Human Rights and Indian Constitution

Rights are claims that are essential for the existence and development
of individuals. In that sense there will a long list of rights. Whereas all
these are recognized by the society, some of the most important rights
are recognized by the State and enshrined in the Constitution. Such
rights are called fundamental rights. These rights are fundamental
because of two reasons. First, these are mentioned in the Constitution
which guarantees them and the second, these are justifiable, i.e.
enforceable through courts. Being justifiable means that in case of their
violation, the individual can approach courts for their protection. If a
government enacts a law that restricts any of these rights, it will be
declared invalid by courts. Such rights are provided in Part III of the
Indian Constitution. The Constitution guarantees six fundamental
rights to Indian citizens as follows: (I) right to equality (II) right to
freedom(III) right against exploitation (IV) right to freedom of religion
(V) cultural and educational rights and (VI) right to constitutional
remedies.

Originally, there were seven Fundamental Rights in the Constitution.

Besides the above mentioned six rights, there was the Right to Property
also. Since this Right created a lot of problems in the way of attaining
the goal of socialism and equitable distribution of wealth, it was
removed from the list of Fundamental Rights in 1978 by 44th
constitutional amendment. However, its deletion does not mean that e
do not have the right to acquire, hold and dispose of property. Citizens
are still free to enjoy this right. But now it is just a legal right and not a
Fundamental Right.

Right to Education and Human Fundamental Rights (Part III)

Article 21A: The Right of Children to Free and Compulsory Education

Act (RTE, Right to Education)

The Right of Children to Free and Compulsory Education Act' or 'Right

to Education Act also known as RTE', is an Act of the Parliament of
India enacted on 4th August 2009, which describes the modalities of the
importance of free and compulsory education for children between 6
and 14 in India under Article 21A (Article 21 is the Fundamental Right
to Life under Right to Freedom) of the Indian Constitution. India
became one of 135 countries to make education a fundamental right of
every child when the act came into force on 1 April 2010. “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”.

Right to Education and the Directive Principles of State Policy (Part

IV)

Article 41: Right to work, to education and to public assistance in

certain cases. The State shall, within the limits of its economiccapacity
and development, make effective provision forsecuring the right to
work, to education and to publicassistance in cases of unemployment,
old age, sicknessand disablement, and in other cases of undeserved
want.
Article 45: Right for Early Childhood Care and Education (ECCE) to
all children until they complete the age of six years. This article is
considered as a directive principle of state policy. It states “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”. The
Government of India has included ECCE as a constitutional provision
through the amended Article 45(as per the 86th Amendment of
December, 2002 and passed by Parliament in July 2009) which directs
that “the State shall endeavour to provide Early Childhood Care and
Education for all children until they complete the age of six years”.

Article 46: Promotion of the economic and educational interests of the

Scheduled Castes, Scheduled Tribes and other weaker sections: The
State shall promote with special care the educational and economic
interests of the weaker sections of the people, and, in particular, of the
Scheduled Castes and the Scheduled Tribes, and shall protect them
from social injustice and all forms of exploitation. It is laid down in
Article 46 as a directive principle of State policy that the State should
promote with special care the educational and economic interests of the
weaker sections of the people and protect them from social injustice.
Any special provision that the State may make for the educational,
economic or social advancement of any backward class of citizens may
not be challenged on the ground of being discriminatory. Special efforts
are being made for education of the backward classes. Scholarships,
hostel facilities, ashram residential schools, relaxed norms for
admission, reservation of seats are efforts to achieve universal
education in case of backward classes.

Right to Education and Fundamental Duties (Part IVA)

By the Constitution (Eighty-Sixth Amendment) Act, 2002, (w.e.f

1.4.2010) adding a new clause (k) under Article 51A (fundamental
duties), making parent or guardian responsible for providing
opportunity for education to their children between six and fourteen
years.

Education in India has a history stressing back to the ancient urban

centers of learning at Taxila and Nalanda to western education
established by Britishers. Before the enactment of the Act, right to
education was recognized by Article 45 which read as follows, 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. On this
point first Education Minister of India Maulana Abul Kalam
Azadexpressed his views in a speech which was broadcasted on All
India Radio New Delhi on 30th September 1953, that ‘every individual
has a right to an education that will enable him to develop his faculties
and live a full human life. Such education is the birth right of every
citizen.’ Later this article was substituted in 2002, through 86th
amendment to Constitution which read as, the State shall endevour to
provide early childhood care and education for all children until they
complete the age of six years.

