– Dr. Vinod Patidar

Principal, Indore Institute of Law


Over the years Article 21 has been liberally interpreted so as to mean something more than mere survival and mere existence or animalexistence. It therefore includes all those aspects of life which make a man’s life meaningful, complete and worth living with dignity.

It aims at good quality of life. The Supreme Court has implied ‘Right To Education’ as a fundamental right fromArticle 21. The word ‘life’ has been held to include ‘education’ because education promotes good and dignified life. If this provision is read cumulatively with Directive principle contained inArticle 38,39(a),41 and 45, the court opined that “it becomes clear that the framers of the constitution made it obligatory for the state to provide education for its citizens.”

Article 21A Right to Education:- “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 journeyof the right to education -from being initially enumerated in the directive principles to being declared a fundamental right – has been a huge struggle and a trimph, for activists,child rights advocates, educationists and NGOs working on education all over the country.


Nani Palkhivala in his book “We, the Nation, The Lost Decades” writes that Education is the rock on which India must build her political salvation. Our country will be built not on bricks but on brains; not on cement but on enlightenment. If we cannot afford education, we cannot afford to remain a civilized society. It is acknowledged all over the world that value based education is the only instrument for transmuting national talent into national progress. Amongst the important countries of the world, India is not adequately educated. Article 45 of our constitution enacts:

“The State shall endeavour 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. He concluded that Education is an end in itself ; and not merely a means to an end like financial well- being . There should be no profit motive in liberal education, any more than in friendship. Then alone can knowledge ripen into wisdom. The timeless lesson of ancient Indian culture is that man is more than man, and there is more to the world than the world. Hence Palkhivala comments that the education system in India is not satisfactory & does not create intellectually wise elites.”

Therefore the need for good quality free education is required for our children. The Right Of Children to Free & Compulsory Education Act, 2009 aims to achieve such objectives. This act will be analysed as to how far has it been successful in achieving its aim.


The method adopted for the research is basically content analysis of the available secondary data.

Content analysis is a methodology in the social sciences by which texts are studied as to authorship, authenticity, or meaning. Content analysis is a summarizing, quantitative analysis of messages that relies on the scientific method (including attention to objectivity, inter subjectivity, a priori design, reliability, validity, generalizability, replicability, and hypothesis testing) andis not limited as to the types of variables that may be measured or the context in which the messages are created or presented.

In this researchthe methodologyofcontent analysis is used for analyzing internet data comprising of various articles, news articles, reports of various institutions etc. & books on the relevant topic to bring forth useful & appropriate information.


The present studyfocuses on the evolution of the right to education with the help of case laws, provisions of the recent right of children to free and compulsory educationAct, 2009 and analyses its efficacy in terms ofits capacity to provide primary education to allchildren between the age of 6 and 14 in India and in terms of its loopholes.


The Supreme Court observed in Mohini Jain case in 19921 that the directive principles which are fundamental in the governance of the country cannot be isolated from the fundamental rights guaranteed under Part III ofthe Constitution.1 These principles have to be read into the fundamental rights. The two are supplementary to each other. The state is under constitutional mandate to create conditions in which all could enjoy the fundamental rights guaranteed to individuals under Part III. Without making right to education under Article 41 ofthe Constitution a reality, the fundamental rights under Chapter III shall remain beyond the reach of the large majority which is illiterate.2

” The provisions frequently cited from the Indian Constitution are as follows:

Article 38 of the Indian Constitution which aims at the state to secure a social order for the promotion of welfare of the people and reads as follows3 :-

(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice, social, economic and political, shall inform all the institutions of the national life.

(2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not onlyamongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.

Article 39 provides that the shall, in particular, direct its policy towards securing-

(a) that the citizen, men and womenequally, have the right to an adequate means oflivelihood;

(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;

(c) that children are given opportunities and facilities to develop in a healthy manner and conditions of freedom and dignity and the childhood and youth are protection against moral and material abandonment.4

Article 41 enshrined in Part IV ofthe constitution aims to provide the right to work, to education and to public assistance in certain cases: It reads as follows:

The state shall, within the limits of its economic capacity and development, make effective provisions 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.

Article 45 aims at providing for early childhood care and education to children below the age of six years.

The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.5

Article 46 aims at promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections. It reads as follows:

The state shallpromote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.

The court in the case of Unni Krishnan J.P. and others etc v. State of Andhra Pradesh and others etc.6 has reiterated the proposition that the right to education to the life is implicit in, and flows from the right to life guaranteed byArt. 21. But, said the court, the parameters of this right, which is not absolute, have to be determined in the light of the Directive Principles contained in Arts. 41, 45 and 46.

