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Education: A Fundamental Right in India

Written by: Vijay Pal Singh - Research Scholar
Contract Law
Legal Service
  • Education is the most potent mechanism for the advancement of human beings. It enlarges, enriches and improves the individual's image of the future. A man without education is no more than an animal.

    Education emancipates the human beings and leads to liberation from ignorance. According to Pestalozzi, education is a constant process of development of innate powers of man which are natural, harmonious and progressive. It is said that in the Twenty First Century, 'a nation's ability to convert knowledge into wealth and social good through the process of innovation is going to determine its future,' accordingly twenty first century is termed as century of knowledge .
    The significance of education was very well explained in case of Brown V Board of Education , in following words: "It is the very foundation of good citizenship. Today, it is principal instrument in awakening the child to cultural value, in preparing him for later professional training and in helping him to adjust normally to his environment. "It is said that child is the future of nation.

    The quality of education of the child will determine the quality of life in nation. As it is well illustrated in following words:
    "In ancient shadows and twilights Where childhood had strayed, The world's great sorrows were born And its heroes were made. In the lost boyhood of Christ was betrayed. " Both at national and International levels efforts are being made to educate more and more people as education contributes in the development of the society which is consistent with the dignity of the human being.

    International cooperation related to what is now called 'the right to education' has a more limited history. A private organisation, the International Bureau of Education, was established in Geneva in 1924 and was transformed into an inter-governmental organization in 1929 as an international coordinating centre for institutions concerned with education. A much broader approach was chosen, however with the establishment of UNESCO in 1945. United Nations, on 10th December, 1998 adopted Universal Declaration of Human Rights. The Preamble to the UDHR stated that: every individual and organ of society...., shall strive by teaching and education to promote respect for these rights and freedoms...." In accordance with the Preamble of UDHR, education should aim at promoting human rights by importing knowledge and skill among the people of the nation states.

    Article 26 (1) of UDHR proclaims that: Every one has a right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit."

    Article 26 (2) states that Education shall be directed to the full development of the human personality and to 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 maintenance of peace. Further, Article 26 (3) provides that parents have a prior right to choose the kind of education that shall be given to their children."

    The right to education has also been recognized by the International covenant on Economic, Social and Cultural Rights. Article 13

    (1) states that,: The states parties to the present covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and sense of its dignity, and shall strengthen the respect for human right and fundamental freedoms.... Article 13
     (2) further provides that the states Parties to the present covenant recognize that, with a view to achieving the full realization of this right:
    (a) Primary education shall be compulsory and available free to all;
    (b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education;
    (c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the
    progressive introduction of free education;
    (d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received on completed the whole period of their primary education;
    (e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.

    During the general discussion by the committee on Economic, Social and Cultural Rights on the right to education (1998), an agreement was reached that four elements define its core content:
    (1) No one shall be denied a right to education;
    (2) Everyone is entitled to basic (primary) education in one form or another; this includes basic education for adults. Primary education must be compulsory and free. No one may withhold a child from primary education. A state has an obligation to protect this right from encroachment by third persons;
    (3) The minorities have the right to be taught in the language of their choice, in institutions outside the official system of public education. UNESCO has adopted a number of normative documents, conventions and recommendations ensuring the enjoyment of the right to education for everyone.

    The best known among these is the Convention against Discrimination in Education, which was adopted on 14th December 1960 by the General Conference and which entered into force in 1962. The role of international organisation regarding the implementation of the right to education is just not limited to the preparation of documents and conducting conferences and conventions but it also undertakes the operational programmes assuring, access to education of refugees, migrants, minorities, indigenous people, women and the handicaps. India participated in the drafting of the Declaration and has ratified the covenant; Hence India is under obligation to implement such provisions.

    The Founder Fathers of the nation recognizing the importance and significance of right to education made it a constitutional goal, and placed it under chapter IV Directive Principle of State Policy of the Constitution of India. Article 45 of the Constitution requires state to make provisions within 10 years for free and compulsory education for all children until they complete the age of 14 years.

