DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

LUCKNOW

LAW AND EDUCATION

FINAL DRAFT

ON:

‘A CRITICAL ANALYSIS OF THE RIGHT OF CHILDREN TO FREE AND

COMPULSORY EDUCATION ACT, 2009’

SUBMITTED TO: SUBMITTED BY :

Mr. SHASHANK SHEKHAR SAURAV SINGH

ASSISTANT PROFESSOR B.A.LL.B. (B) X SEM.

Dr. RMLNLU Enroll- 150101119

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 ACKNOWLEDGEMENT

A major research project like this is never the work of anyone alone. Firstly, I would like to

thank respected Asst. Professor Dr. Shashank Shekhar Sir, for giving me such a golden

opportunity to show my skills and capability through this project.

This project is the result of the extensive ultrapure study, hard work and labour, put into to make

it worth reading. This project has been completed through the generous co-operation of various

persons, especially my seniors, who, in their different potentials helped me a lot in giving the

finishing touch to the project.

This project couldn’t be completed without the help of my university’s library Dr. Madhu

Limaye Library and its internet facility.

‘I am glad to have made it’

Thanking You........

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 TABLE OF CONTENTS

1. INTRODUCTION
2. OBJECTIVES OF THE STUDY
3. HISTORICAL BACKGROUND OF THE ACT
4. PASSAGE
5. IMPLEMENTATION AND FUNDING
6. STATUS OF IMPLEMENTATION
7. DEMAND FOR FUNDAMENTAL RIGHT TO EDUCATION
8. THE RIGHT OF THE CHILDREN TO FREE AND COMPULSORY EDUCATION
ACT, 2009
9. THE SALIENT FEATURES OF RTE ACT
10. CRITICISM
11. CONCLUSION AND SUGGESTIONS

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INTRODUCTION
The Right of Children to free and Compulsory Education, 2009 popularly known as the Right to
Education (hereinafter referred as RTE) Act, came into force on April, 1 2010. The Act introduces a
number of changes in the education delivery through schools in India. Many of the changes are simply
revolutionary, and if they are implemented in letter and spirit it can really improve the system of
imparting education in the country. The Right to Education received considerable impetus during the last
decade as a result of the concerted efforts of many groups and agencies that made determined efforts to
ensure that all children in India receive at least primary education irrespective of their socio- economic
status and their ability to pay for education in a situation of continuous impoverishment and erosion of
basic needs. Through the combined efforts of several outstanding educationists, several civil society
initiatives and most importantly the judgements of the Supreme Court, children of India were guaranteed
the Fundamental Right to education. The Act is land mark in the history of education related legislations
in India. However, some of the provisions of the Act, although included with the noble intentions, will
have unintended consequences that might occur some of the advantages of the new system itself. The
Right of Children to Free and Compulsory Education Act, 2009 as published in the gazette of India makes
for interesting reading. The Article will deal with the salient features of the Right to Free and Compulsory
Education Act, and will critically evaluate the same. The suggestions will also be provided to effectively
implement the Act.

OBJECTIVES OF THE STUDY

(i) To critically analyse the provisions under the Right of Children to free and Compulsory
Education Act 2009.
(ii) To understand the problems relating to effective implementation of the Act.
(iii) To study the shortcomings under the Act.
(iv) To suggest the effective ways of implementing the provisions under the Act.
(v)

HISTORICAL BACKGROUND OF THE ACT

There is a disagreement between the scholars regarding the origin and nature of the education system in
ancient India. Some of them hold the view that it is difficult to speak of ancient Indian education with
certainty, as our information is based on the document of ‘unequal value and unequal date’. Nevertheless,
it may be stated that education in India has been notorious for not being socially inclusive. Education was
the sole privilege of the priestly castes primarily because of the religious basis for the content of
education, coupled with the elitist medium of instruction that was chose to impart the knowledge.
Admission to Gurukuls or Ashrams was not open to all.
The discovery of the sea route to India, in 1948, influenced the course of development of education in the
Indian sub- continent. The progress in education was facilitated with a view to the serving their vested
interests i.e. to train the Indians as clerks, managers, and other subordinate workers to staff their vast
politico administrative machinery. However, education of the Indian masses was largely neglected.
The demand of free and compulsory education in India can be traced back to the early stages of the
freedom struggle in British India. It subsequently became an integral part of the freedom struggle. The

