Development of the Right to Education In India
 
K. Devan    
 
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Right to Education
 

The right to education is recognised as a human right by the United Nations and is understood to establish an entitlement to free, compulsory primary education for all children, an obligation to develop secondary education accessible to all children as well as equitable access to higher education, and a responsibility to provide basic education for individuals who have not completed primary education. In addition to these accesses to education provisions the right to education encompasses also the obligation to eliminate discrimination at all levels of the educational system, to set minimum standards and to improve quality.

The right to education is enshrined in Article 26 of the Universal Declaration of Human Rights and Article 14 of the International Covenant on Economic, Social and cultural Rights. The right to education has also been reaffirmed in the 1960 UNESCO Convention against Discrimination in Education, 1st Protocol of ECHR and the 1981 Convention on the Elimination of All Forms of Discrimination against Women.

Education narrowly refers to formal institutional instructions. Generally international instruments use the term in this sense and the right to education, as protected by international human rights instruments, refers primarily to education in a narrow sense. The 1960 UNESCO Convention against Discrimination in Education defines education in Article 1 (2) as: “all types and levels of education, (including) access to education, the standard and quality of education, and the conditions under which it is given.

In a wider sense education may describe “all activities by which a human group transmits to its descendants a body of knowledge and skills and a moral code which enable the group to subsist”. In this sense education refers to the transmission to a subsequent generation of those skills needed to perform tasks of daily living, and further passing on the social, cultural, spiritual and philosophical values of the particular community. The wider meaning of education has been recognised in Articles 1 (a) of UNESCO’s 1974. Recommendation concerning Education for International Understanding Co-operation and Peace and Education relating to Human Rights and Fundamental Freedoms. The article states that education implies: “the entire process of social life by means of which individuals and social groups learn to develop consciously within, and for the benefit of, the national and international communities, the whole of their personal capabilities, attitudes, aptitudes and knowledge.” The European Court of Human Rights has defined education in a narrow sense as “teaching or instructions… in particular to the transmission of knowledge and to intellectual development” and in a wider sense as “the whole process whereby, in any society, adults endeavour to transmit their beliefs, culture and other values to the young.”

Fulfilling the Right to Education

The fulfillment of the right to education can be assessed using the 4 As framework, which asserts that for education to be a meaningful right it must be available, accessible, acceptable and adaptable. The 4 as framework was developed by the former UN Special Rapporteur on the Right to Education, Katarina Tomasevski.

Availability – education is free and government-funded and there is adequate infrastructure and trained teachers able to support education delivery.
Accessibility – the system is non-discriminatory and accessible to all, and positive steps are taken include the most marginalised.
Acceptability – the content of education is relevant, non-discriminatory and culturally appropriate, and of quality. The school itself is safe and teachers are professional.
Adaptability – education can evolve with the changing needs of society and contribute to challenging inequalities, such as gender discrimination, and can be adapted locally to suit specific contexts.

Development of the Right to Education

In Europe, before the Enlightenment of the eighteenth and nineteenth century, education was the responsibility of parents and the church. With the French and American Revolution education was established also as a public function. It was thought that the state, by assuming a more active role in the sphere of education, could hold to make education available and accessible to all. Education had thus far been primarily available to the upper social classes and public education was perceived as a means of realising the egalitarian ideals underlining both revolutions.

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The Nineteenth century also saw the development of socialist theory, which held that the primary task of the state was to ensure the economic and social well-being of the community through government intervention and regulation. Socialist theory recognised that individuals had claims to basic welfare services against the state and education was viewed as one of these welfare entitlements. This was in contrast to liberal theory at the time, which regarded non-state actors as the prime providers of constitution to recognise the right to education with a corresponding obligation of the state to provide such education. The constitution guaranteed free and compulsory education at all levels, a system of state scholarships and vocational training in state enterprises. Subsequently the right to education featured strongly in the constitutions of socialist states. As a political goal, right to education was declared in F.D Roosevelt’s 1944 speech on the Second Bill of Rights.

Implementation

International law does not protect the right to pre-primary education and international documents generally omit references to education at this level. The Universal Declaration of Human Rights states that “everybody” has the right to education, hence the right accurse to all individuals, although children are understood as the main beneficiaries.

The rights educations are separated into three levels:

Primary (Elemental of Fundamental) Education. This shall be compulsory and free for any child regardless of their nationality, gender, place of birth, or any other discrimination. Upon ratifying the International Covenant on Economic, Social and Cultural Rights States must provide free primary education within two years.
Secondary (or Elementary, Technical and Professional in the UDHR) Education must be generally available and accessible.
Higher Education (at the University Level) should be provided according to capacity. That is, anyone who meets the necessary education standards should be able to go to university.

Both secondary and higher education shall be made accessible “by every appropriate means, and in particular by the progressive introduction of free education”. The only country that has declared reservations about introducing free secondary or higher education is Japan.

