• Stambh Organization

RIGHT TO EDUCATION AS A FUNDAMENTAL HUMAN RIGHT



It is said that Education which will offer the tools whereby one can live for the divine, for the country, for oneself and others and this must be the ideal of every school which calls

itself national. For the advancement of every individual, education is the most important tool for the development of each individual. Education is a boon for every individual. It has been stated that an educated person not only improves the social and economic status of the country but also the political scenario. Education plays a fundamental role in our society to impart moral values for the growth and prosperity of society. Education is essential for the evolution of human potential and also respects the right of others. Every child is an asset to our country and every child has a right to education. The child must be groomed well in the formative years of his life, He must receive education for the development of a nation. The right to education is a human right of every child. In the present scenario, the right to education is one of the biggest development challenges faced by the International and National communities. When the Act came into force on 1 April 2010, India became one of 135 countries to make education a fundamental right of every child. This paper analytically evaluates the right to education under the RTE Act, 2009 in the light of the present context and the right to education as a human right.


GENERAL INTRODUCTION:


“Future of every nation is dependent on its children. To receive them, and adequate clothing and reasonably sheltered they have to be provided with a suitable and conducive environment to grow and develop into good citizens. Their potentialities must be allowed to flower and blossom by the adult world". Education is considered to be the life insurance of every child. In the recent past, Nelson Mandela had proclaimed, “Education is the most powerful weapon which you can use to change the world”. The right to education is in itself is an enabling right. Education is a human right, ought to be accessible to everyone, without any discrimination to all children,

regardless of their background, must be able to go to school. Parents who do not provide basic elementary education to children are their enemies. Education has been defined as “all types and levels of formal education, including access to education, the standard and quality of education,

and the conditions under which it is given 82% of primary-school-age children do not go to

primary school. Only six out of ten young people will be able to complete their secondary school in 2030. The youth literacy rate (15-24) is 91.73%, meaning 102 million youth lack basic literacy skills.

Education is the key factor in the preservation of child labour: at the same time, child labour is the major obstacle to education for all. Therefore, understanding the interplay between education and child labour is critical to achieving both education for all and the eradication of child labour.

No doubt, that right to education is a fundamental right however there are many hurdles

inaccessibility of education as the most challenging part is the lack of infrastructure, even though according to RTE Act, 2009 “ that there must have been proper sitting arrangement for each student, each classroom for every teacher, clean drinking water or School infrastructure (where there is a problem) need to be improved in every 3 years, else recognition will be canceled, still, students used to sit in open ground, in the absence of benches. The other major challenge is poverty is one of the main reasons why students drop out of their schools, as they are not able to pay school fees, and even many more problems have been faced by them.


CONSTITUTIONAL RIGHTS IN PERSPECTIVE OF RIGHT TO EDUCATION:


Education is the primary vehicle for human, economic and social development, profiting both the individual and society. India became one of the 135 countries to make education a fundamental right for its citizens when the act came into effect on 1st April 2010. The Right to education has been in the constitution by way of constitutional (Eighty-Sixth ) Amendment Act, 2002, established the right to education as a fundamental right under Article 21-A of the Indian constitution which states that “the State shall provide free and compulsory education to all children of the age of six to fourteen years in the manner as the State may, by law, determine. 1 ” The word “free and compulsory education” means that no child is allowed to pay any fees or charges in respect to their education except for those parents who are capable of giving fees of their ward and it is the utmost responsibility of every government and state local authorities to take proper care for the fundamental education of their children. In Mohini Jain v State Of

Karnataka 2 is also known as ‘capitation of fees’ the Supreme Court held that the right to

education is a fundamental right under Article 21 of the constitution which cannot be denied to a citizen by charging a higher fee known as the capitation fee. The right education directly flows from the right to life. Under Article 21 the right to life and the personal liberty of an individual cannot be assured unless it is accompanied by the right to education.

In the case of Unni Krishnan v. the State of A.P 3, it was held by the five Judges bench by 3-2

majority partially agreed with the Mohini case decision and held that the right to education is a fundamental right under Article 21 of the Constitution as it directly flows from right to life. As consider its content, the court partially overruled Mohini Jain's decision and held that the right to free education is available only to children until they complete the age of 14 years, then the responsibility of the State to provide education is subject to the limits of its economic capacity and development. The duty created by Articles 41, 45 & 46 can be executed by the State either by establishing its institutions or by aiding, recognizing, or granting affiliation to private institutions. Court mentioned that Article 45 in Part IV has to be read in ‘harmonious construction’ with Article 21 in Part III of the Constitution, as the impact of the right to life is of no use without education. The apex court made the following interpretation:

“It is thus well established by the decisions of this Court that the provisions of Part III and Part IV are supplementary and complementary to each other and that fundamental rights are but a means to achieve the goal indicated in Part IV. It is also held that the fundamental right must be constructed in the light of the directive principles.”

