Problems With The Right to Education Act – I | Something About The Law http://www.somethingaboutthelaw.com/2010/04/08/problems-with-the-...

After India’s Independence, one of the foremost concerns in acknowledging a fundamental right to
education had been the problem of ‘economic capabilities’ of the State. Indeed, subsequent Governments
have chosen to hide under the garb of unavailability of resources in implementing National Policies on
Education. Several high-level Committee Reports have debunked the myth of financial constraints and
shown that the provision of free and compulsory education at the elementary level is well within the
wherewithal of the State.[1] It is this aspect that has, for the first time in over 60 years, been tacitly
accepted by the Government in passing the Act of 2009. The Act clearly mandates a responsibility upon
appropriate authorities to establish and maintain infrastructural mechanisms to facilitate the guarantee of
this right.

The mere proclamation of a right cannot tantamount to its fulfillment, and its “actual enjoyment” is
possible only when effective institutions are in place to guarantee that right. A right to education is
ineffective in the absence of a school to ensure the enrollment of a child and to impart free, elementary
education. By taking on the duty to establish a school in every neighbourhood, and stipulating conditions
to aid the functioning of such schools, the Government has taken the first step in the right direction.
Having stated that, there exist a number of problematic areas which need redressal in the scheme of this
legislation.

One of the major concerns that the Act has left unanswered, is that of free and compulsory
education for children till the age of six years. While Unnikrishnan emphatically proclaimed the
right of all children to elementary education till the age of 14, subsequent legislations and even the
Constitutional Amendment have diluted its ambit and confined free and elementary education to
children between six and fourteen. The extensive body of research (from State and civil society) on
the importance of education at a pre-primary stage,[2] our commitments to international
obligations[3], and the rising percentage of India’s population under the age of six,[4] further
corroborates the necessity to guarantee such a right.

In failing to realize the right of children to free and compulsory education, the State has not taken
on board the acute social milieu which has hitherto presented problems in ensure elementary
education. In order to cope with the burgeoning problem of child labour, it is important to ensure
that children below the age of six are also brought within the targets of the Act. It is a social reality
that children are employed from a very early age, in various circumstances within and outside their
homes. Therefore it is not sufficient that the right be guaranteed only from the age of six, and must
widen its scope to ensure the mitigation of child abuse in formative years. In fact, the Act makes no
reference to the Child Labour (Prohibition and Regulation) Act, 1986 and there is no categorical
statement which prohibits the employment or engagement of children, which might hinder their
prospects of education.[5]

Significantly, there is no effective mechanism to enforce the right guaranteed under the Act. As
provisions stated in the preceding segments indicate, a local authority having jurisdiction may take
up the complaint. The provisions fail to identify the correct authority or State agency that will hear
grievances and enforce the right – a lesson is to be learnt from successful legislations such as the
NREG Act and the RTI Act, which clearly provides for the responsible officer/agency to seek
recourse under. The State and National Commissions for Protection of Child Rights may not be
institutions accessed by all at the ground-level, and it is therefore important to ensure the effective
and speedy redressal of concerns.[6]

Further, the provisions result in a situation where the local authorities are both the implementing
functionaries (in school management, curriculum development etc) and grievance redressal

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Problems With The Right to Education Act – I | Something About The Law http://www.somethingaboutthelaw.com/2010/04/08/problems-with-the-...

institutions. Clearly, there would be several instances where interests conflict, which might result in
an inappropriate enforcement of the right. Consequently, the State’s correlative duty to guarantee
the enjoyment of the right is considerably affected in the absence of effective enforcement
mechanisms

The Act stipulates that the State must establish a school within the limits of neighbourhood, in order
to ensure free and compulsory education. However, there is no attempt made to define what a
‘neighbourhood’ constitutes.[7] Incidentally, the right of child to free and compulsory education is
limited to a neighbourhood school, except in the two instances specified under S.5 of the Act. What
the Act has done is to borrow the erstwhile American concept of a neighbourhood school, which
was implemented in the US to bring about community harmony.[8] The onus in the West today is on
(parental) choice, and it is important to ensure that the lack of qualitative yardsticks does not
impediment in the exercise of this right.Thus we are confronted with a problematic situation where
parents would like to send their children to a private school X, under the 25% quota provided to
them by virtue of the Act, but would probably be refused, since a Government school Y is
established and operational in the neighbourhood, even if the conditions there are abysmal. This
unfortunate situation ties in with the lack of qualitative requirements under the Act (that will be
discussed subsequently in this segment).

(To be continued)

[1] The Acharya Ramamurthy Committee Report (1990); Tapas Majumdar Committee Report (1999);
A.K. Rath Committee on the Education Bill, 2005 (2008).

[2] Myron Weiner, Child and the State in India, 2nd ed. 1990, p.65. Princeton University Press (United
States).

[3] See n.13 on the International instruments to which India is a signatory.

[4] 31% of India’s population is under the age of 15, and a good proportion of that, under 6. International
Institute for Population Sciences and Macro International (2007-09-09). Summary of Findings. Third
National Family Health Survey.

[5] Renu Singh, The Wrongs in the Right to Education Bill, The Times of India,
<http://timesofindia.indiatimes.com/home/education/The-wrongs-in-the-Right-to-Education-
Bill/articleshow/4742600.cms>, 6 July 2009 [Last Accessed on October 28, 2009].

[6] Legislative Brief: The Right of Children to Free and Compulsory Education Bill, 2008 – PRS
Legislative Research (2008).

[7] Such an ambiguous term may not only result in jurisdictional complications, but also dilutes
responsibility on part of the local authorities to establish and maintain the necessary infrastructure.

[8] Legislative Analysis – The Right to Education Bill, Centre for Civil Society (November 2005)

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