It is worthwhile to mention here that the reason for amendment is

decisions of the Supreme Court in Mohini Jain v. State of Karnataka5
and Unnikrishnan v. State of Andhra Pradesh

In Mohini Jain’s Case, the Supreme Court held that ‘right to education’
is yet another unenumerated right which is concomitant to fundamental
rights. The Court drew inspiration from the preamble and the directive
principles and held that without education the fundamental freedoms in
Article 19 of the Constitution cannot be fully enjoyed nor can the
dignity of the individual under Article 21 of the Constitution be
assured. The Court observed:

‘Right to life’ is the 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 full range of conduct
which the individual is free to pursue…. The right to life under
the Article 21 and the dignity of an individual cannot assured
unless it is accompanied by the right to education. The State
Government is under as obligation to make endeavour to provide
educational facilities at all levels to its citizen.

From the above assertion of the Supreme Court it is evident that right
to education has been elevated to the status of fundamental right and
thus enforceable in the court of law. Later in Unnikrishnan Case the
Supreme Court partly overruled the findings of Mohini Jain and held:
the right to education which implicit in the right to life and personal
liberty guaranteed by Article 21 must be construed in the light of the
Directive principles in Part IV of the Constitution. The implication of
the Court that the construction of Article 21 relating to right to
education should be harmonized in the light of Article 41 which
provides for right to work, to education and to public assistance in
certain cases and Article 45 which provides for free and compulsory
education to children up to the age to 14 years.

Community activists and NGOs began utilizing the decision as a means

pushing the executive and legislature toward action on primary
education. The protest was organized by a coalition of several thousand
grass-roots organizations from all over India and demanded a common
school system providing free education of equitable quality. At the
same time, the decision became a catalyst for political advocacy and
public sphere debate over the state of primary education in India,
galvanizing a number of different children’s rights groups into coalition
demanding government implementation of the ‘right to education ’.
The Central government responded by establishing two committees to
investigate both the desirability and financial implication of amending
the Constitution to establish primary education as a

fundamental right.

A joint committee of the State Government Ministers of Education

(Saikia Committee) concluded in 1997 that the Constitution should be
amended to create as a ‘fundamental right’ the right to free and
compulsory education from six to fourteen years of age, and to impose
a ‘fundamental duty’ on parents to provide opportunities for education
to their children in this age group.

A second expert committee (the Majumdar Committee) concluded in

1999 that the universalization of elementary education for children
aged six to fourteen years would require an additional expenditure of
Rs. 140,000,000,000 per year for period of ten years; on assumption of
annual GDP growth of 5%, this amount to an additional 0.7% of GDP
dedicated to education per year, raising education expenditure to
approximately 5% of GDP.

The Saikia Committee report resulted in a bill to amend the

Constitution to introduce a new Article 21A. It also introduced a new
Article 51A (k) which imposed a duty on parents and guardian. The bill
was tabled in 1997, but could not become law until December 2002.

By virtue of the Constitution (86th Amendment) Act, 2002 a new

Article 21A has been added after Article 21

Article 21A provides that, ‘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.

The Universal Declaration of Human Rights in its Article 26, Clause

(1) says that, ‘education shall be free, at least in the elementary and
fundamental stages, elementary shall be compulsory’.
The International Covenant on Economic, Social and Cultural Rights
contains the most wide–ranging and comprehensive provision on the
right to education in the entire international human rights law. The
covenant in its Article 13 expresses that for the full realization of the
right to education, ‘primary education shall be compulsory and
available free to all and 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’.

Apart from above covenants, the Convention on the Rights of the Child
in its Article 28 imposes duty on State parties and says that, ‘recognizes
the right of the child to education and with a view to achieving this right
progressively and on the basis of equal opportunity, they shall, in
particular: 1(a) make primary education compulsory and available free
to all…. ’

The Right of Children to Free and Compulsory Education, 2009, has

been a historical moment in the history of Independent India. Although
it has taken almost 60 years to move our concern for universal
elementary education from the directive principles of state policy to
making it a fundamental right, it is not the intention here to analyze the
reasons for the delay in enacting this legislation but to look at genuine
issues that will impact implementation.

The Act was passed by the Parliament on 27th August 2009 and came
into force on 1st April 2010. The Act describes the modalities of the
provision of free and compulsory education for children between six to
fourteen years under Article 21A of the Constitution. The Act is not
only outcome of Article 21A but also of Education for All goals
adopted by World Education Forum in Dakar to which India is a
signatory.