In T.M.A Pai Foundation v. the State of Karnataka 4 , held that the state governments and

universities cannot regulate the admission policy of unaided educational institutions run by

linguistic and religious minorities, but state governments and universities can identify

educational qualifications for students and make rules and regulations to maintain academic

principles. In the case of Unni Krishnan v state of Andhra Pradesh 5 , the Supreme Court limited the right to education age-wise and held that every child/ citizen has a right to free education up to the gap of 14 years and thereafter is subject to limits of economic capacity and development of the state.

In Avinash Nagra Vs. Navodaya Vidyalaya Samiti 6 Education in Ancient India the apex court of Judiciary while explaining the importance of education observed as follows.

It is a well-known fact that education helps to improve the social order. An educated man has an open mind, a broad outlook is willing to reconsider issues and make his own decisions. He is liberated from the tutelage to outmoded notions, to oppressive institutions and is always willing to learn from others and change whenever it is necessary.


RIGHT TO EDUCATION IN THE CONTEXT OF HUMAN RIGHTS:

Laski (1940) defined “Human rights are necessary conditions of social life without which no one could become his best, to be himself holds good till date.”

After the Second World War, a large number of international instruments, articles, treatises, and National laws relating to the human right to education have been formulated and published.

International regulations have been used to pierce national sovereignty to preserve a state’s

citizens against the abusive use of state powers. Human rights are rights inherent to all human rights, regardless of nationality, region of residence, sex, colour, nationality, language, or any

other status. Human rights empower us to respect each other’s rights and live with each other.

These rights aren’t best to be demanded but the rights to be respected or accountable for. The rights that apply to you also apply to others individuals. Human rights are usually understood as basic fundamental rights that a person cannot be denied by any individual or any government only because he or she is a human being.

Education plays a remarkable role in the protection and promotion of human rights. Education makes us realize about our political and civil rights are often called the first generation rights and the social, economic, and cultural rights have been recognized as second-generation rights.

Human rights education focuses on the enhancement of knowledge and understanding of human rights, fosters attitudes of tolerance, respect, harmony, and responsibility, develop an awareness of how human rights can be transformed into social and political reality and develop skills for preserving human rights.

Education is foremost in shaping the future of every child. One of the flaws related to human

rights is the absence of an enforcement mechanism as people are not aware of their rights. Article 26 of the Universal Declaration Of Human Rights 7 declares that :

1. “Everyone has the right to education. Education shall be free, at least in the elementary

and fundamental stages. Elementary education shall be compulsory for every child.

Professional and technical education shall be made generally available and higher

education shall be equally accessible to all based on merit.

2. Education shall be directed to the full development of the human personality and the

strengthening of respect for human rights and fundamental freedoms. It shall promote

understanding, tolerance and friendship among all nations, racial or religious groups, and

shall further the activities of the United Nations for the maintenance of peace.

3. Parents have a prior right to choose the kind of education that shall be given to their

children”. Along with the Universal Declaration of Human Rights, the Right to Education is recognized by several international conventions like the International Convention of the Rights of the Child (CRC). Various regional human rights instruments also recognize and guarantee the Right to Education. Some of these are the American Declaration of the Rights and Duties of Man(Article 12), the European Convention on the Legal Status of Migrant Workers(Article 14 and 15) and The African Charter on Human and People's Rights(Article 17).


APPRAISAL OF RIGHT TO EDUCATION ACT, 2009:

Education is the backbone of every country in the world. Children’s Right to Free and

Compulsory Education Act, 2009 was passed by the Indian Parliament on August 4, 2009, and came into force on April 1, 2010, as this day became the momentous day in the history of Indian education for every individual. Sam Carlson, The World Bank education specialist has commented for India: The RTE Act is the first legislation in the world that puts the

responsibility on the government for ensuring enrolment, attendance, and completion of the studies. It is the parent’s utmost responsibility to send the children to schools in the US and other countries.

The Right to Education serves as a foundation block to ensure that every child has his or her

right. The first official document on the Right to Education was Ramamurti Committee Report in 1990. The RTE Act aims to provide primary education to all children aged 6 to 14 years. It upholds education as a Fundamental Right under Article 21 of The Indian Constitution. The aforesaid Act mandates reservation for depressed or disadvantaged sections of society up to 25%, where disadvantaged groups include, SCs and STs, Socially Backward Class, and Differently abled. It prohibits corporal punishment and mental harassment; selection procedures for admission of children, Capitation fee, teachers provide private tuitions as well as on Running of schools without recognition. It aims to free the child from fear, trauma, and anxiety through a child-friendly and child-centric learning system. The school needs to have certain minimal facilities such as adequate teachers, playground and infrastructure, etc. The Government will develop a mechanism to help marginalized schools by complying with the provisions of the Act.

