CONSTITUTIONAL FRAMEWORK OF RIGHT TO EDUCATION

“Education, education, education alone! Travelling through many cities of Europe and observing in them the comforts and education of even the poor people, there was brought to my mind the state of our own people, and I used to shed tears. What made the difference? Education was the answer I got.(IV.483)”

-          Swami Vivekananda

Background

The word education is derived from educare (Latin) "bring up", which is related to educere "bring out", "bring forth what is within", "bring out potential" and ducere, "to lead".

Education in the largest sense is any act or experience that has a formative effect on the mind, character or physical ability of an individual. In its technical sense, education is the process by which society deliberately transmits its accumulated knowledge, skills and values from one generation to another.

Education narrowly refers to formal institutional instructions. Generally, international instruments use the term in this sense and the right to education, as protected by international human rights instruments, refers primarily to education in a narrow sense. The 1960 UNESCO Convention against Discrimination in Education defines education in Article 1(2) as: "all types and levels of education, (including) access to education, the standard and quality of education, and the conditions under which it is given."

In a wider sense education may describe "all activities by which a human group transmits to its descendants a body of knowledge and skills and a moral code which enable the group to subsist". In this sense education refers to the transmission to a subsequent generation of those skills needed to perform tasks of daily living, and further passing on the social, cultural, spiritual and philosophical values of the particular community. The wider meaning of education has been recognised in Article 1(a) of UNESCO's 1974Recommendation concerning Education for International Understanding, Co-operation and Peace and Education relating to Human Rights and Fundamental Freedoms. The article states that education implies:

"the entire process of social life by means of which individuals and social groups learn to develop consciously within, and for the benefit of, the national and international communities, the whole of their personal capabilities, attitudes, aptitudes and knowledge."

The European Court of Human Rights has defined education in a narrow sense as "teaching or instructions in particular to the transmission of knowledge and to intellectual development" and in a wider sense as "the whole process whereby, in any society, adults endeavour to transmit their beliefs, culture and other values to the young."

The right to education is recognized as a human right and is understood to establish an entitlement to free, compulsory primary education for all children, an obligation to develop secondary education accessible to all children, as well as equitable access to higher education, and a responsibility to provide basic education for individuals who have not completed primary education. In addition to these access to education provisions the right to education encompasses also the obligation to eliminate discrimination at all levels of the educational system, to set minimum standards and to improve quality.

The right to education is enshrined in Article 26 of the Universal Declaration of Human Rights and Article 14 of the International Covenant on Economic, Social and Cultural Rights. The right to education has also been reaffirmed in the 1960 UNESCO Convention against Discrimination in Education, 1st Protocol of ECHR and the 1981 Convention on the Elimination of All Forms of Discrimination Against Women.

In the European Convention on Human Rights, Protocol 1, Article 2 and in several national constitutions, e.g. the Belgian constitution (former article 17, now article 24) and the Dutch constitution (article 23)

Concept of Literacy

Literacy has traditionally been described as the ability to read and write. It is a concept claimed and defined by a range of different theoretical fields. The United Nations Educational, Scientific and Cultural Organization (UNESCO) defines literacy as the "ability to identify, understand, interpret, create, communicate, compute and use printed and written materials associated with varying contexts. Literacy involves a continuum of learning in enabling individuals to achieve their goals, to develop their knowledge and potential, and to participate fully in their community and wider society."

The history of education has a long past. The first seats of learning were in India, Mesopotamia and Egypt and, at later date in Greece. The Nalanda University (India) is one of the oldest universities in the world, where Chinese monk, Xuanzang (aka Hiuen Tsang), came to learn Budhist Philosophy and Mathematics in 625BC. Although the history of literacy goes back several thousand years to the invention of writing, what constitutes literacy has changed throughout history.

