The Right to Education

The Act

Section 1. Short title, extent, application and commencement, applying to the whole of India, with a proviso as to Jammu and Kashmir omitted in 2019.

Section 2, definitions. Capitation fee; child, a male or female child of six to fourteen; CHILD BELONGING TO DISADVANTAGED GROUP, by reason of caste, social, cultural, economic, geographical or linguistic identity, of disability, or of such other factor as the appropriate Government may notify; CHILD BELONGING TO WEAKER SECTION, whose parent or guardian's annual income is below the limit specified; child with disability; elementary education, from class I to class VIII; local authority; NEIGHBOURHOOD SCHOOL; and, in clause (n), the FOUR CATEGORIES OF SCHOOL, being a school established, owned or controlled by the appropriate Government or a local authority; an AIDED school receiving aid or grants to meet whole or part of its expenses; a SPECIFIED CATEGORY school, such as a Kendriya Vidyalaya, Navodaya Vidyalaya or Sainik School; and an UNAIDED school not receiving any kind of aid or grants.

Learn clause (n). Every question about the reach of the Act is a question about which of those four a school is.

Section 3, the right. Every child of six to fourteen, including a child of a disadvantaged group or a weaker section, has the right to free and compulsory education in a NEIGHBOURHOOD SCHOOL till the completion of elementary education; and no child shall be liable to pay any fee, charge or expense that may prevent pursuing and completing it. Sub-section (3), inserted in 2012, gives a child with disability the right to free and compulsory education in accordance with the disability legislation, with a right to opt for home-based education for a child with severe or multiple disability.

Section 4, the child not admitted or not completed. A child above six who has not been admitted, or who has not completed elementary education, shall be admitted to a class APPROPRIATE TO HIS AGE, with a right to SPECIAL TRAINING to be at par, and a right to free education until completion even after fourteen.

Section 5. A right of transfer to another school, and the transfer certificate is not to be a ground for delaying or denying admission.

Sections 6 to 11, the duties. The appropriate Government and local authority to ESTABLISH a neighbourhood school within the prescribed area and period; the sharing of financial and other responsibilities between the Central and State Governments; the duties of the appropriate Government, including providing free and compulsory education, ensuring compulsory admission, attendance and completion, ensuring the availability of a neighbourhood school, ensuring that a child of a weaker section or disadvantaged group is not discriminated against, providing infrastructure, teachers, training and quality; the duties of the local authority, including maintaining records of children up to fourteen; the DUTY OF A PARENT to admit or cause to be admitted a child to elementary education in a neighbourhood school; and provision for PRE-SCHOOL education for children above three, which is an endeavour and not a duty.

Section 12, the twenty-five per cent. A Government school provides free education to all children admitted; an AIDED school provides it to that proportion of children admitted as its annual recurring aid bears to its annual recurring expenses, SUBJECT TO A MINIMUM OF TWENTY-FIVE PER CENT; and a SPECIFIED CATEGORY school and an UNAIDED school shall admit in class I, to the extent of at least TWENTY-FIVE PER CENT of the strength of that class, children of weaker sections and disadvantaged groups in the neighbourhood, and provide them free and compulsory elementary education till completion. The school is REIMBURSED to the extent of per-child expenditure incurred by the State or the actual amount charged, whichever is LESS, and no reimbursement is made where the school is already under an obligation to provide free education by reason of land, building, equipment or other facilities received free or at a concession.

Section 13. No capitation fee, and no SCREENING PROCEDURE for the child or the parents. A school receiving capitation fee is punishable with a fine of up to TEN TIMES the fee; one that subjects a child to screening, with up to twenty-five thousand rupees for a first contravention and fifty thousand for each subsequent one.

Sections 14 to 17. Proof of age by the birth certificate or such other prescribed document, and NO CHILD SHALL BE DENIED ADMISSION FOR LACK OF AGE PROOF; no denial of admission, and admission at any time in the year; examination and holding back, section 16 as substituted in 2019 providing for a regular examination in the fifth and eighth classes, additional instruction and a re-examination within two months on failure, and a power in the appropriate Government to allow schools to hold a child back in either class; and section 17, NO CHILD SHALL BE SUBJECTED TO PHYSICAL PUNISHMENT OR MENTAL HARASSMENT, with disciplinary action under the service rules for contravention.

Note the 2019 change to section 16. As enacted, section 16 forbade holding back a child in any class till the completion of elementary education, which is the no-detention policy. The amendment of 2019 restored examinations in classes five and eight and permitted holding back subject to conditions. The argument on both sides, that automatic promotion protects a child from being pushed out and that it removes any incentive to learn, is worth two sentences.

