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By far the most important term of reference for the Saman School Pranali Ayog calls for it to specifically recommend ‘ways and means to give effect to Right to Education under Article 21A of the Constitution within the framework of a Common School System’. This chapter presents a brief history of the Right to Education (RTE) in the international and the Indian context. It has also been argued in this chapter that the rights to education remains a rhetoric if it is not integrated with equality in educational opportunity and social justice. Furthermore, the Commission regards education a matter of child’s right in contrast to her need, and believes that the State must respond to the right as its sovereign duty, and not just as a part of its welfare or humanitarian agenda.

2.2

International History of the Right to Education

Education in the western world, prior to the age of Enlightenment in Europe, was considered primarily the responsibility of parents and the Church. Education as a matter of ‘public concern’ is the product of the modern secular State. The French and American revolutions gave a ‘fillip’ to the process of the ‘democratization’ of education and moving away from its being the ‘exclusive preserve of a particular social class’. Public education was perceived as a means of realizing the egalitarian ideals upon which these revolutions were based’ (Hodgson, 1998: p8). Despite education being regarded as a ‘pre-existing and natural right’, it did not find a specific mention in the classical civil liberties instruments such as the English Bill of Rights of 1689, the American Declaration of Independence of 1776 and the French Declaration of the Rights of Man of 1789 (ibid). However, the Rights of Man contained ‘roots of the modern thought of inclusion: about equality, respect and decent education for all’ (Thomas and Vaughan, 2004). The rise of socialism and liberalism in the nineteenth century led nation States to promote education as a matter of citizen’s right and incorporate it in their Constitutions and legislations. For example, the Constitution of the German Empire of 1849 had provisions relating to educational rights, and the 1870 Education Act of England and Wales established a system of public education in the country.

The Varsailles Treaty of 1919 was the ‘first instance of international recognition of right to education’ to the Polish minorities, as it stated that ‘they shall have an equal right to establish, manage and control at their own expense charitable, religious and social institutions, schools and other educational establishments’ (Hodgson, 1998:p.10). Later, in 1924, the Declaration of

Geneva under the auspicious of the League of Nations implicitly recognised children’s right to

education, by declaring that ‘the child must be given the means requisite for its normal development’; the child that is backward must be helped’ and ‘the child must be put in a position to earn its livelihood’. It is believed that these principles later in 1959 formed the foundation of the Declaration of the Rights of Child. Hodgson (1998) states that as of 1988, some fifty-two countries in the world made an explicit mention of right to education in their Constitutions.

In developed countries, for example, the U.K. and the USA, the State’s responsibility towards children’s right to education is recognised under laws and judicial pronouncements. The US judiciary has consistently focused on non-discrimination and equal educational opportunity issues, the most famous case being Brown vs Board of Education, (1954), where the Supreme Court ruled against segregated education, and observed: ‘Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society’. Later, the Civil Rights Act, 1964 prohibited discrimination in public education in the USA.

2.3

The Right to Education and the United Nations

At the international level, the most important instrument specifically recognising education a right, is the Universal Declaration of Human Rights of 1948. Its Article 26(1) states:

“Everyone has the right to education. Education shall be free, at least at the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.”

The non-discriminatory and equality-of-opportunity characteristics of the right to education are reflected in Article 2 of the Universal Declaration, which states: ‘everyone is entitled to all the rights . . . without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’ The Universal

Declaration was unanimously adopted by the United Nations General Assembly on 10

December 1948.

The right to education and equality of opportunity for access to it, was asserted again in the U.N. Convention on the Rights of the Child (UNCRC), which was adopted by the U.N. General Assembly on 20 November, 1989. Article 28(1) of the CRC provides:

“States Parties recognise 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: (a) make primary education compulsory and available free to all; (b) encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and appropriate measures such as the introduction of free and offering financial assistance in case of need; (c) make higher education accessible to all on the basis of capacity by every appropriate means.”

Article 23 (3) of the CRC refers to the obligation of the State Parties to ensure that children with disabilities have effective access to education and training.

The equality issue in education has been addressed in the Convention against

Discrimination in Education adopted by the UNESCO on 14 December 1960. The Convention

seeks to eliminate discrimination and ensure equal treatment and equality of opportunity to education at all levels. Another UN instrument often referred to in respect of the right to equal educational opportunity for children with special needs and those from other marginalised groups, is the Salamanca Statement adopted following the World Conference on Special Needs Education in 1994, held in Salamanca (Spain). The Statement proclaims that ‘regular schools with inclusive orientation are the most effective means of combating discriminatory attitudes,

creating welcoming communities, building an inclusive society and achieving education for all (UNESCO, 1994).

Based on this series of UN conventions and declarations, two educational principles have now acquired the status of “customary norms” – the right to free elementary education and the right to equality of educational opportunity. Hodgson (1998) lists six UN instruments prescribing right to free public elementary education, and five instruments that provide for right to equality of educational opportunity.