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Indian National Congress fought valiantly for the expansion of elementary education and literacy, in
general and in rural India, in particular. The first law on compulsory education was introduced by the
State of Baroda in 1906.This law provided for compulsory education for boys and girls in the age group
of 7-12 years and 7-10 years respectively. Despite the consistent demand for FCE during the freedom
struggle at the time of drafting the Indian Constitution, there was no unanimous view that the citizens of
India should have the Right to Education.

PASSAGE
The bill was approved by the cabinet on 2 July 2009.1 Rajya Sabha passed the bill on 20 July 2009 and
the Lok Sabha on 4 August 2009. It received Presidential assent and was notified as law on 26 August
2009 as The Children's Right to Free and Compulsory Education Act. The law came into effect in the
whole of India except the state of Jammu and Kashmir from 1 April 2010, the first time in the history of
India a law was brought into force by a speech by the then Prime Minister Manmohan Singh. In his
speech, Dr. Singh stated, "We are committed to ensuring that all children, irrespective of gender and
social category, have access to education. An education that enables them to acquire the skills,
knowledge, values and attitudes necessary to become responsible and active citizens of India." It now
came into act in Kashmir after it turned into a Union Territory of India in 2019. 2
The RTE Act provides for the right of children to free and compulsory education till completion of
elementary education in a neighbourhood school. It clarifies that ‘compulsory education’ means
obligation of the appropriate government to provide free elementary education and ensure compulsory
admission, attendance and completion of elementary education to every child in the six to fourteen age
group. ‘Free’ means that no child shall be liable to pay any kind of fee or charges or expenses which may
prevent him or her from pursuing and completing elementary education.
It makes provisions for a non-admitted child to be admitted to an age appropriate class.
It specifies the duties and responsibilities of appropriate Governments, local authority and parents in
providing free and compulsory education, and sharing of financial and other responsibilities between the
Central and State Governments.
It lays down the norms and standards relating inter alia to pupil teacher ratios (PTRs), buildings and
infrastructure, school-working days, teacher-working hours.
It provides for rational deployment of teachers by ensuring that the specified pupil teacher ratio is
maintained for each school, rather than just as an average for the State or District or Block, thus ensuring
that there is no urban-rural imbalance in teacher postings. It also provides for prohibition of deployment
of teachers for non-educational work, other than decennial census, elections to local authority, state
legislatures and parliament, and disaster relief.
It provides for appointment of appropriately trained teachers, i.e. teachers with the requisite entry and
academic qualifications.
It prohibits (a) physical punishment and mental harassment; (b) screening procedures for admission of
children; (c) capitation fee; (d) private tuition by teachers and (e) running of schools without recognition.
It provides for development of curriculum in consonance with the values enshrined in the Constitution,
and which would ensure the all-round development of the child, building on the child's knowledge,

1
"Cabinet approves Right to Education Bill". The New Indian Express. 2 July 2009. Retrieved 2 July 2009
2
"Prime Minister's Address to the Nation on The Fundamental Right of Children to Elementary Education".
Pib.nic.in. Retrieved 1 September 2010.

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potentiality and talent and making the child free of fear, trauma and anxiety through a system of child
friendly and child centered learning.

