The recent Supreme Court of India judgement upholding the constitutional validity of the Right of Children to Free and Compulsory Education Act, 2009 should be welcomed by all thoughtful people. The majority judgement of Chief Justice SH Kapadia and Justice Swatanter Kumar is in line with the SC’s earlier judgement in Unnikrishnan V State of AP in 1993 when the court held that the right to education is implied in Article 21 of the Constitution which guarantees the Fundamental Right to Life.
In the Unnikrishnan case, the court achieved this widening of the scope of the Fundamental Right to Life to include the right to education by reading together the Constitution’s Directive Principles of State Policy on Education (Article 41 and Article 45) and the Fundamental Rights of citizens. Articles 41 and 45 enjoin the state to make effective provision for securing the right to education, and to provide for free and compulsory education to all children till the age of 14, within 10 years from the date of the commencement of the Constitution, respectively.
The recent court judgement, delivered 62 years after the enactment of the Constitution, spoke in the same vein: “A child who is denied right to access education is not only deprived of his right to live with dignity, he is also deprived of his right to freedom of speech and expression enshrined in Article 19(1) (a)”.
Literacy rates in India have at last reached the 70 per cent mark, as compared to a mere 12 per cent in 1947 at the end of British rule. But India is still shamefully far behind the world average of 84 per cent literacy. With more than 35 crore illiterate people our country is home to the world’s largest illiterate population. One is dismayed that there are more illiterates today in India than what the country’s population was at the time of independence. How will our democracy survive without educated citizens? How could any democracy flourish in illiteracy and ignorance?
Article 26 of the Universal Declaration of Human Rights which sets universal standards for all the nations of the world proclaims: ‘Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory.” The International Covenant on Economic, Social And Cultural Rights (ICESCR, 1966) and The Convention on the Elimination Of All Forms Of Discrimination Against Women (CEDAW, 1979) too call for binding commitments from the states as regards free and compulsory elementary education. India also ratified the 1989 Child Rights Convention of the UN which mandates “States Parties [to] 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”.
Now that the RTE Act, 2009 is without doubt the law of the land¸ India joins 135 other countries which have vowed to provide free and universal access to elementary education. Education will be free for children between the ages of 6 and 14, and it is compulsory for the state to provide it. The burden of identifying and sending children to school will be on local authorities. All schools, except boarding schools and minority institutions, will have to set aside 25 per cent of their seats for children from the economically backward classes. The law affects the over 12 lakh elementary schools in the country, of which 13 per cent are privately managed.
The litigation in the SC arose when several privately managed schools objected to the Act’s imposition of the 25 per cent quota on them. Is it not a violation of their Fundamental Right to manage their own affairs? Is it the responsibility of the State or of private bodies to ensure Fundamental Rights? The court ruled that it was not an unreasonable restriction on their Fundamental Rights as the Act “seeks to remove all those barriers including financial and psychological barriers which a child belonging to the weaker section and disadvantaged group has to face while seeking admission.”
Morally, can a school survive on a claim of exclusion and exclusivity? Even when it does not receive state funds, is the institution excluded from the duty of nation building and of creating an egalitarian society? If all parties in society are made to contribute to social development, can that be termed outsourcing of a state’s duty? The state can legislate for social welfare and reform. It has the right to requisition the use of private property during an emergency or a natural disaster. Is not the present lack of education in India a dire emergency?
There will be much debate on these issues, there will be much highlighting of some obvious failings in the law, and perhaps there will be an appeal in the Supreme Court too. But above the din of politics and legal arguments, listen to the pealing of the school bells with joy — they are ringing the welcome to the over one crore Indian children not yet in school.