17 Right to Education Act

Prof. Rehan Abeyratne

epgp books

 

 

Introduction

The right to education is a constitutionally protected right in India. In Unni Krishnan v. State of Andhra Pradesh (1993), the Indian Supreme Court declared that the right to education comprises part of the fundamental right to life under Article 21 of the Indian Constitution. In 2002, through the Eighty-Sixth Amendment Act, the Indian Parliament amended the Constitution to insert a fundamental rights provision, Article 21-A. It requires the state to provide free and compulsory education of all children between the ages of six and fourteen in such a manner as the state may determine. In 2009, the Indian Parliament enacted the Right of Children to Free and Compulsory Education Act to give the central and state governments specific directions on how to fully realize the fundamental constitutional right to education.

This module will introduce students to the Right of Children to Free and Compulsory Education Act (2009). It looks at how the Act came into being and some of its most important provisions. It also examines the implementation of the Act, including the challenges faced in rolling out the Act’s provisions.

Learning Outcomes:

After completing this module, students should know and understand:

  • The origins of the Right of Children to Free and Compulsory Education Act (2009). Important provisions within the Act.
  • Implementation of the Act and challenges encountered.

Origins of the Right of Children to Free and Compulsory Education Act (2009)

The Right of Children to Free and Compulsory Education Act (2009) [hereinafter “RTE Act” or “Act”] emerged from the Supreme Court’s judgment in Unni Krishnan v. State of Andhra Pradesh (1993). In that case, a Constitutional Bench of the Supreme Court held that the Constitution of India protects a fundamental right to education. This right constitutes part of the right to live with dignity under Article 21, when read in conjunction with Article 45 – a non-binding Directive Principle of State Policy that directed the state to ensure free and compulsory education to all children until age fourteen. Following the Court’s lead, the Indian Parliament passed the Eighty-Sixth Amendment Act (2002) that inserted Article 21-A into the Constitution of India. This provision reads as follows: “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 2009, in an effort to give meaning and specific direction to this new fundamental right, Parliament enacted the RTE Act.

Civil society mobilization was crucial for the passage of both the Eighty-Six Amendment and the RTE Act. This included a number of innovative measures taken by ordinary citizens in response to government failures to fully realize the right to education following the Unni Krishnan judgment. Take, for instance, the two-month all-India Siksha Yatra or “March for Education” in 2000-01. This was a 15,000 km march across 20 Indian states aiming to bring attention to the issue of child labor. It was organized by the South Asian Coalition on Child Servitude (SACCS), with the support of over one thousand other NGOs. The All India Federation of Teachers Organisations (AIFTO), the All India Primary Teachers Organisation (AIPTO), and the All India Association for Christian Higher Education (AICHE) all supported it this initiative as well. Meanwhile, the Eighty-Six Amendment was passed largely due to the efforts of civil society networks. The National Alliance on the Fundamental Right to Education (NAFRE), which includes 2,400 civil society organizations spread over 15 Indian states, and the Forum for Create and Child Care Services (FORCES) organized campaigns and other advocacy efforts to keep the issue of Constitutional amendment alive in Parliament after some failed attempts.

At the level of national politics, the Indian National Congress (INC) was at the forefront of the RTE Act. The INC headed the United Progressive Alliance (UPA), which formed a majority in Parliament from 2004-14. The UPA, led by the INC, passed the RTE Act in 2009 and has devoted significant resources to improve educational capacity in India. Under the UPA government, 1.98 lakh primary schools and 1.1 lakh upper primary schools were built. Moreover, per capita spending on education increased from Rs. 888 in 2004-05 to Rs. 2,985 in 2011-12.

The UPA was voted out of power in the 2014 general elections and has been replaced by the National Democratic Alliance (NDA) headed by the Bharatiya Janata Party (BJP). It remains to be seen how Prime Minister Narendra Modi and the new government approach the right to education.

II.Important Provisions in the RTE Act

Section 3 of the RTE Act reiterates the fundamental right to education as stated in Article 21-A of the Indian Constitution. It states that every child aged six to fourteen has the right to free and compulsory education. However, it also makes this right more specific, by providing that such education will be provided in a “neighborhood school” until the completion of elementary education. Section 12(1)(c) requires the state to reserve at least 25 percent of its seats for children belonging to “weaker section and disadvantaged group in the neighbourhood.” Crucially, this provision applies not only to government established and government-aided schools, but also to private schools unaided by the government.

The Act also contains important prohibitions on schools. Section 13, for instance, prevents schools from charging any capitation fee and from subjecting children to screening procedures for admission. Section 14 prevents the denial of admission for lack of age proof, while Section 16 prohibits schools from expelling or holding back students in any class until the completion of elementary education. Finally, Section 17 provides that no child shall be subjected to physical punishment or mental harassment.

The Act divides implementation responsibilities among the central government, state governments, and local authorities. Section 6 states, “the appropriate Government and the local authority shall establish…a school, where it is not so established, within a period of three years from the commencement of this Act.” Section 8, under the same definitions, provides that the “appropriate government” shall provide free and compulsory elementary education to all children. This includes ensuring compulsory admission, attendance and completion of elementary schooling in addition to providing the proper infrastructure, teacher training facilities, and quality control. Section 9 gives every “local authority” similar responsibilities including, inter alia, ensuring that every child gets a free, compulsory elementary education, ensuring that children belonging to “weaker” sections are not discriminated against, and providing infrastructure, teacher training, quality control of curricula.