IMPLEMENTATION AND FUNDING:

Education in the Indian constitution is a concurrent issue and both centre and states can legislate on the
issue. The Act lays down specific responsibilities for the centre, state and local bodies for its
implementation. The states have been clamouring that they lack financial capacity to deliver education of
appropriate standard in all the schools needed for universal education. 3 Thus it is clear that the central
government (which collects most of the revenue) will be required to subsidise the states.
A committee set up to study the funds requirement and funding initially estimated that Rs 1710 billion or
1.71 trillion (US$38.2 billion) across five years was required to implement the Act, and in April 2010 the
central government agreed to sharing the funding for implementing the law in the ratio of 65 to 35
between the centre and the states, and a ratio of 90 to 10 for the north-eastern states. However, in mid
2010, this figure was upgraded to Rs. 2310 billion, and the center agreed to raise its share to 68%. There
is some confusion on this, with other media reports stating that the centre's share of the implementation
expenses would now be 70%. At that rate, most states may not need to increase their education budgets
substantially.
A critical development in 2011 has been the decision taken in principle to extend the right to education
till Class X (age 16) and into the preschool age range. The CABE committee is in the process of looking
into the implications of making these changes.

STATUS OF IMPLEMENTATION
A report on the status of implementation of the Act was released by the Ministry of Human Resource
Development on the one-year anniversary of the Act, and again till 2015. The report admits that 1.7
million children in the age group 6-14 remain out of school and there's a shortage of 508,000 teachers
country-wide. A shadow report by the RTE Forum, representing the leading education networks in the
country led by Ambarish Rai (a prominent activist), however, challenging the findings pointing out that
several key legal commitments are falling behind schedule. The Supreme Court of India has also
intervened to demand implementation of the Act in the Northeast. It has also provided the legal basis for
ensuring pay parity between teachers in government and government aided schools. 4
Haryana Government has assigned the duties and responsibilities to Block Elementary Education
Officers–cum–Block Resource Coordinators (BEEOs-cum-BRCs) for effective implementation and
continuous monitoring of implementation of Right to Education Act in the State.

DEMAND FOR FUNDAMENTAL RIGHT TO EDUCATION

The period spanning between enforcement of the Indian Constitution to the landmark judgements in Unni
Krishnan v State of Andhra Pradesh5 in 1993 saw several legal developments. The Court pointed out that
the private educational institutions were necessary because the governments could not meet the demand
particularly in the sector of medical and technical education. The question was how to encourage private

3
 "Centre, states to share RTE expenses in 68:32 ratio – The Economic Times". Economictimes.indiatimes.com. 30
July 2010. Retrieved 1 September2010.
4
 "SC opens door for equal pay to teachers in pvt, govt schools". Tribune. 12 August 2010. Retrieved 8
October 2010.
5
AIR (1993) SC 2178

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educational institutions without allowing them to commercialize education. Justice Mohan showed the
same concern in the concurring judgement. It was observed that it would be unrealistic and unwise to
discourage private initiative in providing educational facilities, particularly in higher education sector. It
was further observed that the private institutions could be encouraged in this regard. This would make us
much progress as possible in the field of education. The Court pointed out further that while eliminating
the unscrupulous elements from the field good institutions needed to be encouraged and protected. In
order to achieve that laudable aim, the court added that regulatory controls had to be continued and
strengthened. The State must strive to prevent commercialisation and racketing in the field of education.
It shall ensure that private educational institutions maintains minimum standards and facilities. The court
further added that admission within all groups and categories could only be on the basis of merit. The
norms of admission should be predetermined, objective and transparent. 6
In other landmark judgement Mohini Jain v. State of Karnataka,7 popularly known as the ‘capitation fee’
case; the Supreme Court has held that the Right to Education is a Fundamental Right under Article 21 of
the Constitution which cannot be denied to a citizen by charging higher fees known as capital fee. It was
ruled that Right to Education flowed from Article 21 of the Constitution. It was emphasised that the ‘right
to education’ is concomitant to fundamental rights enshrined under Part III of the Constitution and that
every citizen has the right to education under the Indian Constitution.
After the 86thConstitutionalAmendment in the year 2002 there were major amendments in the existing
provisions under the Indian Constitution. Article 21 –A was inserted in the Constitution which provided
for the free and compulsory education for the children between the age group of six to fourteen years. 8
Article 45 was replaced by adding the provision relating to early childhood care education for all upto the
age of six years. The fundamental duty was inserted under Article 51-A and a new sub clause was added
to impose the duty on the parents and the guardians to provide the opportunities for education to all the
children between the age of six to fourteen years. 9 In order to give effect to the constitutional provisions
the Right of Children to free and Compulsory Education Act was passed.

