Critically Examine of Right of Children to Free and Compulsory Education

Education is the primary key to unlocking other human rights”. -Katarina Tomasevski, Croatia, UN Special Rapporteur

Education, which is the key to releasing a sense of fairness and injustice, has long been used to arouse interest in other essential rights. The purpose of education in human existence is to stabilise and enhance creative and problem-solving talents, including the development of critical analysis skills and the pursuit of an irrefutable passion. From now on, requiring universal access to education for all children, regardless of their social status or gender, will help to develop the skills, knowledge, values, and attitudes that will enable them to become responsible and active citizens of our nation. One of the most important tools available to humanity for enacting significant internal and external change is education. As time has gone on, it has become increasingly obvious that information is a tremendously potent tool. Furthering this idea, education becomes a crucial instrument in encouraging kids to pave the way for a better and more sustainable future for the globe.

Education has developed to be multidimensional in that it also has a social, economic, and cultural component. As it ensures the development of a person’s personality, it becomes socially relevant. Economically, it helps people to live their lives independently and without having to depend on anyone. Last but not least, it is culturally significant since it helps to solidify education as a means of fostering a global culture of human rights. After the Second World War, an extremely trying and unstable time for the world, this issue really came to the fore. Unsurprisingly, conversations about the significance and necessity of education in rebuilding the global community after a violent time rapidly surfaced. After many years, the right to education has evolved into one of the most fundamental human rights. Yet, developing nations are significantly more relevant to the value of education. Education has a significant role in improving the state in these places. Ultimately it allows reducing the barriers between classes and a much more uniform progression to be shared among the people of a state. Education has been and continues to remain one of the most worthwhile financial investments a state can do to alleviate human capital and help in the betterment of the state.

What are Fundamental Rights

The Indian Constitution defines fundamental rights as the fundamental human rights that every citizen is entitled to. They are utilised without regard to caste, gender, religion, or race. [1] Fundamental rights are rights that can be enforced in court. So long as certain requirements are met, the courts can enforce them. The phrase “basic right” largely offers the following two justifications for these rights:

They are also guaranteed because they are specifically mentioned in the Constitution enforceable in a court of law if a violation occurs.

Articles 12 to Article 35 of the Indian Constitution mention fundamental rights. These fundamental rights are not unalienable, though. Thus, they are bound by reasonable limitations relating to the security of the right to education is even more important considering the sheer enormity of our population and our status as a developing nation. As such, for the country to develop, education of the masses was and continues to be a very difficult but important, necessary and rewarding endeavour.

The RTE act in India came about almost sixty-three years after independence. The Act guarantees to provide every Indian child in the age group of 6-14 a most basic and fundamental right to education. The bill was passed in the Rajya Sabha on 20 July 2009 containing a few minor changes compared to the draft bill. On the 4th of August in the same year, the bill was passed by the Lok Sabha. Soon after presidential assent was given and the law became active on the 3rd of September 2009 as the Right of Children to Free and Compulsory Education Act 2009 (RTE Act). The Act was amended again in 2010 and became enforceable throughout India excluding the state of Jammu and Kashmir.

The Essence of Right to Education (Article 21-A)

At first, the Indian Constitution’s list of essential rights did not include the right to education. But as the Directive Principle of State Policy, Article 45 has long referred to the Right to Education. According to Article 45, the state is required to offer free and mandatory education for all children until they turn 14 within ten years after the Constitution’s start date. [3] The directive under Article 45, however, extended to guaranteeing free education to all children up to the age of 14, regardless of educational level, and was not restricted to just primary school. In addition, the Supreme Court has stated that the state’s primary commitment under Article 45 need not be carried out at the expense of communities of colour and may be fulfilled through government-aided schools.