The phrase “appropriate government” refers to state and union territory governments except in union territories without a legislature or in instances where a school is established, owned, or controlled by the central government. In those cases, the central government is the “appropriate government”. “Local authority” refers to any municipal government or panchayat that has administrative control over a school or a local municipality. Thus, in most cases, it is the responsibility of state governments and town/village level governments to ensure that the core objectives of the Act – to provide free, compulsory elementary education to all children – are fulfilled.

The central government, however, still plays an important in implementing the Act. Section 7(1) states that the central and state governments “shall have concurrent responsibility for providing funds for carrying out” the Act’s provisions. Section 7(3) requires the central government to provide to the State Governments certain percentages of expenditures, though Section 7(4) makes clear that, notwithstanding this limited funding from the central government, the state governments are “responsible to provide funds for implementation of the provisions of the Act.” The central government under Section 7(6) is also tasked with developing a framework national curriculum, developing and enforcing uniform teaching standards, and providing technical support to state governments to promote innovation, research and capacity building.

The RTE Act includes several provisions aimed at monitoring and grievance redressal. The Act makes use of several mechanisms for monitoring its implementation, including the National Commission for Protection of Child Rights (NCPCR) and the State Commissions for Protection of Child Rights (SCPCRs). Section 31 empowers the National and State Commissions for Protection of Child Rights, established under the Commissions for Protection of Child Rights Act (2005), to monitor compliance with the Act. These commissions are empowered, inter alia, to examine and review the safeguards for the rights in the Act, inquire into complaints with respect to free and compulsory education, and, following inquiries, report violations to the relevant government authorities for prosecution or approach the Supreme and High Courts, if necessary. Section 32 allows any person aggrieved under the Act to file a written complaint to the local authorities, who must decide the matter within three months after giving all parties reasonable opportunity to be heard. The local authority’s decision can be appealed to the SCPCR. In states where the SCPCR has not been constituted, the state government may constitute an authority to perform the functions of the SCPCR under the Act.

Article 21 of the Act requires the establishment of School Management Committees (SMCs) to monitor the workings of each school, prepare and recommend a school development plan, and monitor the use of funds from various government authorities. The Act requires every school (except for unaided private schools) to constitute an SMC. These Committees are designed to represent all relevant stakeholders in elementary education. At least three-fourths of the members of SMCs shall be parents or guardians, with proportionate representation of parents and guardians of children belonging to disadvantaged groups and weaker sections. Additionally, 50 percent of SMC members shall be women. States and union territories have begun the process of constituting SMCs in all schools. The SMC is likely to be sensitive to local needs and strengthen the implementation of the Act at the grassroots level.

 

In addition, 42 independent agencies of national repute have been engaged on a two-year basis to monitor compliance with the Sarva Shiksha Abhiyan (SSA) – the government programme introduced in 2001 aimed at universal elementary education. These Monitoring Institutions (MIs) submit reports every six months to the central authority. The half-yearly reports submitted by the MIs are shared with the concerned SSA State Project Directors of states and union territories for appropriate follow-ups and remedial action. The Institute of Public Auditors of India (IPAI) has also been appointed to conduct concurrent financial review of all the states and union territories. It submits reports to the Ministry annually that are shared with the respective states and union territories so that they may take necessary corrective action. The SSA also conducts third-party evaluation through independent agencies in the following states: Andhra Pradesh, Assam, Bihar, Chhattisgarh, Gujarat, Jammu and Kashmir, Madhya Pradesh, Maharashtra, Tamil Nadu, Uttar Pradesh and West Bengal.

III. Implementation of the Act and Challenges Faced

Since the RTE Act was passed in 2009, all state and union territory governments have issued the RTE Rules, or adopted the Central RTE Rules. Several states have issued instructions/notifications in order to (a) ban capitation fees, corporal punishment, detention and expulsion, and private tuition by school teachers; (b) specify working days/instructional hours; and (c) constitute the SCPCR or Right to Education Protection Authority (REPA).

The central government has also taken several steps towards implementing the RTE Act. Under Section 33(1), a National Advisory Council was to be established charged to advise the central government on implementing the Act. This Council was created on 29 March 2010.10 In addition, the National Council for Teacher Education (NCTE) and the National Council of Educational Research and Training (NCERT) have been notified as the academic authorities under Sections 23(1) and 29(1) of the RTE Act respectively.11 This means that they are responsible for appointing teachers as well as determining curricula and evaluation procedures for elementary education. The NCTE has set forth the minimum qualifications for teaching appointments in schools.

Despite these positive steps, many challenges remain in fully realizing the right to education under the RTE Act. The principal challenges include bringing out-of-school children into schools, filling up the large number of vacant teaching posts, training untrained teachers, and improving school adherence to the norms and standards specified in the Schedule of the RTE Act.