THE RIGHT OF THE CHILDREN TO FREE AND COMPULSORY EDUCATION ACT, 2009
The RTE Act is a revolutionary step taken to ensure the free and compulsory education in India. The
word used in the Act “compulsory education” imposes an obligation on the appropriate government and
the local authorities as defined under the Act to ensure the admission, attendance and completion of
elementary education by all children in the age- group of 6-14 years. There is also the time –limit fixed
under the Act that the target of free and compulsory education is to be achieved the period of three years.
The Act also prescribes that the school is made accessible in the neighbourhood. The norms have been
laid down to provide better infrastructure facilities. The Act has to comply with the strategies of the Sarva
Shiksha Abhiyan.

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The court pointed out that there could be reservation of seats in favour of the weaker sections of the society and
other groups, which deserve special treatment
7
(1992) 3 SCC 666
8
Insertion of new article 21A.- After article 21 of the Constitution, the following article shall be inserted, namely:-
Right to education.-"21A. 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.
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51- A (k) who is a parent or guardian to provide opportunities for education to his child or, as the case may be,
ward between the age of six and fourteen years.".

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THE SALIENT FEATURES OF RTE ACT
The RTE Act is very ambitious in nature. There are following salient features of the Act-

 The right of children to free and compulsory education till elementary level in the neighbourhood
school.

 25% reservation in admission to the students belonging the disadvantaged, weaker and students
suffering from disability.

 It provides that it is the duty of the appropriate government and the local authorities to ensure that free
and compulsory education is provided to the children in the age group of 6-14 years. The children are not
required to pay any fee upto the elementary level so as to devoid him of pursuing and completing the
elementary education.

 It also provides that the children who were not admitted to the school get the opportunity to get the
admission in the age appropriate class.

 The Central and the State government have to share the financial and other responsibilities to provide
the education.

 The Act also lays down the norms relating to the student- teacher ratio, infrastructure, and the working
days in the school and the teaching hours for the teachers.

 The urban and rural area employment of the teachers to reduce the regional disparity has also been
taken care.

 The restriction on deployment of the teachers in the non- academic work has been laid down.

 The Act emphasis on the employment of the trained and qualified teachers.

 It prohibits the screening test and charging of capitation fee.

 There are strict norms for the recognition by the school.

 The Curriculum must be in consonance of the Constitutional values.

These are some of the salient features of the Act. The brief study of the provisions highlights that the Act
is very much inclined towards providing the ample opportunity the children to complete the elementary
education. This is also the basic human right provided to all the children.

CRITICISM
The act has been criticised for being hastily drafted, not consulting many groups active in education, not
considering the quality of education, infringing on the rights of private and religious minority schools to
administer their system, and for excluding children under six years of age. Many of the ideas are seen as
continuing the policies of Sarva Shiksha Abhiyan of the 2000s, and the World Bank funded District
Primary Education Programme DPEP of the '90s, both of which, while having set up a number of schools
in rural areas, have been criticised for being ineffective and corruption-ridden.10

10
Aarti Dhar (28 July 2010). "News / National : U.K. doesn't intend to probe Sarva Shiksha Abhiyan for
corruption". The Hindu. Retrieved 1 September 2010.

