“I beg to place the following resolution before the council for its consideration.…the state should accept in this country the same responsibility in regard to mass education that the government of most civilized countries are already discharging and that a well considered scheme should be drawn up and adhered to till it is carried out.. The well being of millions upon millions of children who are waiting to be brought under the influence education depends upon it...”
The above words are part of the resolution which Gopal Krishna Gokhale moved in the Imperial Legislative Council on 18th march, 1910 for seeking provision of ‘Free and Compulsory Primary Education” in India. This initiative must however be seen as part of the following sequence of events:
1870: Compulsory Education Act passed in Britain
1882: Indian Education Commission: Indian leaders demand provision for mass education and Compulsory Education Acts.
1893: Maharaja of Baroda introduces Compulsory Education for boys in Amreli Taluk.
1906: Maharaja of Baroda extends Compulsory Education to rest of the state.
1906: Gopal Krishna Gokhale makes a plea to Imperial Legislative Council for introduction of Free And Compulsory Education
1910: Gokhale proposes Private members Bill (Rejected)
1917: Vithalbhai Patel is successful in getting the Bill passed - First Law on Compulsory Education passed (Popularly Known as Patel Act)
1918: Every Province in British India gets Compulsory Education Act on its Statute Book
1930: Hartog Committee Recommendation for better quality (less focus on quantity) hinders spread and development of primary education.
Many of these initiatives, however, were not seriously implemented; lack of resources and enforcement being the chief reasons.
The situation worsened over the years forcing Mahatma Gandhi to give a stirring call for universal education in 1937. His plea for adequate finances for universal education was met with a response that if at all, the way out was to utilize revenues from liquor sales. That meant he had to either give up his stand on prohibition, or his plea for universal education with state support, which he expressed quite plainly: “the cruelest irony of the new reforms lies in the fact that we are left with nothing but liquor revenue to fall back upon in order to give our children education (Harijan 5, 222). He solved what he called the ‘Educational Puzzle’ by proposing self-funded education, in what came to be known nai talim later.
1946: Constituent assembly began its task
1947: Ways and Means (Kher) Committee set up to explore ways and means of achieving Universal Elementary Education within ten years at lesser cost.
1947: Constituent Assembly Sub committee on Fundamental rights places free and compulsory education on list of Fundamental Rights : “Clause 23- Every citizen is entitled as of… right to free primary education and it shall be the duty of the State to provide within a period of ten years from the commencement of this Constitution for free and compulsory primary education for all children until they complete the age of fourteen years.”
1947 (April): Advisory Committee of the Constituent Assembly rejects free and compulsory education as a fundamental right (costs being the reason). Sends clause to list of “non - justiciable fundamental rights” (later termed as ‘Directive Principles of State Policy).
1949: Debate in Constituent Assembly Removes the First Line of ‘Article 36’…“Every citizen is entitled as of right to free primary education and it shall be the duty of the State to..” and replaces it with “The State shall endeavour to..” Why was the word ‘primary’ education removed? … “ a provision has been made in article 18 , to forbid any child being employed below the age of 14. Obviously if the child is not to be employed below the age of 14, the child must be kept occupied in some educational institution. That is the object of article 36..” -Sh B. R. Ambedkar, 23rd Nov. 1949
1950: Finally, Article 45 of Directive Principles of State Policy accepted: “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”.
This denied a justiciable right. The inadequacy of the final Article 45 was foreseen by K.T. Shah in his note of dissent in April 1947 thus:
“Once an unambiguous declaration of such a (justiciable) right is made, those responsible for it would have to find ways and means to give effect to it. If they had no such obligation placed upon them, they might be inclined to avail themselves of every excuse to justify their own inactivity in the matter, indifference or worse”.
These words of K. T. Shah proved prophetic. On the fate of Article 45 after independence, the noted Gandhian economist L.C. Jain has observed that there was no reference to education in any of the budget speeches during the ten year period after the adoption of the Constitution, which was the time target envisaged by Article 45. It should therefore be clear that the plea of lack of resources made even Gandhi think of alternative methods, and Babasaheb Ambedkar to accept dropping the draft Article 36 from the final Constitution. Many shortcomings of the 2009 Act, like excluding the 0-6 and 14-18 age groups stem from the same lack of resources argument, and even the fate of the implementation of the 2009 Act will crucially depend on the availability and proper utilization of adequate finances. In this context, where as it is heartening that the Prime Minister in his unprecedented address to the nation on the Act on April 1, 2010 said that financial availability will not be allowed to hamper the implementation of the Act, one hopes that this promise to the nation will inform state policy in the coming years.
