Millennium Post

School of open discrimination

The Constitution  (Eighty-sixth Amendment) Act, 2002 inserted Article 21-A in the Constitution of India to provide free and compulsory education to all children in the age group of six to 14 years as a Fundamental Right in such a manner as the state may, by law, determine. The Right of Children to Free and Compulsory Education (RTE) Act, 2009, which represents the consequential legislation envisaged under Article 21-A, means that every child has right to full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards.

The statement of object and reasons of the RTE Act emphasises the crucial role of universal elementary education for strengthening the social fabric of democracy through provisions of equal opportunities to all has been accepted and cherished under the constitution. In the last couple of decades, there has been significant spatial and numerical expansion of elementary schools in the country, yet the goal of quality elementary education continues to elude us. The number of children particularly from the weaker section and under-privileged groups, who drop out of school before completing elementary education, remains very large. Even in case of children who complete elementary education, the quality of learning achievement is not always entirely satisfactory. Under the RTE Act, the Parliament enlarged the definition of ‘school’ thereby meaning any recognised school imparting elementary education and includes (i) a school established, owned or controlled by the appropriate government or a local authority; (ii) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate government or local authority; (iii) a school belonging to specified category; and (iv) an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate government or local authority

The new act envisaged the school’s responsibility for free and compulsory education and shall admit in class I to the extent of at least 25 per cent of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide for free and compulsory education till its completion.

The unaided private schools approached the Supreme Court challenging the constitutional validity of the act. The unaided private schools were of the opinion that free and compulsory education to the extent of 25 per cent could only be given effect on principles of voluntariness, autonomy and consensus and not on compulsion or threat of non-recognition and non-affiliation.

The apex court held that the primary obligation is of the state to provide free and compulsory elementary education to children, particularly to children who are likely to be prevented from pursuing and completing elementary education due to inability to afford free or charges. Correspondingly every citizen has a right to establish and administer educational institution under the Constitution so long as the activity remains charitable. Such an activity undertaken by a private institution supplements the primary obligation of the state.

The main point of consideration is whether to provide universal elementary education to our children or to provide them with quality elementary education. Another point that merits discussion is in spite of the enactment of the RTE Act and the judgment of the apex court upholding the constitutional validity of the act, whether unaided non-minority private schools do adhere to the guidelines laid down in the Act by providing free education to minimum of 25 per cent of children belonging to weaker sections of society.

After talking to various institutions and civil society organisations, it has been revealed that most of the unaided private and non-minority schools have not filled up the seats which were rightly reserved by the children belonging to the weaker section.

The protection of right of children under RTE Act which envisages that to monitor a child’s right to education, respective state governments must constitute such authority, in such manner and subject to such terms and conditions as may be prescribed. On inquiry it was found that most of the state governments are yet to constitute such authorities. There is no mechanism in place for redressal of grievances relating to the violation of right of the child under this act when a written complaint is made to a local authority regarding noncompliance of the mandatory provision of 25 per cent reservation for free and compulsory education is made to a local authority having jurisdiction over such schools. Most of the state governments have not put these local authorities or the state commissions in place where appeals have to be preferred in the event of non-action by the local authority made over the complaints made to them. What a dichotomy, that two pillars of the constitution, that is the parliament which is the supreme law maker and the judiciary which upholds the constitutional validity of the law have both worked tirelessly enacting the law for strengthening the very fundamental that is for providing quality elementary education to our children by setting up good schools in the government and also making reservations in unaided non-minority private schools.

The executive is yet to wake up and enforce the law. The dream of millions of students belonging to the weaker sections for studying in private schools still remains distant. Private schools must realise their responsibility towards the society and nation at large and must work in meeting this major national goal in providing quality education to children for building a strong and a vibrant India.

The author is an advocate
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