It may be pertinent to deal with the ‘apparent inconsistency between the right to education and the compulsory nature of elementary education’ (Hodgson, 1998), as the former gives a choice to exercise the right, while the latter seems to impose compulsion on citizen. Hodgson (1998) explains why this seeming inconsistency is not real:

“Compulsory elementary education . . . [is] based on the notion that every person has an irrevocable entitlement to a period of education at public expense . . . [It] is intended to imply that no person or body can prevent children from receiving basic education. This imposes an obligation on the State to ensure that children receive at least an elementary education in circumstances of parental neglect or ignorance, for example (p.41).”

2.4

Historical Evolution of the Concept of Right to Education in India

The Indian concept of right developed during the freedom movement with the demand for self- governance and total independence from the colonial rule, culminated into Part III of the Indian Constitution on ‘Fundamental Rights’. These Fundamental Rights are close to those embodied in the UN’s Universal Declaration on Human Rights. The most important fundamental right impacting on the life of common people in India happens to be Article 21, which guarantees ‘right to life and personal liberty’. It declares: ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’. This right is akin to the French concept of Right of Man, which draws from the principle that the people’s life chances should not be restricted by irrelevant considerations. Education is key to assuring ‘people’s life chances’.

2.5 RTE: Pre-Independence

The right to education issue has been debated in India for more than a century. A substantial part of the memorandum presented by Mahatma Jotirao Phule to the Indian Education Commission (i.e. the Hunter Commission) in 1882, dwelt upon how the British Government’s funding of education tended to benefit “Brahmins and the higher classes” while leaving “the masses wallowing in ignorance and poverty.” Another attempt to get elementary education recognised a right, was made, though obliquely, way back in 1909 when G. K. Gokhale introduced a Bill under the Indian Council Act of 1909, to make primary education compulsory, and deserving of State funding. However, the Bill was defeated by a large majority. While addressing the legislatures, Gokhale made the emotional observation that the issue would keep coming up again and again until all children realised their right to free and compulsory education.

In 1937, at the National Education Conference held at Wardha (Maharashtra), Mahatma Gandhi had to use all the moral powers at his command to persuade the Ministers of Education

of the newly elected Congress governments of seven provinces to give priority to basic education (under Nai Talim) of seven years and allocate adequate funds for this purpose. The Ministers kept on pointing out that there was no money. In spite of this, the Wardha Conference passed four resolutions among which the first one stated: ‘ That in the opinion of this Conference, free and compulsory education be provided for seven years on a nation-wide scale.’ This resolution on free and compulsory education was re-iterated by the 51st annual session of Indian National Congress held at Haripura in February, 1938.

2.6 RTE: Post-Independence

In 1950, the country adopted its own Constitution, which provided Fundamental Rights to equality, to freedom, against exploitation, to freedom of religion, to constitutional remedies and cultural and educational rights of the minorities. The right to free and compulsory education was retained in Part IV of the Constitution that incorporates the Directive Principles of State Policy. Article 45 of Part IV of the Constitution declared: ‘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’. This policy directive did show some sense of urgency as it suggested a timeframe to provide free and compulsory education to children below the age of 14. However, the Nehruvian policy of development followed in the early years after independence gave priority to investments in higher and technical education, but public spending on school education remained grossly inadequate. In 1986, when the first National Education Policy was being formulated, more than half of the children and two-thirds of the girls in this age group, were out of school.

The distinction between Fundamental Rights and Directive Principles of State Policy is well settled under the Indian Constitution. While the former is absolute and legally enforceable, the latter is a policy directive to the State. However, the 1980’s and the 1990’s saw a very liberal interpretation of Article 21 of the Indian Constitution by the Indian judiciary. The most relevant of them from education point of view was the Supreme Court’s Unnikrishnan Judgement (1993). The Court ruled that Article 45 of the Directive Principles of State Policy must be read in harmonious conjunction with Article 21 since right to life and personal liberty loses its meaning if a child is deprived of elementary education (Unnikrishnan v. State of Andhra Pradesh., 1993, Supreme Court of India 217). Thus this judgment made right to free & compulsory education as good as a fundamental right. In other liberal interpretations of Article 21, the Court elevated to the status of fundamental rights, right to environment protection, to public health, to food and shelter and to rehabilitation in the case of bonded labourers. According to the relevant Court verdicts, these rights are vital to the life and liberty of a person. The Supreme Court also held that economic and financial constrains could be a ground for restricting the State from making provisions of post-basic and higher education, but not elementary education.