The Supreme Court in 1993 held free education until a child completes the age of 14 to be a right (Unnikrishnan and others Vs State of Andhra Pradesh and others) by stating that: “The citizens of this country have a fundamental right to education. The said right flows from Article 21. This right is, however, not an absolute right. Its content and parameters have to be determined in the light of Articles 45 and 41. In other words, every child/citizen of this country has a right to free education until he completes the age of fourteen years. Thereafter his right to education is subject to the limits of economic capacity and development of the State.”
Spurred by the Unnikrishnan judgement and a public demand to enforce the right to education, successive governments from 1993 worked towards bringing a constitutional amendment to make education a fundamental right. That led to the 86th amendment in December 2002 which inserted the following articles in the Constitution:
1. Insertion of new article 21A- After article 21 of the Constitution, the following article shall be inserted, namely:-
Right to education
"21A. The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine."
2. Substitution of new article for article 45- For article 45 of the Constitution, the following article shall be substituted, namely:- .
Provision for early childhood care and education to children below the age of six years.
"45. The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years."
3. Amendment of article 51A- In article 51A of the Constitution, after clause (J), the following clause shall be added, namely:-
"(k) Who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years."
The original Article 45 of the Directive Principles had used the term ‘up to 14 years’ and the Unnikrishnan judgement said ‘till he completes the age of 14 years’. Both these definitions contain the age group 0-6 years. Article 21A restricted the age group from 6 to 14, thereby removing the 0-6 age group from the right; relegating it to the new article 45 of Directive Principles. The Unnikrishnan judgement had further observed that the right to education existed and would not be contingent upon the economic capacity of the state up to 14 years of age. Article 21A said that it would come into force ‘in such manner as the State may, by law, determine’. So it was made contingent on a law that the state may bring in. This Act is that law, and it took another eight years to come since the 86th amendment was passed. So it took seventeen years for the right to be enforced since the Unnikrishnan judgement, that too for the restricted age group of 6 to 14 years. It may be noted here that it was the Parliamentary Standing Committee on Education that recommended the age group 6 to 14 years for the eventual 86th constitutional amendment, paving the way for the restricted age group.
After the 86th amendment in December 2002 the following actions took place:
2003: The Free and Compulsory Education for Children Bill, 2003 (NDA government)
2004: The Free and Compulsory Education for Children Bill, 2004 (NDA government)
2005: The Right to Education Bill, 2005 (June) (CABE Bill) (UPA I government)
2005: The Right to Education Bill, 2005 (August) (UPA I government)
2006: Central legislation discarded. States advised to make their own Bills based on The Model Right to Education Bill, 2006 (UPA I government)
2008/09: Central legislation revived. The Right of Children to Free and Compulsory Bill, 2008, introduced/ passed in Rajya Sabha and Lok Sabha. President’s assent in August 2009. However, the notification of the Act and the 86th amendment, issued on Feb 19, 2010 in the Gazette of India, stating that implementation will begin from April 1,2010, eight months after the presidential assent. (UPA II government).
Notice that the word ‘Right’ was missing in the first two drafts of the Bill and was used from the 2005 CABE bill onwards. The central legislation was dropped in 2006 in preference to state legislations based on a token model bill draft, for the recurring ‘lack of central resources’ argument, but it was intense public pressure based on independent financial estimates that made it possible to revive and bring back the central legislation in 2008.
This Indian Act is unique from amongst such Acts from many other countries for the following reasons:
• The definition of ‘free’ that goes beyond tuition fees
• The ‘compulsion’ being on the governments rather than on parents
• The stress on ending discrimination, and on inclusion
• Prescribing quality principles for the teaching-learning process
• An external constitutional body for monitoring the Act
• Defining minimum norms and standards for the school
• Addressing the emotional, stress and anxiety issues of children
The Act is also momentous since it took over a hundred years to bring it in. If we take 1857 war as the milepost for the fight for India’s independence, it took ninety years, up to 1947, for that to become a reality. But for the Right to Education, it has taken a decade longer, sixty two of those years being after the nation became independent. That gives the Act a very serious historic significance.
They would have to be brought in conformity with the central Act. As per article 254 of the constitution reproduced below, a state Act can not violate the provisions of the central Act in a concurrent subject. States could amend such a central act, but that would require presidential assent. However, if the state Act contains anything on which the central Act is silent, then that may remain as a part of the state Act.
254. (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause
(2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(3) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.
Definitions in the Act
Education being a concurrent subject under the constitution, meaning both the central and state governments have responsibility for it, appropriate government in the Act refers to either of these governments, or the government of a Union Territory with a legislature (like Delhi). The full definition is at 2(a) in the Act.