Literacy in India is key for socio-economic progress,  and the Indian literacy rate grew to 68% in 2007 from 12% at the end of British rule in 1947. According to the latest survey by the National Sample Survey Office (NSSO) in June 2008, the literacy rate among the population with age 7 and above was 72% whereas the adult population (age15 and above) had a literacy rate of 66%.Although this was a greater than fivefold improvement, the level is well below the world average literacy rate of 84%, and India currently has the largest illiterate population of any nation on earth. Despite government programs, India's literacy rate increased only "sluggishly," and a 1990 study estimated that it would take until 2060 for India to achieve universal literacy at then-current rate of progress. The 2001 census, however, indicated a 1991-2001 decadal literacy growth of 12.63%, which is the fastest-ever on record.

There is a wide gender disparity in the literacy rate in India: adult (15+ years) literacy rates in 2009 were 76.9% for men and 54.5% for women.  The low female literacy rate has had a dramatically negative impact on family planning and population stabilization efforts in India. Studies have indicated that female literacy is a strong predictor of the use of contraception among married Indian couples, even when women do not otherwise have economic independence. The 2001 census provided a positive indication that growth in female literacy rates (14.38%) was substantially faster than in male literacy rates (11.13%) in the 1991-2001 decadal period, which means the gender gap appears to be narrowing.

Comparative literacy statistics

About 35% of world's illiterate population is Indian and, based on historic patterns of literacy growth across the world, India may account for a majority of the world's illiterates by 2020.

The table below shows the adult and youth literacy rates for India and some neighbouring countries in 2002 Adult literacy rate is based on the 15+ years age group, while Youth literacy rate is for the 15–24 years age group (i.e. youth is a subset of adults).

Country	Adult Literacy Rate	Youth Literacy Rate
China	93.3% (2007)	98.9% (2004)
Sri Lanka	90.8 (2007)	98.0
Burma	89.9% (2007)	94.4% (2004)
Iran	82.4% (2007)	95% (2002)
India	66.0% (2007)	82% (2001)
Nepal	56.5 (2007)	62.7
Pakistan	54.2 (2007)	53.9
Bangladesh	53.5 (2007)	49.7
World Average	84% (1998)	88% (2001)

Growth of literacy

Literacy in India grew very slowly until independence in 1947. An acceleration in the rate of literacy growth occurred in the 1991-2001 period.

During the British period, progress of education was rather tardy. Between 1881-82 and 1946-47, the number of primary schools grew from 82,916 to 134,866 and the number of students grew from 2,061,541 to 10,525,943. Literacy rates in British India rose from 3.2 per cent in 1881 to 7.2 per cent in 1931 and 12.2 per cent in 1947In 2000-01, there were 60,840 pre-primary and pre-basic schools, and 664,041 primary and junior basic schools. Total enrollment at the primary level has increased from 19,200,000 in 1950-51 to 109,800,000 in 2001-02. The number of high schools in 2000-01 was higher than the number of primary schools at the time of independence.

In 1944, the Government of British India presented a plan, called the Sergeant Scheme for the educational reconstruction of India, with a goal of producing 100% literacy in the country within 40 years, i.e. by 1984. Although the 40 year time-frame was derided at the time by leaders of the Indian independence movement as being too long a period to achieve universal literacy, India had only just crossed the 64% level by the 2001 census.

Post Independence

The provision of universal and compulsory education for all children in the age group of 6-14 was a cherished national ideal and had been given overriding priority by incorporation as a Directive Policy in Article 45 of the Constitution, but it is still to be achieved more than half a century since the Constitution was adopted in 1949. Parliament has passed the Constitution 86th Amendment Act, 2002, to make elementary education a Fundamental Right for children in the age group of 6–14 years. In order to provide more funds for education, an education cess of 2 per cent has been imposed on all direct and indirect central taxes through the Finance (No. 2) Act, 2004.

Since independence, the literacy rate grew from 18.33 per cent in 1951, to 28.30 per cent in 1961, 34.45 per cent in 1971, 43.57 per cent in 1981, 52.21 per cent in 1991, and 64.84per cent in 2001. [During the same period, the population grew from 361 million to 1,028 million.

