Dr.K.Shanmugavelayutham Reader, Department of Social Work, Loyola College, Chennai – 600 034 & Convenor TN-FORCES .
Education is a central instrument for achieving rapid and inclusive growth.
The right to education is central to the concept of human rights.
The right to education is most fundamental of all fundamental rights only after the right to food because without it human life with even iota of dignity is inconceivable.
Therefore, the right to education is clearly a facet of human rights.
The most important factor for social exclusion is the absence of capability.
The capability must take into account the entitlement of education as a matter of right and corresponding duty of the government.
It is this capability which lies at the heart of Article 21 in its positivist dimension.
Article 21 is intended to make the person capable of enjoying his life in a productive and meaningful manner and thereby ensure that she/he is not excluded from the social mainstream
The right to education stands at the core of the capability approach.
No person can be capable even in a rudimentary sense of terms in the absence of education.
Structural linkage between ensuring the right to education to all and enhancing the capability of a person which in turn would ensure that they are not subjected to social exclusion.
Structural linkage between minimisation of social exclusion by enhancing the capability approach through making education available to all.
The right to education cannot be addressed wholly from only one perspective, whether it is juridical or social, political or economical.
There cannot be any substitute for the inter-discipline approach.
The fusion and fertilisation of the juridical postulate of the right to education and the capability approach, which is essentially a sociological and economical concept, cannot be ignored.
Article 21 of the Constitution guarantees Right to life and liberty in negative terms.
The right to life encompasses many positive attributes like right to dignity, privacy, livelihood, healthcare, pollution-free environment and numerous other rights.
The right to education stands at the core of this right because denial to access to primary education will render meaningless the other peripheral rights read in the text of Article 21.
The right to life and liberty would merely mean animal existence in the absence of the right to basic education.
The insertion of Article 21A through the 86th Constitutional Amendment in 2002 merely makes this implicit constitutional position explicit
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
Article 21A stating that “The State shall provide free and compulsory education to all children of the age six to fourteen years in such as a way as the State may, by law, determine.”
Article 45 which reads as “The state shall endeavor to provide early childhood care and education for all children until they complete the age of 6 years”
400 Million Indians are children.50% of Children between 6-14 years of age are not able to go school.
In India , only 53% habitations have a primary school.
In India, only 20% habitations have a secondary school.
In nearly 60% of schools, there are less than two teachers to teach classes 1 to V.
70 million drop outs, 17 million child labourers
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%.
An Act to provide for free and compulsory education to all children of the age of six to fourteen years.
The Act consists of Seven Chapters and 38 Sections.
Sec. 3 talks of right to free and compulsory education and admission in a neighbourhood school.
Sec.4 speaks of admission of child appropriate to his or her age.
Sec. 8 and 9 deals of obligations of the government to provide compulsory education to children.
State shall ensure a school in every child’s neighborhood within three years.
Every school shall conform to certain minimum standards defined in the Act.
Sec. 13(1) talks of “no capitation fee” and “no screening procedure” for admission.
Sec. 14 talks of admission without insisting upon production of age proof.
Sec. 16 deals of “no expulsion of a child” .
Sec. 17 bans corporal punishment.
Sec. 21 talks of formation of School Management Committees.
Sec.23 ensures recruitment of only qualified teachers.
Sec. 25 talks of ensuring Pupil-Teacher Ratio as specified in the schedule.
Sec. 27 concern with prohibition of deployment of teachers for non-educational purposes.
Sec. 28. deals with prohibition of private tuition by teacher
Sec. 32 talks of grievance redressal mechanism.
Sec. 3(b) defines “capitation fee”, meaning any kind of donation or contribution or payment other than the fee notified by the school.
The import of this provision is that a school is free to notify any amount of fee whether needed or not and once it is notified, it will be legal.
The Act does not provide any fee regulatory mechanism to check menace of commercialisation of education
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.
Sec.7 talks of sharing of financial responsibilities between the Centre and the States. It appears that the Central Government does not want to provide funds to the States uniformly.
Sec. 10 talks of the duty of parents to admit a child in neighbourhood school. It highlights the duty of a parent but the duty of the State to bring the child to the school has completely absolved.
Sec.26 permits the Government to keep the vacancies of the teachers unfilled upto 10 % of the total sanctioned strength.
Sec. 31 talks of monitoring of the child’s right to education by National Commission for Protection of Child Rights.
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