The court has now limited the State obligation to provide educational facilities as follows:

i) Every citizen has a right to free education until he completes the age of 14 years;

i) Beyond that stage, the State obligation to provide education is subject to the “limits of the economic capacity and development” of the State.

The Supreme court in the case of P. Cherriyakaya v. Union of India7 observed that:

“The right to education that has been treated as one of transcendental importance in the life of an individualhas been recognised not only in this countrysince thousands of years, but all over the world. Without education being provided to the citizens of this country, the objectives set forth in the Preamble to the Constitution cannot be achieved. The Constitution would fail. The right to education is implicit in the right to life and personal liberty guaranteed under Article 21. This right to education is to be understood in the background of Articles 45 and 41 of the Constitution and the State is under an obligation to establish educational institutions to enable the citizens to enjoy the said right”

Another broad theme of life and dignity is to be found in Bandhua Mukti Morcha v. Union of India8 Court gave its expanded interpretation of Article 21 that “is to live with human dignity, free fromexploitation. It must include protection of the health and strength of workers men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions offreedom and dignity, educational facilities, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity. No government can take any action to deprive a person of the enjoyment of these basic rights.”

In the case of State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidhayala9 the court recognised the importance of higher and secondary education. The court observed that “The National Policy on Education, 1986, as modified in 1992 envisages the improvement and expansion of education in all sectors, elimination of disparities in access and laying greater stress on improvement in the quality and relevance ofeducation at all levels, including technical and professional education. It also emphasizes that education must play a positive and interventionist role in correcting social and regional imbalance. The nation is firmly committed to providing Education for all, the priority areas being free and compulsory primaryeducation, covering children with specialneeds and eradication ofilliteracy.” It was clear that Article 21A would cover primary as well as secondary education.

In the recent case of Ashok Kumar Thakur v. Union of India10, one of the questions before Justice Dalveer Bhandari was that can the fundamental right under Article 21 be accomplished without laying emphasis on primary education. The Honourable judge reiterated that free and compulsory education of children has now become a fundamental right. He said that in order to achieve a casteless and an egalitarian society, this right has to be guaranteed right from the beginning. He said that the state is duty bound to implement Article 21Aand its provisions on a priority basis. There has been a great laxity in its implementation which is affecting citizens in every walk oflife. The court directed the union of India to implement this right within a set time limit of six months or the latter would have to necessarily intervene. The root cause of all the problems in our country is poverty and if the state wants to uplift the socially, educationally and economically backward class in the society then it must implement Article 21A. Thus by providing educational facilities from day one, the need for reservations at the university level will not be felt in a few years time .Also the allocation of more funds for primary and secondary education was necessary. In almost all the major countries of the world like Britain, U.S.A, Spain, France, Germany, Switzerland, Austria education is free and compulsory. The state should ensure that compulsory education is feasible. The state has to take some efforts to materialize Article 21A, one such effort is SSA( Sarva Shiksha Abhiyan). The bill in order to make education free and compulsory should punish defaulting parents with six imprisonments. Scholarships, hostel facilities should also be provided. It is the goal ofArticle 21Ato achieve universal and quality education children. The court made the following concluding remarks:

• Provide low income parents financial incentives so that they can afford sending their children to school.

• Criminally penalize those who receive financial incentives and yet they fail to send their children to school.

• Penalize employers who do not allow children to go to school or do their homework.

• The government should increase the education budget every year until the aim of free and compulsory education is achieved.

• The state is under an obligation to implement Article 21Ain toto.


The implementation of the provisions of the RTE Act willbe no simple matter either. The other shortfalls aside, the availability of funds and teachers remain significant roadblocks11 in the implementation of the Act.

Funds shortfall : The HRD ministry has projected a requirement of Rs 35,000 crore every year. Of this, only 15,000 crore have been allocated for 2010-11. Even if the states were to contribute their fair share of funds, implementing the Act will face a shortfall of Rs 7,000 crore in its first year of implementation. The states are alreadyasking the Centre to bear the additional fiscal burden imposed by the RTE12. The question of ensuring a leak-proof delivery mechanism which ensures the safe delivery of funds from source to destination also remains unanswered.

New teachers needed: According to the HRD ministry itself, more than 500,000 additional teachers will be required to meet the 30:1 teacher-student ratio advocated by the RTE. Recruiting, training, and then monitoring these teachers will be a huge task in itself.


