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Free and Compulsory education for every Child at last

Written by: Nikunj Saraf - B.A. LL.B (Hons.)
Constitutional Lawyers in India
Legal Service
  • The first law on 'compulsory' education was introduced by the State of Baroda in 1906 whereas, the first documented use of the word 'right' in the context of elementary education appeared in a letter written by Rabindranath Tagore in the year 1908. In 1937, Mahatma Gandhi mooted the idea of self-supporting 'basic education' for a period of seven years through vocational and manual training.

    Even, our Constitutional Framers wanted to make provision for this right, but this intent was finally passed as Article 45 under Directive Principles of State Policy, which are not enforceable by the Courts. However, the year 2002, witnessed a change in the Constitution, brought in by the 86th Amendment Act, 2002 which made primary education a 'fundamental right' through the inclusion of new Article 21-A.

    Now, finally in 2009, the Right of Children to Free and Compulsory Education Act, 2009 is passed by the Union Parliament. It received the President assent on 26th August, 2009 . Now, every child of the age of '6-14' years will have the right to 'free' and 'compulsory' education in a neighbourhood school till completion of his/ her 'elementary' education.

    The Act is fragmented into thirty seven sections which are categorized into seven chapters and one schedule. The Preamble of the Act expressly promises to provide for 'free' and 'compulsory' education to 'all' children of the age of six to fourteen years.

    'Free' education in the sense that the children of the prescribed age group shall be exempted from any fees, charges or expenses, which will prevent him or her from pursuing elementary education . 'Compulsory' in respect of compulsory admission, attendance and completion of the elementary education for such children . However, this free and compulsory elementary education is restricted to education from Class 1 to 8 only!
    The Act covers children who are already 6 years old. Therefore, it seems to be contradicting Supreme Court's judgment in Unnikrishnan case in 1993 , giving all children 'upto' 14 years of age, a Fundamental Right to Education. Pre-school support is essential for children, and ignoring them less than six years of age could lead to the promotion of child labour and other forms of discrimination. How far is this justified or warranted?

    The Draftsmen seems to have been well acquainted with the huge population and concurrently the illiteracy rates in our country, for the Act takes into consideration, the children who are either not admitted, or who have not completed their elementary education for any reason. In such cases, that child will be admitted in a class appropriate to his/her age and a right is vested in such children to receive special training and moreover, the child so admitted to elementary education will be entitled to free education till completion of elementary education even after fourteen years , which I feel is the best part of the Act.

    Moreover, the disadvantaged and economically weaker sections have also been considered. The Act provides for twenty five percent reservations of seats in all, including private unaided schools for poor children in the neighbourhood for which the government would reimburse/ pay back the money towards these seats . However, the formula for arriving at the rates has not been reflected. Moreover, at this juncture, a question that arises is that when the poor are 75%, why only 25% reservation for their children in private schools? Isn't this violates the right to 'equality' guaranteed to all.

    Moving on to the disabled children, the law seems little conscious, but some aspects seems to be missing. As it has not detailed on the facilities needed to enable these children with disabilities to attend school. Moreover, in the Act, 'disability' has the meaning assigned by the Persons with Disabilities Act, 1995, but it fails to cover such other disabilities as defined by the National Trust Act, 1999 i.e., excluding children with mental and learning disabilities.
    To some extent, it seems to violate the 'minorities' right to establish and administer educational institution of their choice. The provisions regarding the Management Committee under the Act are inconsistent with these rights. Therefore, the Government is likely to amend this Section, to exempt the minority institutions from implementing admission quota and give them right to form governing body of their choice.

    Little discrimination against private schools is reflected in the Act, as private schools are required to get recognition after fulfilling various infrastructure norms, whereas, the government schools are automatically recognised . Looking at it in a different perspective, it seems as the Act is indirectly offering scope for corruption as these private schools can be set up only after certification of recognition from the authority as may be prescribed . Wouldn't this lead to an 'Inspector Raj'?

    Well, to accomplish the goals of free and compulsory elementary education, the Act dispenses the responsibilities between the Government, local authorities and the Guardians of the respectively children. Where the appropriate Government and the local authority are under the responsibility to establish a neighbourhood school for every child within three years from the commencement of this Act , the duty of every parent/ guardian is to admit his or her child or ward in the neighbourhood school for elementary education.

    Necessary protection of the rights of the child under this law is ensured by the National Commission for Protection of Child Rights and the State Commission for Protection of Child Rights which has been given wide powers . Furthermore, if any person has any grievance relating to the rights of a child under this Act, such person may make a written complaint to the local authority having jurisdiction.

    Primary education for children is perhaps the most important constituent of life as because human life cycle requires that the basic competencies and life skills be acquired at an early age. Now, it is to be seen, as how far this imperative law would be successful enough to cover the large number of children in our country, who are mainly the victims of child labour and poverty. Legislation alone will not amend this neglect. Concerted efforts, by every citizen, is demanded to achieve the desired, so that it doesn't results in the law merely on paper, which I believe it will not.

    The purpose of this Article is not to defy this 'revolutionary' law which is still to pursue its goals and neither it is intended to be a treatise on educational policy or as such.

    * Source: Last Visited on 10.10.2009.
    * This letter was written o the International League for the Rational Education of Children on 14th August, 1908.
    * Source: Last Visited on 17.10.2009
    * At the All India National Conference on Education held at Wardha on October 1937.
    * Source: Last Visited on 9.10.2009.
    * Source: Last visited on 7th Oct., 2009.
    * Section 3(1)
    * Section 3(2)
    * Section 8 (a) (ii)
    * Section 2(f)
    * Unni krishnan J.P and Others v. State of Andhra Pradesh, AIR 1993 SC 2178.
    * Section 4
    * Section 12 (2) provides that the school specified in sub-clause (iv) of clause (n) of section 2 providing free and compulsory elementary education as specified in clause (c) of sub-section (1) shall be reimbursed expenditure so incurred by it to the extent of per-child-expenditure incurred by the State, or the actual amount charged from the child, whichever is less, in such manner as may be prescribed. It is further provided that such reimbursement shall not exceed per-child expenditure incurred by a school specified in sub-clause (i) of clause (n) of section 2of the Act.
    * Section 3
    * Article 30 of the Constitution lays down that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
    * Section 21 states that a school, other than a school specified in section 2(n) (iv), shall constitute a School Management Committee consisting of the elected representatives of the local authority, parents or guardians of children admitted in such school and teachers. Provided that at least 'three-fourth' of members of such Committee shall be parents or guardians.
    * Expressed by HRD Minister Kapil Sibal at the opening session of a five-day national assembly of the Conference of Religious India (CRI) on Monday 28th Sep. * 2009. (Source: Last Visited on 10th Oct., 2009.
    * Section 18 lays down that no school, other than a school established, owned or controlled by the appropriate Government or the local authority, shall, after the commencement of this Act, be established or function, without obtaining a certificate of recognition from such authority, by making an application in such form and manner, as may be prescribed.
    * Ibid
    * Section 6
    * Section 10
    * Constituted under section 3 of the Act
    * Constituted under section 17, of the Commissions for Protection of Child Rights Act, 2005
    * Section 31
    * Section 32 (1)

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