Compulsory Education

The realization of the right to education on a national level may be achieved through compulsory education, or more specifically free compulsory primary education, as stated in both the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights.

Compulsory Education to all Children of the age of 6 to 14 years(Article 21 A)

The framers of the constitution realizing the importance of education have imposed a duty  on the State under Art. 45 as one of the directive policy of State to provide free and compulsory education to all children until they complete the age of 14 years within 10 years from the commencement of the Constitution.  The object was to abolish illiteracy from the country. It was excepted that the elected government of the country would honestly implement this directive.. The framers perhaps were of the view that in view of the financial condition of a new state it included it in Chapter IV as one of the directive principles of State Policy.  But the Politicians of our country belied the hope of the framers of the Constitution. It  is unfortunate that it has taken 52 years from the commencement of the Constitution to initiate some measures by amending the Constitution to start with, although 40% of the population of the country is still illiterate.

In the meantime, the Supreme Court in Unnikrishnan case declared that the right to education for the children of the age 6 to 14 is a fundamental right. Even after this, there was no improvement.  A demand was being raised from all corners  to make education a fundamental right.  Consequently, the government enacted  Constitution (86th Amendment) Act 2002 which would make education a fundamental age. The Constitution (86th Amendment) Act has added a new Article 21A after Article 21 and has made education for all children of the age of 6 to 14 a fundamental right. It provides that “ the State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may, by law, determine”.

Implementation

International Law does not protect the right to pre-primary education and international documents generally omit references to education at this level. The Universal Declaration  of Human Rights  states that "everybody" has the right to education, hence the right accures to all individuals, although children are understood as the main beneficiaries. The rights to education are separated into three levels:

1)     Primary (Elemental or Fundamental) Education. This shall be compulsory and free for any child regardless of their nationality, gender, place of birth, or any other discrimination. Upon ratifying the International Covenant on Economic, Social and Cultural Rights States must provide free primary education within two years.

2)     Secondary (or Elementary, Technical and Professional in the UDHR) Education must be generally available and accessible.

3)     Higher Education (at the University Level) should be provided according to capacity. That is, anyone who meets the necessary education standards should be able to go to university.

Both secondary and higher education shall be made accessible "by every appropriate means, and in particular by the progressive introduction of free education". The only country that has declared reservations about introducing free secondary or higher education is Japan.

Role of the State

Today education is considered an important public function and the  state  is seen as the chief provider of education through the allocation of substantial budgetary resources and regulating the provision of education. The pre-eminent role of the state in fulfilling the right to education is enshrined in the 1966 International Covenant on Economic, Social and Cultural Rights .Traditionally, education has been the duty of a child's parents, however with the rise of systems of education, the role of parents has diminished. With regards to realising the right to education the World Declaration on Education for All, adopted at the 1990 World Conference on Education for All states that "partnerships between government and non-governmental organisations, the private sector, local communities, religious groups, and families" are necessary.

The Right of Children to Free and Compulsory Education Act

After the enactment of  Constitution (86th Amendment) Act 2002 it has taken another 8 years for the passage of the Right of Children to Free and Compulsory Education Act or Right to Education Act (RTE). The Right of Children to Free and Compulsory Education Actor Right to Education Act (RTE), which was passed by the Indian parliament on 4 August 2009, describes the modalities of the provision of free and compulsory education for children between 6 and 14 in India under Article 21A of the Indian Constitution. With the enactment of this legislation India became one of 135 countries to make education a fundamental right of every child when the act came into force on 1 April 2010

The law came into effect in the whole of India except the state of Jammu and Kashmir from 1 April 2010, the first time in the history of India a law was brought into force by a speech by the Prime Minister. In his speech, Manmohan Singh, Prime Minister of India stated that, "We are committed to ensuring that all children, irrespective of gender and social category, have access to education. An education that enables them to acquire the skills, knowledge, values and attitudes necessary to become responsible and active citizens of India."