    Further Article 46 declares that the state shall promote with special care the educational and economic interests of the weaker section of the people.... It is significant to note that among several Articles enshrined under Part IV of the Indian Constitution, Article 45 had been given much importance as education is the basic necessary of the democracy and if the people are denied their right to education then democracy will be paralyzed; and it was, therefore, emphasized that the objective enshrined under Article 45 in Chapter IV of the Constitution should be achieved within ten years of the adoption of the Constitution. By establishing the obligations of the state the Founder Fathers made it the responsibility of coming governments to formulate a programme in order to achieve the given goals, but unresponsive and sluggish attitude of the government to achieve the objective enshrined under Article 45 belied the hopes and aspirations of the people. However, the Judiciary showed keen interest in providing free and compulsory education to all the children below the age of fourteen years.

    In case of Mohini Jain V State of Karnataka, the Supreme Court held that right to education is fundamental right under Article 21 of the Constitution.

    The right to education springs from right to life. The right to life under Article 21 and the dignity of the individual cannot fully be appreciated without the enjoyment of right to education. The Court observed:
    # Right to life is compendious expression for all those rights which the Courts must enforce because they are basic to the dignified enjoyment of life. It extends to the fully range of conduct which the individual is free to pursue. .... The right to life under Article 21 and the dignity of the individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to provide educational facilities at all levels to its citizens.
    In case of Unni Krishan V State of Andhra Pradesh the Supreme Court was asked to examine the decision of Mohini Jain's case. In the present case the Apex Court partly overruled given in the Mohini Jain case. The Court held that, the right to education is implicit in the right to life and personal liberty guaranteed by Article 21 and must be interpreted in the light of the Directive Principle of State Policy contained in Articles 41, 45 and 46.

    The Apex Court, however, limited the State obligation to provide educational facilities as follows.
    (i) Every Citizen of this Country has a right to free education until he completes the age of fourteen years;
    (ii) Beyond that stage, his right to education is subject to the limits of the economic capacity of the state.

    Further the Supreme Court in M.C. Mehta V State of Tamil Nadu the Supreme Court observed that, to develop the full potential of the children they should be prohibited to do hazardous work and education should be made available to them. In this regard the Court held that, the government should formulate programme offering job oriented education so that they may get education and the timings be so adjusted so that their employment is should not be affected. Again in Bandhua Muti Morcha V Union of India, Justice K. Ramaswamy and Justice Sagir Ahmad, observed, illiteracy has many adverse effects in a democracy governed by rule of law. Educated citizens could meaningfully exercise his political rights, discharge social responsibilities satisfactorily and develop sprit of tolerance and reform.

    Therefore, education is compulsory.., compulsory education is one of the states for stability of democracy, social integration and to eliminate social evils." The Supreme Court by rightly and harmoniously construing the provision of Part III and IV of the constitution has made right to education a basic fundamental right.
    The Government of India by Constitutional (86th Amendment Act) Act, 2002 had added a new Article 21A which provides that "the state shall provide free and compulsory education to all children of the age of 6 to 14 years as the state may, by law determine". And further strengthened this Article 21A by adding clause (K) to Article 51-A which provides who is a parent or guardian to provide opportunities for education to his child or ward between the age of 6 and 14 years. On the basis of Constitutional mandate provided in Article 41, 45, 46, 21A and various judgments of Supreme Court the Government of India has taken several steps to eradicate illiteracy, improvement the quality of education and make children back to school who left the school for one or the reasons. Some of these programmes are National Technology Mission, District Primary Education Programme, and Nutrition Support for Primary Education, National Open School, Mid- Day Meal Scheme, Sarva Siksha Abhiyan and other state specific initiatives. Besides, this several states have enacted legislation to provide free and compulsory primary education such as- the Kerala Education Act 1959, the Punjab Primary Education Act 1960, the Gujarat Compulsory Primary Education Act 1961, U.P. Basic Education Act 1972, Rajasthan Primary Education Act 1964, etc.

    However, the Constitution of India and Supreme Court have declared that the education is now a fundamental right of the people of India, but it does not speak about millions of children who are in the age group of 0-5 years. It is needed that the Constitution should again be amended and the children of age group of 0 -5 years should be included; as by the time the child reaches the age of 6 years he/she gets in to the child labour due to the poverty. Moreover the Constitution only ensures that the state shall provide primary education to the children up to the age of 14 years, and the secondary and higher education is contingent and conditional upon the economic capacity of the state. The right to education will be meaningful only and only if the all the levels education reaches to all the sections of the people otherwise it will fail to achieve the target set out by our Founder Father to make Indian society an egalitarian society.

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