Right to Education for children between 6-14 years is guaranteed by law. But today in India officially 13 states and according to NGOs 22 states did not initiate process of implementation. By April 1, 2011 only six states and seven Union Territories notified the Act and made rules that too in the last quarter of the year. The law designated National Commission for Protection of Child Rights as monitoring agency, but it lacks any power to do justice. There is a shortage of teachers in our country and which has not been looked upon yet. Provision of free and compulsory education to all children until they complete the age of 14 years is a Directive Principle of State policy of the Constitution. Right to education is not stated expressly as a fundamental right in Part III. Thus Court has, however, not followed the rule that unless a right is expressly stated as a fundamental right, it cannot be treated as one. Freedom of press is not expressly mentioned in part III, yet it has been read into and inferred from the freedom of speech and expression and from Article 21 more particularly.
Among the international conventions, the Child Rights Convention of 1989 emphasizes the right to education as a basic requirement to protect the childhood and prevent the economic exploitation of the children . In Bandhu Mukti Morcha v. Union of India, and M.C. Mehta v. State of Tamilnadu India’s commitment to the Child Rights Convention was referred to by the Supreme Court.
Imparting primary education was left to the parents till 2002, though it was part of directive principle of state policy. In Unnikrishnan Vs State of Andhra Pradesh, the Supreme Court elevated the status of right to primary education from a mere directive principle of state policy to the fundamental right. The apex court chose to overrule its own judgment in Unnikrishnan case in T.M.A. Pai Foundation v State of Karnataka where it held that primary education is a fundamental right. While the state assumed the responsibility of imparting primary education to all children of 6-14 age group, the higher education is thrown open to private institutions. It found a difference in the context of private institutions that are charging capitation fees from the students. Article 21A is added by 86th Amendment Act in 2002, which says: “The State shall provide free and compulsory Education to all children of the age of six to fourteen years “ .The Supreme Court gave a very clear suggestion in Unnikrishnan judgment in 1993, that education was a fundamental right for all children up to 14 years. Though it is a very positive and progressive step to guarantee the fundamental right to education the modalities and substantial aspect of it are totally left to the discretion of the state which has to make law to fulfill this obligation.
The children were given a right to get educated. The law envisaged by the state should not convert such a right into a duty. The compulsion to educate children is on the state and not on the children or their parents. It may be a moral duty on their part, but legally speaking, it is the duty of the state. It is well indicated by 86th Amendment to the Constitution by which Article 51A (k) has been incorporated where another fundamental duty is added stating ‘a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years’. After much delay and several deliberations the bill is passed and notified. Though the Education is in concurrent list of the Constitution giving states an equal role, the real power is concentrated more in Center. While the government schools are day by day starved by lack of financial support, the private schools have expanded their existence even in rural areas. The financial capacity alone would decide the quality of education of the child, practically leaving no choice for them. The dream of equitable and equal education under Common School System may remain a dream within the present scenario.
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