The 86th Amendment’s effects (2002)

The purpose of the constitutional amendment is to safeguard citizens’ rights to education and to assess present and upcoming educational difficulties in India. The 86th Amendment, passed in 2002, amends the Constitution in three key ways, promoting free and compulsory education for kids between the ages of 6 and 14. These are what they are:-

The right of every child to access a full-time elementary education that would meet the standard of equality and quality through a formal school that would be sufficient in terms of setting the norms and standard of education has been expressly mentioned in the incorporation of Article 21A as the Fundamental Right. Before the 86th Amendment in 2002, Article 45 of the Directive Principles of State Policy mandated that children up to the age of 14 receive free and obligatory education. But after the modification, Article 45 was changed and adjusted, requiring the state to try to provide early childhood care and education for every child until the age of six instead of 14. To underscore the importance of early childhood care and education, the age restriction has been dropped. [5]

The essential responsibilities of parents and guardians to provide and facilitate educational opportunities for their children between the ages of 6 and 14 were added to Article 51-A(k).

Problems and Challenges 

All of the aforementioned points sound really appealing and nice on paper. The actual implementation is actually far from easy and even after more than ten years, there is much more to be seen in terms of changes brought about by the act. There are many reasons for this.

Lack of Funds

The first thing that immediately comes up is the glaring deficit of funds to implement every aspect of this Act as efficiently as possible. Despite the state and central governments coordinating it is not a small amount that is required to educate such a large population. Many state governments initially came out and said that they would require additional funds to implement the Act. The Orissa government then also made a demand that the state should be allocated into a special category. The state governments are not at all wrong in claiming a lack of funds as each demographic is different and will require different levels of funding. The same ratio of 55:45 might not be practical everywhere, nor in the long run.

Infrastructural Challenges

The Act aims for schools to keep up a minimum standard of infrastructure for students. Basically, making sure that with free education there is no lack of necessary student amenities such as availability of drinking water, clean kitchens for midday meals, number of classrooms and their capacities, playgrounds and finally separate toilets for boys and girls. The underlying reality is that most schools still do not meet such basic requirements and come up short in many aspects. A survey conducted by the National University of Education Planning and Administration revealed that roughly half of the elementary schools in the country do not have separate toilets for girls.

Furthermore, a report from The District Information Systems for Education Report 2008-9, showcased that of the 1.29 million schools that they covered, a shocking 60 per cent did not have electricity. More and more surveys or inquiries into this issue would only reveal the very sad reality that is the infrastructural deficit of a majority of Indian schools. This is also a consequence of the lack of funds on both the state and central government side. Better decision-making and better allocation of funds can potentially fix this problem.

Shortage of Qualified Teachers

A much less evident problem is the lack of qualified teachers in most schools across India. It is predominant in government schools in rural areas, but private schools are also susceptible to the same problem. Even where there are qualified teachers, the average teacher-student ratio is much higher than the prescribed 1:30 in the Act. This disappointing shortage of teachers is very detrimental to the cause of educating such a big population.

What is very much needed is the presence of regulatory bodies, similar to bar councils for lawyers, school teachers and administrators. It would enforce strict adherence to certain prescribed qualifications that the teachers must meet. A sense of accountability is also bought in as necessary actions can be taken against teachers or administrators, without involving the school.

No Detention Policy

The policy of not detaining students in a class as prescribed by the Act has proved to be a loophole. What this means is that there is no insistence on a formal examination that a student must write and pass before being promoted to the next class. The measure was taken to reduce the chances of a student dropping out of school in case they were detained. A direct offshoot of this is that it fails to examine a student’s knowledge base. Students also do not have the drive to learn and compete. This policy overall promotes carelessness and a laid-back attitude amongst teachers as well. Simply because there is no possibility of detention, there is no definite need for them to ensure their students gain as much knowledge

Right to Education (RTE) Act 2009

The Right to Education Act of 2009 (RTE Act) was passed by the Parliament with the intention of controlling the deterioration of the quality of the educational system and improving the process of imparting education. This was done by enacting specific provisions that demanded certain reformations to live up to the spirit of providing a quality and equitable education regardless of caste, creed, gender, economic status, or social background.

