Deciphering Education Laws in India.......By Yashashree Kulkarni

In the present scenario, when we are witnessing a rebellion against reservation of seats in professional colleges at the post graduate level, it becomes very essential that we understand the constitutional position of education in India. Here, we highlight the various aspects education with regard to state obligation and also the judicial interpretation, given to this obligation by various jurists.

Education was essentially an act of charity or philanthropy in the good old times. Gradually, it became an 'occupation'. In fact, judicial dicta go so far as to consider it as an 'industry'. Whether or not to perceive education as a fundamental right or not has been debated for quite some time. However, it is clear that the establishment and the administration of an educational institution for the imparting of knowledge to students is an occupation, protected by Article 19(1)(g) and additionally by Article 26(a), if there is no element of profit generation. As of now, imparting education has come to be a means of livelihood for some professionals and a mission in life for some altruists.

Constitutional position of education

"Education" was a State Subject in view of the following Entry 11, placed in List II State List:- "11. Education including universities, subject to the provisions of entries 63, 64, 65 and 66 of List I and entry 25 of List III."

By the Constitution (42nd Amendment) Act 1976, the above-said Entry was directed to be deleted and instead Entry 25 in List III Concurrent List, was directed to be suitably amended so as to read as under:-

"25. Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour"

The Constitution of India has laid a directive before the state to make a provision of free and compulsory education for children below the age of fourteen years.

45. Provision for free and compulsory education for children: 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.

However, in spite of this, the state government has not been successful in providing adequate facilities of education for the under privileged children, located in the rural areas.

The 86th Constitution Amendment Act added Article 21A affirming that every child between the age of 6 and 14 years has the right to free and compulsory education.

The Supreme Court in the case Unnikrishnan vs. State of Andhra Pradesh (1993) ruled that the right to education is a fundamental right that flows from the right to life in Article 21 of the Constitution. Following this ruling, the 86th Constitution Amendment Act, 2002 added Article 21A, stating, "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 86th Amendment also modified Article 45, which now reads "The State shall endeavor to provide early childhood care and education for all children until they complete the age of 6 years."

Last year, the state introduced the Right to Education bill, seeking to effect the 86^th Constitutional amendment.

Judiciary and Education

In the judgment of Unnikrishnan, a Constitution Bench of this Court framed a scheme that governs admissions to professional colleges. This was done with a view to eliminate the evil of capitation fee and the absolute discretion, which the managements of these colleges were exercising in the matter of admission of students. The main objective was to ensure that merit prevails in the matter of admissions, both in respect of what were called "free seats" as well as in respect of "payment seats." This judgment was rendered on February 4, 1993. The scheme was to be effective from the Academic Year 1993-94 onwards.

Review Petitions were filed by several institutions against the said judgment. They were dismissed by the Constitution Bench on May 14, 1993 subject to one clarification, viz., that it shall be open to the professional colleges to admit non-resident Indian students to the extent of five percent of the total intake in a given year. These five percent seats were to be out of fifty percent payment seats.

Last year, the judgment of P.A. Inamdar and others vs. State of Maharashtra was a landmark in the field of educational law. Law reports are replete with rulings related to the education in its several aspects. Until the T.M.A Pai Foundation case, there were four oft- quoted leading cases concerning the field of education, namely, (i) Unni Krishnan v. State of Andhra Pradesh (1993) 1 SCC 645 (ii) St. Stephen's College v. University of Delhi (1992)1 SCC 558 (iii) Ahmedabad St. Xavier's College Society v. State of Gujarat (1974)1 SCC 717 and (iv) Re: Kerala Education Bill, 1957, (1958) SCR 995.

Right to Education Bill

The Right to Education Bill seeks to give effect to the 86^th Amendment of the Constitution of India.

Salient provisions:

· The State shall ensure a school in every neighbourhood

· Every school shall conform to certain minimum standards, defined in the Bill

· Government schools shall provide free education to all admitted children Private schools shall admit at least 25% of children from weaker sections; no fee shall be charged to these children

· Screening tests at the time of admission and capitation fees are prohibited for all children

· Government schools will be managed by School Management

· The National Commission for Elementary Education shall be constituted to monitor all aspects of elementary education including quality.

