INTRODUCTION
The Constitution of India (as adopted by the Indian Legislature in 1950) had included a right to education under the ‘Directive Principle of State Policy.’ (hereinafter referred to as “the directives”). Part IV of the Constitution relating to Directive Principles of State Policy reads as under: Article 41 – Right to work, to education and to public assistance in certain cases. It states that –“The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.”

Similarly Article 45 provides for -Provision for free and compulsory education for children- “The State shall endeavor 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.”

Since then the government is committed to ensuring universal elementary education for all children aged 6-14 years of age. Reiterating the constitutional directive, the National Policy on Education (NPE), 1986 as modified in 1992, stated that free and compulsory elementary education of satisfactory quality shall be provided to all children up to the age of fourteen years before we enter the 21st century.

The Government of India made a commitment that by 2000, 6% of the Gross Domestic Product (GDP) will be spent on education, out of which half would be spent on the Primary education. The Common Minimum Programme of the incumbent United Front Government, resolves to make the right to free and compulsory elementary education a fundamental right and to enforce it through suitable statutory measures. The Committee of Education Ministers which was set up to examine the implications of the aforesaid resolution have recommended that the Constitution be amended to make the Right to Free and Compulsory Education from six to fourteen years of age as a fundamental right and to make a fundamental duty of parents to provide opportunities for education to their children of this age group.

The Government has now set a target to universalise the elementary education in the country by 2010. The objectives of universalization of elementary education are being addressed through the Sarva Shiksha Abhiyan programme , wherein focus is being provided to States & districts with the largest number of out of school children.

REASONS FOR ARTICLE 21(A) COMING INTO FORCE-
In 1992 and 1993, the Supreme Court of India decided two Public Interest Litigation cases- Mohini Jain v State of Karnataka and Unni Krishnan J.P. v State of Andhra Pradesh , in which the plaintiffs claimed a judicially enforceable right to education. Although both cases concerned the impact of certain state laws on private educational institutions of higher learning, the Court took the opportunity to develop a precedent that also governed the public provision of elementary education.

Expressing concern at the obvious failure of the Government of India to uphold its duty under Article 45 to ensure free and compulsory elementary education, the Court in Unni Krishnan stated: “It is noteworthy among the several articles in Part IV [of the Constitution], only article 45 speaks of a time-limit … Does not the passage of 44 years – more than four times the period stipulated in Article 45 – convert the obligation created by the article into an enforceable right? In this context, we feel constrained to say that the allocation of available funds to different sectors of education in India discloses an inversion of priorities indicated by the Constitution.”

Thus Hon’ble Supreme Court pronounced that basic education (education upto the age of 14 years) is fundamental right of every child. It further held, that the Right to Education is a fundamental right at par with The Right to Life. According to the Court, this right flows from Article 21 relating to protection of life and personal liberty and its contents and parameters have to be determined in the light of Article 41 which provides for right to work, to education and to public assistance in certain cases and Article 45 which provides for free and compulsory education to children up to the age of 14 years.

The apex court has observed that the obligation created by these Articles of the Constitution can be discharged by the State either by establishing institutions of its own or by aiding, recognising and granting affiliation to educational institutions. The immediate effect of the Unni Krishnan decision was that any child below the age of fourteen who was denied facilities for primary education could approach a court for an order directing the authorities to initiate appropriate measures.

Community activists and non-government organizations began utilizing the decision as a means of pushing the executive and legislature toward action on primary education. The protest was organized by a coalition of several thousand grassroots organizations from all over India, the National Alliance for the Fundamental Right to Education (NAFRE), and demanded a common school system providing free education of equitable quality. At the same time, the decisions became a catalyst for political advocacy and public sphere debate over the state of primary education in India, galvanizing a number of different children’s rights groups into a coalition demanding government implementation of the ‘fundamental right to education.’ The Central government responded by establishing two committees to investigate both the desirability and financial implications of amending the Constitution to establish primary education as a fundamental right.