• The implementation of RTE ( Right To Education ) in Bihar has increased the problems for the State Government. According to the rule of RTE, only trained teachers can be appointed. Though, in last two years, State Government has appointed about 2.15 lakh teachers, but all are not trained teachers. As per the RTE rule, the proportion of teachers and students should be 30:1 within 5 years . Whereas right now in Bihar the proportion is 40:1. Bihar needs 3 lakh Trained teachers. Besides, those who are untrained, they also need to go under training.

• Infrastructure Infrastructure the barrier

Indeed the Right to Education (RTE) has brought students back to schools but the condition of school infrastructure and facilities still remains pathetic in Bihar.

In a shocking exposure, a government school in Kaluahi tehsil under Madhubani district is running classes of 1,144 students in an average size class room despite having six rooms in the school building.

The other rooms are being used for preparing food as part of mid-day meal scheme, stores for keeping books and for official purposes.

In the Urdu Primary School of Gaunpura village in Patna, as soon as the bell announces the lunch break, the girl students step out of the school boundary in an unnatural rush, heading home to attend nature’s call. This may sound bizarre to a student in a metropolitan city which nowadays flaunts a long list ofschools offering ‘five star’ facilities but for hundreds of students in Bihar this is the reality. As the school does not have land of its own, it is deprived of the basic toilet facilities as well!13

A toilet for a girl student is essential both in terms of security and hygiene. In the absence of toilets and hand pumps in the school premises, the children are forced to go to their houses where they usually stay back for an hour or two to help their parents in daily chores or have an afternoon nap. This adversely affects whatever little education they get in the school.


In summary: measures to make the RTE Act even more effective

In accordance with the measures discussed above, the following measures may help to make The Right of Children to Free and Compulsory EducationAct even more effective, and ensure that the Government’s vision in providing functional education for children is better met:

(a) Allow failing: Failing acts as a critical feedback mechanism for both students and teachers, and allows academic pressure to dissipate at the first stage itself, rather than accumulate and cause greater harm later. Use failing as a monitoring, feedback, and correction mechanism instead – both for students as well as for their teachers. This will also ensure lesser burden on the system and on weak students in higher classes. Also ensure that teachers do not use failing as a tool of fear by ensuring impartial evaluation and a strong formal escalation mechanism for teacher misconduct.

(b) Allow private unrecognized schools to continue: Until we can establish consistent and high standards for the delivery of education only through recognized institutions, we should allow unrecognized institutions to function. The data shows that they are at par with, if not better than, their government counterparts, and are a crucial peg in enabling the outreach of education for lakhs of children across the country.

(c) Define what constitutes mental harassment: Unless this is done, this will remain one of the clauses that are either ineffectual or are used for false reporting of minor cases as major blunders.

(d) Employ incentive based compensation systems: Research shows that these are much more effective at ensuring better teaching than improved school infrastructure. This step will also help resolve the issue of teacher underperformance in schools.

(e) Enforce strictly the ban on private tuitions and referrals: While the ban on private tuitions, as enforced by the RTE, should be strictly enforced, it should be supplemented with a ban on referring students for private tuitions too.Again, anescalation and reporting mechanism is very important to ensure that the system works. Deviations should be punished severely.

(f) Use Board exams as a feedback mechanism: Board exams should be held at the 14 year stage for every child, both to help them assess themselves and to help the state assess the effectiveness of teaching mechanisms under the RTE.

(g) Safeguard against higher dropout rates at age 14: Introduce some incentives (like scholarships) to induce poor students to continue schooling even after the mandatory RTE phase is over.

(h) Implement the program in phases, rather than all at once: The fiscal onus put on states to implement the RTE seems to be overbearing. This might result in a nominal, lopsided and ineffectual implementation of the RTE instead of a wholesome and effective one. The implementation should be rolled out in phases, with close monitoring of effectiveness at every stage. Feedback from implementation shortcomings in earlier phases can also be used to improve the system in later phases, rather than having to implement all these changes system-wide later.

(i) Ensure a safe delivery mechanism for funds: The quality of education is an intangible parameter. The Government must ensure that delivery mechanisms for funds transfer for the RTEAct have sufficient integrity or else we might see funds disappearing, ‘ghost’ students being educated, and deserving students being left out of the system, citing ‘implementation difficulties’.14


• Jain M.P.Fifth Edition Reprint( 2009).Indian Constitutional Law Nagpur;Lexis Nexis BUtterworths


• The Bare Act,The Constitution of India,1950

• Palkiwala,Nani,(1994) We,The Nation ,New Delhi,UBS publisher & Distributors Ltd.

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