CONSTITUTIONAL LAW- I

Topic: - Critically Analyse the Right to Education in India

NAME: G ROY
ROLL NO.: xx
COURSE: LL.B. 3 YEARS (1st SEMESTER)

INDIAN INSTITUTE OF LEGAL

STUDIES
2016
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ACKNOWLEDGEMENT

With profound gratitude and sense of indebtedness I place on record my sincerest thanks

to___________________________, Assistant Teacher in Law, Indian Institute of Legal

Studies, for her invaluable guidance, sound advice and affectionate attitude during the course

of the study work.

There is no hesitation in saying that she molded raw clay into whatever we are through his

incessant efforts and keen interest shown throughout the academic pursuit. It is due to her

patient guidance that I have been able to complete the task.

I would also thank the Indian Institute of Legal Studies Library for the wealth of information

therein. I express my regards to the Library staff for cooperating and making available the

books for this project research paper.

Finally, I thank my beloved family members for supporting me morally and guiding me

throughout the project work.

Date: 27/11/2016
_____________________

G ROY
LL.B, 3Yrs, (1th Semester); Roll No: xx
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TABLE OF CONTENTS
Acknowledgement…………………………………………………….…………………………………………………2

Table of Content…………………………………………………………………………………………………………3

Research Methodology………………………….………………………………..…………………………………4–5
A. Introductory ………………………………………………………………………………………………...4
B. Research Methodology
a) Aims and Objectives………………………………………………………..………………4
b) Statement of Problem………………………………………………………………………4
c) Research Hypothesis……………………………………………………………………………4
d) Research Question………………………………………………………………………………4
e) Methodology of Research……………………………………………………………………5
f) Mode of Citation………………………………………………………………………………….5
Table of Cases………………………………………………………………………………………………………………..5

Chapter 1: Right To Education in India: Provisions, Purpose and Prospect........................6-8

Chapter 2 RTE Act, 2009: Expressed and Implied Limitations ……...………………………….9-10

Chapter 3: Role of State ………….……………………………………………………………………………..…11-12

Chapter 4: Conditions in Private Schools ………………………………………………………………..13-14

Chapter 5: A Critical Analysis: Suggestion and Conclusion……………………………………..15-16

Bibliography……………………………………………………………………………………………………………17
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Research Methodology
A. Introductory
A society without education has no status to acclaim. In India Constitution, Directive
Principle of State Policy casts a duty upon the state to provide free and compulsory education
to all children upto the age of fourteen years.

Keeping this objective in mind, in the year 2002, a new article 21 A was inserted in
the constitution which made free and compulsory education a Fundamental Right to all
children in the age group of six to fourteen years. It came into force on 1st April 2010. The
Act provides a comprehensive framework of the rights; duties of government; local
authorities and parents; responsibilities of schools and teachers; protection of educational
rights of children etc.

The project will deal with the important provisions of Act, implementation, role of
guardians and NGOs, and lastly, review of the cases related to the Act and its various
problems, closing with a brief critical analysis, suggestion and conclusion.

B. Research Methodology

a) Aims and Objective

The aim of this project is to review the implementation of Right to Education Act,
2009 at different levels. Objective is to find out the possibilities to improve the mechanism
and implementation of the Act at different levels to its stakeholders.

b) Statement of Problems
Constraint in the way of implementation of RTE Act: lack of institutional machinery
from the side of state and arbitrary interpretation of Act by Private Schools in the wake of
Guardians’ ignorance and Administration’s reluctance to take strong initiatives.

c) Research Hypothesis
A proper implementation of RTE Act is possible in its present form which is essential
to improve the level of education- both quantitatively and qualitatively if some substantial
pressure is built up over the agencies of implementation.
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d) Research Questions
i) Is this Act empowered enough to eradicate illiteracy?

ii) Is state performing its role seriously?

iii) Is the Act being enforced in Private Institutions effectively?

iv) Is this Act improving enrolment ration?

v) What are the strength and weakness of this Act?

e) Methodology
Research methodology for this project is doctrinal based on deductive approach with
secondary data and information.

f) Mode of Citation
A Blue Book System of citation has been adopted throughout the project.

