RIGHT TO EDUCATION AND ARTICLE 21

Submitted By: Submitted To:

Abha Mehta Ms. Aakanksha Kumar
BBA, LL.B Faculty of CG-1
1
st
Semester



NATIONAL LAW UNIVERSITY, JODHPUR
SUMMER SESSION
(JULY-NOVEMBER 2014)


ACKNOWLEDGEMENTS
On the completion of this project I find that there are many persons to whom I would like to
express my gratitude, since without their help and co-operation the success of this educative
endeavour would not have been possible.
I welcome this opportunity to express my sincere gratitude to my teacher and guide, Ms
Aakanksha Kumar, Faculty of Constitutional Governance, who has been a constant source of
encouragement and guidance throughout the course of this work.
I am grateful to the IT Staff for providing all necessary facilities for carrying out this work.
Thanks are also due to all members of the Library staff for their help and assistance at all times.
I am also grateful to all my friends and colleagues for being helpful in their differences and for
their constant support.
I express my deepest gratitude to my parents Mr. Virendra Mehta and Mrs Neeta Mehta, who
have been the real driving force for this work.



Abha Mehta












RESEARCH METHODOLOGY

SUBJECT: Constitutional Governance- I
TOPIC: Right to Education and Article 21.

The method of research opted by me to complete this project was doctrinal research from
primary and secondary sources. Major part of the project has been researched Articles and
reports available in web databases on the topic by scholars on the subject. Books and
Commentaries on Constitutional Law and provisions relating to Right to Education have also
been referred to.




















SCOPE OF THE PROJECT





























TABLE OF CONTENTS


















INTRODUCTION

Human rights are the most fundamental of all rights that people have because of the simple
reason that they are human beings. Every single citizen (person): man, woman and child have
these rights. They are the right to live with human dignity, liberty comprising all the political,
civil, social, economic and cultural rights. Human being and human rights are like two sides
of a same coin. Without human being there is no logic of the existence of human rights.

So also without human rights, people cannot live as dignified human beings in any given
society. The very essential elements of human rights are that they belong to every single
individual and they are unalienable birthrights of all members of human society. These rights
are to be enjoyed by all without any discrimination with regard to age, race, gender,
language, religion, political, social or national origin, birth or other status. Therefore, the
human right of the right to education of children has been adopted by the government of
India as one of the fundamental rights for the age-group of 6(six) to 14(fourteen) year and
now it is enforceable by courts in India.

The right to education(RTE) or right of children to free and compulsory education is an
Indian legislation adopted by the Parliament of India on the 4th August, 2009 which
describes the modalities of the provision(s) of free and compulsory education for all children
between 6(six) and 14(fourteen) age-group in India under Article-21A of the Indian
Constitution. India is one among 135 countries of the world to make education a fundamental
right of every child as the Act has come into force on the 1st April, 2010.

Though the present Act has its history in the drafting of the Indian Constitution at the time of
Independence, and more specifically to the 2002 Constitutional Amendment that included the
article-21A in the Indian Constitution making education a fundamental right, passing of the
right of children to free and compulsory education Act, 2009 and has been hailed as a historic
movement for the children of India because it guaranteed their right to quality elementary
education by the state with the help of families and communities.
BACKGROUND TO RTE

The 1986 National Policy of Education DID NOT make the education compulsory.
The first official document on the education right of children was Ramamurti Committee Report
in 1990 which reviewed the National Education Policy 1986. This committee mentioned that not
paying attention to the right to education was the most fundamental problem of our education
system. Ramamurti Committee also noted that "the time has come to recognize "Right to
Education' as a fundamental right of the Indian Citizens.
In 1991, a book by Myron Wiener titled " The Child and State in India: Child labour &
Education in comparative perspective" noted states failure to eradicate child labour and enforce
compulsory education.
In 1992, India became signatory to the UN Convention on Rights of the Child. Article 28 of this
Convention "asks the states to recognize right of education for every child and make primary
education compulsory". At that time, it was not in line with the constitution's provision in article
51(c) which says: State shall endeavor to foster respect for international law and treaty
obligations. (DPSP)
In 1993, Supreme Court Gave its landmark judgment in the Unnikrishnan JP vs State of Andhra
Pradesh & Others
1
. In this case, SC held that Education is a Fundamental right flowing from
Article 21.
In 1994, The United Front Government set up Saikia Committee to examine the proposal of
making right to free and compulsory education.
In 1997, the Saikia Committee Reported that Constitution of India should be amended to make
the right to free education up to 14 years of age a compulsory right. It also recommended making
an explicit fundamental duty of every parent to provide opportunities for elementary education.
In 1997, the United Front Government introduced 83rd Amendment Bill, 1997 which
encompassed insertion of article 21A & omitting article 45 of the Constitution. This amendment
bill had an additional financial memorandum that outlined the costs that would go into making
education for children in the six to 14 age groups a fundamental right for a 10-year period.