The present Act has its history in drafting of the Indian Constitution at
the time of Independence but is more specifically to the Constitutional
amendment that included the Article 21A. This amendment however
specified the need for a legislation to describe the mode of
implementation of the same which necessitated the drafting of a
separate education bill. The rough draft of the bill was composed in
year 2005. It received much opposition due to its mandatory provision
to provide 25% reservation for disadvantaged children in private
schools. The sub-committee of Central Advisory Board of Education
which prepared the draft Bill held this provision as a significant
prerequisite for creating a democratic and egalitarian society. Indian
law commission had initially proposed 50% reservation for
disadvantaged students in private schools. The government drafting
this piece of legislation, however, lost the elections, and the new
government came up with its own version. This passed the approval of
the cabinet on 1st November 2008, was tabled in Parliament in 2008
and passed in 2009.

The reasons for the delay in notification can be mostly attributed to the
unresolved financial negotiations between the National University of
Education Planning and Administration, NUEPA, which has been
responsible for estimating RTE funds, the Planning Commission, and
the Ministry of Human Resources and Development (MHRD). From
an estimated additional Rs 3.2 trillion to Rs 4.4 trillion for the
implementation of the RTE Draft Bill 2005.

Dakar Framework For Action has adopted six goals in 2000,

(a) Early childhood care and education,

(b) Universal primary education,

(c) Youth and adult skills– expanding opportunities in the new global
economy,

(d) Youth and adult literacy,

(e) The quality of education and (f) Estimating the cost of achieving
Education for All.

Over six years (Central Advisory Board of Education, CABE), the

figure finally set by NUEPA now stands at a much reduced Rs 1.7
trillion over the coming five years. Most education experts agree that
this amount will be insufficient. Since education falls under the
concurrent list of the Constitution, financial negotiations were also
undertaken between the central and state authorities to agree on sharing
of expenses. This ratio has now been agreed at 55:45 between them
with the centre bearing the larger share; though states like Uttar Pradesh
and Bihar continue to argue that their share should be lower. It is
interesting to note that the financial estimates prepared by NUEPA
provide four different scenarios of expense sharing between the centre
and the states (85:15, 75:25, 65:35, and 50:50), none of which is the
55:45 share estimate which has now been agreed upon.

The RTE Act is a detailed and comprehensive piece of legislation

which includes provisions related to schools, teachers, curriculum,
evaluation, access and specific division of duties and responsibilities of
different stakeholders. Key features of the Act include:

 Every child from 6 to 14 years of age has a right to free and

compulsory education in a neighborhood school till completion
of elementary education.
 Private schools must take in a quarter of their class strength from
`weaker sections and disadvantaged groups', sponsored by the
government.
 All schools except private unaided schools are to be managed by
School Management Committees with 75 per cent parents and
guardians as members.
 All schools except government schools are required to be
recognized by meeting specified norms and standards within 3
years to avoid closure.
 To decrease in drop-outs, to prohibit physical punishment and
mental harassment to child and to prohibit capitation fee &
screening procedure for admission in schools.

On the basis of this Act, the centre has framed a subordinate legislation,
the Model Rules, which are guidelines to states for implementing the
Act. The states are now required to frame their own rules within three
months, for which only a few have started consultations. It is not
unrealistic to assume, therefore, that this three-month deadline will
either not be met, or, if met, will be at the expense of drafting proper
state-specific rules.

CHALLENGES IN THE IMPLEMENTATION OF THE ACT

The RTE Act has been criticized by various experts and institutions,
but the MHRD was perhaps keen to achieve this legislation in the first
100 days of the second term of the UPA, and therefore, chose to ignore
many important difficulties of the Act. The most important difficulties
are:

I. INPUTS AND OUTCOMES

The Act is deemed to be excessively input-focused rather than

outcomes-oriented. Even though better school facilities, books,
uniforms and better qualified teachers are important, their significance
in the Act seem to be overestimated given the existence of inefficient,
corrupt, and unaccountable institutions of education provision.

II. SCHOOL RECOGNITION

Section 19 of the Act requires all schools, except government schools,

to meet certain norms and standards relating to infrastructure, pupil-
teacher ratio, and teacher salaries on the basis of which they are
required to get recognized within three years. This clause penalizes
private unrecognized schools for their payment of market wages to
teachers, rather than the elevated civil service wages. It also penalizes
private schools for lacking the infrastructural facilities defined under a
Schedule of the Act. These schools are extremely cost efficient, operate
mostly in rural areas or urban slums, and provide essential educational
services to the poor. Independent studies by Geeta Kingdon, James
Tooley and ASER 2009, suggest that these schools provide similar, if
not better, teaching services when compared to government schools,
while spending a much smaller amount. However, as per the Act the
government will shut down many of these schools over the coming
three years. A better alternative will have been to find mechanisms
through which public resources can be infused into theseschools. The
exemption from the same recognition requirements for government
schools is a case of double standards– with the public sector being
exempted from the same `requirements’.