Table of Cases
i) JP Unnikrishnan vs State of Andhra Pradesh

ii) Mohini Jain vs State of Karnataka

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1. RIGHT TO EDUCATION IN INDIA

Provisions, Purpose and Prospect

1.1. Background:
At the commencement of the Constitution, free and compulsory education for all
children until the age of fourteen years was envisaged under Article 45 of the Constitution as
a Directive Principle of State Policy (‘DPSP’). It followed from the language used in Article
45 that the State only had an obligation to ‘endeavour’ to make such provisions, within a
period of ten years from the commencement of the Constitution. However, this endeavour
was not concretised in the form of a positive obligation until the 86th amendment to the
Constitution in 2002. The enactment of the 86th Amendment was not sudden or unexpected,
but a deliberate effort. It was the culmination of several progressive judicial decisions and
developments worldwide articulating a fundamental right to elementary education. In a
landmark judgment in July 1992, Mohini Jain vs State of Karnataka,18 the Supreme Court of
India held that the right to education cannot be a mere directive principle for the State, since
it flows directly from the fundamental right to life, enshrined in Article 21 of the
Constitution19. Shortly thereafter, in December 1992, India acceded to the United Nations
Convention on the Rights of the Child, which recognised a child’s right to free and
compulsory primary education in Article 28, paragraph 1(a) of the Convention. In 1993, in JP
Unnikrishnan vs State of Andhra Pradesh, the Supreme Court narrowed its pronouncement in
Mohini Jain’s case, ruling that the fundamental right to education is limited to the age of
fourteen years. The Court arrived at this finding based on the Directive Principles of State
Policy as they existed then. Acting on these new international obligations and judicial
pronouncements, the Parliament introduced the 86th amendment to the Constitution of India,
inserting Article 21A as a fundamental right. This Article imposes an obligation upon the
State to provide free and compulsory education to all children between the ages of six to
fourteen years, in a manner that the State would determine by legislation. This legislation is
the Right of Children to Free and Compulsory Education (RTE) Act of 2009.

1.2. Purpose:
Article 45 of the Constitution of India states: “The state shall endeavour to provide
free and compulsory education, within a period of ten years from the commencement of this
Constitution, for all children until they complete the age of fourteen years.” Article 39 (f)
stipulates that the state shall direct its policy towards securing facilities and opportunities for
children to develop in a healthy manner and in conditions of freedom and dignity and to
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protect them from exploitation. Article 41 of the Constitution also directs the State to make
effective provisions for securing right to education within the limits of its economic
capacity1.
The Supreme Court has implied the ‘Right to Education’ as a Fundamental Right
from Article 21. The word ‘life’ has been held to include ‘education’ because education
promotes good and dignified life.2 The Supreme Court in J. P. Unnikrishnan v. State of
Andhra Pradesh and others confirmed the fundamental right to education as a right flow from
Article 21 read in the light of Articles 45 and 41. In the 1993 judgement of the Supreme
Court in J. P. Unnikrishnan v. State of Andhra Pradesh and others, the court had declared,
“The passage of 44 years – more than four times the period stipulated in Article 45 has
converted the obligation created by the Article into an enforceable right. At least now the
state must honour the command of Article 45 and make it a right.”The right to education was
accorded the status of fundamental right in the above said decision3. The purpose of the Act is
based on the belief that the value of equality, social justice and democracy and the creation of
a just and humane society can be achieved only through provision of inclusive elementary
education to all.2
Provisions of free and compulsory education of satisfactory quality to children from
disadvantaged and weaker section is, therefore, not merely the responsibility of schools run
or supported by the appropriate governments, but also of schools which are not dependent on
Government funds.2 The Act seeks to achieve this objective.

1.3. Provisions:
Following features provide the basis of implementation of the RTE Act, 2009.
 Every child in the age group of 6-14 has the right to free and compulsory education in a
neighborhood school, till the completion of elementary education
 Private schools will have to take 25% of their class strength from the weaker section and
the disadvantaged group of the society through a random selection process. Government
will fund education of these children.
No seats in this quota can be left vacant. These children will be treated on par with all the
other children in the school and subsidized by the State at the rate of average per learner costs
in the government schools (unless the per learner costs in the private school are lower).

