Our country India has a unique feature of “Unity in Diversity” of its own. It is the place where the people of various religious beliefs cohabit together with the integral bondage of unity & fraternity. In such a Religion based country the Term ‘Right to Education’ providing to its citizens is a very significant one. The concept of education in India is not a new topic which suddenly emerged; rather it belongs to a very ancient origin. In the Words of Swami Vivekananda, “Education is the manifestation of the perfection already in man …” So the Purposes of education should be manifold. It has energy, prowess, activation & inherent potentiality of transformation. Our past thinkers also emphasized upon such matters while giving education. From the ‘Brahmcharya’ stage of ‘Chaturashram’ to our present globalized world the concept of Education has gone through various stages of social transformation. In the words of Mr. Will Durant education is the “transmission of civilization”. Education is training the mind and not stuffing the brain.” “We want that education by which character is formed, strength of mind is increased, the intellect is expanded, and by which one can stand on one’s own feet…….The end of all education, all training, should be man-making. The end and aim of all training is to make the man grow. The training by which the current and expression of will are brought under control and become fruitful is called education.”
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Right to Education in India:-
In the context of a democratic form of Government like ours, education is at once a social & political necessity. It is rather said that in this great land of ours where knowledge first lit its torch & where the human mind soared to the highest pinnacle of wisdom, the percentage of literacy should be appalling. Today the foremost need to be satisfied by our education is, therefore, the eradication of illiteracy which persists in a depressing measure. A true democracy is one where education is universal & where people understand what is good for them & the nation & know-how to govern them. When citizens are in vulnerable ignorance & squallier, they know not themselves how to make the best use of the opportunities, the talk of fundamental rights or human rights become meaningless for them.
The Preamble to the Constitution of India promises to secure, inter alia “Justice,- Social, economic & political” for the citizens. The preamble embodies the goal which the state has to achieve in order to establish social justice & to make the masses free in the positive means. The securing of social justice has been specifically enjoined as an object of the state under Article 38 of the Constitution. The objectives of the Preamble cannot be achieved & shall remain on paper unless the people of the country are educated. The three prolonged justice promised by the Preamble is only a teasing illusion to the teaming millions who are illiterate. It is only education which equips the citizen to participate in achieving the objectives enshrined in the Preamble. The Preamble further provides “equality of status & opportunity & assures the dignity of the individual.” The Constitution seeks to achieve these objectives by guaranteeing fundamental rights which are enforceable in the court of law. The directive principles of state policy are also with the same objective. The dignity of man is inviolable & it is the duty of the state to respect & protect the same. It is the education which primarily brings forth the dignity of a man. The framers of the Constitution were aware that more than 70% people in India were illiterate for whom human dignity & respect for human rights will have no meaning unless they are educated. It was with that hope that Articles 41 & 45 was incorporated in part IV of the Constitution dealing with Directive Principles of State policy The Constitutional commitment in recognizing the right to education also is in consonance with the commitment of International conventions & communities. In Universal Declaration of Human Rights(UDHR), International Covenant on Economic, Social & Cultural Rights(ICESCR), International Labour Organization(ILO), United Nations International Children’s Education Fund(UNICEF) etc, there are also various provisions where they all explicitly concerned about providing the basic education to children. The UNICEF report on the state of World’s children released in December 1998 had severely criticized the state of children’s education & overall literacy in the world. The opening Para said- “Nearly a billion people will enter the 21st century who are unable to read a book or sign their names….” In India, in concrete terms, the number of all such children as are denied the benefits of education is about 7 crores. Most of the drop outs or out of school children are in the age group of 6 to 14 years. Out of these approximately 2/3rd are girls. This gross imbalance between the sexes is a matter of great concern for the long recognized concept that educating a girl child amounts to educating a family, whereas educating a boy does not always mean exactly that. The report also says that in Brazil illiterate women have an average of 6.4 children, whereas those with secondary education have only 2.5 children. In other words, if growth of population in India is to be controlled, there is no other way of doing so than to bring the girls into the educational stream & educate them upto the age of 14, as laid down in the Constitution. The founding fathers were clear sighted enough to recognize that, if India wants to progress, the education must be made compulsory from the age of 6 to 14 years. Thus, the Supreme Court of India through its various effective judicial decisions has rightly & harmoniously interpreted the provisions of part-IV of the Constitution in the light of the fundamental rights. The Court through judicial activism has made the basic right to education as fundamental enforceable right under Article 21-A along with the recognition of Article 26 of the Universal Declaration of Human Rights & Article 13(2)(a) & (c) of the International Covenant on Economic, Social & Cultural Rights.