Legal Framework

The Act makes education a fundamental right of every child between the ages of 6 and 14 and specifies minimum norms in government schools. It requires all private schools to reserve 25% of seats to children from poor families (to be reimbursed by the state as part of the public-private partnership plan). It also prohibits all unrecognized schools from practice, and makes provisions for no donation or capitation fees and no interview of the child or parent for admission. The Act also provides that no child shall be held back, expelled, or required to pass a board examination until the completion of elementary education. There is also a provision for special training of school drop-outs to bring them up to par with students of the same age.

Commenting the RTE act requires the World Bank education specialist for India, Sam Carlson, has observed as follows:

“The RTE Act is the first legislation in the world that puts the responsibility of ensuring enrollment, attendance and completion on the Government. It is the parents' responsibility to send the children to schools in the U.S. and other countries.”

The Right to Education of persons with disabilities until 18 years of age has also been made a fundamental right. A number of other provisions regarding improvement of school infrastructure, teacher-student ratio and faculty are made in the Act.

The Act provides for a special organization, the National Council for the Protection of Human Rights ,an autonomous body set up in 2007, to monitor the implementation of the act, together with Commissions to be set up by the states.

Implementation: Finances

In the Indian Constitution  , education comes under the purview of the states, and the act has made state and local bodies accountable for the implementation. The states have been clamouring that these bodies do not have the financial capacity to implement all the schools needed for universal education. Thus it was clear that the central government (which collects most of the revenue) will be required to subsidize the states.

A committee set up to study the funds requirement and funding initially estimated that     ` 171,000  crores or 1.71 trillion ( US$ 38.2 billion) would be required in the next five years to implement the Act, and in April 2010 the central government agreed to sharing the funding for implementing the law in the ratio of 65 to 35 between the centre and the states, and a ratio of 90 to 10 for the north-eastern states. However, in mid 2010, this figure was upgraded to ` 231,000 crores, and the center agreed to raise its share to 68%. There is some confusion on this, with other media reports stating that the centre's share of the implementation expenses would now be 70%. At that rate, most states may not need to increase their education budgets substantially.

Criticism

The act has been criticized for being hastily-drafted, not consulting many groups active in education, not considering the quality of education, and for infringing on the rights of private schools to administer their system. Many of the ideas are seen as continuing the policies of Sarva Shiksha Abbhiyan of the last decade, and the World Bank funded District Primary Education Programme  DPEP  of the '90s, both of which, while having set up a number of schools in rural areas, have been criticized for being ineffective  and corruption-ridden.

 Quality of Education

The quality of education provided by the government system remains in question. Many

muslim families resist sending their daughters to distant schools. The government schools are riddled with absenteeism and mismanagement and appointments are based on political convenience. Despite the allure of free lunch-food in the government schools, parents prefer to send their children to private schools. At the same time average schoolteacher salaries in the rural private schools (about ` 4,000 per month) is 5-10 times less than the government schools. The highest salaries in rural private schools are less than the lowest salaries in the rural public schools. At the very least, the government system is critiqued as being poor value for money.

Children attending the private schools are seen to be at an advantage, thus discriminating against the weakest sections, who are forced to go to government schools. The act has been criticized as discriminatory for not addressing these issues. Well-known educationist Anil Sadagopal said of the hurriedly-drafted act:

It is a fraud on our children. It gives neither free education nor compulsory education. In fact, it only legitimises the present multi-layered, inferior quality school education system where discrimination shall continue to prevail.

Entrepreneur  Gurcharan Das noted that 54% of urban children attend private schools, and this rate is growing at 3% per year. "Even the poor children are abandoning the government schools. They are leaving because the teachers are not showing up."

Public-Private Partnership

In order to address these quality issues, the Act also has provisions for aiding private schools via schemes such as Public Private Partnership (PPP), and for school vouchers, whereby parents may "spend" their vouchers in any school, private or public. These measures, however, have been viewed by some organizations such as the All-India Forum for Right to Education (AIF-RTE), as the state abdicating its "constitutional obligation towards providing elementary education".

