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RIGHT TO EDUCATION IN LIGHT OF ARTICLE 21

Author: Suhani Dhariwal, IV year of B.A.,LL.B.(Hons.) from Jagran Lakecity University


Abstract

Education is an essential component of every person's existence. When a person is educated, he gains information, learns social behaviours, and learns how to live in society. Simply said, if a person has some dignity in society, he will be respected, and the only way to achieve dignity and individuality is via education.

As a tool, education is the most powerful instrument for human growth. Human beings are emancipated by education, which leads to their emancipation from ignorance. Education is today viewed as both a human right and a tool for social transformation. Everyone has the right to education, according to Article 26(1) of the Universal Declaration of Human Rights. At least in the early and fundamental phases, education must be free. Thus, the provisions of the Right of Children to Free and Compulsory Education (RTE) Act 2009, which took effect on April 1, 2010, reinforced the UN proposal. In reality, this statute establishes the government's educational responsibilities. The writers of this article have attempted to emphasise the constitutional and legislative perspectives of Article 21-A's entitlement to free and compulsory education. The primary goal of this research is to look into the Indian system's approach to compulsory schooling in light of Article 21, as well as to find flaws in the current RTE Act.


Introduction

Education is a fundamental human right that is required for the full enjoyment of all other human rights. It encourages individual independence and empowerment while also providing significant development advantages Despite this, millions of children and adults are denied educational opportunities, typically due to poverty.Education is a great tool for people and children who are economically and socially oppressed. Education can help them to rise out of poverty and fully participate in society.


Children are the most valuable asset of every society. During the formative years of a child's life, they must be well groomed. They need to go to school, acquire knowledge of human and materials, and bloom in such an environment that, when they reaches adulthood, they can be recognised as a human on a mission, a human who matters in the eyes of society.


Any nation's future is inextricably linked to its children. When we talk about a child's right, we're talking about the rights of a kid who may not even realise he's in a minority because he doesn't grasp what's in his best interests. As a result, it is the responsibility of the people to think about, develop, and fight for their rights. Particularly in relation to his schooling or education.


The child is a soul with a being, a nature and capacities of its own, who must be helped to find them, to grow into their maturity, into a fullness of physical and vital energy and the utmost breadth, depth and height of its emotional, intellectual and spiritual being; otherwise there cannot be a healthy growth of the nation[i]. – PN Bhagwati, Former CJI


India is home to 19% of all children on the planet. This implies that India has the world's greatest youth population, which is mostly advantageous, especially when contrasted to nations such as China, which has an ageing population. The bad news is that India accounts for one-third of the world's illiteracy rate. It's not that literacy levels haven't grown; rather, the rate of improvement has slowed dramatically. For example, overall literacy increased by 12.6 percent from 1991 to 2001, but has since fallen to 9.21 percent.


To combat this alarming trend, the Indian government inserted Article 21A into the Indian constitution, making the right to education a fundamental right for all children aged 6 to 14 years, and they proposed the Right to Free and Compulsory Education (RTE) Act, which is the impactful regulation proposed under Article 21-A.


It is the government's job to guarantee that all citizens receive a good education. It is in the economy's best interests to have literate workers rather than unskilled workers. The government benefits more in the long run if its population are educated and well-read. Education also raises awareness of issues such as health, cleanliness, and economy. Increased awareness helps to prevent the spread of epidemic and endemic illnesses, which saves money on medical care.


Right to Education as a Human Right

Many human rights issues cannot be resolved unless the right to education is addressed as the key to unlocking other human rights. The right to education is explicitly stated in the 1948 United Nations Universal Declaration of Human Rights (UDHR), which reads:


“Education is a right that everyone possesses. At least in the early and fundamental phases, education must be free. Elementary education will be required of all students. echnical and professional education must be broadly accessible, and higher education must be merit-based and open to all. Parents have the right to decide what type of education their children will get.”[ii]

Education is a fundamental human right for everyone, according to the Universal Declaration of Human Rights, and this right is further defined in the Convention against Discrimination in Education.


What does having the right to an education imply?

