The Right To Education Act – The Corner Stone Of India’s Literacy Program

By Divyanshu Sharma

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Education has been the most important aspect of every civilization. However, most societies had restricted the access to education to the elite class of the society, like the Whites in America, the Brahmins in India and the alike. However, with the introduction of human rights, based on the idea of equality, states started providing education to each and every section of the society. But providing this service to each citizen of a big country like ours wasn’t a cakewalk.

While the drafters of the Indian Constitution emphasized on establishing equality in each sphere of life, like political, social and economic, equality in the education sector wasn’t given much importance. Though education was a part of the Constitution from the beginning, it was not a fundamental right, as we see it today. This right has been established as a fundamental right, bolstered by several legislations like the Right of Children to Free and Compulsory Education Act 2009 and several programs launched by the government.

 

Constitutional Developments

The Indian Constitution consists of several Directive Principles of State Policy, which are guidelines for the government to work in a particular manner, towards the goal of social welfare. Education was initially covered under the DPSPs, under Article 45 of the Constitution. Article 45 put a duty on the state to provide education and basic care till the age of six years. While the intention of the Constitution makers was to ensure equal access to education to all the sections of the society, but since Article 45 was a DPSP, it was not enforceable.

While education as a right was restricted to a very limited sense, the Supreme Court, as the supreme interpreter of the Constitution expounded Education as a major legal and constitutional right. The case of J.P. Unnikrishnan v. State of Andhra Pradesh recognized that education is a fundamental right covered under Right to Life, under Article 21 of the Constitution. The Court stated that it is the duty of the state to provide good level of education to the children of the nation, to its best possible capabilities.

 

Article 21A and RTE Act 2009

The growing consensus of the society was that education should be made a constitutional right. Thus, through the Constitution (Eighty Sixth) Amendment Act 2002, Article 21A was introduced in the Indian Constitution. This Article provided that it is the duty of the state to provide “free and compulsory” education to all the children between the age group of 6-14 years of age. While this Amendment was passed in 2002, it was implemented in 2010 along with the introduction of a new legislation.

Article 21A was implemented in its true essence with the introduction of Right of Children to Free and Compulsory Education Act 2009, also known as the RTE Act. This Act provided a right to all the children in the country, irrespective of sex, religion, and caste to receive equal subsidized education from the age of six to fourteen years. This Act contained in detail the procedure to be followed by the state for upholding this right of the citizens. Most importantly, the RTE Act 2009 clarified two major terms associated with Article 21A, which were being widely debated – “free education” and “compulsory education”.

The Act clearly stated that “free education” means that the children, other than those children who have been enrolled by their parents or guardian in schools not supported by the government, would not have to pay any kind of fee to receive education in a government supported school which might prevent him/her to receive or complete his/her elementary education. “Compulsory education” meant an obligation on the state and the local authorities to ensure mandatory attendance, admission and completion of elementary education by the age of 14 years.

 

Unique Provisions of the RTE Act

The RTE Act 2009 was a unique piece of legislation as it placed the duty of providing education to the children completely on the government. While in most modern countries, this duty is equally shared among parents and the state, in India this duty is given completely to the State. Chapter Three of the Act talks in detail regarding the duties of the government and local authorities which includes financial management of schools, establishment of neighborhood schools, drafting a common a national curriculum and providing the infrastructure and trained teaching staff for imparting good education. Section 11 of the Act also talks about providing pre-school education and early childhood care till the age of six years, thereby upholding Article 45 of the Constitution as a legal obligation.

The most important provision of this legislation was that it reserved 25% of the seats, in government and private schools, for children belonging to the Scheduled Class, Scheduled Tribe and Economically Backward students.

In order to promote social equality in access to education, this Act vehemently removed capitation fee, which could act as a deterrent to many families for sending their children to school. Capitation fee is an excess fee charged by schools for providing admission to a student. Stringent punishment has been given to those schools which charge capitation fee.

Secondly, the Act recognizes the truth that even today there are some families, belonging to tribes and backward areas, which do not have a proper birth certificate. While admission to a school under this Act is given on the basis of the age of the child, but the Act provides that admission cannot be denied on the ground of not having a birth certificate, under Section 15 of the Act. This makes the Act more society friendly.

Another important aspect of this Act is that it puts a complete ban on using physical violence against children, as a means of punishment. Section 17 of the Act clearly states that stringent action would be taken against teachers and management member, who use physical or mental violence against students.

 

RTE (Amendment) Act 2019

Section 16 of the RTE Act 2009 provides for a no-detention policy. This means that it was provided that a school cannot hold back a student, if he/she fails in the examination. In 2019, an amendment was introduced which provided that if a student fails in the final examination, he/she shall be detained. In case a student fails, re-examination shall be taken after two months. If the child fails in the re-examination, the concerned state government might decide whether the student is to be detained or not. This meant that the respective state has to decide whether to implement the detention policy or not. The decision of removing the no-detention policy has been widely debated.

 

Conclusion

Education as an essential aspect of human life was not initially recognized as a legal right in the Indian Constitution. Judicial pronouncements time and again reasserted that right to education is a fundamental right, under Right to Life. The growing social demand for an individual right to education led to the introduction of Article 21A in 2002, which provided for free and compulsory education for children between 6-14 years of age. This right was supplemented by the Right of Children to Free and Compulsory Education Act 2009 which put an obligation on the state to ensure good education for all children in the country. It laid down several provisions for the same. The 2019 Amendment to the Act removed the no-detention policy, which has been widely debated. 

 

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Divyanshu Sharma is a 2nd Year Law student at National Law University, Delhi. An avid researcher, he enjoys reading about several contemporary legal and political issues. He is passionate about the feminist aspect of law and likes to understand law in this direction. His core interests include Constitutional Law and Commercial Law.