The word “Education” is derived from two Latin words “Educare” and “Educatum”. The word Educare means to train or mould. The term Educatum connotes the act of teaching. “Shiksha”, the analogous Indian word is derived from Sanskrit word “Shash” which means to discipline, to control, to order, to direct. There is no explicit explanation of what exactly Education is, yet different educationists attempted to define “Education” which lends us a hand in understanding the nature and meaning of education.
Swami Vivekananda described education as Education is the manifestation of perfection already in man. Like fire in a piece of flint, knowledge exists in the mind. Suggestion is the friction which brings it out.
Mahatma Gandhi profoundly said that “By Education I mean an all-round drawing out of the best in child and man-body, mind and spirit. Literacy is not the end of education or even the beginning”
Rigveda regarded Education as something which makes a man self-reliant and self-less.
Plato interpreted Education as something which develops in the body and soul of the pupil all the beauty and all the perfection he is capable of.
Rousseau described Education as child’s development from within.
T.P. Nunn explained Education as the complete development of the individuality of the child so that he can make an original contribution to human life according to the best of his capacity.
All these interpretations points to the importance of education for dignified human existence. That’s the reason Education is regarded as fundamental Human right under Article 26 of Universal Declaration of Human Rights which propound that everyone has the Right to Education. It further says that Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms.
Indian history evidenced the callous attitude of elites and bureaucrats towards Right to education. In 1870, the Compulsory Education act was passed in Britain which geared up the demand for the provision regarding mass education and compulsory education acts among Indian leaders in 1882. Subsequently in 1893, Maharaja of Baroda introduced Compulsory education for boys in Amreli Taluk which later on in 1906 extended to other states as well. It was for the first time, the word right was used in relation to elementary education in a letter written by Rabindranath Tagore to the International League for the Rational Education of Children in 1908. In 1906, Gopal Krishna Gokhale made the plea in the Imperial Legislative Assembly for free and compulsory education for all which was opposed by the upper class and the ruling British. Maharaja Darbhanga went one step further and gathered 11,000 signatures from the influential creamy layer to oppose the move. The argument was: if everyone was to go to school, who would tend to their agricultural land?
Certainly in 1917, Vithalbhai Patel succeeded in getting the first bill passed on compulsory education known as Patel Act. By 1918, every province in British India got compulsory education acts on its statute book. All these initiatives came to be established as dormant for the want of resources and lack of enforcement.
Comprehending the poor circumstances Mahatma Gandhi in 1937 in All India National Conference on Education held at Wardha mooted the scheme of vocational and manual training as basic education for a period of 7 years.
In 1947 constituent assembly inaugurated with the noble task of framing Indian Constitution and placed Free and Compulsory Education in the account of Fundamental Rights. Countering it the advisory committee turned down in putting Free and Compulsory Education as Fundamental right and placed it in the group of non-justiciable Fundamental rights i.e. Directive Principles of State Policy.
Certainly in 1950, despite of continual demand for education being Fundamental right; the provision for free and compulsory education was implanted under Article 45 as: “The State shall endeavor to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.”
Upon the inauspicious insertion of free and compulsory education in Directive Principles of State Policy, K.T. Shah dissented and argues that “once an unambiguous declaration of such a (justiciable) right is made, those responsible for it would have to find ways and means to give effect to it. If they had no such obligation placed upon them, they might be inclined to avail themselves of every excuse to justify their own inactivity in the matter, indifference or worse.” Indeed the foreseeability of K.T. Shah turned out to be true.
Despite the fact that Article 45 directed State to endeavor to provide free and compulsory education to all children until they complete the age of 14 years, no efforts at all were made by State. Based on the analysis of budget speeches of post independence period, particularly in the 10 year period, Gandhian economist L.C. Jain propounded that “there is not to be found even a passing reference to education let alone to Article 45 in the Budget speeches”.
In 1968 and 1986 National Policy on Education was formed but futile results born out. In 1975, J.P. Naik who was the then Education Advisor to the Union Government went on to say that “constitution did not specify any lower age from which compulsion should begin.” He argued that compulsion in the age group 11-14 would satisfy the constitutional directive while that in the age group 6-9 or 6-11 would not.”
