Right to Education Under the Indian Constitution

Education comprises of both- intrinsic as well as instrumental values. It is an end in itself as well as means for the development of human and the society. Education helps in enhancing the inherent dignity of individuals and his attitude towards the society. [1] The intrinsic value of education was acknowledged and emphasised by Bhartruhari in the “Neethishatakam” as early as in the 1st Century B.C. Bharthruhari declared that education is the special manifestation of man and can be treasured without fear of loss. Education is god incarnate and secures honour at the hand of the state. And also the transformation from a beast into a man is caused by education. [2] The Indian civilization has acknowledged education as one of the pious obligations of the human society. Establishment of education institution and endeavour towards proper administration of the same are considered to be religious and charitable object. [3] India has been a storehouse of knowledge. It has attracted scholars and students from across the world. Besides, Ramayana, Mahabharata and ManuSmriti, India is also the home of Algebra, Calculus and Pythagoras Theorem. [4] But the same country has been infested with high illiteracy rate over centuries due to its socio economic conditions and the lack of proper policy implementation. The poor in India have been the victim of lack of education and consequently, have lost their right to a meaningful existence. [5] Justice Bhagwati, in Francis Coralie’s case rightly observed that “the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms….” [6] Professor Manoj Kumar Sinha, an eminent Human Rights Scholar opines that education is the only equipment which can equip the citizens to participate in the realization of the objectives enshrined in the Preamble of Indian Constitution. He adds that the framers of the Indian Constitution were aware of the importance of education in realization of the dream of a prosperous nation. Therefore, education formed an important part of debates in The Constituent Assembly. [7] But unfortunately, even after six decades of independence, education remains neglected in the agenda of government. The issue has gained momentum only recently with the enactment of the 86th Amendment Act, 2002, simultaneous international recommendations signed by Indian government and the enactment of the Right to Free and Compulsory Education Act, 2009. However, an important fact that often goes unnoticed is that the 86th Amendment Act itself is a result of a heavily criticised Unnikrishnan case. [8]

In the wake of the growing awareness about this invaluable right, this project makes a humble endeavour to cover the journey of right to education from the steaming constituent assembly debate to the enactment of the 2009 Act.

RESEARCH QUESTION AND METHODOLOGY

The project has been divided into three small sections. Section one deals with the constituent Assembly Debates and the visions of the founding fathers of the Constitution. Section two covers the journey of the constitution from its enactment to the famous Unnikrishnan case. Section three discusses the subsequent development of the right to education in our country which led to the enactment of the 82nd Amendment Act 2002 and its subsequent development. The researcher has diligently studied the materials available on the topic from the constituent assembly debate till the present date for laying the history and prospects of right to education in India under Indian Constotution.

CHAPTER ONE:

Right to Education in the Constituent Assembly Debate:

The British government in its early stages of government did not show much interest in sponsoring the educational institutions in India. The need for educating the masses was however acknowledged by the national leaders. Serious debates and discussions were held to secure the position of right to education in the Constitution of India. Right to education did not secure a position within Part III of the Constitution during its drafting and subsequent enactment in 1950. It was rather secured under Part IV of the Constitution thereby protecting the state from any proceedings in absence of the enforcement of right to education. The initial framing of Article 36 of the Draft Constitution, which presently forms Article 45 of the Indian Constitution, was found to be problematic. Right to education was deliberately made a part of Part IV of the Constitution which forms the Directive Principles of State Policy (herein referred to as DPSP). DPSP forms the pious obligations of the state and is not enforceable in the court as provided under Article 37 of the Indian Constitution. The framers were aware that if education is made a part of fundamental rights, then it would open the floodgate of numerous claims.

Article 36 of the Draft Constitution had its own charm. Unlike the other Articles of The DPSP, Article 36 began with “every citizen is entitled to” instead of “the State shall endeavour to provide”. [9] Pandit Lakshmi Kanta Maitra, an eminent member of the Constituent Assembly debate proposed the deletion of the words “every citizen is entitled to”. His justification was that all the Articles of the DPSP begin with “the state shall endeavour to” except Article 36 alone and hence does not fit in the framework. Moreover, the wordings of Article 36 resemble fundamental rights mixed with DPSP. Hence, it was proposed to be amended. The same idea was endorsed by Honourable Dr. B.R. Ambedkar and the amendment was adopted. [10]

Also Article 41 of the Constitution constitutes the right to education subject to the economic capacity of the state. This Article formed Article 33 of the Draft Constitution and no amendment was brought about in the Article. Article 41 begins with the phrase “the state shall within the limits of economic capacity shall endeavour to..” which is again subjected to economic contingencies and does not form a part of enforceable rights. [11] This again proves that there was no positive endeavour made by the framers of the Constitution to make this intrinsic right an enforceable one in spite of its acknowledgement as a vital factor for the prosperity of the nation. Though the Sub Committee on Fundamental Rights of the Constituent Assembly had decided to include right to primary education as an enforceable right, Sir Alladi Krishnaswamy Aiyyar was not in favour of the inclusion of right to education within enforceable rights. His idea was supported by Sardar K.M. Panikkar and was finally with the suggestion of Sir Govind Ballabh Pant, the Advisory Committee decided to include it within the list of non-enforceable rights. [12]