As mentioned earlier, by confining the Act to Article 21A. The government’s decision to do so has obviously got Parliamentary approval with this Act. The original Article 45 and the Unnikrishnan verdict both include the age group 0-6. The Juvenile Justice Act defines a child up to age 18. The United Nation’s Child Rights Convention (UNCRC), to which India is a signatory, also defines a child from 0 to 18. In principle, by referring to the JJ Act, the UNCRC and Article 21 (right to life) in the Aims and Objects of the RTE Act, the age could have been defined from 0-18. However, citing economic compulsions, the present Act has been confined to the age group 6-14 as contained in Article 21A. A great deal of public pressure would need to be kept up in order to have the Act amended to incorporate the 0-18 as the age of the child.
The Act makes school education a tripartite partnership between the community (school management committees), the PRIs, and the government. As is evident from definition 2(h), the purpose of defining a local authority is to decentralize administrative control by bringing in panchayati raj institutions. However, since differing situations exist in states, the term is flexible and it is left to the state governments to notify an appropriate local authority. For example, Jharkhand continues to be a state where panchayat elections have still not been held, and West Bengal already has a Primary Education Council that it may decide to designate as the local authority. Similarly NE states like Meghalaya have District Councils, which they may want to retain as ‘local authority’.
Section 2(k) only defines the parents of a child, and section 10 also refers to parent’s duty in ensuring education of their children. However since under Section 8 (explanation (i)), the ‘compulsion’ is on the state and not on parents, the appropriate government shall have to take the responsibility to ensure education of children without parents.
Where ever the word ‘prescribe’ occurs, it implies that the appropriate government shall make relevant rules.
At section 2(n), four categories are defined: (i) funded and managed by the government or local authority, (ii) private but aided by the government or local authority, (iii) schools defined under special category, like Kendriya Vidyalaya, Navodaya Vidyalaya, Sainik School, school under the Central Tibetan Schools Association and similar others, and (iv) private schools receiving no aid from the government or local authority.
Any test or interview/interaction of the child or interview/interaction of parents would constitute a screening procedure to admit one child over another. Section 2(o) along with Section 13(2)(b) prohibits any of these screening procedures and calls for only random procedures to be used for admitting a child to school. This prohibition would apply to all schools, private or special category schools like Navodaya schools too. No school can claim special category status because it indulges in screening procedures at the elementary level. Random procedure implies that if the number of children applying to a school exceeds the available seats, an open lottery system shall be used to fill the seats. This applies to all categories of schools. Various methods could be employed for the open lottery system, the easiest being having name/number for each child that applied on a folded paper slip in a container, out of which children themselves fish out one each randomly, in the presence of parents in an open transparent manner.
Children belonging to disadvantaged groups are defined at 2(d). These include children from SC/ST, and other socially and educationally backward categories based on cultural, economical, social, geographical, linguistic, gender or other categories that the appropriate governments can separately notify. Appropriate governments can for example notify different categories in different districts and sub-districts of the state, educationally backward religious communities, for example as identified by the Sachar Committee and so on. Weaker sections as defined at 2(e) are children belonging to weaker economic categories that the appropriate governments have to notify, based on a minimum annual income of the parents/guardians.
The main challenges is to implement the 25 per cent reservation for poor students, keeping all children in school until class V while reaching acceptable standard learning levels, monitoring private schools’ recognition, establishing School Management Committees that function well, and all done with similar mechanism in all States and Territories.
Free education is often meant to imply waiver of tuition fees. But tuition fee is only a part of educational expense, and poor families are often not able to raise other expenses needed for education. These could include textbooks, copies and writing material, uniforms, transportation, educational and support materials for disabled children (hearing aids, spectacles, Braille books, crutches and so on), or even library fee, laboratory fee, etc. which are not covered under tuition fee. The phenomenon of drop-outs in particular is related to inability of parents to meet the educational expense of their children, often daughters, somewhere during the course of elementary education. Keeping this in mind, the Act at Section 3(2) enlarges the term ‘free’ by mandating 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”. A list of free entitlements is made explicit in 5(1) of the Model Rules, but it is not restrictive; as per Section 3(2) of the Act, if any other charge or expense, other than that listed in Model Rules 5(1), for example, free residential facilities for children whose parents migrate, prevents a child from pursuing or completing elementary education, the state shall have to provide it.
In a country like India where such a large majority of parents are poor, migrate for work, do not have support systems, putting compulsion on them, with punishment, would imply punishing them for being poor – which is not their choice. As the well-known educationalist J.P.Naik once jocularly remarked, if parents are sent to jail for not sending their children to schools, there may be more parents in jails than children in schools!
Section (10) of the Act makes it the duty of the parents to ensure that their children go to schools, without prescribing any punishment. This implies that SMC members, local authorities and community at large must persuade reluctant parents to fulfil their duty. For child labour and street children, the government would have to ensure that they are not compelled to work and provide schools for them, perhaps residential in many instances. Parents and communities who traditionally forbid their adolescent girls from going to school, or indulge in child marriage would have to be persuaded, or the child marriages act would need to be invoked against them. Civil society interventions would be crucial here.