All these efforts turned out to be worthless in practicality. However, it was Ramamurti Committee Report 1990 on the review of 1986 Education policy, titled “Towards an Enlightened and Humane Society” which castigated government for overlooking the right to education. The report recommended that “Now the time has come to recognize “Right to Education” as one of the fundamental rights of the Indian citizens for which necessary amendments to the constitution may have to be made and more importantly, conditions be created in the society such that this right would became available for all children of India…”
All the while during 1990, the international focus was heightened on India’s initiative in World conference on Education for all. Providentially in 1992, India became signatory to UN Convention on Rights of the Child whose Article 28 states that “State parties recognize the right of the child to education and with a view to achieving this right progressively, they shall in particular make primary education compulsory and available free to all…”
The Convention declares that the first aim of education is to develop the child’s ‘personality, talents and mental and physical abilities to their fullest potential. Personality, talent and mental and physical development constitute part of the child’s “holistic Development”.
Thence although Convention does not absolutely acknowledge the States’ duty to accord access to education prior to primary level, affirming that the only primary education should be made free and compulsory but the committee recognized the importance of pre-primary education as well for the complete child’s development.
The night of darkness pass away..!!
Supreme Court’s judgment in Mohini Jain case and Unni Krishnan case came out as the “Glimpse of dawn”……!!!!
Article 51(c) of Indian Constitution set forth that the State shall endeavor to foster respect for international law and treaty obligations. In light of the same, Courts generally interpret domestic laws and bring activism so as to bring harmony with provisions of International law and International treaties/Conventions.
In Mohini Jain v. State of Karnataka, the constitutionality of the State legislation was challenged which permitted private medical colleges in Karnataka to charge “Capitation fees” from students admitted over government seat quota. The Apex court held that:
“Right to life is the compendious expression for all those rights which the courts must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make endeavor to provide educational facility at all levels to its citizens”.
In J.P. Unni Krishnan and Others v. State of Andhra Pradesh and Others, the Apex Court had declared: “The passage of 44 years – more than 4 times the period stipulated in Article 45 has converted the obligation created by the Article into an enforceable right. At least now the State must honour the command of Article 45 and make it a right”.
This judgment made Education a fundamental right and further stated that “the citizens of this country have a fundamental right to education. The said right flows from Article 21. This right however is not an absolute right. Its contents and parameters have to be determined in the light to Article 45 and 41. In other words, every child/citizen of this country has a right to free education until he completes the age of fourteen years. Thereafter his right to education is subject to limits of economic capacity and development of the state”. In enunciating this interpretation, the Court not only persuaded from Article 41, 45 and 46 of Part IV of Indian constitution but also from the International Covenant on Economic, Social and Cultural Rights.
Adding worth to the call for making Education as fundamental right, the Common Minimum Programme of the United Front Government initiated necessary consultations and recommended the constitution of Committee of State Education Ministers. The Report of Muhi Raam Saikia Committee in 1997 (committee of State Education ministers) recommended that “The Constitution of India should be amended to make the right to free and elementary education up to the 14 years of age, a fundamental right. Simultaneously an explicit provision should be made in the Constitution to make it fundamental duty of every citizen who is a parent to provide opportunities for elementary education to all children up to 14 years of age”.
Significant stride towards Eighty-Sixth Constitutional Amendment Act!
In 1997, the Constitution Eighty-third Amendment Bill was tabled in Lok Sabha (also known as the Department-Related Parliamentary Standing Committee on Human Resource Development) advancing following propositions:
“2. After Article 21 of the Constitution, the following article shall be inserted, namely:
“21A. (1) The state shall provide free and compulsory education to all citizens of the age of six to fourteen years.
(2) The right to free and compulsory education referred to in clause (1) shall be enforced in such manner as the State, by law, determine.
(3) The state shall not make any law, for free and compulsory education under clause (2), in relation to the educational institutions not maintained by the State or not receiving aid out of State funds”.