The Unnikrishnan Judgment activated several civil society groups to demand the incorporation of right to education as a Fundamental Right in Part III of the Constitution. The government finally agreed to bring a bill to amend the Constitution in order to elevate right to education to the status of a fundamental right. This became the new Article 21A of the Constitution in December 2002, which reads: ‘The State shall provide free and compulsory education to all children of the age 6 to 14 years in such manner as the state may, by law,

determine.1 Notably, the Amendment was rightly introduced after Article 21, keeping in view the connection between this right and right to life . This was in the spirit of the interpretation of Article 21 by the Supreme Court of India.

Many legal luminaries and educationists have emphasized the wide ramifications of the right to education. For example, Justice (Retd) J. S. Verma, the former Chief Justice of India and also the former Chairman of the National Human Rights Commission, observes that providing free elementary education is an ‘essential sovereign function’ of the welfare state2. Justice (Retd.) V. R. Krishna Iyer (2005) has observed that education is a cardinal component of human dignity, and access to it is enshrined in the Indian Constitution. The right to education is absolutely fundamental and ‘judicial construction cannot jettison this right, based on the subconscious impact of the dubious mantra of privatisation’ (The Hindu, 26 November, 2005,

page 11).

The expert group set up by the Government of India after the Unnikrishan Judgment, on the financial implications of RTE, with economist Tapas Majmudar as Chair, chose the right-based approach to providing elementary education. The report said:

“From being an incremental development goal in the process of education for all, universalisation of elementary education has in consequence of the Unnikrishana Judgment, now become the legal right of every Indian child…entitlements sanctioned by the Constitution cannot be deferred by the State at its convenience. The State has to make the necessary reallocation of resources, by superceding other important claims, if necessary, in a manner that the justiciable entitlement can become a reality.”

2.7

Flaws of Article 21A

Many activist have criticized the constitutional amendment introducing Article 21A. They have given primarily two reasons for it. First, they have argued that the Article gives power to the State to decide the ‘manner’ for providing ‘free and compulsory education’. Second, it restricts the ‘right’ to the age group 6-14, unlike the original Article 45 of the Directive Principles of State Policy, which referred to ‘all children until they complete age 14’

These activists have further argued that in spite of the insertion of Article 21A, Article 21 itself has not been amended. Besides wider coverage under right to education in the Unnikrisnan Judgment also remains intact. Consequently, the judgment read with Article 21 continues to entitle children below 6 years of age to right to education. Thus, education of children below 6 years of age qualifies to be accepted as a fundamental right, notwithstanding Article 21A (Jha, 2007).

It has also been argued that Article 13 (2) bars the State from taking away or abridging any right contained in Part III of the Constitution. Furthermore, the Supreme Court in the same judgment ruled that, after the age of fourteen years, the fundamental right to education continues to exist but is ‘subject to limits of economic capacity and development of the State’ as per Article 41. In other words, financial reasons cannot be offered as a fundamental or final excuse

1

The Constitution (86th Amendment) Act 2002 (emphasis original).

2

Observation made at the national convention on the Right to Education Bill 2005 organised by the People’s Campaign for the Common School System in New Delhi on December 9, 2005.

for not providing free elementary education to all children. The essential sovereign duty of the State to secure ‘equality of status and opportunity’, ‘the dignity of individual’ and social justice laid down in the Preamble of the Constitution, is likewise not limited by the financial capacity of the state3 (Jha, 2007). By implication, legislative operationalisation of Article 21A does not give a free hand to the State, and it is fair to expect that the law made in this regard would extend the right further, rather than restrict it (Jha, 2007).

The introduction of a new Article 21A in the Constitution provides a renewed opportunity to reduce the increasing inequality in education at the elementary level and achieve the goals of justice — social, economic and political — as pledged in the Preamble of the Indian Constitution. However, the import of this new fundamental right has yet to be properly understood by policymakers and academics, and has yet to appear on the agenda of several influential social and political activists and civil society organisations. The fundamental right to free education of children of ages 6-14 as given by Article 21A since December 2002 has yet to acquire the stature of other Fundamental Rights.

The recent report of the CABE (Central Advisory Board of Education) Committee on the Free and Compulsory Education Bill is also based on the same misperception of Article 21A. It is stated in the Report:

“Right to education, which Article 21A seeks to confer, is different from other Fundamental Rights ... while the earlier Fundamental Rights had no or insignificant financial implications for the state, the Right to Education has major financial implications . . . . .” (CABE, 2005).

This artificial classification and hierarchy in Fundamental Rights reflects the class characteristic of those who control education and who wrote this report. Moreover, it is difficult to deny that the State is spending huge amounts on police and higher judiciary to protect citizens’ right to life and liberty, and equality before law. Therefore, the argument based on ‘‘financial implications’’ used for avoiding the obligation of the State to ensure the right to universal elementary education, is seriously flawed. Just as security forces & Police are an important guarantee of fundamental rights relating to the protection of life, and the judiciary for securing the right to due process and equality before law, similarly schools and teachers need to be