According to it, the State shall provide free and compulsory education to all children of the age of six to fourteen in such a manner as the State may by law determine. Accordingly, the Government of India passed the Right of Children to Free and Compulsory Education (RTE) Act, 2009.

Article 21-A provides 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. Article 21-A added by the Constitution (86th Amendment) Act, 2002 makes education from 6 to 14 years old, a fundamental right, within the meaning of Part III of the Constitution. Article 21-A may be read with new substituted Article 45 and new clause (k) inserted in Article 51-A by the Constitution (86th Amendment) Act, 2002. (1)

While the substituted Article 45 (2) obligates the State to endeavour to provide early childhood care and education for all children until they complete the age of six years, Clause (k) inserted in Article 51-A (3) imposes a fundamental duty on parent and guardian to provide opportunities for education to his child or, as the case may be, ward, between the age of six and fourteen years.

Stressing that educational empowerment was the way to economic empowerment, Dr. M.H. Joshi, the then Human Resource Development Minister, called the right to education, the dawn of the second revolution in the Chapter of citizen’s rights. (4)

With reference to Article 51-A (k), which imposes a Fundamental Duty on Parents/Guardians, Hon’ble Minister explained that the emphasis would be to encourage and prompt parents to bring children to schools, rather than to punish the economically weak parents. It was explained that the Government would endeavour to target children of economically weak parents/guardians through Sarva Shiksha Abhiyan and a series of measures and facilities.

To ensure proper implementation of the provisions of the 86th Amendment, 2002, in terms of not just the funds spent but the content of the implementation, Dr. Joshi said that a monitoring system would be put in place. It is hoped that the measure adopted would herald the nation’s march to cent per cent literacy.

Justice Earl Warren, Chief Justice of the US. Supreme Court in Brown v. Board of Education, (5) emphasized on the right to education in the following words:
Today, education is the most important function of the State and local Governments. It is required in the performance of our most basic responsibility, even services in the armed forces. It is the very foundation of good citizenship.

Today, it is the principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. To bring the Constitution (86th Amendment) Act, 2002 into force, the Right of Children to Free and Compulsory Education Act, 2009 (6) has been enacted to translate the constitutional intent into action. The Act, 2009 provides for children’s right to free and compulsory admission, attendance and completion of elementary education.

Section 3(1) of the Act, 2009 provides that every children, between the age of six to fourteen years, must be provided with free education in the nearest school till that child completes his/her elementary education. Though the Act, 2009 is a Central Legislation, its effective implementation lies in the hands of the State Governments. While implementing the Act, 2009, the Government of India announced that 25% seats in private schools for children from poor families be reserved as also prohibited donation or capitation fee. (7)

The Act, 2009 lays down that the curriculum should provide for learning through activities, exploration and discovery. It requires that the teaching-learning process must become stress free and the curricular reform be initiated to make the learning system child friendly. Besides, the Act, 2009 contains provisions prohibiting corporal punishment, detention and expulsion.

As regards the responsibility, the Act, 2009 mandates that the Education Departments of the Central and State Governments would provide schools, infrastructure, trained teachers, curriculum and teaching-learning material as also midday meal facilities.

Stating that imparting education was a constitutional obligation of the State and a fundamental right of the students under Article 21-A, a Full Bench of the Bombay High Court in Shikshan Prasarak Mandal, Pune v. State of Maharashtra (8) ruled that the performance of the constitutional and fundamental duty by the State would have to be placed at a much higher pedestal than the policy of the State which had statutory backing.

So ruled the Court said that condition of not permitting a new school within radius of 5 kms of existing school, as contained in Chapter 3 of the Secondary School Code, 2002, was not mandatory and admitted of relaxation. That relaxation had to be construed liberally to achieve greater object of imparting education as constitutional obligation of the State. Likewise, in Ng. Komon v. State of Manipur,(9) the Gauhati High Court directed the State Government to establish school in a village from where it Was shifted to another village. Article 21 -A contains a duty of the State to provide free and compulsory education. This Article cannot be invoked by the management of unrecognised schools for protecting their private interest and claiming right to run schools unauthorized. (10)

Holding that the right to appear in class VIII Board examination was another facet of the right to education guaranteed under Article 21-A, the Patna High Court directed the Board to permit the students of a private school to appear in class VIII Board examination.(11)

The term child for the purpose of Article 21-A is held to be a child who is a citizen of India. The Kerala High Court in Zeeshan v. District Education Officer, Kannur, (12) upheld the denial of admission to Standard V in a School of a child who was a citizen of Pakistan under Section 22(ii) of the Kerala Education Act, 1959.

