Author-Shreya Kalyani, [Chanakya National Law University, Patna]
Right to Education is now a fundamental right under Article 21A which was inserted in 2002 by Constitutional 86th amendment. It reads state shall provide free and compulsory education to all the children of age group 6-14 years, in manner as stated by law. Parliament has also enacted ‘Right of Child to Free and Compulsory Education Act, 2009’. Right to education has a chequered history. In the beginning, free and compulsory education of children below 14 was part of Directive Principal of State Policy enshrined in Article 45. The lead was taken in judiciary to make right to education a Fundamental right. In Mohini Jain V. State of Karnataka, a division bench of Supreme Court pointing out the nature of the education observed that right to education is a Fundamental right and is an essential part of liberty. Education at all stages including medical and engineering was included and capitation fee charged by the State recognized education institutions was declared violative of right to equality. Subsequently, a apex bench in Unni Krishnan V. State of Andhra Pradesh recognized the right to education under Article 21 in light of Article 41 and 45 and observed that every child of this country has right to free education until he completes the age of 14 years. Thereafter, right to education is subject to limits of the economic capacity and development of the state.
Right to Education means effective and satisfactory education. In a case of Election Commission of India, Supreme Court had ruled that school teachers cannot be assigned election duties on school days. Right to education means safe education. 86th amendment 2002, enacted right of child to free and compulsory education from age of 6 to 14 years in neighbouring schools. It has also been provided that unaided private schools will not charge any fee, of course the fee is to be reimbursed by the state.
Critics of RTE Act argued that it has restricted the scope of right to education and children up to 6 years which has been excluded from its preview. The constitutionality of this act was challenged but upheld in Society of Unaided Private Schools Rajasthan Vs. UOI. But Supreme Court excluded the application of the act in relation to minority unaided educational institutions. In addition to minority rights of education, RTE have been derived from Article 26-A, 29(1), 21 and 19(1)(g). From time and time Supreme Court has converted the philanthropic nature of education into right to occupation and new education is also a part of education which attracts Article 19(1)(g). In Unni Krishnan case, Supreme Court had restricted the scope of RTE up to 14 years, and the rest was left on the economic condition of the state. This led the flux of private educational institution which are multiplying every day. In this case the court was asked to recognize right to establish and administer educational institution but it avoided any final verdict on it. This was considered in TMA Pai Foundation V. State of Karnataka. Unni Krishnan had suggested the constitution of two committees to monitor the fee fixation and administer the admission work in private self financing and private colleges. Again the matter came before the large bench i.e. in TMA Pai Foundation, Chief Justice Kripal observed and spelled out five rights as part of administration of private institutions treating unaided private educational institutions on par with minority educational institutions:
- Right to admit students
- Right to fix reasonable fee structure
- Right to appoint both teaching and non-teaching staff
- Right to constitute governing body
- Right to take action if there is violation of duty on part of any of the employees.
A controversial issue in the Indian context regarding ensuring the implementation of RTE Act is medium of instruction. For instance, while defining the nature of the relationship between the parent and the state and also defining the scope of compulsion, the law should address whether a child should be compelled to attend a government school where the medium of instruction is completely alien for the child. Alternatively, the law should examine whether the right to education includes the right to be educated in a manner that is not alien i.e. where language is not a barrier to education.