  1. Free, obligatory, and universal primary education

  2. Secondary education, including technical and vocational education, that is widely available, open to everybody, and becoming increasingly free

  3. Higher education, which is increasingly free and available to everybody based on individual potential.

  4. Individuals who have not completed their school should receive a basic education.

  5. Opportunities for professional development

  6. Minimum criteria ensure equal educational quality.

  7. Teachers' materials and high-quality instruction

  8. Appropriate stipends and living conditions for teaching employees

  9. Choice and liberty


Why is education regarded as a basic human right?

Education is a fundamental right that is required for the practise of all other human rights.

  1. Aiming towards the development of a well-rounded human being, quality education is important.

  2. It is one of the most effective means of reintegrating socially excluded children and adults into society. According to UNESCO estimates, the number of poor people worldwide might be cut in half if all adults finished secondary school.

  3. It closes the gender gap for women and girls. According to a UN research, each year of schooling decreases the risk of infant death by 5% to 10%.

  4. Equality of opportunity, universal access, and enforced and monitored quality standards are all required for the fundamental right to labour.


What safeguards are in place to protect the right to education?

Governmental commitments and normative international tools are used to establish the right to education. A strong international framework of conventions and treaties protects the right to education, and countries that sign them promise to respect, preserve, and fulfil it.


Aside from the UDHR, several international human rights accords recognise, defend, and promote the right to education, including the following:

  • Article 3 of the Convention on Discrimination in Employment and Occupation (1958)[iii];

  • Article 1(2) of Convention against Discrimination in Education (1960)[iv];

  • Article 13 of the International Covenant on Economic, Social, and Cultural Rights (1966)[v];

  • Article 10 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1981)[vi];

  • Article 28 and 29 of the United Nations Declaration on the Rights of the Child (1989)[vii].

As a result, these international treaties have long recognised the right to education as covering not just access to educational opportunities, but also the need to eradicate discrimination at all levels of the educational system, establish minimum standards, and enhance quality. In terms of the treaties' application in India, it's worth noting that the ICESCR, the CERD Convention, the CEDAW Convention, and the Convention on the Rights of the Child all include India as a signatory.


Right to Education in India and its complications

Education is the most effective vehicle for human growth. It broadens, enhances, and improves a person's vision of the future. Recognizing the relevance and significance of the right to education, the nation's founding fathers made it a fundamental aim and included it in the Indian constitution. The promise expressed in the constitution's preamble and many clauses.


The right to education was not included as a fundamental right in the constitution at first, but was added as a Directive Principle under Article 45, which required the state to make every effort to provide free and compulsory education for all children until they reached the age of 14 years within ten years of the constitution's inception.


During this time, the Supreme Court inferred the 'Right to Education' from other constitutional articles including:

  • Article 21- Every person has the right to life and personal liberty under Article 21 of the constitution. Right to education is included in the right to life and personal liberty.

  • Article 24- Children under the age of 14 are not allowed to work in dangerous vocations.

  • Article 39(e) &(f) - It urges that children be protected against exploitation, as well as moral and material abandonment. These protections were put in place by the founding fathers to protect the interests of the weaker members of society.

  • Article 45 of the Constitution mandates that all children under the age of 14 receive free and obligatory education.

  • Furthermore, Article 46 states that the state is responsible for promoting the education and economic interests of the weaker members of society.

It is worth noting that, among the many Articles entrenched in Part IV, Article 45 has received special attention, since education is a vital requirement of democracy. Simply said, compulsory education is one of the ingredients necessary for democratic stability, social integration, and the eradication of social problems.


The Court stressed that the state's fundamental commitment under Article 45 "to provide for free and compulsory education for children" may be fulfilled through government and aided schools, and that this obligation does not have to be met at the expense of minority populations.


Claiming of Right to Education by Judiciary

The Indian Constitution is well renowned for its commitment to social justice. Literacy, according to experts, is the foundation for ensuring equitable opportunity. As seen by its education-related Articles, the Indian Constitution recognises education as a critical component of social reform.


The courts expressed a strong desire to provide free and obligatory education to all children under the age of 14. The right to education was established as a fundamental right as a result of two public interest litigation suits, namely Mohini Jain and Unni Krishnan. Although both instances involved the influence of state regulations on private educational institutions of higher learning, the court used the occasion to set a precedent that applied to public primary education as well.