Role of the State

Today education is considered an important public function and the state is seen as the chief provider of education through the allocation of substantial budgetary resources and regulating the provision of education. The Pre-eminent role of the state in fulfilling the right to education is enshrined in the 1966 International Covenant of Economic, Social and Cultural Rights. Traditionally, education has been the duty of a child’s parents; however with the rise of systems of education, the role of parents has diminished. With regards to realising the right to education the World Declaration of Education for All, adopted at the 1990 World Conference on Education for All states that “partnership between government and non-governmental organisations, the private sector, local communities, religious groups, and families” are necessary.

Compulsory Education

The realisation of the right to education on a national level may be achieved through compulsory education, or more specifically free compulsory primary education, as stated in both the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights.

Right to Education Act, 2009

What is the act about?

Every child between the ages of 6 to 14 years has the right to free and compulsory education. This is stated as per the 86the Constitution Amendment Act added Article 21A. The right to education act seeks to give effect to this amendment
The government schools shall provide free education to all the children and the schools will be managed by school management committees (SMC). Private schools shall admit at least 25% of the children in their schools without any fee.
The National Commission for Elementary Education shall be constituted to monitor all aspects of elementary education including quality.

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Salient features of Right to Education Act, 2009

The salient features of the Right of Children for Free and Compulsory Education act are:

Free and compulsory education to all children of India in the six to 14 age group;
Non child shall be held back, expelled, or required to pass a board examination until completion of elementary education;
A child above six year of age has not been admitted in any school or though admitted, could not complete his or her elementary education, then, he or she shall be admitted in a class appropriate to his or her age; provided that where a child is directly admitted in a class appropriate to his or her age, then, he or she shall, in order to be at par with others, have a right to receive special training, in such manner, and within such time-limits, as may be prescribed: Provided further that a child so admitted to elementary education shall be entitled to free education till completion of elementary education even after fourteen years.
Proof of age for admission: For the Purposes of admission to elementary education. The age of child shall be determined on the basis of the birth certificate issued in accordance with the provisions of the Births. Deaths and Marriages Registration Act, 1856 or on the basis of such other document, as may be prescribed. No child shall be denied admission in a school for lack of age proof.
A child who completes elementary education shall be awarded a certificate;
Calls for a fixed student-teacher ratio;
Will apply to all of India except Jammu and Kashmir;
Provides for 25 percent reservation for economically disadvantaged communities in admission to Class one in all private schools;
Mandates improvement in quality of education;
School teachers will need adequate professional degree within five years or else will lose job;
School infrastructure (where there is problem) to be improved in three years, else recognition cancelled;
Financial burden will be shared between state and central government.

Why is the act important?

The Act is important because it is the first step in the direction of the government’s active role in ensuring implementation of the Constitutional Amendment. And as important, the Bill:

Legislates provision of free and compulsory elementary and secondary education
Provides for a school in every neighborhood
Provides for a School Monitoring Committee – elected representatives of the community to ensure proper functioning
Mandates that no child in the age group 6-14 shall be employed

All this are right steps to lay the foundation for the development of a common public school system that can provide quality education to all the children, thus preventing exclusion of socially and economically disadvantaged population.

Why 6-14 age group is Chosen?

The bill focuses on providing primary to high school education compulsorily to all children and also the education given in this age group would be the ground work for their future.

Conclusion

Free and compulsory elementary education for all children in the age group of 6-14 has at long last become a legal reality with the Right of Children to Free and Compulsory Education Act, 2009 (RTE), being made enforceable from April, 2010. What could have been easily done 60 years ago with massive support from a newly liberated nation and a brand new Constitution has been enacted with much fanfare but little preparation. For implementation, the RTE depends predominantly on the States, many of which are not in a comfortable position, financially and administratively. Anyway, better late than never. The Act is expected immediately to benefit about 9-2 million children in the age group of 6-14 who have never been to school or have dropped out for various reasons.

The Statement of objects and reasons of the Act explains: “The crucial role of universal elementary education for strengthening the social fabric of democracy through provision of equal opportunities to all has been accepted since inception of our Republic. The Directive Principles of State Policy enumerated in our Constitution has laid down that the State shall provide free and compulsory education to all children up to the age of 14 years. Over the years there has been significant spatial and numerical expansion of elementary schools in the country, yet the goal of universal elementary education continues to elude us. The number of children, particularly children from disadvantage groups and weaker sections, who drop out of school before completing elementary education, remains very large. Moreover, the quality of learning achievement is not always entirely satisfactory even in the case of children, who complete elementary education”. Finally they need school of joy, not hate.

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Reference:


  1. Right to Education Project Website
  2. UN Special Rapporteur on the right to education
  3. The International Covenant on Economic, Social and Cultural Rights
  4. CESCR General Comment 11, Plans of action for primary education, 1999
  5. CESCR General Comment 13, The right to education, 1999
  6. The Universal Declaration of Human Rights
  7. Convention against Discrimination in Education, UNESCO, 1960
  8. Commentary on Education under the Framework Convention for the Protection of National Minorities, CoE, 2006
  9. Hague recommendations regarding the education rights of national minorities, OSCE, 1996
  10. Right to Education UNESCO