[6] The Act was passed on August 4, 2009, and it became effective on April 1, 2010. The following are the Act’s main characteristics:

Education is a Basic Right of every kid, as stated in the Act.

  • 25% of the seats in private schools must be set aside for students from socially disadvantaged backgrounds.
  • The Act also guarantees dropout students’ rights to an education.
  • Parents or kids cannot be interviewed for admission by unrecognised schools.
  • Schools are not permitted to collect any capitation fees while admitting a student.
  • No elementary school student shall be expelled, held behind, or under any pressure to pass a board exam.
  • According to the Act, each government- and aid-funded school must establish a School Management Committee with 75% of its members being parents or legal guardians.
  • The Act made it illegal for teachers to give students private lessons or to physically or mentally mistreat them.

The RTE Act 2009 acted as a catalyst in accelerating the spirit of imparting free and compulsory elementary education to children between the age group of 6 to 14 years. After the inception of the Act, a drastic change came about in the standard of education both in access and enrolment levels; literacy rates of the states also elevated at large. However, lately, due to a lack of an appropriate regulatory framework, the practical application and compliance with the provisions of the Act are facing repeated failure

Intake of Indian Judiciary on Article 21-A

The Supreme Court of India has repeatedly upheld the impact of Article 21-A in several Public Interest Litigation cases, such as:

Mohini Jain v. State of Karnataka 1992 AIR 1858

The Court, in the absence of any Constitutional Provision for the Right to Education, held that the right to life and personal liberty under Article 21 includes the Right to Education as education is required for the overall development of personality, without which one would not be able to have the enjoyment of his right to life. The purpose of the right to life is baseless without the Right to Education.

Unni Krishnan, J.P & Ors. v. State of Andhra Pradesh & Ors. 1993 AIR 217

By narrowing the approach taken by the Mohini Jain case, the Supreme Court held that the Right to Education is undoubtedly a Fundamental Right that stems from Article 21. However, the right to free education is available to children until they attain the age of 14 years; after that, the obligation of the state to provide education is subject to economic capacity and development.

Avinash Mehrotra v. Union of India 6 SCC 398 (2009)

The Court held that it is a fundamental right to have access to education free from the fear of security and shall have appropriate safety measures in case of any threat to life. Therefore, the right to education includes providing safe schools in accordance with Articles 21 and 21A of the Constitution. No matter where a family seeks to educate its children, even if it is a private institution, the state must ensure that children suffer no harm in exercising their fundamental right to education.


The primary education of every child, which is a fundamental right of every kid, is one of the key roles played by the Indian Legislature in Indian history. Children are the future of the country. So, education serves as a tool for exposing a child to cultural and ethical norms, preparing him for future professional training and helping him to adjust to his environment normally. Without education, a youngster today cannot succeed in life. Everyone has an equal claim to the fundamental right to an education. Elementary education is the most important part of higher education and should be prioritised to improve the welfare of the country as a whole. There is no doubt that the empowerment of numerous communities around the world is made possible by the right to education, which is a fundamental human right. While the RTE ACT is a good first step in that regard, India has yet to experience or see any improvements as a result of this act. Other complications arise during actual practice and implementation in addition to the ones that were already stated. The Act must now concentrate on greater funding and raising the bar on educational excellence.

The right to education was made a fundamental right under Article 21-A by the 86th constitutional amendment passed by the Indian parliament, and the right to education act was also passed to improve the design of the educational system. They offer students in the age range of 6 to 14 free and required schooling. Additionally, they must contain provisions that require state and municipal governments to guarantee every child in this nation the right to an education and hold them all responsible if they fail to do so. The literacy rate is still developing, so additional laws and an ordinance guaranteeing every child the right to an education are needed to raise it.

Written By:- Mohd. Ahad
College – Lovely Professional University


  1. 1992 AIR 1858, 1992 SCR (3) 658
  2. 1993 AIR 2178, 1993 SCR (1) 594
  3. 1991 SCALE (1)187
  4. (1997) 10 SCC 549
  6. AIR 1951 SC 226

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