3. Article 35 of the Constitution shall be renumbered as clause (1) of that article and after clause (1) as so renumbered and before the Explanation, the following clause shall be inserted, namely:
“(2) The competent legislature shall make the law for the enforcement of right to free and compulsory education referred to in clause (1) of Article 21A within one year from the commencement of the Constitution (Eighty-third Amendment)Act, 1997:
Provided that a provision of any law relating to free and compulsory education in force in a State immediately before the commencement of the Constitution (Eighty-third Amendment) Act, 1997 which is inconsistent with the provisions of article 21A, shall continue to be in force until amended or repealed by a competent legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier”.
4. Article 45 of the Constitution shall be omitted.
5. In article 51A of the Constitution, after clause (j), the following clause shall be added, namely:
“(k) to provide opportunities for education to a child between the age of six and fourteen of whom such citizen is a parent or guardian”.
In November, the Committee submitted its report to both the houses recommending the enactment of bill with certain adjustments, which are:
(1) Retention of Article 45 to foster 0-6 group. (Para 15.13)
(2) Clause (3) of the proposed Article 21-A concerning private institutions may be deleted. (Para 15.15)
(3) The Centre should prepare one simple legislation with some skeletal framework which may also indicate the share in the financial burden. The details can be formulated by the respective states according to their requirements. The Central Government may therefore consider working out the necessary legislation. (Para 15.16)
Keeping the said recommendation in view, the Constitution Eighty-third Amendment Bill then amended and reintroduced as Ninety-Third Amendment Bill in the parliament. With the passing of Ninety-Third Amendment Bill by the Lok Sabha and Rajya Sabha on 27th November, 2001 and 14th May, 2002 respectively, Eighty-Sixth Constitutional Amendment Act had emanated and for the first time a Fundamental Right was added to the Indian Constitution since its commencement. With this Act in December 2002, Article 21-A was added in the Indian Constitution guaranteeing eight years of Free and Compulsory Elementary Education to all children of the age six to fourteen years. The provision for the early childhood care and Education of children up to the age of six years was interpolated under Article 45 while on the ground of Fundamental Right to Education, Article 51–A (k) was added imposing a ‘fundamental duty’ on parents/guardians to provide educational opportunities to their children/ward in the age group of six to fourteen years.
For comprehensive implementation of the right to education, the Right of Children to Free and Compulsory Education Act, a historic and consequential legislation envisaged under Article 21A took birth in 2009 bestowing the right to quality elementary education to every child in a neighborhood school. Article 21A and RTE Act, 2009 came into force on April 1, 2010.
The RTE act integrated the words “Free” and “Compulsory education”. By “free education” it means that no child shall be liable to pay any fees, charges or expenses which may prevent him/her in pursuing and completion of elementary education, except the child who is admitted by parents or guardians in a school which is not supported by the appropriate government. By “Compulsory education” it means that obligation to ensure enrollment, attendance and completion of elementary education to every child of 6-14 years is upon appropriate government.
The RTE Act, 2009 provides:
- Right of children to free and compulsory education till completion of elementary education in a neighborhood school.
- It clarifies that ‘compulsory education’ means obligation of the appropriate government to provide free elementary education and ensure compulsory admission, attendance and completion of elementary education to every child in the six to fourteen age group. ‘Free’ means that no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education.
- It makes provisions for a non-admitted child to be admitted to an age appropriate class.
- It specifies the duties and responsibilities of appropriate Governments, local authority and parents in providing free and compulsory education, and sharing of financial and other responsibilities between the Central and State Governments.
- It lays down the norms and standards relating inter alia to Pupil Teacher Ratios (PTRs), buildings and infrastructure, school-working days, teacher-working hours.
- It prohibits (a) physical punishment and mental harassment; (b) screening procedures for admission of children; (c) capitation fee; (d) private tuition by teachers and (e) running of schools without recognition,
- It provides for development of curriculum in consonance with the values enshrined in the Constitution.