SCHOOL MANAGEMENT COMMITTEES

The Act requires every government and aided school to form School
Management Committees (SMCs) which are to comprise mostly
parents, and be responsible for planning and managing the operations
of government and aided schools. The SMCs will help increase the
accountability of government schools, but need to be given greater
power over evaluation of teacher competencies and students’ learning
assessment. Members of SMCs are required to volunteer their time and
effort. This is an onerous burden for the poor. Payment of some
compensation to members of SMCs can help increase efficiency and
focus of such committees. Turning to private but ‘aided’ schools, the
new role of SMCs will lead to a breakdown of their existing
management structures.

TEACHERS

Teachers are the cornerstone of quality education and need to be paid

market-driven compensation. But the government has gone too far by
requiring high teacher salaries averaging close to Rs 20,000 per month.
These wages are clearly out of line in comparison with the market wage
of a teacher in most schools in the country. A better mechanism will be
to allow schools to design their own teacher salaries with autonomy in
managing them. A major problem in India is the lack of incentives for
teachers either in terms of carrot or stick.

In the RTE Act, proper disciplinary channels for teachers have not been
defined. Such disciplinary action is a must, given that a study of 188
government-run primary schools indicate that an average of 25 per cent
teachers are absent from schools at any given point and almost half of
those who are present are not engaged in teaching activity. The SMCs
need to be given this power to allow speedy disciplinary action at the
local level. Performance-based pay scales need to be considered as a
way to improve teaching. It is the complainants of many teachers that
the training given to them is insufficient. If theMHRD is really
interested in imparting quality of education then first they have to bring
reformation in teacher’s training.

25 PER CENT RESERVATION IN PRIVATE SCHOOLS

The Act and the Model Rules require all unaided private schools to
reserve at least 25 per cent of their seats for the economically weaker
and socially disadvantaged sections in the entry-level class. These
students will not pay tuition fees. Private schools will receive
reimbursements from the government calculated on the basis of per-
child expenditure in government schools. Greater clarity for successful
implementation is needed on:

 How will ‘weaker and disadvantaged sections’ be defined and

verified?
 How will the government select these students for the entry-level
class?
 Will an admission lottery be conducted by the neighbor-hood, or
by the entire village/town/city?
 How will the supply-demand gaps in each neighborhood be
addressed?
 What will be the mechanism for reimbursement to private
schools?
 How will the government monitor the whole process? What type
of external vigilance/social audit will be allowed/encouraged in
the process?
 What will happen if some of these students need to change school
in higher classes?

Moreover, the method for calculation of per-child reimbursement

expenditure (which is toexclude capital cost estimates) will yield an
inadequate resource flow to private schools. Private schools will end
up charging more to the 75 per cent of students paying tuition fees
directly. At the same-time the private-schools will produce fake bills
during reimbursement procedure, that they can make huge profits from
both the sides. Reimbursement calculations should include capital as
well as recurring costs incurred by the government to reduce this cross-
subsidizing.

By dictating the terms of payment, the government has reserved the

right to fix its own price, which makes private unaided schools resent
this imposition of a flat price. A graded system for reimbursement
would work better, where schools are grouped–based on infrastructure,
academic outcomes and other quality indicators–into different
categories, which would then determine their reimbursement.

Furthermore, the Act requires aided private schools to provide free

education to the proportion of children as the extent of aid received
from the government with a minimum of 25 per cent. The Act,
however, fails to mention the basis of identification for the children
who are to receive free education.

FINANCIAL ESTIMATES

The financial estimates for the RTE for the coming five years are based
on certain unjustified assumptions. In the absence of proper mapping,
the estimates assume that one-third of all additional classrooms need to
be built in new schools and the rest in already existing schools.
Moreover, the estimates stipulate a monthly average of Rs 8,400 as
teacher salary at the primary level and 80 per cent of the upper primary
level teachers as per the revised 6th Central Pay Commission. This
figure is an underestimation in view of the additional expenses incurred
on teachers over and above the basic salary as well as the long-term
costs such as teacher pensions. Furthermore, the estimates ignore
important expenses required to improve accountability structures,
monitoring processes, awareness building, and 25 per cent reservation
implementation.