(i) A joint committee of state government Ministers of Education (the Saikia Committee) concluded in 1997 that the Constitution should be amended to create as a ‘fundamental right’ the right to free and compulsory education from six to fourteen years of age, and to impose a ‘fundamental duty’ on parents to provide opportunities for education to their children in this age group.

(ii) A second expert committee (the Majumdar Committee) concluded in 1999 that the universalisation of elementary education for children aged six to fourteen years would require an additional expenditure of Rs 140,000,000,000 per year for ten years; on the assumption of annual GDP growth of 5 percent, this amounts to an additional 0.7 percent of GDP dedicated to education per year, raising education expenditure to approximately 5 percent of GDP.

The Saikia Committee report resulted in a bill to amend the Constitution to introduce a new article 21A, which provided: ‘[t]he State shall provide free and compulsory education to all citizens of age six to fourteen years in such manner as the State may, by law, determine.’ It also introduced a new article 51A which imposed a duty on parents and guardians to provide their children with educational opportunities, in the terms recommended by the Saikia Committee.

The bill was tabled in 1997, but could not pass into law until December 2002. In the meantime, a number of important criticisms were made of the proposed new right during the hearings Parliamentary Standing Committee on Human Resource Development.

(i) The ‘general feeling’ was that the age restriction was arbitrary and neglected the rights of children below six and above fourteen years of age. The exclusion of the application of the right to children under six years of age was noted to be contrary to the Supreme Court’s ruling in Unni Krishna. It was also submitted to the Standing Committee that, at the time of the drafting of the original article 45 (which encoded the fourteen year age limit), a child received a formal certification of education at 7th grade; in modern India, no formal certification was awarded until 10th grade, or when a child would be aged about sixteen years. The constitutional amendment as proposed would thus not ensure that impoverished children could continue until their formal certification had been obtained.

(ii) There was a need to define the meaning of ‘free’ as referred to in article 21A, and to include some definition of the quality of education that was to be provided. It should not mean a mere non-payment of fees but should also include one meal, books notebooks/Slates and medical assistance, transport where needed and above all guaranteed presence of teacher and a school. If certain States are in a position to provide additional incentives, they can do it. But in so far as the common understanding is concerned, the minimum is, up to the primary level, free tuition and free books to be provided.

(iii) The proposition also entail a lot of economic constrains on the government, as though the draft Bill does not specify cost implications, a paper by the Central Advisory Board of Education (CABE) committee indicates a tentative estimation of total additional costs between Rs 3,21,000 crore and Rs 4,36,000 crore over six years.

Despite the minimum age restriction being criticized by the government-sponsored National Commission to Review the Working of the Constitution , the amendment establishing the fundamental right to education passed in the form originally proposed. Consequent upon enactment of the Constitution (Eighty-sixth Amendment) Act, 2002 (hereinafter referred to as the “Amending Act”), Article 21-A has been inserted in the Constitution, which makes education a Fundamental Right for children in the age group of 6-14 years by providing 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.” The Amending Act also modified Article 45, which now reads as "The State shall endeavour to provide early childhood care and education for all children until they complete the age of 6 years".

THE INTERNATIONAL LEGAL SETTING FOR THE RIGHT TO EDUCATION-
The right to education has been recognized in a great many international human rights treaties, the relevant provision in the UN Convention on the Rights of the Child is binding on the states. The key provision of the Convention is Article 28 (1) which provides that: States Parties recognize 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;…

The right to education is also recognised as a human right in the Universal Declaration of Human Rights (UDHR), Article 26, and the International Covenant on Economic, Social and Cultural Rights (hereinafter referred to as “the ICESCR”, Article 14 respectively. Upon ratifying the ICESCR the State parties must provide free primary education within two years. The UDHR states that "everybody" has the right to education, hence the right accures to all individuals, .although children are understood as the main beneficiaries.”

With regards to realising the right to education the World Declaration on Education for All, adopted at the 1990 World Conference on Education for All states that "partnerships between government and non-governmental organisations, the private sector, local communities, religious groups, and families" are necessary. These relevant provisions are significant in the context of a state of India and bringing in the amendment to the Indian Constitution by incorporating Article 21(A).