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The quality of education provided by the government school system is not good. While it remains the
largest provider of elementary education in the country, forming 80% of all recognised schools, it suffers
from shortage of teachers and infrastructural gaps. Several habitations lack schools altogether. There are
also frequent allegations of government schools being riddled with absenteeism and mismanagement and
of appointments made on political convenience. Despite the allure of free lunch in the government
schools, many parents send their children to private schools. Average schoolteacher salaries in private
rural schools in some States (about Rs. 4,000 per month) are considerably lower than those in government
schools.11 As a result, the proponents of low-cost private schools critique the government schools as being
poor value for money.
Children attending the private schools are seen to be at an advantage, forming a discrimination against the
weakest sections who are forced to go to government schools. Furthermore, the system has been criticised
as catering to the rural elites who are able to afford school fees in a country where a large number of
families live in absolute poverty. The act has been criticised as discriminatory for not addressing these
issues. Well-known educationist Anil Sadgopal said of the hurriedly drafted act:
 It is a fraud on our children. It gives neither free education nor compulsory education. In
fact, it only legitimises the present multi-layered, inferior quality school education system
where discrimination shall continue to prevail.
Entrepreneur Gurcharan Das noted that 54% of urban children attend private schools, and this rate is
growing at 3% per year. "Even the poor children are abandoning the government schools. They are
leaving because the teachers are not showing up." However, other researchers have countered the
argument by saying that the evidence for higher standard of quality in private schools often disappears
when other factors (like family income and parental literacy) are accounted for.
Public-private partnership
To address these quality issues, the Act has provisions for compensating private schools for admission of
children under the 25% quota which has been compared to school vouchers, whereby parents may "send"
their children in any school, private or public. This measure, along with the increase in PPP (Public
Private Partnership) has been viewed by some organisations such as the All-India Forum for Right to
Education (AIF-RTE), as the state abdicating its "constitutional obligation towards providing elementary
education".
Infringement on private schools
The Society for Un-aided Private Schools, Rajasthan (in Writ Petition (Civil) No. 95 of 2010) and as
many as 31 others petitioned the Supreme Court of India claiming that the act violates the constitutional
right of private managements to run their institutions without governmental interference. The parties
claimed that providing 25 percent reservation for disadvantaged children in government and private
unaided schools is "unconstitutional."

Forcing unaided schools to admit 25% disadvantaged students has also been criticized on the grounds that
the government has partly transferred its constitutional obligation to provide free and compulsory
elementary education to children on “non-state actors,” like private schools, while collecting a 2% cess on
the total tax payable for primary education.

On 12 April 2012, a three judge bench of the Supreme Court delivered its judgement by a majority of 2–
1. Chief Justice SH Kapadia and Justice Swatanter Kumar held that providing such reservation is not
unconstitutional, but stated that the Act will not be applicable to private minority schools and boarding
schools. However, Justice K. S. Panicker Radhakrishnan dissented with the majority view and held that
11
 "Education in India: Teachers' salaries". Prayatna.typepad.com. Retrieved 1 September 2010.