Keeping the objective of Article 21-A in mind, its provisions have been liberally construed allowing teachers & educational institutions to obtain benefits thereunder. The underlying logic is that the grant of benefits to those involved in the process of education would also indirectly benefit those for whom the Article was primarily intended. The same logic persuaded the court to hold that the services of the teachers may not be requisitioned on the days on which the schools are open. However claims based on Article 21-A to compel the state to give grant-in-aid, to control fees charged by the private unaided schools or to challenge conditions for grant of recognition have been negative by High Courts. Article 21-A reads with Article 19(1)(a)has been construed as giving all children the right to have primary education in a medium of instruction of their choice. This article has also been construed as the fundamental right of each & every child to receive education free from fear of security & safety so that children have a right to receive in a sound & safe building.
In 2001-2002, the Government launched “Sarva Shiksha Abhiyaan” to make elementary education free. However no Central Legislation was enacted to make the right a reality despite the court. In 2008, Dalveer Bhandari,J. in Ashoka Kumar Thakur V. Union of India, directed “the Union of India to set a time limit within which this article is going to be completely implemented. This time limit must be set within six months. In case the Union of India fails to fix the time limit, then perhaps this work will also have to be done by the Court.”
Ultimately The Right of Children to Free & Compulsory Education Act, 2009, has been enacted by the Parliament. The Act provides among other things for the right of every child who has attained the age of 6 years to be admitted in a neighbourhood school & to be provided free & compulsory education in such school. Every state is responsible for making such neighbourhood school available. All schools whether state schools, aided or unaided private schools will now have to provide free & compulsory education upto specified percentages of the total number of children admitted. Charging capitation fees is prohibited. Education, accepted as a useful activity, whether for charity or for profit, is an occupation. Nevertheless, it does not cease to be a service to the society. And even though an occupation, it cannot be equated to a trade or a business, nor can a child or her family be subjected to any screening procedure by a school. In keeping with Article 51A (k), the Act casts a duty on every parent or guardian to admit or cause to be admitted his or her child or ward, as the case may be to an elementary education in the neighbourhood school
India’s future with Right to education :-
Though free & compulsory education in India was come in force with great enthusiasm in India yet the fruit of this right was not cherished by all both before & after independence. The Network of education in India is one of the largest in the world. There has been a massive expansion of educational opportunities but only has it fallen short of the country’s requirements but inequalities in the opportunities available have given rise to sense of deprivation among the vast number of poor people. In a nutshell, almost 50% of the population remains illiterate, and an estimated 58 million out of 185 million children aged between 5 and 14 years are not in school. The Indian Government reported in 2003 that the enrolment rate in rural areas nationwide was only 71%, with a gender disparity of 0.84, meaning a 16% lower rate for girls. In some states the levels are considerably lower. In Bihar only 59% are enrolled and in Rajasthan the rate is 61% with a gender disparity of 46% for girls.This result is hardly surprising given that the provision of education (particularly elementary education) appears to have been a relatively low priority for Central and State Indian Governments from 1947 to 1980, with less than 2 percent of GDP being expended annually on education until 1979. Expenditures on education grew substantially after the Central Government was granted concurrent responsibility for education through a 1976 Constitutional amendment, but remained lower (as a share of total Government expenditure) than most low-income countries. Significantly, the share of expenditure allocated to elementary education through the 1980s remained below 50 percent, which is low relating to other countries that sought to universalize elementary education at a comparable stage of economic development. Shariff and Ghosh note that:
Japan invested 84 percent of its educational budget in six years of elementary education in 1885 and a meager 8 percent on higher education. By 1960, the share of higher education had increased to 13 percent and the share of higher education had increased to 13 percent. … In Sri Lanka too, the case is similar. Sri Lanka allocated 70 percent of its educational budget to the first level of education and 6 percent to higher education in 1970. By 1978, when primary education had become universal, the share of higher education had increased (marginally) 8.7percent.