- The act mandates that all government-aided schools have to reserve 25% of their seats for students from economically weak sections (EWS). Private schools that are not government-aided also have to reserve 25% of their seats in Class 1 for EWS students; the government will reimburse them.
- State child rights commissions will monitor implementation of the RTE Act in their respective states.
The Act thus requires State as well as private schools to provide free and compulsory education to children aged 6 to 14 years. Section 12 (1) (c) of the Act mandated Unaided Private schools to reserve 25% seats for free and compulsory education to children belonging to disadvantaged group and weaker section. The same provision was then challenged in the case of Society for Unaided Private Schools of Rajasthan v. Union of India & Anr. The case dealt primarily with two issues as:
1. Whether requiring private schools to satisfy mandatory quotas violated Article 19 (1) (g) of the Constitution, which guarantees the right to practise any profession or occupation.
2. Whether requiring minority private schools to satisfy quotas violates Article 30 of the Constitution, which protects the right of minority groups to establish and administer private schools.
The petitioners challenged section 12 (1) (c) on the ground that it encroaches upon their right to run an educational institution under Article 19 (1) (g) and as per the judgement in P.A. Inamdar v. State of Maharashtra, the state cannot impose any constitutional obligation on them to reserve the admissions and adhere to state fee regulations. The petitioners also argued that in the case of TMA Pai foundation v. State of Karnataka, the court held that the state cannot require unaided institutions run by private groups to provide free education or to regulate by law, their establishment and administration for the enforcement of their reservation policies.
The Supreme Court on April 12, 2012 upheld the constitutional validity of Section 12 (1) (c) which mandated the Unaided schools (except minority schools) to reserve 25% seats of total seats in Class I for children belonging to “disadvantaged group” and “weaker section”. The judgement was delivered by a three-judge bench comprising Justice S.H. Kapadia (CJI), Justice Swatanter Kumar and Justice K.S. Radhkrishnan (dissenting opinion). The Court reasoned that the language of Article 21A explicitly confer the power on State to fulfill its obligations through its own schools, government aided schools or unaided private schools.
The Court maintained that the Act carries paramount objective of “social inclusion” and “Quality Education” and places an affirmative burden not just upon State but also on private players where unaided private schools must strive in supplementing the State.
The Court while affirming the right of unaided private schools to run and administer educational institutions under Article 19 (1) (g), denied its applicability on fundamental right to elementary education and maintained Education as a recognized institution of charity. Justice Kapadia magnificently opined that the dictum of TMA Pai case cannot be extended to this case as the former case did not categorically explore the connection between Article 21A and 19(1) (g) and was entirely rested on the admissions in Higher Education not in elementary education which is a fundamental right.
However the Court while distinguishing between private schools and private minority schools under Article 30, held that government cannot obligate private minority schools to abide by 25% quota, that being violative of Article 29 and 30 of the Constitution.
Consequently in the case of Pramati Educational and Cultural trust & Ors. v. Union of India & Ors. which was the reference made by three judge bench in Society for Unaided Private Schools of Rajasthan v. Union of India & Anr. to a Constitution Bench, Article 21A was again held constitutionally valid. The judgement yet moved a step forward in completely curbing the applicability of the RTE Act to Minority schools either aided or unaided. This judgement has placed Article 30 on a superior footing above all the other fundamental freedoms, even Article 21 thereby impeding the objective of social inclusion.
Right to Education in private schools in Rajasthan
The Indian constitution in its original enactment defined education as state subject. Under Article 42 of the constitution, an amendment was added in 1976 and education became a concurrent list subject which enables the central government to legislate it in the manner suited to it. To supplement the central legislation of Right to Education, States are required to make further rules regarding comprehensive procedure and the rules framed by the state of Rajasthan are titled as RTE Rajasthan Rules 2011.
Section 12 (1) (c) of the RTE Act, 2009 furnish the right to elementary education to children of weaker and disadvantaged sections in unaided non-minority private schools to the extent of 25% of the total strength of entry level class.
