The Right to Free and Compulsory Education: Jurisprudential Questions.... http://www.somethingaboutthelaw.com/2009/10/14/the-right-to-free-an...

The Right to Free and Compulsory Education Act, 2009, is a landmark legislation that concretizes the
judicial and constitutional status accorded to publicly supported education for children between six and
fourteen years. I’ve embarked on some questions that hold jurisprudential significance to the Act, and the
way its analysed. Please find a copy of the Act here.

Questions

Amartya Sen sees ‘individual advantages’ in terms of capabilities that a person has, to be a proper
yardstick for measuring social justice. His argument stresses on the recognition to be given to the
deprivation of capabilities as opposed to the ‘lowness of income’ approach. While maintaining that
income remains a primary index in identifying poverty, Sen suggests three methods by which the
discussion on capabilities is inducted into mainstream discourse. Read from the perspective of the
Right to Education generally (not in the context of Free and Compulsory Education), they are
1. How is the relationship between income and education affected by social indices such as age,
gender, location and so on? Does the Act seek to rectify the problems that arise in this regard?
2. How does the ‘coupling of disadvantages’, i.e., income deprivation and adversity in
converting income into functionings, affect one’s right to education? If handicaps reduce
one’s ability to earn an income, and subsequently convert that income into investments in
education, how’s the Act helping by brushing persons with disabilities under the carpet of the
PWD Act?
3. How does the distribution of income within the family affect/complicate the provision of
education? Is this aspect also discussed by the Act, or is the only solution to make it ‘free and
compulsory’ for all?

What is the ambit of a ‘right’ to Education? From a Hohfeldian perspective, to derive the ‘definite
and appropriate’ meaning of a right, one must affirm the presence (and juxtapose the right) of a
correlative duty. In this regard, how is the enumeration of rights and duties done in the Act? Are the
duties ‘correlative’, i.e., are they violated when the right is invaded?

From Hohfeld to Shue’s analysis in terms of rights and duties. Shue’s definition bears three
components, a right being a (i) rational basis for a justified demand (ii) that the actual enjoyment of
a substance be (iii) socially guaranteed against standard threats.
1. With regard to a justified demand and the constraints observed in fulfilling that demand, Shue
states that the justification means ‘that those who deny rights can have no complaint when

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The Right to Free and Compulsory Education: Jurisprudential Questions.... http://www.somethingaboutthelaw.com/2009/10/14/the-right-to-free-an...

their denial….is resisted’. Does the 2009 Act respond to the justified demands of Free and
Compulsory education?
2. Re the actual enjoyment of a right, Shue observes that a mere proclamation of a right cannot
amount to its fulfillment. On this count, has the 2009 Act been effective in managing the
transition from the host of cases on the right to education, and the subsequent induction into
Art. 21-A? In other words, has the judicial and Constitutional proclamation been fulfilled by
the legislature through this Act?
3. Social guarantee against standard threats is an important component of a right: what are the
standard threats faced by the target group in access to education, and do the institutional
mechanisms envisaged in the Act provide guarantee against these threats?
Is the right to education ‘basic’ as conceptualized by Shue? Is it comparable to the rights of security
and subsistence? Shue’s answer to this question is an emphatic no, as his grounds of classification
are based on the fact that basic rights are quintessential to the enjoyment of any other proclaimed
right. Does it tie into a hierarchical structure, implying that resources must first tend to security and
subsistence, and then to other rights? If so, what is the future of this Act, in terms of the
implementation of infrastructural and resource set-ups?

In terms of the resources argument, is the Right to Education, prima facie a positive right? With
regard to the three types of correlative duties that Shue postulates, what is the relevance of the duty
to aid in the present context?

It cannot be an argument for curtailing a right, once granted, simply that society would pay a
further price for extending it. There must be something special about that further cost…to say that
although great social cost is warranted to protect the original right, this particular cost is not
necessary. Otherwise, the Government’s failure to extend the right will show that its recognition of
the original right is a sham, a promise that it will intend to keep only until that becomes
inconvenient –Dworkin, Taking Rights Seriously.
To what limits can the Right to Education be extended, in terms of resources? Can appropriate
authorities cite lack of funds as a fundamental reason to deny the full-fledged enjoyment of the
Right? In other words, should the Right, as envisaged in the Act, be given a narrow interpretation?

Examining Nussbaum’s approach to Central Human Capabilities, does she read in education as a
basic tool to fulfill the capability of Senses, Imagination and Thought. Does this analysis accord
greater primacy to education as opposed to Shue’s stance?

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4. The Right to Education The past few weeks have seen the UPA Government taking...
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