To understand how the Constitutional amendment might (or might not) assist in realizing this demand, we need briefly to consider the state of basic education in India and some of the reasons why the goal of universal elementary education remains elusive after 58 years of independence. India’s achievements in elementary education have been far less impressive than other developing countries that were similarly situated 40 years ago. But it was the Enrolment rates are suspected of being inflated, and say nothing of whether children actually attend school or learn anything. Indeed, after the Constitutional amendment, in the first budget establishing the fundamental right to education, the Central Government ignored the expert committee report and failed to allocate the amount deemed necessary to universalize elementary education; in fact, the amount allocated was less than 50 percent of the estimated requirement of Rs 140,000,000,000 per annum and less even than the Rs 98,000,000,000 recommended in the Financial Memorandum to the Constitutional Amendment bill.
In this present context it is contended after interpreting Article 21 that the right to education flows directly from right to life. Though it takes a little bit more time to recognize this right as one of the birth right of every citizen of India, yet it can be said that it is a positive step taken by the legislation for the all total development of the country & its people as well. Still if we look into the matter with an analytical view we can find the implementation of such right in present day context is very marginal. Among the 34 countries of the low income group in Asia, literacy rate in India is just 52% as against 58% for the group. A literacy rate of 70% is considered as necessary condition. China has literacy rate of 75%. In fact former’s success in recent years is no less due to its achievement of higher literacy rate. The recently released Human Development Report of UNESCO is a particularly bad document for India; where it has been ranked 134 in Development Index (two steps lower than Pakistan) in terms of what our Government is able to provide by way of education, health, child care, drinking water & essential education as Fundamental Right.
There is however some encouraging information in the remarkable heterogeneity that characterizes India in the field of elementary education. Advances of basic education have often come from forces that have railed against traditional politics (including protest against the historical hold of caste practice), or against traditional cultures (sometimes in the form of missionary activities). In the context of learning from the experiences of the fast growing economies of east Asia, it is important to recognize that all these countries – South Korea, Hong Kong, Singapore, Taiwan, Thailand & post reform China- had enormously higher levels of elementary education at the time they went for fast economic growth & greater integration with the world economy. The point is not that these countries have much higher base of elementary education now than India currently has, but that they already had radically higher levels of elementary education in the nineteen seventies, when they went rapidly ahead, compared with what India has now.
There has been an astonishing failure of adequate public action in expanding elementary education in India. While too much Government has been identified with some plausibility as a problem of past policies in India, in fact the field of basic education ‘too little’ Government action rather than too much- has been the basic problem. This is not to deny that India can quite possibly achieve high rates of growth of GNP or GDP even with present levels of massive illiteracy. It is more than a question of strength & the nature of the economic expansion that can occur in India today, & the extent to which the growth in question can be participatory. It is totally remarkable that in rural India in the age group 12 to 14 years more than a quarter of boys have never been enrolled in any school & more than half of the girls have never been enrolled either. As expected in Kerala nearly all the boys & girls of this age group have had some schooling, & on the other side , in Uttar Pradesh the percentage of rural children of this age group who have been totally out of school are even higher than in India as a whole. In fact more than two third of the U.P girls between the age of 12 to 14 years have never had the benefit of schooling at all. This is an appealing picture of neglect of basic education, & shows how very backward the bulk of India is. In terms of an important element of the task that Pandit Neheru identified in 1947 & furthermore how abysmal the failure is in India’s largest state. With more than 140 million people, had UP been a country of its own, it would have been one of the largest countries in the world & would have been or close to being the lowest in terms of school education in the entire world. Indeed in the field of elementary education, India is not only behind China or Sri Lanka or South Korea, but also worse off than the average of low income countries other than India & China (as defined by the World Bank). Even in comparison with sub-Saharan Africa- perhaps the most problematic region in the world now with its record of recurrent famines- India does not shine. While it just about matches the literacy rate of Nigeria, it falls way behind the achievements of many of the African states, including Botswana, Zimbabwe, Kenya & Ghana. If India’s relative performance is ‘middling’ in many fields of economic & social development, its record is far below that – close to the very bottom – in the field of literacy & elementary education.
