National Law University, Jodhpur

Project topic: - COMPARATIVE ANALYSIS OF RIGHT TO FREE EDUCATION AND

COMPULSORY ELEMENTARY EDUCATION IN INDIA AND USA.

Submitted By: - UPENDRA JEPH

Standard: - LLM Sem.-1st (Corporate law)
Roll no: - 524
 CERTIFICATE

This is to certify that Mr. Upendra jeph, a student of LLM SEM-1st has
successfully completed a project titled ““Comparative analysis of right
to free education and compulsory elementary education in India and
USA” under the guidance of Professor Ms. Vini Singh.

Signature
Upendra jeph
CONTENTS

ABSTRACT

Chapter-.1 INTRODUCTION
Chapter-2 EVOLUTION OF INDIAN EDUCATION SYSTEM

Chapter-3 COMPARATIVE ANALYSIS OF RIGHTS RELATED

TO EDUCATION IN INDIA AND U.S.A.

Chapter-4 ISSUES AND CHALLENGES

Chapter-5 CONCLUSION
 Acknowledgement

It is our privilege to express our sincerest regards to us project

coordinator, professor Ms. Vini Singh, for their valuable inputs, able
guidance, encouragement, whole-hearted cooperation and constructive
criticism throughout the duration of our project. we deeply express our
sincere thanks to our Head of Department Dr Prof. I.P Massey for
encouraging and allowing us to present the project on the topic
“Comparative analysis of right to free education and compulsory
elementary education in India and USA”.
We take this opportunity to thank all our lecturers who have directly or
indirectly helped our project. We pay our respects and love to our parents
and all other family members and friends for their love and
encouragement throughout us career. Last but not the least we express our
thanks to us friends for their cooperation and support

Thank you
CONTENTS

ABSTRACT
Chapter-.1 INTRODUCTION
Chapter-2 EVOLUTION OF INDIAN EDUCATION SYSTEM

Chapter-3 COMPARATIVE ANALYSIS OF RIGHTS RELATED

TO EDUCATION IN INDIA AND U.S.A.

Chapter-4 ISSUES AND CHALLENGES.

Chapter-5 CONCLUSION.
ABSTRACT

Comparative study of education between different countries helps in providing an idea of

successful experiences and unsuccessful experiences of the countries and shows the loophole and
leakages in governing the administration of education. The study of the education system of
different countries is very helpful in improvement of an education system and gives the advanced
idea of making solving regional and national problems. This paper gives the concept of the
education scheme and the laws that are in place for the education scheme in nations such as India
and the USA. In the research I have given an understanding of how India and the United States
have structured their education system. Education is a pillar that, unless a nation or society is
educated, can attain its objectives or purposes over the required period, linked to all kinds of
nation growth. It is therefore essential for us all to make the individuals of a nation conscious of
the advantages of schooling.

Keywords: Right to education, American education system, Indian education system

 Chapter-1

INTRODUCTION

“Education is the essential element of man's general development. Without fully binding the talents
of its citizens, a modern society cannot attain its components of economic growth, technical
development, and cultural enhancement. An individual's personality relies on his suggested
knowledge and understanding. Education is regarded to bring about better change between people.
An individual's personality relies on the understanding and wisdom he offers. Education offers
possibilities for intellectual learning and development. Education plays a crucial role in providing
human beings with suitable facilities to lead a gracious and harmonious life.”
The law on the right to education (RTE), 2009, allows free and compulsory education for kids in
the backward segment of the economy. The Right to Education Act was previously referred to as
the' Right of Children to the Free and Compulsory Education Act.1 This act offers free and
compulsory education for kids belonging to a weaker section of society between the age group of
6 years and 14 years by offering 25 percent reservation in government and private schools. With
the enactment of the (RTE) act in April 2010, India became one of the 135 nations to make
education a fundamental right for every kid. Ensuring access to education is a condition that the
right to education is fully realized. Without access, it is not possible to guarantee the right to
education. The RTE Act is the world's first regulation to ensure the government is registered,
attended and concluded. The parents are responsible for sending their kids to schools in the US
and elsewhere - Sam Carlson (the world bank education specialist for India)2.

