• THE SOCIETY FOR CONSTITUTIONAL LAW DISCUSSION

OVERVIEW ON RIGHT TO EDUCATION AND THE CONSTITUTION OF INDIA.


Image source - Deccan Chronicle


AUTHORS - Ms. Sofia Khatun Research Scholar, PhD–Law CHRIST (Deemed to be University), Bangalore and Mrs. Deepa RaniSalian Assistant Professor(Law) SDM Law College, Mangaluru-575001


Introduction

Education is the constant process of development of innate power of man which is natural, harmonious and progressive.It is demand of time to create interest in every person to get education.The Constitution is the law of the land and any law framed contrary to it will be held unconstitutional and invalid.The framers of Indian Constitution have identified the significance as well as importance of educational rights. The commitment towards educational issues has been determined by inculcating Article 45 to offer compulsory and free education to children aged less than 14 years. It is considered as a part of chapter IV in Directive Principles of State Policy (2). In some contexts, it has been revealed that different states in India have failed to maintain the basic and compulsory rights of education to the children. This change has happened in Indian Constitution during the formulation of 21A for ensuring right-to-education as a fundamental right.


Right to Education

On 68th Amendment, Constitution Act (2002) has inserted Article 21-A under Indian Constitution for providing compulsory and free education for children aged 6-14 years(3). Under Article 21-A, RTE Act was in effect on 1st April 2020. Basic content regarding educational rights is linked with Constitutional article 19(1) (g) that has indicated the freedom of selecting or continuing any professional or business(4). This article has employed four prime expressions such as occupation, businesses, profession and trade. In this term, education is also considered as a prime profession. Article 19 (1) has also guaranteed an Indian citizen to carry to trade or business of his own choice(5). The profession relating to education such as medical profession, teaching profession and many others are performing a significant role.When we consider teaching profession, medical profession, or any other profession education play a vital role. The right to carry on profession is an economic activity and it is implicit under right to livelihood under Article 21 of the constitution. Education as a trade or business has its own significance. A citizen has been guaranteed under article 19(1) (g) the right to carry on business or trade of his choice. When we considered education in this sphere, it is education which equips a person for competence in order to hold a business or trade. The establishment of an educational institution is a charity rather than a business.

In Unni Krishnan caseit was held that the activities on the establishment of an educational institution can neither be trade or business or it can be professional within the meaning of article 19(1) (g) further it has also stated that education is not commerce and it has opposed to the ethos, tradition and sensibilities of the nation.It is determined as a charitable activity and religious responsibility rather than business or trade. Minorities are the integral part of democratic set up in country India has accommodated minorities since time immemorial. The constitution of India conferred a special right to minorities under article 29 and 30 of the constitution the culture educational right of the minorities, incorporated in the constitution of India basically are the balancing approach to harness a healthy and prosperous life and status for all, including the minorities.Along with that, under Article 30 educational institutional establishment rights of minorities have been discussed(6). Article 30 (1) discussed the following right of religious or linguistic minorities:

● Right-to-establish

● Article for administering educational institution based on the personal choice of mentioned minorities

Article 30 (2) has mentioned the role of State in terms of granting aid to educational associations without concerning minority or other factors(7). However, protection to Article 30 is important for reducing the isolation feelings of minorities.


Directive principles and the state policy and the Right to education

The right to education occurs in many as three Articles in part IV of the constitution Article 45, 41 and 46 and show the importance of the education attached by the fathers of the constitution.Article 45 has narrated a time provision of 10 years to the State for initiating compulsory as well as free educational training to children until their 14 years of age(8).

According to the view of Dr. B. R. Ambedkar, directive principles have been considered as the prime instructional instrument. Along with that, Ambedkar has defined some other perceptions of cultural heritage with the aid of educational contexts. In this term, feed to hungry people, care for sick people and many other degrees of cultures have been defined by Ambedkar(9). In the case of Kerala, State v.KesavanandaBharati S. the judge's bench has defined the role of Directive Principles as an honorary part of Indian constitution(10). According to the perception of judges regarding court bench, Directive principles as well as fundamental rights have been considered as 'conscience' of Indian Constitution. In this term, the prime purpose of Directive Principles is focused on fixing financial as well as social goals for maintaining social peace(11). Observation by Chandrachud J. has aimed to prove a synthesis between Directive Principles regarding State Policy and Fundamental Rights.

In the current era, right-to-education is considered as a fundamental approach under Article 21A in Indian constitution(12). Simultaneously, Article 45 has been substituted by 86th Amendment of Constitution Act (2002). In this term, States will attempt to offer proper child care to all children aged between 6-14 years(13). According to Article 41, within monetary restriction as well as advancement, States will develop a significant impact on the arrangement or serving education and employment options(14). Along with that, it also narrated the responsibility of the States for giving care and aid to people with old age sickness and other cases regarding underserved want.

The content of Article 46 has expressed that States will be concentrated on the promotion of special considering factors for financial and educational interest among weaker segments of individuals(15). Additionally, it also focuses on the financial and educational segments of Scheduled Tribes (ST) and Scheduled Castes (SC). Moreover, it will shield people from SC and ST backgrounds from different types of exploitation and injustice.


Right to free education is fundamental right

In India, the topic of mandatory and free education has been first brought up by the case of Mohini Jain in 1992(16). It is known as a 'capitation fee case'. According to the prime fact of this case, Mohini Jain (Petitioner) of Meerut in Uttar Pradesh has challenged the validity of a particular notification. It is issued by Indian Government under Karnataka Education Institutions Act, 1984 (Prohibition regarding Capitation fee). It was passed for regulating tuition fees that have been charged by Private Medical Colleges of that state(17). According to this notification, admitted candidates against Government seats have been charged by Rs. 2000/- per annum. However, the students from Karnataka and outside of the state have to be paid Rs. 25,000/- per annum and Rs. 60000/- per annum respectively. In this term, Mohini was left without an admission as she was unable to pay an exorbitant tuition fee regarding Rs. 60000/- per annum. Supreme Court has held a principle of determining right-to-education as a fundamental and significant right under Article 21 in Indian Constitution(18). It cannot be denied for a resident by creating pressure to give tuition fee that was known as Capitation fee. Privilege to educational aspects was defined as legitimacy based on the perception of right-to-life. After the 68th Amendment of Constitution Act, a new article has been inserted as Article 21A(19). It has mentioned the following aspects:

● Right-to-education (RTE): State will provide compulsory and free education to all children aged between 6-14 years

This article defines elementary education as a vital fundamental right for children aged between 6-14 years. Implementation of this article is bounded by ensuring the infrastructure of primary education and it is enforced by laws. However, in many aspects, involvement of Article 21A in constitution is only meant as a right. Right of Children to Free and Compulsory Education Act (2009) was passed in both Houses and it was effective from 1st April 2010(20). This act has provided a right for compulsory and free education to every child aged between 6-14 years. It also defines elementary education as I-VIII standard in schools.


Conclusion

The Supreme Court has also been upholding fundamental right to education while deciding case.In this term, the significant value of fundamental rights regarding education has been considered as a great and vital achievement for the children in India. The Indian judiciary has played a very important role in the implementation of right to child to free and compulsory education. But the judiciary alone will not be able to make this right meaningful. For that there is need of children and as to the importance of the growing as responsible and productive citizens.

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