All schools will have to prescribe to norms and standards laid out in the Act and no school
that does not fulfill these standards within 3 years will be allowed to function. All private
schools will have to apply for recognition, failing which they will be penalized to the tune of
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Rs 1 lakh and if they still continue to function will be liable to pay Rs 10,000 per day as fine.
Norms and standards of teacher qualification and training are also being laid down by an
Academic Authority. Teachers in all schools will have to subscribe to these norms within 5
years.

 No donation and capitation fee is allowed.

 No admission test or interview either for child or parents.
 No child can be held back, expelled and required to pass the board examination till the
completion of elementary education.
 There is provision for establishment of commissions to supervise the implementation of
the act.
 A fixed student and teacher ratio is to be maintained.
 All schools have to adhere to rules and regulations laid down in this act, failing which the
school will not be allowed to function. Three years moratorium period has been provided
to school to implement all that is required of them.
 Norms for teachers training and qualifications are also clearly mentioned in the act.
 All schools except private unaided schools are to be managed by School management
Committees with 75% of parents and guardians as members.5

1.4. Prospect
The prospect of this Act does not seem so bright as there is no mechanism to effectively
implement all the provisions of this Act with existing resources. Private unaided schools run
by religious and linguistic minorities in the State have been exempted from the purview of
the Act.

1. http://www.legalindia.com/right-to-education-act-2009-an-overview/ (last visited 22/11/16

@8:30pm)

2. Jain, M.P, Indian Constitutional Law, Lexis Nexis, 7th Ed., 2016, pg. – 1228

3. http://www.legalindia.com/right-to-education-act-2009-an-overview/ (last visited 22/11/16

@8:30pm)

4. Bare Act, the RTE Act, (2009), Universal, 2012, pg.-2

5.https://socialissuesindia.wordpress.com/2010/07/15/salient-features-of-the-right-
to-education-act-2009/ (last visited 22/11/16 @8:55pm)
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2. RTE Act, 2009: Expressed and Implied Limitations

2.1. The first expressed limitation is the age group, i.e. 6-14 years. The upper limit of
14 years is irrational and unwise decision. At least it could have been 16 years or class 10,
whichever is completing later. Till the age of 14 years a child hardly can pass 8th standard.
Under such situation possibility of dropout increases if the child is not resourceful enough to
meet its basic educational needs. There is also
2.2. There are very weak provisions to limit the arbitrary moves of the private schools
regarding levying of fees, selling of books and stationeries etc. Schools are extremely selfish
in this regard. Almost all the schools in this regard is reluctant to follow the established
norms and fetching unprecedented profit, thus having fully professional policy avoiding the
social goals of education. Social Activists allege private schools continued to violate CBSE
guidelines by indiscriminately effecting fee hikes and forcing students to buy books of
publication house of their own choice instead of cheaply available NCERT books. In this way
they are denying the rights of children to read researched books from NCERT.
2.3. No fail rule is also questionable as it has lowered the standard of education
among students. Under this policy, the students up to class VIII are automatically promoted
to the next class without being held back even if they do not get a passing grade. The policy
was implemented as part of the Continuous and Comprehensive Evaluation (CCE) under the
RTE Act in 2010 to ensure all-round development of students. The concept of CCE imported
from the West, which emphasises on evaluating a child through the year, and not just based
on performance in one or two term exams. Several educationists and academics have asserted
that the NDP and CCE are based on sound principles of pedagogy and assessment and are
recognised world-wide. They are welcome change to the exam-centric education culture
prevailed in India. The no-detention policy embraces the concept of equity especially for
children from low-income groups and girls. High repetition and high dropout rates have been
a major issue since the 1990s. The NDP seeks to address that concern. There is no research
evidence to suggest that the repeating a year helps children perform better rather it leads to
more dropouts from the system. Research does say that repeating has adverse academic and
social effects on the child. There is a common misconception that no-detention means no
assessment. CCE is the assessment system under RTE and it should go hand in hand with no-
detention policy. CCE allows for assessment of students on non-cognitive and non-academic
areas of learning. Here a child need not be failed just because of non-performance on a
narrowly defined and rigid set of indicators. There is lack of awareness regarding the
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implementation of CCE. The failure of implementation process is equated with failure of