“Right Education should help the student, not only to develop his
capacities, but to understand his own highest interest.”-J. Krishnamurti

1
Ind. Const. art. XXIA.
2
Sharma, Suresh c. ON THE RIGHT TO EDUCATION ACT A COMMENTARY, (2014)
https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e519
 Chapter 2

EVOLUTION OF THE INDIAN EDUCATION SYSTEM:

We understand that an old system of education is different from the rest of the world. The
educational system in ancient India was distinct, noble and great. In the past, academics knew
nothing about the art of writing, and it was only used to preserve literature when acknowledged by
scientists. India has a long trend of traditional education by way of both formal (higher learning at
Takshashila and Nalanda) as well as informal one where pupils are studied in ashram’s hermitages in
custody of Guru’s. A mass movement of education was beginning with the beginning of Jainism and
Buddhism when common people spoken languages as per their needs. Early in 800 B.C. there was a
modernization of primary education. Or even before. “The very word ‘aranyaka’ affixed to some of
the ancient treatises indicates that they either originated in, or were intended to be studied in
forests.”

As Britishers arrived in India they started their colony in madras. The earliest record we trace
regarding the educational work when Ralph Ord in 1600 came to India as school master on salary
of £503 per annum. By interpreting the clause 43 of charter 1813 by Lord Macaulay. He submitted the
minute in 1835 to Lord William Bentinck, Governor General of India. In which he mostly emphasized
on women education. Lord Macaulay was the first who criticizes the eastern education system. In 1870,
Lord Mayo introduced the system of administrative decentralization of authority in which the
education was made ‘provincial subject’ for a purpose of day to day administration.

3
Arthur Howell, Education in British India prior to 1854 and in 1870-71, (1872)
 REPORT OF HUNTER COMMISSION 1882: -
Important recommendations of the Commission are as follows-
1.Encourages primary education.
2.Also focus secondary education.
3.The commission recommended the grant in aid to indigenous school.
4.The commission emphasized on moral and physical education.
5.In this report, focus also given on vocational and literary training in secondary education.
6.Special attention given in the education of Muslims.

ALL INDIA CONFERENCE 1937

It was held at Wardha (Maharashtra) in October in1937 after the Hartog committee report and
recommendation are as follows-
1.Providing free and compulsory education for seven years in countrywide.
2.The mother tongue should be the means of education.4

SYSTEM OF EDUCATION AFTER INDEPENDENCE:

After getting independence, the thinking of Indian constitution framers influenced by two main
considerations-
The general model adopted by USA.
The recommendations of Hartog committee.
As in USA, the education was made state subject and also vest residuary power in education in the
state government. In respect of primary education, takes a recommendation of Hartog committee.
The Constitution, therefore, makes the following provision as a DPSP under Part IV. “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 14
years. ”In 1994 the United Front Government's ' Common Minimum Programme ' is designed to
make free and compulsory schooling a primary right and to implement certain statutory measures.
After 73rd and 74th amendment the government make possible to legislate the elementary and
compulsory education.

4
Publicly funded schools open to all children irrespective of caste, creed, community, religion, economic condition or social
status. It meets the expectations of average parents so that they would not ordinarily feel the need to send their children to fee –
charging schools outside the system, Yasmeen, S. Swelling Support for common schools, July 2004
 Chapter-3

COMPARATIVE ANALYSIS OF RIGHTS RELATED TO

EDUCATION IN INDIA AND U.S.

After 29 years of independence in 1976 education become a joint liability of state and center i.e.
it embodied in concurrent list. The National Policy on Education (NPE), which recommends
universal primary education (UEE), with a notion of universal access, universal retention, and
universal achievement, came as major modifications in 1986. The common school system was also
recommended by the National Education Policy (NPE).7 This system brings together children and
groups from different social societies and encourages equal and integrated society to emerge. Most
of the policy was neither enforceable nor justified and remain far from achieving targets. The 10 th
five-year plan envisages with the aim of universal elementary education can be achieved in India
by 2007. But in 2001, the Union Minister of Human Resource Development announced that India
would meet that goal only in 2010.

When we talk about the analysis of education comparatively between the united states of America
(USA) and India. The question arises what type of equality and rights they provided under their
provisions of the constitution for the purpose of education? Did any rights are envisaged under
their constitution? In San Antonia Independent School District Vs. Rodriguez5, The appellant has
submitted a request to the United States of America on the 14th amendment of its constitution, and
here are submitted two theories of unconstitutionality; one is built on the concept that education is
the Fundamental right and the other is a suspicious class, based on the notion of riches. And the
conclusion was that education under the US constitution was not a Fundamental right. And both
theories have the same purpose: that is, both the theory is denied by the Court.