If Article 21-A is read with Article 19(1) (a), all children shall have the freedom to have primary education in a language of their choice.

In Associated Management of (Government Recognised Unaided English Medium) Primary and Secondary Schools in Karnataka v. State of Karnataka, (13) a full Bench of Karnataka High Court held by virtue of Article 21-A, the medium of instructions was to be entirely the choice of the parents and the student and that no one could claim to know better than the parents about the child, to decide as to what the child required in the sphere of education to shape its career and destiny.

The Right To Children To Free And Compulsory Education.
The Right of Children to Free and Compulsory Education (Amendment) Act, 2019 which was passed by the Parliament on January 3, 2019 received the assent of the President of India on January 10, 2019. It has now been notified in the Gazette of India.

The bill seeks to do away with the no-detention policy in schools. The motion to pass the bill was accepted by voice vote in the upper house of the Parliament, the Rajya Sabha. Union minister for Human Resources Development Prakash Javadekar’s motion to amend the name of the bill to reflect that it was passed in 2019 was also accepted by voice vote. The Lok Sabha had already passed the bill in July 2018.

The key aim behind the move is to rebuild the education system of the country, which is at present broken, as per the Union HRD Minister. The Minister said many students have moved from private schools to government schools in some states, such as Sikkim, Kerala and Telangana. He added that teacher training, quality and accountability are most important and while stating that there is no shortage of teachers, he said that their deployment is not right.

Significance
The legislation is significant as it brings accountability in the elementary education system. The proposal received the support of a majority of state governments.

RTE amendment Bill: Key Provisions

1. The Bill seeks to amend the Right to Education (RTE) Act to abolish the no-detention policy in schools. Under the current provisions of the Act, no student can be detained up to class VIII.
2. As per the amendment, it would be left to the states to decide whether to continue the no-detention policy. This Bill has been analysed by a Parliamentary standing committee, which also recommended bringing back the concept of detention in schools.
3. The policy has been brought back as it was felt that compelling children to repeat a class was demotivating, often forcing them to abandon school.
4. The bill provides for regular examination in classes V and VIII, and if a child fails, the amendment bill grants a provision to give her or him additional opportunity to take a re-examination within two months.
5. Such children will be provided with two-month remedial teaching to perform better in the re-examinations.
6. If the students still do not pass the exam, the state government may decide to detain them.

The Right of Children to Free and Compulsory Education Act, 2009 (the Act) provides for free and compulsory education to all children of the age of six to fourteen years. The Section 16 of the Act provides that no child admitted in a school shall be held back in any class or expelled from school till the completion of elementary education.

This provision was made in the said Act because examinations are often used for eliminating children who obtain poor marks, which compels children either to repeat the same grade or leave the school altogether. It was felt that compelling a child to repeat a class is both de-motivating and discouraging.

Why the need for the amendment?
In recent years, States and Union territories have been raising the issue of adverse effect on the learning levels of children as section 16 does not allow holding back of children in any class till the completion of elementary education.

Therefore, the amendment to the section was proposed in order to improve the learning outcomes in the elementary classes and to empower the appropriate Government to take a decision as to whether to hold back a child in the fifth class or in the eighth class or in both classes, or not to hold back a child in any class, till the completion of elementary education.
 
End Notes:

1. 165th Report of the Law Commission of India.
2. Article 45.
3. Part IV A of the Constitution Of India.
4. Newspaper: The Tribune, December 17, 2003.
5. 347 US 483 (1954).
6. The Act, 2009 Came into force on Ist April, 2010.
7. T. N. Nursery v. State of T.N., AIR 2010 Mad. 142.
8. AIR 2010 Bom. 39
9. AIR 2010 Gau. 102.
10. Shafeek S. Manager v. State ofKerala, AIR 2009 (NOC) 2336 (Ker.).
11. Anil Kumar Roy Sharma v. State, AIR 2005 Pat. 38.
12. AIR 2008 Ker. 226.
13. AIR 2008 (NOC) 2790 (Kar)