1
Unni Krishnan, J.P. And Ors. Etc. ... vs State Of Andhra Pradesh And Ors, AIR 1993 SC 2178


Tapas Majumdar Committee was set up by the NDA Government in 1999 to look into the
financial implications of operationalising the 83rd Amendment Bill introduced by the United
Front government in 1997, seeking to make the right to free and compulsory education up to the
age of 14 a fundamental right. The 83rd Amendment Bill was renamed the 93rd Amendment Bill
and significant changes were incorporated in it. The tapas majumadar committee recommended
that even children belonging to the poorest sections of society must receive education that was
comparable in quality with the best. It did not advocate low-cost alternatives.

The 93rd Amendment Bill was discussed and passed By Lok Sabha on 27 November 2001 and
Rajya Sabha on 14th May 2002. The date of the bill was to amended from 2001 to 2002 so it
again went to Lok Sabha.

After ratification by the President, it became Constitution 86th Amendment Act.

In pursuance with article 21A, which says that "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" and Constitution 86th amendment act, it was now up to the state (means central
government) to determine how and in which manner the Free & compulsory education is to be
provided.

The 86th amendment provided for a follow-up legislation, which culminated in Right to
Education Bill 2005, Right to Education Bill 2008 and finally Right to Education Act 2009.





CONSTITUTIONAL PROVISIONS

ARTICLE 21: No person shall be deprived of his life and personal liberty except according
to procedure established by law.

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


Article 45:The State shall endeavour to provide, within a period of ten years from the
commencement of this Constitution, for free and compulsory education for all children until
they complete the age of fourteen years.

Article 51A(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.
3

















2
Added by 86
th
Constitutional Amendment Act in 2002
3
Added by 42
nd
Constitutional Amendment Act in 1977
SUPREME COURT ON RTE AND ARTICLE 21

The Supreme Court in Bandhua Mukti Morcha v.Union Of India
4
while interpreting the scope of
the right to life under article 21, held that it included educational facilities.

In Mohini Jain v.State of Karnataka
5
, the court referred to Bandhua Mukti Morcha Case and
held that right to life was the compendious expression for all those rights which the courts
must enforce because they are basic to the dignified enjoyment of life. The court further
observed that the right to life under article 21 and the dignity of an individual could not be
assured unless it was accompanied by the right to education.

The court thus declared: the right to education flows directly from right to life.

The Supreme Court in Unni Krishnan v. State of Andhra Pradesh
6
held that the right to
education was a fundamental right under Article 21 and that it directly flows from

















4
Bandhua Mukti Morcha v.Union Of India, AIR 2002 SC 40
5
Mohini Jain v.State of Karnataka, AIR 1992 SC 1858
6
Unni Krishnan v. State of Andhra Pradesh, AIR 1993 SC 2178
SALIENT FEATURES OF RTE ACT 2009

The RTE Act provides for the:
(i) Right of children to free and compulsory education till completion of elementary education in
a neighbourhood school.
(ii) It clarifies that compulsory education means obligation of the appropriate government to
provide free elementary education and ensure compulsory admission, attendance and completion
of elementary education to every child in the six to fourteen age group. Free means that no
child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her
from pursuing and completing elementary education.
(iii) It makes provisions for a non-admitted child to be admitted to an age appropriate class.
(iv) It specifies the duties and responsibilities of appropriate Governments, local authority and
parents in providing free and compulsory education, and sharing of financial and other
responsibilities between the Central and State Governments.
(v) It lays down the norms and standards relating inter alia to Pupil Teacher Ratios (PTRs),
buildings and infrastructure, school-working days, teacher-working hours.
(vi) It provides for rational deployment of teachers by ensuring that the specified pupil teacher
ratio is maintained for each school, rather than just as an average for the State or District or
Block, thus ensuring that there is no urban-rural imbalance in teacher postings. It also provides
for prohibition of deployment of teachers for non-educational work, other than decennial census,
elections to local authority, state legislatures and parliament, and disaster relief.
(vii) It provides for appointment of appropriately trained teachers, i.e. teachers with the requisite
entry and academic qualifications.
(viii) It prohibits (a) physical punishment and mental harassment; (b) screening procedures for
admission of children; (c) capitation fee; (d) private tuition by teachers and (e) running of
schools without recognition,
(ix) It provides for development of curriculum in consonance with the values enshrined in the
Constitution, and which would ensure the all-round development of the child, building on the
childs knowledge, potentiality and talent and making the child free of fear, trauma and anxiety
through a system of child friendly and child centred learning.