5
91 U.S.LEXIS 1973
Before this in the case of Brown Vs. Board of education, the Supreme court of America while
explaining why the educational right is not considered as Fundamental rights. They emphasize on
the educational importance and declared that it is a public service which is made available by state
and local authority in an equal term the educational importance and declared that it is a public
service which is made available by state and local authority in an equal term. 6

The same question is arising in India also the whether the Indian constitution guaranteed the Right
to education. It was held in Mohini Jain Vs. state of Karnataka7 that article 21 ‘Right to life and
Personal liberty’ of the constitution of India includes education. The Supreme court of India made
clear that the Indian constitution not guaranteed the “right to education” as a fundamental right
under part III of the Indian constitution. In India, first time educational rights are recognized in
unni Krishnan Vs. state of Andhra Pradesh 8 in which Supreme court said the children between the
of 6 years to 14 years has right to education. In Bandhua Mukti Morcha Vs. Union of India9 the
Supreme court gives an importance on children’s education, health and also acknowledged that
child labor cannot be abolished in present scenario.

In other case Avinash Nagra Vs. Navodaya Vidyalaya Samiti10 The Supreme Court, explaining as
follows the significance of the education.

“It is well known fact that the 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”.

In T.M.A pai foundation V. state of Karnataka, the court concluded the narration of the “scope of
the right to establish educational institutions under Article 19(1)(g) read with Article 19(6)21. And
Article 26(a)” observed;

6
347 U.S 483 (1954)
7
1992 AIR 1858
8
1992 AIR 1858
9
1984 AIR 802, 1984 SCR (2) 67
10
1997 2 SCC 534
“Religious denominations or parts thereof, not belonging to the specific classifications laid
down in Articles 29(1) and 30(1), therefore have the right to create and retain religious and
educational organizations. This would enable the creation of an instructional organization
by Members of any religious name, including the majority of the religious community. In
view of this, the term "private instructional institution" of this judgment would mean not
only that instructional institution created by the laity or by individuals, but the term "private
education institution" used by religious denominations.”11.

On the other side in America, in case of plyer V. doe12 the league of nations recognizes the right
of education for the purpose of children in declaration which known as ‘Declaration of Geneva’
the remarked as
“At the international level, the rights of education, for the first time under the auspices of
the League of Nations, were protected under a serious minority agreement after the First
World War. These treaties were entered into in addition to the peace agreements between
the Allies, the Associated powers and the defeated countries. In post-war Europe, which had
re-designed many domestic borders, this arrangement attempted to promote the religious,
cultural and education freedoms of certain small groups. This was the first treaty signed by
Poland on 28 June 1919, which in many cases served as a prototype of the following contracts,
between the Principle and the related powers. Article 8 of the Treaty protects Polish citizens
' right to the creation, management, and monitoring of their own expenses schools belonging
to ethnic, religious or linguistic minorities' by using their own language, exercising free
religion' in their language”.

The right to education is expressly not distinguished in the declaration but in the declaration three
principles are pointed in;

The child must be provided with the necessary means for ordinary Growth.
The backward kid has to be assisted.
The child should be able to earn a living.

11
2002 8 SCC 481
12
457 U.S. 202 (1982)
Now, the question arises why the educational rights are not protected under the provisions of the
Fundamental rights of the American constitution? Generally speaking, the framers of the
constitution are not choosing that education is guaranteed under the Constitution of America. As
well as the choice of the Supreme court of America is also that education is not a Fundamental
right. There are two clauses which recognizes the education as a fundamental right;
Equal protection clause
Due process clause

1. EQUAL PROTECTION CLAUSE:

Equal protection clause provides that every citizen has ‘equal protection of law.’ Many times, the
Supreme court of America held the Right of education was protected under ‘equal protection of
law’ clause. In Papasan v. Allain13 white J. stated that-
As Rodrieguez and plyer, Education was not a basic right of the Supreme Court and the question
was raised whether or not the education was a basic right.

2. DUE PROCESS CLAUSE:

In due process clause prohibits the “state that no person shall be deprived from the personal life
and liberty and from property without due process of law”. And ‘many a times the supreme court
of America held that educational rights were protected; this clause under the title ‘liberty.’