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the Act cannot apply to both minority and non-minority private schools that do not receive aid from the
government.
In September 2012, the Supreme Court subsequently declined a review petition on the Act. 12
In May 2016, the Chetpet-based CBSE school Maharishi Vidya Mandir became embroiled in a scandal
over its circumvention of the 25% quota rule. During its admissions cycle, the school told economically
weaker parents "the RTE does not exist," and, "we do not take these [government RTE] applications."
The senior principal also informed the Tamil Nadu Regional Director of the CBSE that he intended to
"reject applicants without an email address," thereby excluding technically illiterate parents from seeking
admissions. In addition, school officials falsified the distance figures of several poorer candidates in
attempts to disqualify them from availing of the scheme.
Barrier for orphans
The Act provides for admission of children without any certification. However, several states have
continued pre-existing procedures insisting that children produce income and caste certificates, BPL cards
and birth certificates. Orphan children are often unable to produce such documents, even though they are
willing to do so. As a result, schools are not admitting them, as they require the documents as a condition
to admission.13
Briefly its critical evaluation is mentioned below:
 The Act is criticised on the ground that it has excluded the children of the age- group of 0-06
from its ambit. This is the age of the child when the critical development of the chid take place.
At this stage if the child is not provided the ample opportunity to grow and develop then it won’t
be advantageous to the child. Another problem is that in absence of the proper pre- schooling and
keeping it outside the preview of RTE will allow unregulated system of pre-school education.
Consequently, large section of the society will be deprived of availing the opportunity under the
Act.
 The quality of education is yet another concern. Implementation of Article 21 –A of the
Constitution in its true spirit requires that quality education should be made available to the
citizens. It is quite evident that the large portion of the curriculum which is taught to the students
is alien to the average child. There is a need to adopt more non- formal education which is
learnercentric and based on activities.
 There is a mushrooming of private schools now- a- days. They have good infrastructure and are
also delivering as per the expectations of the parents. Consequently, most of the parents prefer
private schools as compared to the government schools. The problem of quality education
basically lies with the government schools, which remains unaddressed even after passing of the
RTE Act.
 The Act provides that there will be sharing of the funds between the centre and the state for the
effective implementation of the Act. There is a significant shortage of fund for the purpose of
implementation.
 The Act is criticised on the ground that No Detention Rule under the Act will not allow the
quality education to be provided to the children.14

12
"Supreme Court declines review of right to education verdict". Times of India. 20 September 2012. Retrieved 21
September 2012.
13
"Strict rules bar orphans from RTE benefits". The Times of India. 25 April 2012. Retrieved 25 April 2012.
14
Section 16 of the Right of Children to Free and Compulsory Education (RTE) Act, 2009 stipulates that ‘No child
admitted in a school shall be held back in any class or expelled from school till the completion of elementary
education’. Thus, the policy covers elementary stage of schooling covering classes 1 to 8.

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CONCLUSION AND SUGGESTIONS
The Right of Children to free and Compulsory Education Act, 2009 is a landmark development in area of
providing the basic human right to the children. The children in absence of ample opportunity become
victim of social evils. Child labour is so rampant in the country. If children are engaged in studies at the
tender age there will be proper development of their personality. Therefore, it is essential to effectively
implement the Act. Following are the suggestions for the effective implementation of the Act-
 The privatization of education should be regulated. The private schools should strictly instructed
to reserve 25 % seats for the weaker and disadvantaged group of students.
 There is a need to bring more awareness amongst the parents, teachers and students regarding the
Act. In absence of information amongst the people the Act cannot be implemented effectively.
 There must be more allocation of funds to the state governments for implementing the Act. The
government schools in absence in sufficient funds are not able to abide by the norms laid down
under the Act.
 There must be proper incentives for the parents and the students who are abiding by their
fundamental duty as laid down under Article 51-A of the Constitution.
 There must be strict implementation of the provision relating to non- deployment of the teachers
in any non- academic work.
 There must be ban on the private tuitions and referrals. Although the RTE Act provides that the
teachers should not engage themselves in the private tuitions, there must also be prohibition on
teachers referring students for private tuitions.
 More scholarships must be introduced to encourage the students belonging to the weaker section
of the society to pursue their studies.
 There must be proper monitoring agencies to monitor the effective implementation of the Act.
 The Act also lacks effective auditing. An Auditing mechanism like that of MANREGA is
required to monitor the status of implementation of the Act.

For the effective implementation of the RTE Act the courts in India have also shown a very activist
approach. The Supreme Court decisions in Mohini Jain Case and Unnikrishnan Case have given the
momentum to enforce this Constitutional Right of education for all the children. With the enactment of
the RTE Act India has moved forward to a right- based framework that casts a legal obligation on the
Centre and the state to implement this fundamental right guaranteed under Article 21-A of the
Constitutions. The Act is also aligned to the international norms on the right to education. The Act
ensures the education rights which are available, accessible, acceptable and adaptable to all. In order to
meet the challenges and surmount the hurdles that comes in the way of the implementation of the Act it is
needed to concentrate all efforts with full dedication and commitment.

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