Right to Education for children between 6-14 years is guaranteed by law. But today in India officially 13 states and according to NGOs 22 states did not initiate process of implementation. By April 1, 2011 only six states and seven Union Territories notified the Act and made rules that too in the last quarter of the year. The law designated National Commission for Protection of Child Rights as monitoring agency, but it lacks any power to do justice. There is a shortage of teachers in our country and which has not been looked upon yet. Provision of free and compulsory education to all children until they complete the age of 14 years is a Directive Principle of State policy of the Constitution. Right to education is not stated expressly as a fundamental right in Part III. Thus Court has, however, not followed the rule that unless a right is expressly stated as a fundamental right, it cannot be treated as one. Freedom of press is not expressly mentioned in part III, yet it has been read into and inferred from the freedom of speech and expression and from Article 21 more particularly.
Among the international conventions, the Child Rights Convention of 1989 emphasizes the right to education as a basic requirement to protect the childhood and prevent the economic exploitation of the children . In Bandhu Mukti Morcha v. Union of India [i], and M.C. Mehta v. State of Tamilnadu India’s commitment to the Child Rights Convention was referred to by the Supreme Court.
Imparting primary education was left to the parents till 2002, though it was part of directive principle of state policy. In Unnikrishnan Vs State of Andhra Pradesh, the Supreme Court elevated the status of right to primary education from a mere directive principle of state policy to the fundamental right. The apex court chose to overrule its own judgment in Unnikrishnan case in T.M.A. Pai Foundation v State of Karnataka where it held that primary education is a fundamental right. While the state assumed the responsibility of imparting primary education to all children of 6-14 age group, the higher education is thrown open to private institutions. It found a difference in the context of private institutions that are charging capitation fees from the students. Article 21A is added by 86th Amendment Act in 2002, which says: “The State shall provide free and compulsory Education to all children of the age of six to fourteen years “ .The Supreme Court gave a very clear suggestion in Unnikrishnan judgment in 1993, that education was a fundamental right for all children up to 14 years. Though it is a very positive and progressive step to guarantee the fundamental right to education the modalities and substantial aspect of it are totally left to the discretion of the state which has to make law to fulfill this obligation.
The children were given a right to get educated. The law envisaged by the state should not convert such a right into a duty. The compulsion to educate children is on the state and not on the children or their parents. It may be a moral duty on their part, but legally speaking, it is the duty of the state. It is well indicated by 86th Amendment to the Constitution by which Article 51A (k) has been incorporated where another fundamental duty is added stating ‘a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years’. After much delay and several deliberations the bill is passed and notified. Though the Education is in concurrent list of the Constitution giving states an equal role, the real power is concentrated more in Center. While the government schools are day by day starved by lack of financial support, the private schools have expanded their existence even in rural areas. The financial capacity alone would decide the quality of education of the child, practically leaving no choice for them. The dream of equitable and equal education under Common School System may remain a dream within the present scenario.
Lack of Awareness
The main problem out here is lack of awareness. India’s apex monitor of the implementation of the Right to Education (RTE) Act, National Commission for Protection of Rights of Children’s Chairperson, Dr. Shanta Sinha said: Awareness about the Act continues to be extremely low, especially at the levels below the State capitals. What we see is that people are hardly ware and besides that teachers and head teachers have only rudimentary information. The Centre has decided to display the main provisions of the law on the walls of the government buildings so as to create awareness among the people . Things to be listed on the wall will include the basic entitlements for children under the Right to Education Act. There should be proper surveys through the questionnaires so that we can have an idea that how many children in the prescribed age group do not go to school. There are some 8.1 million such children, according to the HRD ministry, but it is hopeful that a fresh drive might throw up a bigger number.
The National Commission for Protection of Child Rights has already created a system in a way so that people can participate in the effective implementation of the Act by appointing State representatives who initiate a dialogue between civil society networks and the governments .
Grievance Redressal Mechanism absent
The National Commission for Protection of Child Rights has created a well-defined grievance redressal mechanism to address complaints. While the government has accorded the Right to Education and Sarva Shiksha Abhiyan, there is a need to harmonize various other departments and Ministries to make the implementation of the RTE more effective. The NCPCR has also proposed model guidelines for a grievance redressal structure to the human resource development ministry. The law ministry is examining the guidelines. Section 36 of the Act requires state governments to appoint designated local authorities, who alone are empowered to sanction prosecution of school or government officials for corporal punishment, conducting screening tests or running unrecognized schools.
Six States implement RTE
But only 13 out of India’s 35 states and Union Territories have notified either rules accompanying the Act, or notified these authorities. Only six out of 28 states and the seven Union territories have notified the Act. The six states are Sikkim, Orissa, Manipur, Arunachal Pradesh, Andhra Pradesh and Rajasthan. The Government of Andhra Pradesh took at least 10 months to notify the rules (on 22.2.2011)
State-specific rules are critical because they outline commitments of state governments on standards they will ensure and details of how they will implement the RTE Act. One year is not a small time and much could have been achieved. Notification of the rules means a financial commitment and employment of other resources to make the legislation a right.
According to a recent survey conducted by the National Commission for Protection of Child Rights very few people are aware about this legislation. One will often find teachers having only rudimentary information. Delhi reported 65 violations of the Act, Madhya Pradesh reported 27, and Haryana 25. The violations range from irregularities in admissions to corporal punishments and poor infrastructure.
Challenge from Private School
Meanwhile, the Supreme Court is hearing a slew of petitions by private, unaided schools across the country challenging the constitutional validity of the RTE Act, and saying it would not be possible for them to implement the law on various grounds. The schools say the RTE law violates their fundamental right to a livelihood. They have objected to provisions such as the requirement for each school to have a playground and the ban on expelling students till class VIII. The HRD ministry is yet to respond to their contentions in court.
Shortage of Teachers
There is a shortage of teachers in many districts in our country and which have not been filled up due to lack of resources. There are some states in which the qualified teachers constitute 50% and the rest are not qualified to the extent of becoming teachers. In order to get rid of archaic practices like corporal punishment, urgent attention must be given to school based training for teachers.
Rohit Adlakha and Palak Sharma
Students, Department of Law, Punjab University, Chandigarh
[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]