THE RIGHT TO FREE AND COMPUSARY EDUCATION ACT, 2009
The Right to Free and Compulsory Education Act, 2009 (hereinafter referred to as the “Act”), has been a historical moment in the educational history of independent India. Although it has taken almost 60 years to move our concern for universal elementary education from the directive principles of state policy to making it a fundamental right, it is not the intention here to analyse the reasons for the delay in enacting this legislation but to look at genuine issues that will impact implementation.

Some ‘experts’ even flay this Act as a “betrayal,” as according to them, some of its provisions are “not in conformity with the Constitution.” Much can be said based on some of the provisions of the Act, in defence or otherwise, which may justify a continuing debate leading to possible amendments in this Act. This should not, however, stand in the way of it moving forward. In the words of the Human Resources Minister, Mr. Kapil Sibal- "This was a matter of national importance for UPA (United Progressive Alliance). This bill is just not about taking children to school. This is a bill that speaks about quality education, it speaks about the physical infrastructure, teacher-pupil ratio, qualification of teachers". This makes the objective of the Act clear, which is a holistic approach towards the improvement of the entire educational infrastructure prevalent in the country and it is not restricted to the act of sending students to school. The emphasis is on the quality of the education and not the quantitative aspects.

SALIENT FEATURES OF THE ACT
The statement of object and reasons clearly explains the aim of the legislation, which is: “The proposed legislation is anchored in the belief that the values of equality, social justice and democracy and the creation of a just and humane society can be achieved only through provision of inclusive elementary education to all. The provision of free and compulsory education of satisfactory quality to children from disadvantaged and weaker sections is, therefore, not merely the responsibility if schools run or supported by the appropriate governments, but also of schools which are not dependent on government funds.”

It clarifies that ‘compulsory education’ means an obligation of the appropriate government to provide free elementary education and ensure compulsory admission, attendance and completion of elementary education to every child in the six to fourteen age group. A child shall be admitted in Grade I only after attaining the age of five years and ten months before the beginning of the academic year. It makes provisions for a non-admitted child to be admitted to an age appropriate class. Children with severe or profound disability, who are unable to attend a neighbourhood school, have the right to be provided education in an appropriate environment. It shall be the duty of every parent or guardian to admit the child to a neighbourhood school for elementary education and that no child should be denied admission for lack of age proof neither held back in class up to Grade VIII .

If a parent/guardian persistently defaults in discharging this responsibility, the School Management Committees (the “SMC”) may direct him to perform compulsory community service by way of child care in the school. The State shall ensure a school in every child’s neighbourhood with every school conforming to certain minimum standards defined in the Bill. All government schools will be managed by the SMCs mostly composed of parents and The National Commission for Elementary Education shall be constituted to monitor all aspects of elementary education including quality and it will also act as Ombudsman for this Act.

The Act bars capitation fees , making it a punishable offence with fines “up to ten times of the capitation fee charged”. It also makes screening of students a punishable offence with the fines ould be as high as Rs 25,000 for the first contravention, and Rs 50,000 for subsequent contravention.The Act also seeks to ban private tuition classes by teachers and ensure that no child is subjected to physical punishment or mental harassment . There will be no non-formal schools and teachers will have to possess qualifications as defined in the National Council for Teacher Education Act, 1993.
The provisions also mandate that no child shall be required to pass any Board examination till completion of elementary education and that no school, other than a school established, owned or controlled by the government or the local authority, shall, after the commencement of the Act, be established or will function, without obtaining a certificate or recognition from authority. Any school being operated without recognition will attract penal action, “the recognition to it would be withdrawn and if any person still continued to run the school, he or she would be liable to pay upto Rs one lakh fine.”