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Finally, the directive under Article 26 of the Universal Declaration of Human Rights (UDHR) has been granted a formal recognition in India as explained by Supreme Court in various case decisions, but the ultimate goal is still far away. It is submitted that though the judiciary has made right to education as a fundamental right yet it is for the State’s moral duty to secure it for all the people. It is beyond any doubt that education is of transcendental importance & it has fundamental significance to the life of an individual & the nation. Without education, the Human Rights cannot be secured to the people & the basic objective set forth in the preamble of the Constitution would fail. Therefore the crying need the day is that elementary education should be compulsory & available free to all. Further in view of the UDHR & International Covenant on Economic, Social & Cultural Rights, the education should be directed to full development of human personality & it should strengthen the respect for Human Rights & fundamental freedoms. Thus it is suggested that the right to education in India should include Human Rights education & it should be made compulsory from the elementary stage itself.
Critical analysis of the Act of 2009:-
From Right to Education (RTE) movement started in 1988 to Supreme Court judgment in 1993, out politicians took twenty one long years to give education as a fundamental right to the children of India. Even though nearly all educationally developed countries attained their current educational status by legislating free and compulsory education – Britain did so in 1870 – India has dithered and lagged behind in introducing such legislation, with grave consequences. Of the nearly 200 million children in the 6 to 14 age group, more than half do not complete eight years of elementary education, as never enrolled or dropouts. Of those who do complete eight years of schooling, the achievement levels of a large percentage, in language and mathematics, is unacceptably low. It is no wonder that a majority of the excluded and non-achievers come from the most deprived sections of society – dalits, OBCs, adivasis, girls, Muslims and poor – precisely the people who are supposed to be empowered through education. Thus it has taken 55 years from Independence to make education a fundamental right of children and a further 6 years for the Right to Education Bill to be introduced in Parliament. Further as a signatory to the UN Child Rights Convention, India has accepted the international definition of a child, which is up to age 18. The bill proposes to cover only children from age 6 to 14, clearly excluding and violating the rights of the 0 – 6 and 14 to 18 year olds. This problem can be traced to the 86th amendment and its article 21A, which defines the age from 6 to 14. As a bill flowing out of the amendment, it is clear that the bill cannot go beyond Article 21A, which makes it imperative that the 86th amendment must be re-amended to correct this anomaly, and once that happens, the change needs to be reflected in the corresponding act at that point of time. Many argue that the bill should be put on hold till such a re-amendment is passed, but that would be playing into hands of elements who neither want the amendment nor the bill. Having made education a fundamental right, the question that needs serious debate is whether the Act will help improve the situation in a substantial manner or not. To address that question, it needs to be recognized that the challenge of elementary education is to somehow find a way to deal with the elusive triangle of access, equity and quality. The Act needs to be critically evaluated from the viewpoint of this triangular challenge.