The Right to Education Bill prescribes the Rights of Every Child as follows:

• Every child between the age of 6 and 14 years has the right to full-time free and compulsory education in a neighbourhood school.
• Non-enrolled children, of age group 7-9 years, have the right to be admitted in an age-appropriate grade within one year of the commencement of the Act, and children, of age group 9-14 years, have the right to be provided special programmes that will enable them to attend such grade within three years.
• Children with severe or profound disability, who are unable to attend a neighbourhood school, have the right to be provided education in an appropriate environment.
• A child cannot be held back in any grade or expelled from a school till Class VIII. Any expulsion requires an order of the School Management Committee (SMC), which will be given only after all other corrective measures have been exhausted, and parents/guardians have been heard. The local authority will take steps to enroll such a child in another neighbourhood school.

The Bill also prescribes the responsibility of the State as follows:

• The State shall ensure availability of a neighbourhood school for every child within three years. In case of non-availability, free transport or free residential facilities shall be provided. The state/UT government shall determine every year the requirement of schools, facilities, and their locations; establish additional schools as required; deploy teachers and create facilities for their training.
• The State shall develop a mechanism to monitor enrolment, participation and attainment status of every child, and take corrective steps wherever required. Information in this regard will be made available in the public domain, including on an on-line basis.
• School Admissions
• State schools and fully aided schools shall provide free education to all admitted children. Partly aided schools shall provide free education to at least such proportion of admitted children to the extent that government funds its annual expenses, subject to a minimum of 25%. Unaided3 schools and special category schools shall provide free education to at least 25% students; the government shall reimburse the school to the extent of the per- child expenditure in government schools or the school fee, whichever is lower.
• No school can conduct any screening procedure of any child or parents at the time of admission.
• Children will be selected for admission in a random manner. Capitation fees are prohibited.

Provisions concerning School Management:

• All non-government schools have to be recognised by a Competent Authority or they must shut down. The Bill specifies certain norms (such as teacher-student ratio, physical infrastructure etc) to be fulfilled by all schools as a pre-requisite for being recognised.
• All State and aided schools are required to form School Management Committees (SMCs) with at least 75% of the members being parents/guardians, and the other members representing teachers, the community and the local authority. SMCs will manage the school, including the sanction of leave
• Teachers of state schools will be appointed to a specific school, and teachers already serving will be assigned to a specific school within two years. They will not be transferred from the school so assigned.
• The teacher has the duty to transact and complete the curriculum, regularly assess the learning level of each child, provide supplementary instruction if required and apprise every parent/guardian about the progress of learning and development of the child.
• Teachers are prohibited from giving private tuitions. Teachers shall not be deployed for any non- educational purpose other than census, election and disaster relief duties.

Provisions regarding Content and Process

• Schools and academic authorities formulating curriculum shall conform to the values enshrined in the Constitution. Schools should operate in a child- friendly and child- centred manner.
• No child shall be required to appear at a public examination before completing Grade VIII.

• No child shall be awarded physical punishment in any form in school.

Other Major Provisions

No person shall prevent a child from participating in elementary education. No person shall employ or engage a child in a manner that renders her a working child.

It is the responsibility of every parent/guardian to enroll his child/ward, who has attained the age of 6 years and above in a school and facilitate her completion of elementary education (till Grade VIII).

If a parent/guardian persistently defaults in discharging this responsibility, the SMC may direct him to perform compulsory community service by way of child care in the school.

Any person, who has a grievance about the establishment, provisioning and management of a school, may submit a written representation to the SMC/ local authority, which shall take appropriate action and inform the applicant within 90 days. If the applicant is unsatisfied with such action, she may submit a representation to such authority as prescribed (by the state/UT/central government), which shall take appropriate action and inform the applicant within 90 days.

The state/UT government may form a State-level Regulatory Authority for inquiring into grievances, which remain unredressed even after the steps mentioned above.

A child shall be admitted in Grade I, only after attaining the age of five years and ten months before the beginning of the academic year.

The Bill specifies penalties for persons and schools, contravening the provisions regarding capitation fees, screening tests, recognition and preventing children from participating in elementary education.

Armed with this knowledge of education laws in India, we see that the emphasis on providing education to each individual in each and every corner of the country is very apparent. Laws are clearly defined with regard to education. Then, one may well wonder why literacy levels in the country are so low. For this, the blame must be laid at the door of implementation and operation of prescribed norms.

(Was published in the Free Press Journal on 1st May 2006)