In case of any grievances about the establishment, provisioning and management of a school a person may submit a written representation to the SMC/ local authority, which shall take appropriate action and inform the applicant within 90 days. If the applicant is unsatisfied with such action, she may submit a representation to such authority as prescribed (by the state/UT/central government), which shall take appropriate action and inform the applicant within 90 days. The state/UT government may form a State-level Regulatory Authority for inquiring into grievances which remain unredressed. Therefore one may summarize the provisions in the following broad heads:

• Free and compulsory education to all children of India in the six to 14 age group.
• No child shall be held back, expelled, or required to pass a board examination until completion of elementary education
• A child who completes elementary education (upto class 8) 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





DISCUSSION REGARDING THE PROVISIONS OF THE ACT

Right to Schooling vis-à-vis Right to Education
Although qualitative aspects of elementary education are now a part of the Act and are amenable to justice but the manner of securing this justice seems quite complex and needs to be worked out. ‘Right to Schooling’ and ‘Right to Education’ are symbiotic but they are also distinct in their manifestations. Equal opportunity is needed not only in access to schooling, but also in the conditions for success of the attainment of learning. The concept of neighbourhood school, for instance, articulated in the report of the education commission (1964-66) is now an important provision of the Act.

The concept is not without its complexities. In other countries, the concept of the neighbourhood school is well established. All neighbourhood schools are financed by the government and have a uniformity of standards. The area that can be designated as the neighbourhood for a particular school is clearly defined. This exercise needs to be taken up on top priority. All children of the relevant age have to go and seek admission to their neighbourhood school. A school mapping exercise is required to be initiated by the states to understand where we stand today in respect of implementation of this idea. This requires analysis of demographic profile in respect of the age level of children in different geographical locations—rural, semi-urban, urban, hilly areas, desert.

In the absence of such an exercise, the implementation will not move forward. In fact, if some schools acquire a reputation for providing better education, parents may relocate themselves to that neighbourhood. It would have been ideal if all appropriate schools of all varieties were declared as neighbourhood schools and immediately thereafter all children resident in that neighbourhood will have the right to be admitted to them but there seems to be certain limitation imposed by our contextual realities in this Act.

Curriculum and Evaluation
Another aspect is related to ‘the curriculum and evaluation procedure for elementary education, which according to the Act shall be laid down by an academic authority to be specified by the appropriate government by notification’. After the central and state governments have notified such academic authority, the task of translating the provisions of which are now justiceable, assumes significance. The modalities of their justiceablity are indeed complex. For instance, the curriculum has to be in conformity with the values enshrined in the Constitution. Mechanisms will have to be set by the appropriate government to evaluate textbooks and other learning materials and examine whether there is anything which is being passed on to children in violation of the provisions of the Constitution.

No textbook and learning material shall be allowed to go into the hands of the child until it has been certified and approved by some academic authority. The states may have to set up standing committees to perform this role on a continuing basis. All round development of the child requires physical, intellectual, emotional and spiritual development. Implications of the content and process of education require to be spelt out. Methodology of building up child’s knowledge, potentiality and talent alongwith development of physical and mental ability to the fullest extent will have to be worked out and teachers oriented appropriately. Benchmarks will have to be laid down for making the child free of fear, trauma and anxiety so that the teachers remain conscious of the framework of education they have to deliver under this Act. The pivot of the educational reform lies in the total transformation of the modalities of teacher preparation through revamping of the teacher education curriculum which should address the concerns related to the provisions of the Act.

PROPOSED AMENDMENTS IN THE ACT
The human resource development (HRD) ministry has admitted that a section of the Act pertaining to “disadvantaged sections” will have to be changed as it does not cover all disabled children. According to the proposed amendment, the Act will now include children covered under the National Trust Act and any other law that deals with those suffering from mental as well as physical disorders. While the ministry was earlier planning to incorporate enabling provisions in the rules to be framed for the Act, it was later felt that rules alone would not suffice to meet the concerns of the disabled.

Barely a week after the Act was passed, the prime minister’s office wrote to the HRD ministry asking it to ensure that the concerns of the disabled were addressed. HRD Minister Kapil Sibal assured both the Parliament and the Central Advisory Board of Education (CABE) that all categories of disabled children would receive benefits under the Act. The Act proposes free and compulsory education to all children aged between 6 and 14 years, making it binding on all public and private schools to reserve 25% of their seats for children from “disadvantaged sections”. Section 3 states that “disadvantaged sections” cover children with disabilities as specified under the Persons With Disabilities Act -- an Act that is not very comprehensive as it leaves out several disabilities like cerebral palsy, autism and other mental disorders.

