First, in a case of the Election Commission of India pertaining to the requisition of the service of a school teacher for election purpose, the Supreme Court held that the sovereign function of providing basic education will have precedence over equally compelling sovereign function of holding election by enunciating in unequivocal terms that the right to basic education stands at a higher pedestal than the right to franchise (Election Commission of India versus St. Mary’s School and Anr.—(2008) 2 SCC 390.).
In Ashok Thakur case pertaining to reservation in educational institutions, the Constitution Bench of the Supreme Court once again underscored the significance of education and the fundamental obligation of the government to make basic education available to all. The Constitution Bench further held that the fundamental duty cast on every citizen to develop a scientific temper and humanism, vide Article 51-A of the Constitution, could not be achieved in absence of the right to education becoming a pervasive reality on the ground (Ashok Thakur versus Union of India—(2008) 6 SCC 1).
the Supreme Court of India read that right of the child into the ‘ Right to Life’ guaranteed in Art. 21, as it is essential for development, which is necessary for a life with dignity: J P Unnikrishnan v. state of A.P, AIR1993 SC 2178.
It is a long overdue- 86 th amendment in the Constitution in 2002. This is stated as per the 86th Constitution Amendment Act added Article 21A. The right to education Act seeks to give effect to this amendment
The Right of Children to Free and Compulsory Education
Recently India’s parliament passed Right to Education Bill on 4 th August 2009. This act describes the modalities of the provision of free and compulsory education for children between 6 and 14 in India under Article 21A of the Indian Constitution
1in 40 primary schools in India is conducted in open spaces or tents.
ASER-2005 survey (Annual Status of Education Report) reports that 60% of the students aged between 7-14 couldn’t read a story at grade 2 level, about 41% of children couldn’t basic subtraction and division
More than 50 % of girls fail to enroll in school
Right now, the Govt. invests 13,100 crores (Budget 2009 figures) for Education, plus the State Budgets.
For 400 million children, the Govt.’s spending on education has actually reduced. From 3.84% of the Union Budget in the year 2008-09, it is now down to 3.03%.
The right of every child to receive free and compulsory education as guaranteed under Articles 21 and 21A of Constitution does not depend on the capacity of the parents to afford fee or not. Therefore, every child whether studying in private or State-run school , is entitled to free education.
Sec.2 (n) instead of permitting only same category of schools for all the children, sanctifies different categories of schools for the children of different socio-economic status.
Sec. 2(p) defines “specified category” in relation to a school, means a school known as Kendriya Vidyalaya, Sainik School or any other school having a distinct character which may be specified by notification, by the appropriate Government.
Scheduled Caste, Scheduled Tribe, the socially and educationally backward class or such other group having disadvantage owing to social, cultural, economical, geographical, linguistic, gender or such other factor..
The Act has made only three penal provisions with regard to charging of capitation fee (sec 13 (2), running an unrecognized school (Sec 18(5) and running of derecognised school (Sec 19(5).
There is no general penal clause for violation of the provisions of the Act. There are several important provisions which do not specify penalty for violation. For instance, if a non-aided school does not fill-in 25% free seats, no penal action has been specified.
The penalty is only in terms of money and that too is not very high.
The un-aided schools have been exempted from constituting School Management Committee (SMC) (Section 21) which has a most crucial role in monitoring and school development plan (Sec 22). In the current situation the schools are behaving like lords with no accountability