The RTE Act has also been the subject of litigation. In Society for Un-Aided Private Schools of Rajasthan Vs. Union of India (2012), the Act’s constitutionality was challenged before a Division Bench of the Supreme Court. The Court was asked to determine if Section 12(1)(c) of the Act is ultra vires of the Constitution insofar as it applies to unaided private schools and minority schools. Both were considered “schools” under the Act as per Section 2(n) and therefore subject to all the Act’s requirements. With respect to unaided schools (those that do not receive any financial assistance from the government), petitioners argued these institutions should not be required to reserve 25 percent of their seats for “weaker section and disadvantaged group in the neighbourhood” as per Section 12(1)(c). In 2002, the Supreme Court held in T.M.A. Pai Foundation v. State of Karnataka (2002) that private educational institutions are protected under Article 19(1)(g) of the Constitution. Thus, the question before the Court was whether Section 12(1)(c) of the RTE Act constituted a reasonable restriction under Article 19(1)(6). The Court found that requiring private schools to reserve 25 percent of their seats for disadvantaged groups was not a reasonable restriction, since they do not receive any government or assistance. It also found that this restriction violated the right of minority groups under Article 30(1) to establish and administer their own educational institutions.

The Court therefore held that Section 2(n) of the Act, applying the right to education enshrined in Article 21-A of the Constitution to all schools, should not be read to include minority schools and non-minority un-aided schools. Section 12(1)(c) was also read down as far as it applied to these two types of schools.

This case was later referred to a Constitutional Bench of the Supreme Court, which recently released its decision. The Constitutional Bench upheld the Division Bench’s judgment in Society for Un-Aided Private Schools insofar as it held that the Act was ultra vires of the Constitution vis-à-vis minority schools under Article 30(1). However, the Constitutional Bench reversed the other main conclusion of the Division Bench, holding that private, un-aided schools are subject to the Act’s requirements under Section 12(1)(c) and that this provision does not violate Article 19(1)(g) of the Constitution. Perhaps most importantly, the Constitutional Bench also declared, in general terms, that the RTE Act and the constitutional amendments inserting Article 15(5) and Article 21-A into Part III of the Constitution do not alter the basic structure and are constitutionally valid. Therefore, the right to education as a constitutional right has been clearly reaffirmed and should not be seriously challenged in the future.

Summary

The right to education was recognized as a fundamental right in Unni Krishnan v. State of Andhra Pradesh (1993). The Supreme Court held in this case that the right to education falls within the ambit of the right to live with dignity under Article 21 of the Constitution, when read in conjunction with Article 45. Following this judgment, the Indian Parliament enacted the Eighty-Sixth Amendment Act (2002) that inserted Article 21-A into the Constitution. The Right of Children to Free and Compulsory Education Act (2009) sought to give meaning and enforcement to this new constitutional right.

The RTE Act mandates free and compulsory education for all children between ages six and fourteen in neighbourhood schools. It requires schools to reserve 25 percent of their seats for “weaker section and disadvantaged group in the neighbourhood.” Schools may not subject children to capitation fees or admission screening procedures, deny children admission on the basis of lack of identification, hold back or expel children until they complete elementary education, or subject them to mental or physical abuse.

The Act divides funding and implementation of the Act among the central government, state governments, and local authorities, with the latter two given the most responsibilities. Monitoring and grievance redressal is handled by the National Commission for Protection of Child Rights, the State Commissions for Protection of Child Rights, and the School Management Committees. Individual complaints can be filed to local authorities, who must issue a decision within three months after allowing all parties a reasonable opportunity to be heard. These decisions can be appealed to the State Commission for Protection of Child Rights or other empowered authority.

With respect to implementation, every state and union territory government has issued have issued the RTE Rules, or adopted the Central RTE Rules. The central government has also taken many important steps towards full implementation including establishing a National Advisory Council and notifying the National Council for Teacher Education and the National Council of Educational Research and Training that they are the academic authorities in charge of appointing teachers as well as developing curricula and evaluation procedures.

The RTE Act has recently faced constitutional challenges before the Supreme Court. However, in Pramati Educational & Cultural Trust v. Union of India (2014), the Court mostly upheld the constitutionality of the Act, holding that it was only ultra vires insofar as Section 12(1)(c) violates Article 30(1) of the Constitution with respect to minority institutions. In all other respects, the Court reaffirmed that the right to education is an important fundamental right and that the RTE Act applies to most elementary educational institutions, including private, unaided schools.

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Reference

  • Sahi Nishaan, Manifestos Comparison: Education, available at: http://sahinishaan.in/manifestos-comparison-education/.
  • Right of Children to Free and Compulsory Education Act (2009), §§ 2(n), 12(1)(c).
  • Chanchal Chand Sarkar, “Right of Children to Free and Compulsory Education Act, 2009 and its Implementation”, India Infrastructure Report 2012, available at: http://www.idfc.com/pdf/report/2012/chapter_3.pdf, at 38.
  • In, State-Wise Information, available at: http://righttoeducation.in/resources/states.
  • Sarkar, “Right of Children to Free and Compulsory Education Act, 2009 and its Implementation”, at 38.