It also indicates that sharing of financial and other responsibilities between the state and central Governments. On the other hand, RTE Bill has been severely criticized for its shortcomings, the first one being the age of the child. The RTE Act limits the right to ages 6-14 years whereas India as a signatory to the UN Child Rights Convention, also accepted the international definition of children that is up to 18 years of age. By this omission, the bill ignores the needs of the 0-6 years age group of children which is a formative stage and also of the age group of 15- 18 years. It may happen that after 14 years, the child would be compelled to take up labour work as his education cannot get him/her a decent job anywhere and also lack of provisions for children with disabilities, taking action against government authorities in the event of negligence in service, etc. Therefore, the issue of child labour remains arguable. A report on the status of implementation of the Act was released by the Ministry of Human Resource Development on the first anniversary of the Act. The report admits that 8.1 million children in the age group six-14 remain out of school and there's a shortage of 508,000 teachers country-wide. A shadow report by the RTE Forum representing the leading education networks in the country. Education should impart gender equality, respect for human dignity and rights.


CONCLUSION:


Education is free of cost up to the age of 14 years and it must be accessible to all. In the

concluding remarks, it is wished to state that passing an act is not sufficient. The need of an hour is to perform and monitor the act properly in itself. The youth and civil society in India should step forward and spread the usefulness of education to illiterate parents who may not be able to appreciate the significance of education in curbing social evils. Social discrimination and monopolization by any group should not be permitted at any cost. The right to education is a fundamental right well as a human right. India along with other countries of the world should also put in ingenious efforts to make this goal a real success. The government should introduce projects from time to time. The government should invest in the construction and infrastructure firstly and then open a school however the scenario is different. The school appears in papers and files first and later on the building appears. Another solution is that the government has many good government senior secondary schools like central schools, Jawahar Navodaya Vidyalayas, and other governmental senior secondary schools with better infrastructures. These buildings can be used for primary schools. The shifts can be done during school hours. We need to improve our primary education system to give our children a better environment where they can stand and speak in front of people. Indispensable protection of the child’s rights under the right to education Act, 2009 is guaranteed by the National Commission for Protection of Child Rights and the State Commission for Protection of Child Rights which has been given wide powers. It is the responsibility of every individual to promote and protect the human rights of others and spread awareness for the same.


ABOUT THE AUTHOR

ADVOCATE KANIKA SHARMA, Reserch intern STAMBH ORGANISATION Research

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REFERENCES:

1. MOHINI JAIN VS. STATE OF KARNATAKA AIR1992 SC 1858

2. UNNIKRISHNAN, J.P. VS. STATE OF ANDHRA PRADESH

3. T.M.A PAI FOUNDATION VS. STATE OF KARNATAKA, AIR2003 SC 355

4. JHA, PRAVEEN AND POOJA PARVATHI 2010, RIGHT TO EDUCATION ACT: 2009, CRITICAL GAPS

AND CHALLENGES, ECONOMIC AND POLITICAL WEEKLY, MARCH VOL XLV (13)

5. FROM UNIVERSAL DECLARATION TO WORLD PROGRAMME 1948-2008: 60 YEARS OF HUMAN

RIGHTS EDUCATION.

6. ARTICLE 21A, SEE ALSO ARTICLES 30,41,45 AND 51 A(K), 1995-96.

7. RESEARCH PROJECT FOR THE GENEVA ACADEMY OF INTERNATIONAL AND HUMANITARIAN

LAW AND HUMAN RIGHTS. (OCTOBER 2009).

8. MAHAPARTA, N. (2012). ROLE OF EDUCATION IN PROMOTION AND PROTECTION OF HUMAN

RIGHTS. ODISHA REVIEW, 26-30.

9. S. GUPTA, EDUCATION IN EMERGING INDIA, 2 ND ED. (2008), SHIPRA PUBLICATIONS, DELHI, P.1

10. SEE BADHUA MUKTI MORCHA VS. UNION OF INDIA, AIR 1984 SC 802; MOHINI JAIN VS. STATE

OF KARNATAKA, AIR 1992 SC 1858. THE COURT OBSERVED THAT THE RIGHT TO LIFE WAS A

COMPENDIOUS EXPRESSION AND THE DIGNITY OF AN INDIVIDUAL COULD NOT BE ASSURED

UNLESS IT WAS ACCOMPANIED BY THE RIGHT TO EDUCATION. THE COURT DECLARED THAT

THE RIGHT TO EDUCATION FLOWS DIRECTLY FROM THE RIGHT TO LIFE.


1 INDIA CONST. art. 21-A, http://lawmin.nic.in/olwing/coi/coi-english/coi-4March2016.pdf, archived at

https://perma.cc/K2UY-4MPY.

2 AIR 1982 SC 1858

3 (1993)1 SCC 645

4 AIR 2003 SC 355

5 AIR 1993 SC 2178

6 (1997) 2 SCC 534 p.539

7 https://www.humanrights.com/course/lesson/articles-26-30/read-article-26.html

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