policy itself. The CCE failed to take off in most schools due to lack of basic capacity and
awareness. In the absence of CCE, a no-detention policy has no meaning. There are also
assumptions that students can only learn under the threat of failure. As long as there are such
beliefs, the groundwork for reforms will not be ready. The failure of a child is the failure of
the system as a whole, rather than that of the child. Instead of proposing the changes in the
learning process, we are victimising the children.1
2.4. The Act puts undue burden of being closed to the small unauthorized private
schools which, in the absence of any school in locality, provide cheap and good education.
The criteria for infrastructure, teachers’ appointment, financial audit, strict building codes etc.
make them vulnerable in the hands of greedy bureaucrat. Small schools opened in good faith
are always on the verge of threat of closing down by authorities without assessing the need of
students and locality. ‘A deeply disturbing aspect highlighted by many school managements
is that the RTE Act, by giving absolute power to the Education Department and local bodies
to make or mar schools, will become the ideal tool for large-scale, systemic corruption. Even
when there was no specific law against unrecognised institutions, the ubiquitous school
inspectors had to be “appeased” despite the school doing nothing illegal. Now with the RTE
Act in force, the inspectors will have a free rein to force school authorities to do their bidding
— a grim portent for the future. It is not difficult to foresee a large number of undeserving
schools getting recognition and a good number of meritorious schools shutting down’.2

1. http://www.gktoday.in/blog/right-to-education-and-no-detention-policy/ (last visited on 23/11/16 @ 9:30

pm)
2. The Hindu, Opinion -‘An Education Act with more wrongs than rights, 27 July 2012
th
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3. Role of State
‘suo moto’ protector or mock spectator

3.1. State being a protector of fundamental rights remained unable to put forth any
strategy to implement certain provisions of RTE Act. First is enrolment which is still not very
encouraging. The compulsory-ness of the Act has given it immense power but lack of
Agencies to implement it has infected this Act with great disappointment. Secondly, it is a
known fact that a good law is criticised due to bad implementation. But, a known fact can be
rectified by imposing pressure over the state agencies to function for the success of this Act.
Just being a mock spectator can’t make an Act successful. Some harsh steps should be taken
to ensure the application of this law to have a trickledown effect of this Act to all the sections
of society to get a qualitative education.

3.2. After elementary stage:

While there is no denying the self-evident truth that a poor child is entitled to the same
opportunities as a rich one, it is worrying that the authors of the Act have not visualised or
catered for the long-term consequences of this revolutionary diktat. The first big unanswered
question relates to the fate of children from the weaker sections after they complete their free
elementary education in the elite schools, where the tuition fee would be more than the
annual income of their parents. Predictably, these children will have to leave these schools
and slip back to schools of questionable standards, which is bound to be psychologically
traumatic.

Second, the Act has enunciated a grand scheme whereby within three years, only recognised
institutions with certain minimum infrastructure will impart school education in the country.
Only schools that have the minimum teaching personnel, at least one classroom per teacher
and a playground will henceforth be allowed to function (sections 18 and 19). At the present
time, when land prices have shot through the roof in the cities, to conjure up a playground
where there is none today is asking for the moon. The stringent stipulations will result in a
large number of unrecognised schools as also aided schools being closed down.

Third, it is apparent that in the HRD Ministry’s view, unrecognised schools are an
unmitigated evil. It is estimated that out of 12 lakh schools in the country today, almost a fifth
are unrecognised. What the government seems to have forgotten is that these schools have
been filling in for the non-existent government schools. The rush for admission to
unrecognised schools is due to the fact that standards in government schools are dismal. The
reality is that we have good and bad unrecognised schools. A comprehensive study of
unrecognised schools in Kerala some years ago concluded that, in general, children received
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a good education from well-qualified teachers, the only criticism being that the teachers were
not adequately paid. What the RTE Act has done is to put all unrecognised institutions, the
good and the bad, under threat of closure.