The basic aspect of access is the provision of a school in the proximity of a child, since there are still areas in the country where such access is lacking. The bill envisages that each child must have access to a neighborhood school within three years from the time the bill is notified as an act. The presence of a nearby school is, however, no guarantee that a child can indeed access it. One of the key barriers, particularly for the poor and the deprived, is the issue of cost. That is where one of the critical aspects of Article 21A comes into play, namely, the state shall provide ‘free’ education. Normally, ‘free’ is interpreted as nonpayment of fees by the parents of the child. But numerous studies have concluded that the fee constitutes only one of the components of educational expenditure. And since the landless, poor and socially deprived cannot meet the other expenses, this result in the non-participation of their children in education. These other expenses differ from place to place, though uniforms, copies and books and so on are perhaps common. The Act defines free education to mean any fee, expense or expenditure that keeps a child from participating in education, and obliges the state to provide all these. This broader definition, with implications for higher expenditure by the state, appears to be a better way to meet the challenge of access in terms of costs, rather than providing a list of items that will be covered, which are difficult to anticipate in different locations and in the future and hence cannot be exhaustive.
Now another vital question come forward in this regard that, Is quality education available to all under RTE? Sustained participation in schooling is, however, equally influenced by the quality of access. The high non retention rates in spite of higher enrolments in recent years are a clear indication that concerns of quality cannot be postponed till access is guaranteed, as also by the increasing tendency to seek out questionable private schools perceiving their quality to be ‘better’. The approach of providing schooling through education guarantee centers and untrained Para teachers has also greatly exacerbated the problem of quality of government schools ever since the District Primary Education Programme pioneered this cost-cutting strategy, further expanded through the Sarva Shiksha Abhiyan (SSA) in many states of the country. This approach has resulted in making education more iniquitous, since the government system itself now has a variety of streams – the EGS centre, the rundown rural or basti school, the alternative school, the Kendriya, Sarvodaya, Navodaya and other kinds of schools and so on. Clearly, access to each is determined according to the social and class background of children, thus segregating them further. Consequently, the social integration that education was expected to assist, by bringing children from diverse backgrounds together in the same classrooms, has been allowed instead, one may say deliberately, to experience higher degrees of fragmentation. No wonder then that an increasing number of parents, both urban and rural, despite great financial difficulties, are attracted to the option of purchasing education from Private profit-making schools that seem to have external frills of quality and regular presence of teachers. Another lacuna of this Act is while ensuring that every child who traverses through the elementary education system acquires a certificate of completion, it fails to guarantee that a child has acquired competencies deriving from said education process. No standards are set for learning outcomes. A case of guaranteeing graduation but not education.
Again, in the matter of 25% reservation the proponents of the Bill, especially the internationally funded NGOs, make much out of the provision of 25% reservation in the private schools for the disadvantaged children. Closer examination reveals a different story. As per the Seventh Educational Survey, about four crores children out of 19 crores in the 6-14 age group are currently studying in private schools at the elementary stage (class I-VIII). The above provision will create space for one crore for which the private schools will be reimbursed for the tuition fees. Assuming that these schools are providing quality education, the provision helps only a minority of the underprivileged. What is then the Bill’s vision of quality education for the remaining 15 crores? They will continue to receive education through a multi-layered school system with each social segment in a separate layer, the much-acclaimed norms and standards in the Bill’s Schedule notwithstanding. In regard to the 25% provision, everybody knows that, apart from the tuition fees, the private school child has to shell out money for a range of items throughout the year expensive uniform and shoes, extra textbooks, picnic and extra-curricular charges, computer fees etc. Who will pay for that? Why has the Bill not thought of changing the elitist character of these schools that violate the educational principles enunciated by Phule, Tagore and Gandhi? Clearly, the Bill lacks the vision of what constitutes quality in relation to India’s needs. That, however, is another debate. Dr. Sadgopal argues that To be sure, there is a hidden political agenda in this 25%provision. Whenever the government sets up high profile elite schools – the centrally sponsored Kendriya or Navodaya Vidyalayas and the XI Plan’s 6,000 model schools or the state governments’ Pratibha Vidyalayas (Delhi), Utkrishta Vidyalayas (Madhya Pradesh) or residential schools (Andhra Pradesh) – the regular schools are deprived of funds and good teachers alike. People vie against each other to get their children admitted, using their political contacts, bureaucratic pressure or even bribes. The result: poor communities are divided and disempowered. This sop will thus further divert political attention away from the ongoing struggle for education of equitable quality through a Common School System.