There were several other issues raised about the obligation of state with regards to right to education. One of them, as mentioned by Shri B. Das, was that education should be provided in one’s mother tongue in order to allow the diverse population to preserve their culture. This is specially with regards to those races who are minorities within a particular state. This, according to, Shri Das, would prevent denationalisation of masses who have mother tongue of their own but are forced to take lessons in some other language. [13]

Mr. Naziruddin Ahmad, another member of the Constituent Assembly raised the issue of substituting the phrase “free and compulsory education” with “free and compulsory primary education”. According to Mr. Ahmad, the intention of the provision was to provide primary education and hence the same should be made explicit within the provision. Further, if the state strives to provide secondary education along with primary education, it will simply enlarge the scope of government obligations and make it more innocuous. This contention was very tactfully dismissed by Honourable Dr. B.R. Ambedkar. He was of the opinion that since the age limit of people to be benefitted by this provision is set at fourteen and also Article 18 of the Draft Constitution provides that no children below the age of fourteen should be employed, merely primary education will not suffice. Rather endeavour has to be made to keep the children occupied in educational institutions until they attain the age of fourteen. The word ‘primary’ was not added to the Constitution as per the consensus in the Assembly. [14]

Amongst all these debates and deliberations, there is one factor that is worth mentioning. Article 45 of the Constitution is the only Article that mentions a time frame for the state to fulfil its obligation. Surprisingly, this Article has obtained the least attention in government policies and political agendas in the growing phase of our country. The most prominent proofs are the amount set for education within the budgets over the past few decades.

CHAPTER 2

Journey of Indian Constitution towards the fulfilment of its obligation of enforcing the Right to Education (1950-2001)

Education has been one of the heavily contested topics of discussion in the Constituent Assembly Debate. Besides the framing of the provisions as mentioned in the earlier chapter, debates were also held on whether to put education in the provincial list or the central list. Maulana Abdul Kalam Azad, the first union minister of education, strongly opposed the idea of leaving education with the state. The idea was supported by Pandit Nehru who was also of the opinion that certain Centre would require certain power to retain some uniform standard of national education. the discussion ended with the retention of education within the provincial list with so that the necessity of providing education in local language is met. At the same time entries relating to higher education, technical and scientific education was passed on to the centre to retain the national standard. [15]

The attitude of the World Bank towards education has been very hostile throughout. It firmly denies the right to education as a universal human right and is against the idea of making ti free and compulsory. The approach that education is based on demand and supply denies the responsibility of government towards education and transfers the responsibility to the families in particular and community at large. [16]

The government of India appointed the Education Commission (1964-66) to realize the constitutional goal set for education. The “common school approach” was recommended for the promotion of social justice and equity. In 1968, free and compulsory education was recommended by The National Policy on Education. Further, the NPE of 1986 aimed at a comprehensive policy framework for the development of education up to the end of century and also the Plan of Action. Apart from these, the Ministry of Human Resource Development in New Delhi opened the Department of Primary Education. The Primary Education Policy was launched under the scheme of Sarva Shiksha Abhiyan (SSA) in 2001, at district level throughout the country. [17] India boasts about its accelerated achievements in the fields of trade and commerce but it is disappointing to observe that education does not receive the amount of attention it deserves and only a nominal amount of GDP is spent on education. Moreover, the lack of interest from the legislative and the executive branches result in non-execution of the policies set out and education for all remains a far fetched dream.

In all these years, the judiciary has shown some interests in addressing the grievances of the common people and this led to the Public Interest Litigation Movement in the 1990s. The two famous Public Interest Litigation Cases that shaped the destiny of education in India are Mohini Jain v. State of Karnataka (AIR 1992 SC 1858) and Unnikrishnan J.P. v. State of A.P. (AIR 1993 SC 2178). Apart from these two cases, the Bandhua Mukti Morcha case, which primarily dealt with the issue of bonded labourers helped in shaping the future of education in India. [18]

The both of these cases were decided prior to the enactment of 86th Amendment Act, 2002 and hence, right to education was justified under Article 14 and 21 as a part of the fundamental right guaranteed to all citizens. In Mohini Jain’s case, the court held that the state has an obligation to discharge its duty of providing educational institutions so that the citizens can enjoy their right to education. The court further held that the state can discharge its duty either by establishing state educational institutions or by recognising private education institutions. Therefore, in these circumstances, if the private institutions charge capitation fees in consideration of admission, it amounts to patent denial of the right to education and is violative under Article 14 of the Constitution. [19]

The Unnikrishnan case reached the door of Supreme Court the very next year. The court reprimanded the government institutions for being reluctant with the enforcement of article 45 and held that every child who is deprived of the right to education can issue a writ of mandamus against the appropriate authority for the enforcement of their deprived right. [20] Though the issue in both the cases were related to higher education, the end result of these cases was that free and compulsory primary education was held to be a fundamental right flowing from Article 21 of the Constitution. Another fascinating aspect of the Unnikrishnan case is that the court traced the source of the right to education not only from Article 41, 45 and 46 of the DPSP but also from the International Covenant for Economic Social and Cultural Rights. [21] The Unnikrishnan case revamped the most neglected right and resulted in accelerated changes which will be discussed in the next chapter.

