In this Guest Post, Praveen Dalal, managing partner of law firm Perry4Law and a Supreme Court Lawyer, is discussing about the implications of the Right to Education Act in India.
In Unni Krishnan v. State of Andhra Pradesh (1993) the Supreme Court of India held that Right to education is a Fundamental Right. Reacting to this judgment and similar judgements of Supreme Court of India, Article 21A of the Constitution, through Constitution (Eighty-Sixth Amendment) Act, 2002, was inserted into the Constitution of India.
Article 21 A provides that 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 45 of the Constitution of India has also been reframed and substituted and it provides that the State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.
In Article 51A of the Constitution, after clause (k) has been added that mandates that a parent or guardian has to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.
The Right to Education Bill, 2005 was introduced to give effect to the Constitution (Eighty-Sixth) Amendment Act. The Right of Children to Free and Compulsory Education Act 2009 finally came into force on 1st April 2010.
The Constitution validity of the Act was challenged before the Supreme Court that upheld its Validity and dismissed a Review Petition. From here starts the real problem as the Act has now become Constitutionally Valid and subject to Constitutional Attack only when a Constitution Bench of Supreme Court hears the case again.
In my personal opinion, the Right to Education Act was drafted in haste and without many deliberations. The Act has also “Diluted” the “Protections” available under the Constitution of India.
For instance, the original Article 45 of the constitution provided that 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.
The Directive is very clear. There is no age slab of 6 to 14 years rather the Directive covers all Children even before 6 years. The Right to Education Act has unnecessarily diluted this Principle and has artificially created an age slab of 6 to 14 years.
Of course, the State is under an obligation to provide early childhood care and education for all children until they complete the age of six years under the reframed Article 45. This would again create a conflict between The Right to Act, Article 21A, Article 45 and Article 51A (k).
The best example of this conflict is the Pre School Admissions Procedure that starts at the age of 4 in New Delhi. Various schools have framed their own “Point Criteria” that is going against the mandates of Article 21A, 45 and 51A (k).
If the State is under an Obligation, to provide early childhood care and education for all children until they complete the age of six years, the Pre School/Nursery admissions are clearly its obligation. Till now the State has failed to fulfill this obligation.
Further, by introducing the age slab of 6 to 14, all Inconsistencies, Violations and Corrupt Practices happening at the Pre School/Nursery Admission stage have also been “Ignored” by the State. This is encouraging the Schools to openly ask for “Donations” during Pre School/Nursery Admission Stage.
The Act is also discouraging filing cases and taking legal actions against Schools/Individuals that violate all the basic norms of Education and indulge in “Corrupt Practices”.
It seems the net result of the Right to Education Act is to give “Full Leverage” to Schools, imposing “Obligations” upon the Parents and “Abdicating” the Constitutional Duties on the part of the State.
Fortunately, the Delhi High Court is presently considering many of these aspects and I hope it would come up with some good “Solution” in this regard that was expected from the Supreme Court and Central Government and State Governments.
Meanwhile we have to ask ourselves a simple question. Do we really need such an Onerous, Biased and Burdensome Right to Education Act in India? Let the Readers and Delhi High Court decide.