As it is known to everyone the fiscal burden is to be shared between the

Center and the States in the ratio of 55:45 and 90:10 for the North-
Eastern States. This project is going to involve funds to the tune of Rs.
15,000/- crores. Many states have already voiced their inability to
mobilize funds and entered into a dispute with the center. Uttar
Pradesh, Bihar, Punjab and many states have expressed that they would
not be able to implement the Act in the absence of funds from the
Center. Orissa in fact wants the same status enjoyed by the North
Eastern states with respect to the Act. The success as far is the financial
issues are concerned largely depends upon the center-state cooperation.

Since the Act involves improving the infrastructure of schools, training

teachers, creating more facilities besides the manifold increase in
intake, huge finances would be involved and it is difficult to envisage
how the economics of it all will be worked out.

The RTE Act has been passed; the Model Rules have been released;
and financial closure appears at hand. Does this mean the policy
process is now impervious to change? The answer is, no. Even today,
much can be achieved through a sustained engagement with this
problem.

CHILDREN BELOW SIX YEARS NOT COVERED

The Act has totally disregarded the decision of Supreme Court in

Unnikrishnan case where it was held free and compulsory education to
children of 0-14 years, including those below six years of age.
However, the 86th Constitutional Amendment Act, Article 21A,
limited the fundamental right to education to six to fourteen years. This
is in contradiction to India’s own commitment at the Jomtien
Conference (1990), acknowledging expansion of early childhood care
and development activities as an integral part of the Education for All
objectives. Globally, recognition exists that the early years are the most
critical years for lifelong development that ‘…neurological and
biological pathways that affect health, learning and behavior
throughout life, are set in the early years…’ (2007). Research has noted
that neglect during the early years can result in irreversible reduction
in the full development of the brain’s potential. By not including 0-6
years in the Act, the country is also furthering gender discrimination,
since it is always the girl who is left to take care of the younger siblings,
thus, depriving her of her right to education.

CHALLENGE TO BRING CHILD LABOURERS

Now that right to education has become a fundamental right of each
and every child, it shouldalso be applicable to those thousands of
students who are being used as child laborers and have been denied
education till now.

There are more than 12 million children in India who are engaged in
child labor and these are just official figures. Unless and until a special
provision is made in the Act, it would be challenging to bring back
these children to school.

LOSS OF SANCTITY OF EDUCATION

Section 4 of the Act provides special provision for children not

admitted to or who have not completed elementary education.11
Questions may arise in our mind whether a child of 13 years be directly
elevated to 7th standard? If so will he be able to grasp things as that of
child of his or her age? The answers to above questions may be ‘No’.
The reason is it is well established rule a child should be admitted to
school at the appropriate age. If not means then there would to chance
of less development of brain. Further a proviso is appended to it which
says about special training to such children, but doesn’t provide any
kinds of standards.Moreover in the draft rules the limitation of 2 years
is being laid down. As per our knowledge goes it is very difficult for a
child to cover whole syllabi of all classes in two years.Apart from
above provision there is other section which is a cause for lessoning the
sanctity
of education. § 16 states, no child admitted in a school shall be held
back in any class or expelled from school till the completion of
elementary education. This section is divided into two parts first; part
says no child shall be held back, it is apparent from language of
provision attacks on the sanctity of education. See if a child doesn’t
know reading and writing then how will he be able to survive in the
society. If schools go on promoting without checking abilities of child,
then what is the use of having the right so called right to education?
Further with the mix of such students in class, it would be very difficult
for the teachers to ensure quality. Substantial efforts would be required
to maintain and impart quality education. The next part speaks about
expels, see for some extent this provision is good, but in exceptional
cases this section will not work. So of this reason some standards have
to be laid down. Even though the state rules are likely to be on the same
lines as the model rules, they are still to be drafted by state-level
authorities keeping in mind contextual requirements. Advocacy on the
flaws of the central arrangements, and partnerships with state education
departments can yield improvements in at least some of them. If even
a few states are able to break away from the flaws of the central
arrangements, this will yield demonstration effects of the benefits of
better policies.

Section 4 of the Act says, when a child above six years of age has not
been admitted in any school or though admitted, could not complete his
or her elementary education, then, he or she shall be admitted in a class
appropriate to his or her age; provided further that where a child is
directly admitted in a class appropriate to his or her age, then, he or she
shall be at par with others, have a right to receive special training, in
such manner, and within such time–limits, as may be prescribed;
Provided further that child so admitted to elementary education shall
be entitled to free education till completion of elementary education
even after fourteen years.