications Delhi 2014, page no. 29.

[2]Madan, Amman (2003)” Education as vision for social change, Economic and Political Weekly May 31, 2003 pp.2135-2136.

[3] Prof. Krishna Pal Malik “ Right to Elementary Education” pg no.01 Allahabad Law Agency, Faridabad 2012.

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[4]Dr. J N Pandey,” The Constitutional Law”p.317 Central Law Agency, Allahabad 2004.

[5]S. Nurullah and JP Naik, “A student History of education in India “p. 60 Macmillan & co. Ltd. England,1962.

[6]Agrawal, Tushar. “Right to Education Act and Educationally Backward States in India.” SSRN Electronic Journal, 2012, doi:10.2139/ssrn.1985122.

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[7] BL Hansari A Pasayat, Right to life and liberty under Constitution, NM Tripathi, Oct 28 2008.

[8]Nishathajaswal, Role of Supreme court with regard to the Right to life and personal liberty, Ashish public house 1990, 438 – 439 pg, Oct 28 2008.

Amrapali Mukherjee

I have completed my Masters in Commercial and Corporate Law from the Queen Mary University of London with upper merit and a distinction in the dissertation, currently, I am working as a Legal Advisor for a partnership firm at Kolkata.

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