The Supreme Court ruled in Mohini Jain vs. State of Karnataka , 20, that the right to education is a basic right under Article 21 of the constitution that cannot be denied to a person by imposing a higher price known as the captivation fee. From the right to life, comes the right to education. The division bench of two judges consists of Justice Kuldip Singh and RM Sahai, held that citizen’s right to education at all levels is a fundamental right, according to Article 21 of the constitution, collecting a captivation fee for admission to educational institutions is illegal and leads to denial of a citizen's right to education, as well as a violation of Article 14 of the constitution.


Following that, in Unni Krishna vs. State of Andhra Pradesh , 21, the Supreme Court was urged to review the court's ruling in the Mohini Jain case. The five-judge court found that the right to education is a basic right under Article 21 of the constitution, partially agreeing with the Mohini Jain ruling, since it "directly derives" from the right to life. In terms of content, however, the court largely reversed Mohini Jain's reasoning, stating that the right to free education is only available to children until they reach the age of fourteen., after which the state's commitment to offer education is limited by its economic ability and development. Articles 41, 45, and 46 impose obligations on the state, which can be met by the state either by creating its own institutions or by assisting, recognising, or providing affiliation to private organisations. Thus, the Supreme Court has established the right to education a core fundamental right by correctly and coherently construing the provisions of Part III and Part IV of the Constitution.


Enactment of 86th Constitutional Amendment

The Government of India inserted a new Article 21-A to the Constitutional (86th Amendment) Act of 2002, which states that "the state shall offer free and compulsory education to all children aged 6 to 14 years as the state may, by legislation designate[viii]."


The 86th Amendment Act 2002, which makes three specific provisions in the Constitution to facilitate understanding of free and compulsory education for children aged 6 to 14 years as a Fundamental Right, was enacted in order to protect citizens' rights to education and to understand the challenges in India regarding education. The following are some of them:-

  • With the addition of Article 21A to Part III, every child now has the right to a full-time primary education of adequate and equitable quality in a formal school that meets certain key norms and criteria.

  • Change and modify Article 45 to read: The state shall make every effort to ensure early childhood care and free and compulsory education for all children until they reach the age of six.

  • The addition of a new section to Article 51 A explicitly requires parents or guardians to provide chances for their children aged 6 to 14 years to get an education. [Article 51A (k)].


The Government of India, it is claimed, has taken several steps to eradicate illiteracy, improve the quality of education, and bring children back to school who have been absent for one or more reasons, based on constitutional mandates found in Articles 41, 45, 46, and 21A, as well as various Supreme Court judgments[ix].


The Right to Free and Compulsory Education Act, 2009

The Constitution (Eighty-sixth Amendment) Act, 2002 introduced the provision of free and compulsory education to children as a basic right, and Article 21-A was included. On August 4, 2009, the Indian Parliament enacted the Right of Children to Free and Compulsory Education Act, often known as the Right to Education Act (RTE).


To give effect to Article 21A of the constitution, the Right of Children to Free and Compulsory Education Act, 2009 was adopted. It included the right to basic education as part of the right to freedom, declaring that children aged 6 to 14 would receive free and compulsory education from the state. In 2008, six years after an amendment to the Indian constitution was passed, the cabinet approved the Right to Education Bill. On July 2, 2009, the cabinet passed the measure. The Rajya Sabha on July 20, 2009, and the Lokh Sabha passed the bill on August 4, 2009.


Following are some of the provisions of the Act:

  1. Every kid in India between the ages of 6 and 14 has the right to a free and obligatory school education till they complete elementary school.

  2. Children who have dropped out of school or who have not attended any school over a period will be enrolled in schools, and no institution will be able to deny them entry.

  3. When it comes to admission to class 1st, private and independent education establishments would be required to set aside 25% of seats for pupils from economically disadvantaged backgrounds.

  4. The age of a child shall be ascertained for the purpose of admission to a school on the basis of a certificate issued under the requirements of the Birth, Death, and Marriage Registration Act 1856 or on the basis of such other documents as may be required.

  5. The act will be monitored by the National Commission for the Protection of Children's Rights (NCPCR) and state commissions.

