Education is the much needed catalyst which steers the rate of growth and development of a country. The vital role of education in our society cannot be denied as it can change the fortune of many. In India, there had been always a demand for compulsorily providing of education to all. In the initial years of post-independence era, the economy was not in such a shape so as to provide education to each and every children of the country.
Over the years, after the economy was liberalised, the India changed drastically for better. And within 20 years of time, we have geared to undertake this responsibility so that not a single child is left illiterate. This decision of government could not have come at a better time, when it is expected that India will have maximum number of youth population by 2020. If that population will be left unexplored, it will rather become a huge burden on our country.
Right To Education has been a part of the Directive Principles of the State Policy under Article 45 of the Constitution, which is part of Chapter 4 of the Constitution. But rights in Chapter 4 are not enforceable. For the first time in the history of India we have made this right enforceable by putting it in Chapter 3 of the Constitution as Article 21. This entitles children to have the right to education enforced as a fundamental right.
The 86th Constitutional amendment of December, 2002 was spurred by the Unnikrishnan judgment and a public demand to enforce the right to education, successive governments from 1993 worked towards bringing a constitutional amendment to make education a fundamental right. The amendment inserted the following articles in the Constitution:
1. Insertion of new article 21A- After article 21 of the Constitution, the following article shall be inserted, namely:-
Right to education; Article 21A– “The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.”
2. Substitution of new article for article 45– For article 45 of the Constitution, the following article shall be substituted, namely:- .
Provision for early childhood care and education to children below the age of six years; Article 45- “The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.”
3. Amendment of article 51A– In article 51A of the Constitution, after clause (J), the following clause shall be added, namely:-
“(k) who is 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.”
The Act facilitates a number of sections which prima facie seems to be for the benefit for children from weaker section of society. But there has been a major uproar over the constitutional validity of the Act. In the decision of Society for Un-aided Private Schools of Rajasthan v Union of India & Anr [WP 95 of 2010], which is likely to have far-ranging consequences in the field of education, the Supreme Court upheld the constitutional validity of the Right of Children to Free and Compulsory Education Act, 2009. The RTE Act is applicable to children between the age of six and fourteen. The SC Bench, comprising of Chief Justice S.H. Kapadia, Justice Swatanter Kumar and Justice Radhakrishnan, in its judgment, which is prospective in nature, has mandated all government and private unaided schools to reserve 25 per cent of their seats for economically backward students.
The Government was represented by Attorney General Goolam E. Vahanvati and Additional Solicitor General, Mrs. Indira Jaising.
On the other hand, the Petitioners, comprising of several private schools had challenged the Constitutionality of the Act on two grounds: That section 12(1)(c) which places an obligation on unaided schools to provide free and compulsory education to the children from weaker and disadvantaged sections by reserving 25 per cent of the class strength for them and various provisions of the Act that imposed infrastructural and regulatory requirements on the schools, violated Article 19(1)(g) of the Constitution that guarantees right to freedom of occupation. Second, the minority schools argued that the Act violated their special Constitutional rights under Article 30(1) to establish and administer educational institutions.
The matter saw a veritable battery of senior counsels appearing including Harish Salve, Rajeev Dhavan, T.R. Andhyarujina, Vikas Singh, K. Parasaran, Shekhar Naphade, Arvind Dattar, Ashok Desai and Chander Uday Singh representing a variety of educational institutions. This shows that the private schools left no stone unturned to turn the tables in their favour.
The majority opinion of CJI Kapadia and Justice Swatanter Kumar, holds that the RTE is applicable to all schools except to unaided minority schools. Justice Radhakrishnan’s dissent, however, held the Act to be uniformly applicable to all minority and non-minority schools, but read down section 12(1)(c) so far as it imposed a positive obligation of providing free and compulsory education on all private unaided schools. The divided opinion of the court is the result of the relative priority accorded to apparently conflicting rights and values in the Constitution.
The ruling has, however, raised several problems on practical implementation relating to integration of poor students, quality of education and financial impact on schools. Various noted educationists of India have raised several major issues, which have raised a question mark over the successful implementation of the Act. The influx of students from lower socio-economic classes in elite schools would doubtless throw up new concerns and problems. Feelings of inferiority in any child are hardly conducive to mental health. Private schools have a tremendous responsibility to take corrective measures as far as attitudes of teachers and staff towards the poor is concerned. A competent team of counsellors to deal with possibly increased social tensions, aggression, gangs and bullying needs to be put in place in schools. Perhaps the law could have worked out ramifications of the Act in greater detail and provided for steps to be taken to better equip schools for the new social experiment towards equality.
One of the major criticisms is the stringent provisions of the Act, which make it mandatory for all children to produce income and caste certificates, BPL cards and birth certificates. Orphan children are often unable to produce such documents, even though they are willing to do so. As a result, schools are not admitting them, as they require the documents as a condition to admission. This issue isn’t taken into account by the recent judgement.
The Supreme Court has just asked the government to issue guidelines on the applicability of the provisions of the Act in numerous boarding schools and orphanages across the country. “There are boarding schools and orphanages in several parts of India. In those institutions, there are day scholars and boarders. The 2009 Act could only apply to day scholars. It cannot be extended to boarders,” the judgement said. Therefore, it leaves very little scope for orphan children in the country to attend school in absence of home.
The apex court, in the latest judgement has also upheld all the provisions of the Act on issues such as detention and expulsion, recognition of schools, training of teachers in the contentious provision of a 25% quota for poor students in private schools that receive grants and concessions from the government and those which don’t.
The judgement will require the government to rework its amendment to the Act, which aims to keep institutions, including madrassas and vedic pathshalas, especially serving religious and linguistic minorities protected under Articles 29 and 30, out of the ambit of the Right to Education. In light of the SC judgement, the government will have to rework the proposed amendment. The judgement makes it clear that only unaided minority institutions are outside the ambit of the Act. This would mean that minority institutions, religious and linguistic, receiving aid or grant from the government will continue to be under the ambit of the Act.
The intention of the judgement is to maximise the welfare of the children in India, but we cannot afford it by infringing the rights of private parties. The “secular” schools which are not taking any aid from the government will be compelled by this act to bear the pressure, by not just admitting students with certain ratio, but also by enhancing the infrastructure and academics of the institution which many schools in the country would not be able to bear. The ones which will be gulping the money of the parents and running as money-generating institutions will not find it very difficult to adhere to the rules and norms under the new judgement. But, the schools which have been running on not-for-profit basis will be compelled to think about various other ways of generating revenue so as to keep themselves afloat which is in sheer violation of Article 19(1)(g) of the Constitution that guarantees right to freedom of occupation. Or the other remedy available only in this judgement for them is to convert from “secular” to “minority” institutions imparting education with excessive emphasis on religion, which too would not be in the long term interest of the nation.
Student, National University of Study and Research in Law, Ranchi
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