Right to Education Act, 2009

The Right to Education Act 2009 was enacted by the Parliament of India on 4 August
2009. It describes the importance of free and compulsory education for children aged
between 6-14 years which comes under the ambit of Article 21 (A) of the Constitution of
India. This act came into effect on 1 April 2010 and after the commencement of act,
India is among one of the 135 countries to have made education a fundamental right for
every child. It prescribes minimum norms for elementary schools, prohibits
unrecognised schools from practice and advocates against donation fees and interviews
of children at the time of admission. The Right to Education Act keeps a check through
regular surveys and identifies children who are eligible for receiving an education but
do not have the means to obtain.

History:

Before the enactment of the Right to Education Act, 2009, 86 th Constitutional

Amendment Act was passed by the Government of India through which the Article-21-A
was inserted in the Constitution of India. Article-21-A states, “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.” and Article-45 was also substituted by this
amendment act only. Before this amendment, free and compulsory education was
included in Article 45 of the list of “Directive principles of the State Policy” in the
Constitution of India. Article-45 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.”

Objective/Policy:

“The Right to Free & Compulsory Education Act 2009” provides a justiciable legal
framework for the children in the age group of 6-14 years for the purpose of free and
compulsory elementary education. By ‘free education’ it means that no child is liable to
pay any fees, charges or expenses, who has been admitted to a school supported by the
appropriate Government, which may prevent the child from pursuing and completing
elementary education and ‘compulsion’ is on the appropriate government.
Criticism:

1. The RTE Act, does not contain a definition of inclusive education. The norms and
standards for schools provided under the Act are not sufficient to meaningfully
implement inclusive education.

2. The RTE Act continues to refer to the PWD Act, 1995 in defining concepts related
to disability and terms such as ‘severe disabilities’ that are now redundant in
light of the new disability rights paradigm.

3. The Rights of Persons with. Disabilities (RPWD) Act, 2016 provides the option of

special schools for children with benchmark disabilities. However, it does not
define special schools nor do these fall under the definition ‘school’ under the
RTE Act, and are thus not regulated in a similar manner as other schools under
the act

4. Special educators in most schools 10 to be contractual hires who do not get

sufficient salaries and are often overworked.

Suggestion:

1. RTE Act in line with the RPWD Act. The terms 'special schools' and 'home based
education' should also be defined in the RTE Act along with the conditions under
which students can opt for them. Schedule to the RTE Act shall be amended to
update norms and standards for schools to become inclusive.

2. The RTE Act must redefine the concepts related to disability to reflect the
position of law in the RPWD Act.
 3. The definition of 'school' under the RTE Act should be modified to bring special
schools within its purview. Further, norms and standards for special schools
should be specified under the act to ensure better regulation across States.

4. Special educators must be treated at par with the category of teachers

recognised under the RTE Act and their conditions of service should be similar of
that of recognised teachers.

Article 21-A:

Article 21-A is inserted in the Constitution by the 86 th Constitutional amendment act of

2002 by substituting Article-45 which is a Directive Principle of State Policy and lays
down, “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.” Article 21-A is inserted to provide free and
compulsory education of all children in the age group of six to fourteen years as a
Fundamental Right in such a manner as the State may, by law, determine. Bare language
of the Article prescribes, “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."

Article 21-A of Constitution of India is a positive right to have an elementary education

provided to all children of India, irrespective of caste, class or creed or religion etc.
Every child has a right which cannot be waived off, as doctrine of waiver does not apply
on fundamental rights in general. But in case of Article 21-A, target citizens are minor
children between the age of 6 to 14 years, hence state has even more positive duty to
enforce children’s right to have education. Most important aspect of Article 21-A is the
nature of education ensured in this is basic education of elementary level. It is not
supposed to be any religious education or any kind of specialised education.