  6. Except for private unaided schools, all schools are to be controlled by school governing committees comprised of 75 percent parents and guardians.

  7. The child's mother language will be used as the medium of instruction, with a detailed and ongoing evaluation system of the child's performance.

It restricts:

  • Harassment both physically and mentally.

  • Children's admissions screening methods

  • Capitation fees are the third item on the list.

  • Teacher-led private tutoring.

  • Unrecognized management of schools.

RTE is a component of the State Policy Directive Principles outlined in Article 45 of the Constitution, which is included in Chapter 4 of the Constitution. Furthermore, the rights granted in Chapter 4 are not enforceable. For the first time in India's history, we have made this right enforceable by including it as Article 21 in Chapter 3 of the Constitution[x]. This ensures that children's right to education is protected as a fundamental right.


Conclusion/ Suggestions

Every generation hopes that the next will construct a nation that is better than the current one. As a result, every nation's first focus should always be education, which empowers the future generation. It is now widely accepted that the right to education can only be implemented on a national basis through compulsory education, or more precisely, free obligatory primary education. However, due to widespread poverty and societal biases, efforts to build an educational system in India that provides complete access, equality, and high-quality education have fallen short.


The Right to Free and Compulsory Education Act of 2009 must be implemented in its entirety in order to achieve the desired results. The Right to Education Act also excludes millions of children under the age of five from receiving an education. Penalties for individuals who break the rules must be adequately defined. Families and communities must play a critical part in making India's Right to Free and Compulsory Education Act, 2009 a huge success.


Mentally ill children require immediate access to basic amenities, as well as the essential training and mental development programmes. Existing schools were also obligated to provide basic infrastructure within three years of the Act's implementation, according to the Act. However, despite the fact that the RTE Act was implemented five years ago, the majority of Indian schools still lack the necessary facilities.


The government should move quickly to guarantee that all fundamental school amenities, such as appropriate meals, drinking water, sanitation, a library, and a playground, are available. Aside from these fundamental requirements, schools must additionally provide appropriate instruction using visual aids such as globes, charts, and photographs, as well as projects. They must also include extracurricular activities, such as field trips, art, games, dance, music, and quizzes, in order to interest pupils and aid in their personal growth.


In the education sector, there must be a strong and well-planned administration. Persons implicated in bribery, corruption, or prejudiced activity in the sphere of administration should be removed. When we look at who is at the highest level, we see the President (who grants the approval) and the Prime Minister (under whose leadership a law was formulated, executed and maintained). To give a competent education, all authorities must have some good faith and welfare views on its residents from top to bottom. By focusing on education, a country may grow all of its other aspects. Let us all wait and witness how India's educational system develops.

[i]Quote by Justice PN Bhagwati. [ii]https://www.ohchr.org/en/udhr/documents/udhr_translations/eng.pdf [iii]https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C111 [iv]ttps://www.ohchr.org/EN/ProfessionalInterest/Pages/DiscriminationInEducation.aspx [v]https://www.ohchr.org/documents/professionalinterest/cescr.pdf [vi]https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx [vii]https://www.ohchr.org/documents/professionalinterest/crc.pdf [viii]See, Constitution of India, 1950, Article 21-A [ix]National Technology Mission, District Primary Education Program, and Nutrition Support for Primary Education, National Open School, Mid-Day Meal Scheme, Sarva Siksha Abhiyan, and other state-specific efforts are some of these programmes [x]National Technology Mission, District Primary Education Program, and Nutrition Support for Primary Education, National Open School, Mid-Day Meal Scheme, Sarva Siksha Abhiyan, and other state-specific efforts are some of these programmes


PROPOSED CHAPTERISATION

Chapter 1- Introduction

Chapter 2 - Right to Education as a Human Right

Chapter 3 - Right to Education in India and its complications

Chapter 4 - Claiming of Right to Education by Judiciary

Chapter 5 - Enactment of 86th Constitutional Amendment

Chapter 6 - The Right to Free and Compulsory Education Act, 2009

Chapter 7 - Conclusion/ Suggestions


References

https://dsel.education.gov.in/rte

https://www.ijalr.in/2020/09/critical-analysis-of-right-to-free.html


Books referred

Textbook on Human Rights by DD Basu

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