Today, between 35 million to 60 million children are not in schools. If the number of schools
comes down, as it certainly will, due to closure of schools that do not comply with the
stringent infrastructure standards, the nation’s goal of ensuring universal literacy would suffer
a massive setback. The RTE Act formulations are based on the unrealistic and absurd premise
that recognised schools would not only be able to accommodate the students from schools
that close down but also have room for new entrants.

Fourth, the government seems sanguine about the standards of education and infrastructure
in government schools. However, the consensus among experts is that government schools
are not only overcrowded but impart a very poor standard of education. A recent study of 188
government non-primary schools revealed that 59 per cent of schools had no drinking water
facility and 89 per cent no toilets. And yet ironically, the government schools will be the most
secure under the new dispensation envisaged in the RTE Act.1

3.3. The scope of RTE is gigantic. It covers some 1.4 million schools, 5.6 million
teachers and 190 million children. However, so far, only five per cent schools in the country meet
RTE provisions. In strict legal terms, recognition to the rest 95 per cent schools should have been
withdrawn. But this is not possible in a country that does not have enough schools to meet the
demand. As per the latest Delivery Monitoring Unit report of the Prime Minister’s Office (PMO),
about 20,000 habitations in the country do not have schools. Of these, 11,607 need primary
schools. Most of these habitations are in poor states with high illiteracy rate, such as Bihar, Uttar
Pradesh, Jharkhand and Odisha.
The government’s grand aims of setting up schools in the neighbourhood and not leaving a single
child out of school have fallen flat.2

1. The Hindu, Opinion -‘An Education Act with more wrongs than rights, 27 th July 2012
2. Down to Earth, Article- ‘Elementary Failure’, Sept-2013 edition,
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4. Conditions in Private Schools

An Advantage for EWS, A Burden on Private Schools

4.1. Schools are mandated to admit 25% of children in class I to the extent of the
strength of that class. Even after six years of implementation of the right to education
(RTE) Act, children from economically weaker section are still struggling to find their
seats in schools. RTE Section 12(1)(c) mandates private unaided schools (except minority
and residential schools) to keep 25 percent of the seats (at entry level) reserved for
children belonging to economically weaker sections. This was aimed to increase
educational opportunities and to create inclusive schooling system. The provision has
the potential to impact the lives of 1.6 crore children across the country. In the last six
years, there have been several roadblocks and resistance from private schools in its
implementations. The progress in implementing the 25 percent mandate has
undoubtedly been slow. According to data from District Information System for
Education (DISE), the state fill rate – share of available seats filled by the mandate – has
increased from 14.66 percent in 2013-14 to 15.12 percent in 2014-15 (the most recent
year for which the DISE data is available).

4.2. The report ‘State of the Nation: RTE Section 12 (1) (c)’ highlights the status of
implementation of the provision. The report, released in Delhi on Thursday, is a
collaborative effort of the RTE resource centre at IIM Ahmedabad, Central Square
Foundation, Accountability Initiative (Centre for policy research) and Vidhi Centre for
legal Policy.
Based on DISE data the report shows that states amongst themselves have large
variation in their seat fill rate, from zero percent in Andhra Pradesh to 44.61 percent in
Delhi.
It shows the number of schools participating – schools admitting at least one student
under the mandate – has increased from 44,158 in 2013-14 to 44,996 in 2014-15.
While the union minister of human resource development in Lok Sabha said that “27
states and union territories have issued notification in their state rules regarding
admission of children belonging to weaker section. States have reported a total of 17.35
lakh children admitted in private schools in the academic year 2014-15.”