Infringement on Private Schools

The Society for Un-aided Private Schools, Rajasthan petitioned the Supreme Court of India  claiming the act violates the constitutional right of private managements to run their institutions without governmental interference. The Bill has been also been criticized for excluding children under six years of age.

Shortcomings in the Act

The Right to Education Act has certain short comings as discussed below.

1)     The Act does not rule out educational institutions set up for profit (Section 2(n) (iv)). The protagonists of such institutions cite Article 19(1)(g) “All citizens shall have the right to practise any profession or to carry out any occupation, trade or business”. However, they fail to realise that the Article is regulated by Article 19(6). In the case of ‘TMA Pai Foundation vs Government of Karnataka’ (2003) Supreme Court held ‘it is difficult to comprehend that education per se will not fall under any of the four expressions in Article 19(1)(g).Therefore, appropriately, the model Rules and Regulations (R&R) for the RTE Act say in Section 11(1)(b) that a school run for profit by any individual, group or association of individuals or any other persons, shall not receive recognition from the government. However, this Section will not be binding on the States as it is not a part of the Act. If the Government of India were serious about the issue, it should have made this a part of the RTE Act.

2)     The common-sense resolution of the discrepancy between the ‘TMA Pai Foundation’ judgment and the model R&R for the RTE Act could lie in the fact that education is a generic term. We need to distinguish between the minimum quantum of education that a citizen should have in order to be able to discharge his or her responsibilities and claim rights, and the subsequent education geared to train him or her for a profession such as medicine or engineering.

3)     As regards the first category, it is now virtually universally recognised that 12 years of school education beginning at the age of six, preceded by appropriate pre-school education, is a minimum requirement. Therefore, in virtually all developed countries, a vast majority of children including those of the rich and powerful go to government schools for 12 years of totally free education. The RTE Act is unconcerned about the four most important years of school education – that is, from Class IX to Class XII.

4)     The second category would include three sub-categories:

a.      higher education that could lead to a technical diploma, a first university degree in broad areas such as the liberal arts, science or commerce, or post-graduate education in these areas;

b.      education leading to a university degree, in a common profession of prime public interest that would cater to the basic needs of society, such as medicine, engineering, law, or management; and

c.      education leading to training in specialised areas (which could vary with time), such as flying, catering or hotel management, which does not lead to a degree but is a prerequisite to join the profession at an appropriate level.

5)     It stands to common sense that the first category should be totally free with no hidden costs whatsoever. In the second category, in the public interest and to ensure that quality is maintained, education in sub-categories (a) and (b) must be in a non-profit organisation. The selections should be made on merit in a means-independent way which would imply that appropriate fees could be charged from those who can pay. Those who cannot pay must be able to continue their education through freeships or scholarships, or bank loans arranged by the institution.

6)     There is no argument against education in sub-category (c) of the second category being provided for profit, for the employers will ensure quality in the institutions providing such education.

7)     The judgment in TMA Pai Foundation would appropriately apply to sub-category (c). There is, therefore, a strong case to ensure that Section 11(1)(b) of the model R&R of the RTE Act is made mandatory for all schools without exception, through an amendment of the Act.

8)     There is the argument that if people can pay for the education of their children they should have a right to have their own schools where the fee charged would be determined by them or the authorities of the school they set up. Indeed, according to the Constitution we cannot ban such schools, which will essentially be the de facto profit-making schools of today where almost exclusively the children of the rich and powerful go. However, the government will be within its rights to say that such schools would not be recognised as they would violate the principle of equity in regard to the minimum education that every Indian citizen should have.

There are certain other short comings in the Act and the relavant Rules which are discussed below:

1)     Experience tells us that no government school is likely to function well (or as well as the government schools did till about 1970) unless children of the rich and powerful also attend such schools. Further, it is a myth that private – de facto commercial – schools provide better training than, say a Central School of the Government of India or trust-run schools which are truly not-for-profit.