The original Bill was at the centre of a row even before it was tabled in the Lok Sabha, with activists alleging that it deliberately excluded disabled children from its ambit. They claimed the Bill ignored the rights of disabled children by not providing for disabled-friendly facilities, not including “disability” within the definition of “disadvantaged sections”, and not including the mentally challenged within the definition of “disabled”. Activists say that where the Bill does define “disability”, it takes the meaning as given in the Disability Act 1995, which covers people with physical disabilities only.

Activists point out that India was one of the first countries to ratify the UN Convention on Rights of Persons with Disabilities, in October 2007, which says: “State parties shall ensure that persons with disability are not excluded from the general education system on the basis of disability and that children with disabilities are not excluded from free and compulsory primary education or from secondary education on the basis of disability.”

As per the latest newspaper reports the HRD ministry is planning to amend the Act in the near future to include a more comprehensive and wider definition of the term so as to take into account all the protests.

THE WAY FORWARD
According to the Government’s own data, such households account for 27.5 per cent of India’s one billion-plus population. Independent research and CRY’s own experience shows that the number of poor in India is closer to 70 per cent — those for whom day-to-day incomes barely cover living expenses. For this majority of Indians, the Constitutional Amendment in 2001 came with the promise that this liberal democracy will actually assume responsibility for all its citizens. The current Act, which makes this Constitutional right legal, is conspicuously silent on increasing the State outlay for Government schooling instead, shifting the responsibility of ‘poor students’ to private schools (the 25 per cent reservation clause), which have in the past raised objections to such a proposal.

Instead of the equitable education based on mutual dignity that the Amendment envisaged, such a provision shuts out the poor as a class and further deepens class barriers. Also, following on the lines of the Constitutional Amendment, the Act limits its ambit to children between the ages of 6 and 14. As any parent or teacher will agree, education up to Class VIII is hardly enough to equip a child with the basic skills needed either for gainful employment or even to make an individual equipped to function with a basic degree of self-reliance and empowerment. After all, this is the right to education , and not the right to literacy and numeracy alone. By limiting free education between Classes 1 and 8, we are offering low educational standards to all children, a decision that impacts the poorest badly. This selection of the 6-14 age group therefore is arbitrary and actively countermands the country’s promise to its children, of making education available, accessible and acceptable.

The world’s most developed economies, such as the US, the UK and France allocate 6-7 per cent of their national budgets on public education and health. India by contrast, allocates just 3 per cent for education and around 1 per cent for health. When we made education a Constitutional right, at par with the right to life, it hardly befitted the spirit of the Constitution to take such a minimalist approach to child rights. The 2009-2010 Budget ratifies the minimalist approach, by not increasing the Sarva Shiksha Abhiyan allocation (it remains, as in the previous year, at Rs 13,100 crore).

To make any real impact on children’s lives, the country needs to spend at least 10 per cent of GDP on school education and health. Currently, the spending on schooling is 1.28 per cent (the total government outlay is 3.3 per cent) of GDP. Instead of investing public resources, we, as a country, are opening up a core sector to private players — a move that goes against both the short- and long- term interests of children. In our considered opinion in order to make the structural implementation of the Act more holistic there is a need to undertake
(i) preparation of compensatory education material, which are pedagogically sound and relevant to the admission of children to the age appropriate class along with developing and enforcing standards for training teachers;
(ii) defining physical punishment or mental harassment;
(iii) designing instruments of ensuring completion by teacher of entire curriculum within the specified time and also for assessing the learning ability of each child.

The instruments for these parameters will need to be designed if some significant change is to be seen in the enhanced learning in the children. In our opinion there is an urgent need to draft the ancillary mechanisms (Rules and other modalities in order to ensure the faster and more efficient implementation of the Act as what is at stake is the interests of the torchbearers of the future.