‘Child belonging to disadvantaged group’ is defined under Section 2 (d) of RTE Act as- a child with disability or a child belonging to the Scheduled Caste, the Scheduled Tribe, the socially and educationally backward class or such other group having disadvantage owing to social, cultural, economical, geographical, linguistic, gender or such factors, as may be specified by the appropriate government, by notification.
Whereas a ‘Child belonging to weaker section’ is defined under section 2(e) as- a child belonging to such parent or guardian whose annual income is lower than the minimum limit specified by the appropriate government by notification.
As the obligation is upon the government, these private schools are reimbursed by the state government according to Section 12(2) of RTE Act, 2009 and Rule 11 of the RTE Rajasthan Rules, 2011. The reimbursement includes the fees and cost of books as well. In Rajasthan, RTE extends to the children below the age of 6 i.e. a child of 3-7 years of age is eligible for RTE admission. The Rajasthan government through Order F-21(19) Edu.-1/E.E./2009 dated 29th March 2011 specified the ‘child belonging to weaker section’ as:
- A child whose parents are included in the list of below poverty line families (both Central and State lists),
- A child whose parents’ annual income does not exceed Rs. 2.50 lacs
It specified the ‘child belonging to disadvantaged group’ as:
- The Scheduled Castes,
- The Scheduled Tribes,
- Other backward Classes and Special Backward Classes whose parents’ annual income does not exceed Rs. 2.50 lacs, and
- A child covered under the definition of “person with disability” under clause (t) of section 2 of the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
To sustain clarity, simplicity, feasibility and transparency the procedure for application, admission and reimbursement were made online in 2013-14 through NIC web portal. RTE admission applications can be made both online and offline. In case of Online application an applicant can apply in maximum of 10 (ten) schools of the catchment area as preference is given to children residing within catchment area. After receiving the applications, applicants are allotted schools through centralized lottery system on priority basis, followed by reporting process and Final Admission
……instance depriving lakhs of children from schools…!!
In the year 2016, the State of Rajasthan vide Order F-21(19) Edu.-1/E.E./2009 dated 28th March 2016 amended erstwhile notifications and removed two fundamental categories of children which is originally stipulated in the Central legislation. The State Government without any authority has suo motu excluded the children belonging to socially and educationally backward class from the definition of disadvantaged group. Also in respect of weaker section, instead of defining the minimum annual income limit, the State Government has specified that the children belonging to parents having BPL card would alone be termed as children belonging to weaker section.
This has been challenged by Abhyutthanam Society in the case of Abhyutthanam Society v. State of Rajasthan & Anr. before High court of Rajasthan. The petitioners argued that in respect of ‘child belonging to disadvantaged group’, the State Government is empowered and competent to only notify any other factor causing disadvantage to any group considering which the children of that group deserves to be included and nothing else. Whereas in respect of ‘child belonging to weaker section’, the State is competent and empowered to only define the minimum annual income limit of a parent or guardian and a children belonging to such parents or guardians would fall within that category.
The petitioners further argued that the determination of BPL-Below Poverty Line status is a socio-economic criteria thus BPL list cannot be considered as the yardstick for determining a child belonging to weaker section.
The Hon’ble High Court of Rajasthan held the State’s Notification unconstitutional and violative of Article 21A and RTE Act, 2009 and directed the State to include the omitted categories. The court held that the State Government by way of subordinate legislation has no authority or power to alter, amend or modify the parent legislation.
The Court further maintained that the RTE Act deals with separate definition of “child belonging to disadvantaged group” and “child belonging to weaker section” u/Sec.2(d) & 2(e) of the Act, 2009 and if the Parliament intended that benefits of Right of Education Act were to be conferred only on children belonging to disadvantaged group whose parents/guardians belong to economically weaker section of the society, the Parliament would not have given separate definitions of “child belonging to disadvantaged group” and “child belonging to weaker section” but would have given a combined definition of “child belonging to disadvantaged group and weaker section”.
The Court observed that on account of impugned notification, the total number of applications have undergone sweep shortfall as compared to previous years’ applications.
The said judgement was then challenged by the State of Rajasthan through Special Leave Petition and the same was upheld by the Hon’ble Supreme Court.