Chapter 3

Right to Education: setting the stage with the Constitutional Amendment:

The Unnikrishnan judgement attracted numerous criticisms. There were heated debates regarding the scopes and limitations of judicial review in India. At the same time, various NGOs and societies made the best use of the opportunity to coordinate their efforts. The result was the establishment of the National Alliance for the Fundamental Right to Education. [22] The court also referred to Article 13 and 14 of the International Covenant for Economic Social and Cultural Rights (ICESCR). Article 13, as claimed by Professor Sinha [23] , has the longest provision in the ICESCR and is also the most comprehensive provision on the right to education under the international human rights law. As program specialist Kishore Singh opines, the implementation of UNESCO’s Convention against discrimination in Education made heavy contribution towards the incorporation of principle of equality of educational opportunity towards education system. It was observed that in order to bind the state with its obligation of providing free education, the international commitments have to be converted into legislation. The necessity of legislation was therefore, felt to monitor and enforce the obligations of the state. [24]

There were certain groups committed to the abolition of child labour like the South Asian Coalition on Child Servitude (SACCS) and Campaign Against Child Labour (CACL) who joined the NAFRE. As a result of this fast growing movement, the Right to Education was sought to be made a part of the fundamental right through the 83rd Amendment Bill in 1997 but there was a change in government in the centre and hence, the bill was ultimately reintroduced in the 93rd Amendment Bill in 2001by the NDA government. [25]

The 93rd Amendment Bill 2001 which finally took the form of the 82nd Amendment Act, 2002 brought about a few inclusions and alterations to the existing provisions of the Constitution. The most significant inclusion was the insertion of Article 21A in Part III of the Constitution that made right to education a fundamental right and guaranteed free and compulsory education to all children between the age of six to fourteen years of age. Secondly, Article 45 was altered to accommodate the obligation of state to provide early childhood care and education to all children until they complete six years of age. The third amendment was the inclusion of a clause (k) after Article 51A(j) that imposes responsibility on the parents and guardians to provide opportunity for the education of his child between the age of six to fourteen years. [26]

The bill attracted avalanche of criticism from various organisations such as the National Commission to Review the Working of the Constitution (NCRWC). But in spite of all this, the bill was passed by unanimous approval during the final votes. It was passed in the Lower House on 28th November 2001 and in Rajya Sabha on 14th May 2002 and received the presidential assent on December 2002. [27]

It is however important to note the criticisms that the Bill attracted after proposal. Firstly, the organisations associated with the abolition of child labour argued that the age should be extended to the age group of fifteen to eighteen years as well in order to eradicate the problem of child labour. Also that the period between three to six years of age is also crucial period of development and state should take the responsibility of providing education for this age group not as an endeavour under Article 45 but as a part of the Fundamental Right under Article 21A. [28]

The Bill was also criticised for the lack of financial resources due to wrong estimations. The critics were of the opinion that the expert Committee ser up by the NDA Government, the Tapas Majumdar Committee Report reveals that even less than half the amount of resource estimated by the committee has been actually allocated for the purpose taking into account the existing quality of education. [29] apart from these, the inclusion of clause (k) in Article 51A raised the brows of many critics as they apprehended that the clause sought to shift the responsibility of the state towards the parents and guardians.

The joint effort of the government and various organisations led to the enactment of the Right to Free and Compulsory Education Act 2009 which came into force on 1st April 2010. Prime Minister Dr. Manmohan Singh, while addressing to the nation in the wake of the enforcement of the law expressed his desire to gift every Indian child the light of education. [30]

The entire nation besides our own prime minister is waiting to witness the light that the compulsory education law promises.

CONCLUSION

Education has both intrinsic as well as instrumental value for the furtherance of other human rights. The framers of the Indian Constitution were aware of this and therefore inserted in Part IV of the Constitution after rigorous deliberations. However, education did not receive the attention it deserved an in spite of a framed time limit, education has been least prioritised in the political agenda. The destiny of education was therefore, reshaped by the judiciary through its judgement albeit numerous criticism of overstepping of power. After a detailed analysis, I come to the solution that the famous UnniKrishnan case triggered the much awaited discussion and debate. The 86th Amendment Act, according to me, is a consequence of the power of writ of mandamus granted by the court. The Right to Education Act is a recent development in the field of education and is believed to be a strong approach towards empowering the Indian mass. The result is yet to be revealed. It is an ardent hope that every child receives the light and make a life instead of merely making a living.