13
478 U.S. 265 (1986)
 Chapter-4

ISSUES AND CHALLENGES:

Like other developing countries, India is also lacking in education system and has many issues and
challenges. The issues are:

Lack of expenditure: - The ‘Indian Government spent around Rs.15,440, crore in 2010-
11 which around the 85% of the estimated budget. According to NSSO survey spending
on children education by the government was 63% in rural areas and 73% in urban areas.
If we calculate the expenditure on education which the government is incurred then India
is lagging behind some developed countries as well as developing countries.

Lack of gross enrolment ratio (GER): - India also lagging behind in GER as compared
other countries such as GER of china was 23%, for UK it was 57%, and for USA it is 83%.

Lack of infrastructure facility: - It is the main reason for lack of capacity utilization on
India. There is lack of educational institution for providing education to the children.

Student and teacher ratio: - India has need for improving the student teacher ratio in a
class-room.

There are many other issues and challenges are there in which India is lagging behind such
as: -
Quality of a teachers is not up to the mark.
India producing the generation which is hardly read and write.
Students are lacking in arithmetic skills and reading skills.
 Chapter-5

CONCLUSION

As we have seen that in both countries India and in the USA, education is not guaranteed under
the fundamental right of constitution of both countries. In India, the right to education was first
time recognized in the case unni Krishnan Vs. state of Andhra Pradesh. But in America, the Right
to education is not recognized under their constitution. In the San Antonia Independent School
District Vs. Rodriguez it was said that Right to education is not considered as a fundamental
right14. Earlier in the case of Brown Vs. Board of education, the Supreme court of America gives
emphasized on the importance of education.
From above all the discussions, we can understand that education is necessary for the country as
well as individuals of the country. By educating or instructing the people of a country we can
achieve the desired economic growth, improve traditional thinking, enhanced the technical skills
for betterment of future development of the country, and education also helps in protecting cultural
aspects of the country. Above all this we should focus on the improvement of our county’s
education system and fixing the loopholes which are present in the provisions of the Act. Steps
that help the organization to achieve the free and mandatory education objectives in the nation in
the near future: -

Innovative mind required

When we are talking about the innovative ideas Indians lagging behind because of our
education system.
The Quality of education
Central government of India should move towards the improving the quality of education
because the education system of India lacking in innovation because of the hampered
education system.
Educational policy
Indian government should focus on the policies and reforms against the education system
of the country. India is needed some reforms in the structure of an education system.

14
Jeffrey S. Sutton, San Antonio Independent School District V. Rodriguez and Its Aftermath Virginia Law Review,
pp. 1963-1986, Vol. 94, No. 8 (Dec., 2008).
 Affordable education
Indian government should also take steps towards making education affordable for all
sections of society of the country.
Rules and regulation
India somewhat also lacking in the strict rules and regulations for educational structure of
the country. There is need of making strict legislation for the purpose of regulating the
education system of country.

Other suggestions are follows: -

The process should be started by the central and state consultation processes for state property,
since schooling is an issue on the simultaneous list.
A model should be laid down to implement each government's right to education to bring greater
transparency into the education system.
The Center and State governments should make efforts to put kids under the age of 6 and adults
under the age of 14 under the provisions of this act.
Proper allocation of budget in the education sector should made (In 2019, Central government
provided only 3.4% of the GDP down from 3.74% of GDP in previous financial year). 15
There is urgent need of review of curriculum and changes in textbooks of the schools for
enhancement of the level of education with actual learning of the students.
Infringement in article 19(1) might be called into question the constitutional validity of seat
reservations at private colleges for economically weaker segments.
Sharing of duty to provide free and compulsory education between Centre” and state authority
may lead to neither authority being held accountable. There must be some accountability on behalf
of authority who regulated the duty and fulfills the obligation regarding this act.

15
http://pib.nic.in/AllRelease.aspx?MenuId=3
Bibliography

1. Besant Annie, India bond or free (London forgotten books,2013) p. 94-95.

2. Jeffrey s. button, San Antonio independent school V. Rodriguez: its aftermath

(Virginia law Review,2008) Vol.94. no.8.

3. Thomas J. Walsh, Education is fundamental rights.

4. Right to Education (RTE) Bill, 2005

5. Right to Education (RTE) Bill,2008

6. The Charter of Universal Declaration of Human Rights, 1948

7. Arthur Howell, Education in British India prior to 1854 and in 1870-71,

(1872).

8. Sharma, Suresh c. ON THE RIGHT TO EDUCATION ACT A

COMMENTARY, (2014).