2)     The Act places no restriction on the fees that may be charged by unaided private schools ostensibly set up as a Society or Trust but, de facto set up to make money for the investors, just like a corporate company. If they are truly set up not to make any profit they should not be charging any fees, and the fees paid by the children should be reimbursed by the government. They could then function as a part of the common school system in which children of the neighbourhood would have to go irrespective of their class or status.

3)     Why should unaided private schools have a system of management with no obligatory participation of parents, unlike other schools that require the formation of a school management committee in which parents will constitute three-fourth of its membership?

4)     Why do we have only 25 per cent poor children in private unaided schools? Would it not create a divide amongst the children of the poor, leave aside a greater divide between the children of the rich and the poor?

5)     No method is prescribed for selecting the 25 per cent poor students for admission into unaided private schools. Selection by lottery would be ridiculous. In the absence of a viable provision, the private unaided (de facto commercial) schools can choose the 25 per cent poor children in a way that the choice would benefit the school.

6)     There is nothing in the Act or its R&R that will prevent unaided private schools from charging students for activities that are not mentioned in the Act or its R&R. Examples would be laboratory fee, computer fee, building fee, sports fee, fee for stationery, fee for school uniform, fee for extra-curricular activities such as music, painting, pottery, and so on.

7)     Norms for buildings, the number of working days, teacher workload, equipment, library and extra-curricular activities are prescribed only for unaided schools, and not for other schools including government schools. Only an obligatory teacher-student ratio is prescribed both for government and unaided schools. This means that as long as the teacher-pupil ratio is maintained, the school would be considered as fit. Thus, even if a government school has 12 students in each class from I to V, it will have only two teachers.

8)     Two arguments often given for continuing to have, or even encouraging, private unaided schools is that the government has no money to set up the needed schools, and that government schools cannot be run as well as private schools. Both these are deliberate lies. There have been excellent studies and reports that show that the government can find money to adopt a common school system with a provision of compulsory and totally free education up to Class XII in the country over the next 10 years. Further, even today the best system of school education in the country is the Central School (Kendriya Vidyalaya) system run by the government. The country needs 400,000 such schools, and India can afford it.

Conclusion

It has been pointed out that the concept in  RTE act is not new. Universal adult franchise in the constitution was opposed since most of the population was illiterate. Article 45 in the  Constitution of India  was set up as a compromise.

It was envisaged that 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. As that deadline was about to be passed many decades ago in 1964, the  then education minister,  M C Chagla  has said:

“Our Constitution fathers did not intend that we just set up hovels, put students there, give untrained teachers, give them bad textbooks, no playgrounds, and say, we have complied with Article 45 and primary education is expanding... They meant that real education should be given to our children between the ages of 6 and 14.”

In the 1990s, the World Bank funded a number of measures to set up schools within easy reach of rural communities. This effort was consolidated in the Sarva Shiksha Abbhiyan model in the 1990s. RTE takes the process further, and makes the enrollment of children in schools a state prerogative.

The question arises as to how this gigantic project would be implemented. The population of the country has considerably increased and the number of children of age from 6 to 14 years are in crores. The government does not have money at present, to run its own educational institutions. In the area of education it is emphasizing on privatization. Majority of the higher secondary schools are run private persons where there is no provision for free education.  They charge high fee.  Only rich persons can afford to send their children to these schools. When the education will become a fundamental right a citizen would go to the court for enforcement of his right and the Court would be obliged to give an order for its enforcement. But if there are no schools how would the government implement it? Making education compulsory would not solve the problem.  The only alternative is to encourage non-government organizations to come forward and participate in it to fulfill the mandate of the Constitution. Of course, the government must help them and see that teachers and employees working in these private educational institutions get minimum salary to survive and make the scheme successful.

In the absence of these initiatives, it is doubtful that the constitutional mandate to provide free education to all children in order to become able citizens of the country would be successful. Private public schools have become centers for exploitation.

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[Paper Presented at National Seminar on Constitutional Dimensions to the Right to Education at AP Law University, Visakhapatnam]