Finally, The Act is silent on the aspect of actual competence of and quality of monitoring by the national and state commissions for protection of child rights. While the provisions provide that an aggrieved person may lodge a complaint with the local authority, there is an obvious problem in this clause, since the very same body that is responsible for ensuring protection of the rights of the child is also made responsible for deciding upon a complaint against it. The Act is also silent on the state parties that will be held responsible if its implementation is found lackadaisical. Can there be a Fundamental Right to unequal and inferior education? The central government’s audible answer: Yes, indeed! Professor Amartya Sen told the Confederation of Indian Industries in December 2007 that school education can be funded only by the state. No advanced country in the world has ever been able to provide universal quality education by negating or undervaluing its public-funded education system. This is true for all the G-8 countries, including the USA. Defying this universal experience, the Right to Education Bill is daring to undo the history.
In conclusion, it can be said that while some minimum guarantee of education has been given to all children aged between 6 & 14, a huge opportunity has been lost to make over the ailing elementary education system of the country. The act even in the best circumstances is going to guarantee little value addition to the lives of children & their future. Also there seems to be major implementation hurdles & also serious unconstitutional components. The Act is likely to be challenged on many grounds in the courts due to the poor drafting & definitions. Since the “creamy layer” of the disadvantaged sections have not been kept out of the reservation provided, little is going to be done in terms of creating a more equitable society. The dream of seeing a common schooling system in which children irrespective of economic/social background come together & study & learn to live together & hence create a more equitable society remains a dream. The dream of quality education for all children remains a dream. The only dream that has come true is that all children aged 6 to 14 now have a positive right to be educated.
Very recently there is a good news has been come forward regarding the age limitation of elementary education. The Right to education will soon be extended up to class 10. The Central Advisory board of Education (CABE), the highest advisory body in this field has endorsed a proposal on 6th June 2011 to this effect. It also approved the drafting of new legislation to check mal practices in school education. At present the Act of 2009 i.e. The Right of Children to Free & Compulsory Education Act 2009, provides for free & mandatory education only up to primary level (from class-I to VIII). It makes it mandatory for the Governments to ensure the same to all children of the age of 6 to 14 years, in neighborhood schools till the completion of the elementary education. The CABE which includes all state education ministers, other stakeholders & civil society will prepare a preliminary draft for extension of Right to Education till class 10 in about 3 months time. Therefore it can be mentioned one of the major positive step taken by the CABE for the better implementation of the Act in the society. If such proposal of CABE has accepted or passed then the problem of the students below the age group of 6 & above 14 can be eradicated wholly. It is better to categorized a student on the basis of Class standard rather than his/her age & I think it is the best procedure to bring children of all ages (till 15 years) under the purview of basic elementary education & by doing this the primary object of the “Right of Children to Free & Compulsory Education Act 2009” also can be achieved in its true sense.
Conclusion & suggestions for better implication of Article 21-A in India :-
Today, education is perhaps the most important function of state and local Governments. It is required in the performance of our most basic responsibilities, even service the armed forces. It is the very foundation of good citizenship. Today it is the principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him at adjusts normally to his environment. In these days, it is doubtful any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Spencer makes five divisions which have pertinence to means functioning of life, especially, in the realm of ‘education’. They are: – i) Self preservation; ii) Indirect self preservation; iii) Rearing of off-spring; iv) Establishment of social & political life; & v) obtaining economic empowerment. These things are also essential for a nation to build its future. The major problem in India is lack of education among the masses. This lacuna is not only the outcome of the ignorance or neglect towards education by the people but also the improper distribution of wealth of the country; which is equally responsible for that. So, in this respect Government has to play the leading role. But here our duty is not over. Beside the Government, we should also take effective steps. In our Country still it’s a fact that education mainly served to those persons who posses wealth. It’s very un
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