No, it is universal. Any child who is a citizen of India, rich or poor; boy or girl; born to parents of any caste, religion or ethnicity shall have this right. If a rich parent decides to send his/her child to a school owned by the government/local authority, that child would also have a right to all the free entitlements. Only those children who are sent by their parents to a school that charges fees (private aided/unaided) will surrender their right, as per Section 8(a) of the Act, to free entitlements; they can not claim reimbursement from the government for their educational expenditure (except for the obligatory 25% quota for children of disadvantaged groups and weaker sections to unaided schools, described later).
There are deficiencies in the Act as it was passed in August 2009 in relation to children with disabilities. They should have been included in the definition of disadvantaged groups, but were inadvertently left out. The Act says that their education shall follow the provisions of the Disabilities Act 1996, but that Act has deficiencies in as much that it does not include mental disabilities. The central government has acknowledged these lacunae and promised to bring appropriate amendments in the Budget 2010 session of Parliament, as also to amend the Disabilities Act 1996 appropriately. The proposed amendments are at Q83.
As the Act stands, education would be inclusive for all categories of disability, including severe and profound.
The Act, at Section 4 lays down that all children who are out of school, as never enrolled or drop outs (in the 6-14 age group), would have to be admitted in age appropriate class in regular schools, and they would have a right to complete elementary education even after crossing age 14.
It means giving admission in a class where the child would normally be if she had joined school from class 1 at six years of age. So if a child is 11 years old and has never been to school, she will be admitted to class 5, but shall be given special education to make her come to the level in a time frame ranging from three months to two years (model rules 3(1)).
If NGO’s qualify as per the teacher qualifications and other norms, they could be associated, but as part of the regular school where the children are first admitted, and not as running separate residential or non-residential non-formal centers.
Pioneering work by groups like the MV Foundation has shown that it is indeed possible to do so. However certain flexibility could be used after the duration of special training. If a child after completing special training is 13 years old and should be in class 7 by the age appropriateness criterion, but the teacher/school feels that it would be better for the child, in terms of coping, to be in class 6, they could advise the child/parents accordingly.
They would have the right to get free education till they complete class 8, even if they exceed age 14. This would apply, for example, to a 13 year never enrolled child who may take 5 years to complete class VIII, up to the age of 18 years, or more.
In the absence of a regular birth certificate issued under the Births, Deaths and Marriages Registration Act 1886, a certificate based on hospital/ANM record, anganwadi record or an affidavit by the parents/guardian would suffice (Model Rule 9). However, under section 14(2) of the Act, if none of these are available, including a notarized affidavit, a child would not be denied admission, meaning if the parents say the child is six years or more, admission would have to be given, while any of the above mentioned documents is simultaneously arranged.
The head teacher would have to immediately issue a transfer certificate to a child moving away from the school, or face disciplinary action in case of delay. However, no child shall be denied admission in the absence of a transfer certificate, (Sections 5 (2) and (3) of the Act).
There is a certain overlap and complementaries in their functions. Essentially however, the appropriate government shall lay down policy, prescribe curriculum, make arrangements for teacher recruitment and their proper deployment, and make financial arrangements, and provide technical support. The local authority on the other hand will ensure the enumeration, admission and attendance of children, school mapping and availability of neighbourhood schools, and monitoring.
For example, to ensure proper school mapping and availability of neighbourhood schools, a GIS mapping of schooling facilities could assist the appropriate governments to understand the geographic dispersal of schools, the distance to schools from the habitations and the physical barriers, if any, as some state governments are already doing. This would require the appropriate government and the local authority to work in unison.
As per Section 8 (explanation) (1) and (2), the state is compelled to provide free education and ensure compulsory admission, attendance and completion of elementary education. The implication is that if a child in the age group 6-14 is working at a tea shop, agricultural field and so on, cooking at home or simply wandering around when the school is functioning the government is violating his/her fundamental right. It is the government that must ensure that all children are attending, and complete elementary education. This has immediate impact on child labour. If the child is engaged in child labour and is not in school, it is the government now that is in violation of law. Consequently, the Child Labour Act 1986 is no more in coherence with this Act and there is already pressure building on the Labour Ministry to review and amend the 1986 Act to bring it in harmony with the Right to Education Act.
Yes, and that shall not require a parliamentary amendment. As per Section 20 it can be done by the central government through a notification. Most likely, the National Advisory Council shall be assigned the task of reviewing the schedule periodically.
Source: Portal Content Team
Last Modified : 3/2/2020