4.3. However, an RTI reply highlights the ground reality. Out of 34 states and union
territories, 18 shows zero schools implementing the provision. These include – Andhra
Pradesh, Haryana, Kerala, West Bengal and Punjab.
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Just over 30 percent private schools across the country are opening doors for children
from weaker section. While Delhi and Chandigarh reported 100 percent school
participation. Maharashtra and Uttar Pradesh fared poorly with six percent and 0.02
percent schools participating.1

1. http://www.governancenow.com/news/regular-story/private-schools-
reluctant-admit-ews-children-rte-act#sthash.dzUaWcum.dpuf (Visited on 26-11-16 at
11:30 pm)
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5. A Critical Analysis
Suggestion and Conclusion

5.1. Suggestions to Make the RTE Act Effective

i) The Right to Education act should not be restricted to the age of 14 years. It should
be raised up to the secondary level or vocational level courses. The centre and the state
government should introduce diplomas/degrees with specialization in IT , media,
entertainment, telecommunication, mobile communication, automobile, construction, food
processing as announced by Mr Kapil Sibal on February 8,2012 with due reservation for the
economically weaker sections of the society in different polytechnic and other technical
institutes.
ii) CSS ( Common School System) was an essential step for attaining equality
decades ago but now a days it should be changed into MSS (Model school system) based on
the needs and demands of the society where education should be given free of cost and on
private institute patterns.
iii) Parents need to play an important role to make RTE a major success in India.
They should be motivated through counseling and made aware about the RTE Act through
media, hoardings, pamphlets campaigns, rallies etc only then we can ensure our better future
generation.
iv) New state and central schemes like mid-day meal, SSA, RMSA along with world
organization UNICEF are playing a vital role in increasing the enrolment ratio and providing
the basic education to Indian children. But these national and international agencies should
target weaker sections of the society, economically backward, females and highly populated
states of India on top priority to improve efficacy of this act.
v) It is very essential to involve local governing bodies so as to enroll the new born
babies and their record should be sent to near school. After that school authorities should
follow up the child and sent the information for registration and admission to his/her parents
without any discrimination or biasness.
vi) Provision for strict punishment regarding the violation of this Act should be made
and the responsibilities of state government, central government, parents, teachers, and
administrators, Owners of the school, children and society members should be fixed. It
should be made mandatory for all the government employees; whether state or centre or
person working under centre or state sponsored agency, to send their children in government
or government aided institutes.
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5.2. Conclusion
An active and honest participation of all the parties concerned is must to make this act
successful. If we had been able to educate the entire nation then it was certain that we had
already become the leading nation of the world on the sheer power of highest percentage of
working age group. Unfortunately, at present most part of this working population is
illiterate, unskilled who cannot contribute substantially for the progress of the nation. As it is
well said that Better late than never. Every citizen of the country right from a child, teacher or
parent up to Member of Parliament or minister level should honestly admit their
responsibility and perform their duty. They should compel the government in implementing
the Act in true sense without any further delay and poor people should be encouraged
towards Education. The question of ego, materialistic attitude, selfishness and false
superiority complex should be eliminated from our society. The approach of getting
government teacher or any other government job and sending the wards in private institutes
even by paying hefty donations and capitation fees should be discouraged. By doing so, the
RTE Act will prove to be a milestone for long term vision required for development of strong
Education base of the future generation of our beloved country
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BIBLIOGRAPHY

A. PRIMARY SOURCES

I. STATUTES:

- Constitution of India
- Right to Free and Compulsory Education Act (2009)

B. SECONDARY SOURCES

C. BOOKS

- Jain, M.P, Indian Constitutional Law, Lexis Nexis, 7th Ed., 2016, pg. –
1228

- Basu, D.D., Introduction to the Constitution of India, Lexis Nexis, 22nd

Ed., 2016

- Bare Act, the RTE Act, (2009), Universal, 2012, pg.-2

II. WEBSITES

- http://ijepr.org/doc/V1-IS2_Oct12/ij4.pdf (Visited on 27/11/2016 at 11 PM)

- 1. http://www.legalindia.com/right-to-education-act-2009-an-overview/ (last visited

22/11/16 @8:30pm)

- http://www.legalindia.com/right-to-education-act-2009-an-overview/ (last visited

22/11/16 @8:30pm)

- https://socialissuesindia.wordpress.com/2010/07/15/salient-features-of-the-
right-to-education-act-2009/ (last visited 22/11/16 @8:55pm)