Sections 18 to 20. No school to be established or to function without a certificate of RECOGNITION, with withdrawal on contravention after notice and hearing, and penalties for running a school without or after withdrawal of recognition; the norms and standards in the SCHEDULE, covering the number of teachers, the building, working days, instructional hours, the teacher's working hours, teaching learning equipment, the library and play material; and the power to amend the Schedule.

Sections 21 to 22. A SCHOOL MANAGEMENT COMMITTEE in every school other than an unaided school, of elected representatives of the local authority, parents and teachers, of which at least THREE FOURTHS shall be parents or guardians, with proportionate representation for parents of disadvantaged groups and weaker sections, and FIFTY PER CENT women; and a School Development Plan prepared by it.

Sections 23 to 28, teachers. Qualifications laid down by the academic authority the Central Government notifies; duties of teachers, including regular attendance, completing the curriculum, assessing learning ability and holding parents' meetings, with a grievance mechanism; the PUPIL-TEACHER RATIO in the Schedule to be maintained in EACH SCHOOL, with no teacher deployed elsewhere; vacancies not to exceed ten per cent; no deployment for NON-EDUCATIONAL purposes other than the decennial census, disaster relief and elections; and NO PRIVATE TUITION by a teacher.

Sections 29 and 30. Curriculum and evaluation laid down by an academic authority, in conformity with the values of the Constitution, for the all-round development of the child, through activity, discovery and exploration in a child-friendly manner, in the child's MOTHER TONGUE as far as practicable, making the child free of fear, trauma and anxiety, and by comprehensive and continuous evaluation; and no child to be required to pass any BOARD EXAMINATION till completion of elementary education, with a certificate on completion.

Sections 31 to 34. MONITORING by the National and State Commissions for Protection of Child Rights, which examine and review the safeguards, inquire into complaints and exercise the powers of those Commissions; redressal of grievances by written complaint to the LOCAL AUTHORITY, to be decided within three months after a hearing, with an appeal to the State Commission; and the National and State Advisory Councils of up to fifteen and fifteen members respectively, to advise on implementation.

Sections 35 to 39. The power of the Central Government to issue guidelines and directions to the State Government and local authority; previous SANCTION for prosecution of an offence under section 13(2), 18(5) or 19(5), by an officer authorised by the appropriate Government; protection of action taken in good faith; rules by the appropriate Government, laid before the legislature; and removal of difficulties by the Central Government within three years.

Society for Un-aided Private Schools

Facts. Society for Un-aided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1, decided 12 April 2012 by Kapadia CJ and Swatanter Kumar J, with Radhakrishnan J dissenting. Associations of private unaided schools, including minority schools, challenged section 12(1)(c) under articles 19(1)(g) and 30(1).

Held, by the majority. The Act is constitutionally valid and applies to a school established, owned or controlled by the appropriate Government or a local authority; to an AIDED school INCLUDING AN AIDED MINORITY SCHOOL; to a specified-category school; and to an UNAIDED NON-MINORITY school. But sections 12(1)(c) and 18(3) infringe the freedom guaranteed to UNAIDED MINORITY schools by article 30(1), and on the principle of severability the Act does not apply to them. The judgment was to operate from the academic year 2012-13, and admissions already given by unaided minority schools were not to be reopened.

The dissent. Radhakrishnan J held that article 21A casts the obligation on the STATE and not on unaided institutions of either kind, and that section 12(1)(c) could be given effect against them only on principles of voluntariness, autonomy and consensus, not by compulsion or the threat of non-recognition.

Pramati

Facts. Pramati Educational and Cultural Trust v. Union of India, (2014) 8 SCC 1, decided 6 May 2014 by a Bench of FIVE: Lodha CJ with Patnaik, Mukhopadhaya, Dipak Misra and Kalifulla JJ. The questions were whether the Ninety-third Amendment inserting article 15(5) and the Eighty-sixth Amendment inserting article 21A damaged the basic structure, and whether the Act of 2009 applied to minority schools, aided as well as unaided.

Held. Both amendments are valid and do not alter the basic structure, and the Act is not ultra vires article 19(1)(g). But the Act, in so far as it applies to MINORITY SCHOOLS, AIDED OR UNAIDED, covered by article 30(1), is ultra vires the Constitution; and to that extent the 2012 holding that the Act applies to aided minority schools is NOT CORRECT.

So the position today. The Act applies to Government schools, aided NON-MINORITY schools, specified-category schools and unaided NON-MINORITY schools. It does not apply to any minority school of either kind.

Why it matters, and the criticism. It is the clearest illustration in this module of article 30(1) operating as a limit on a social welfare statute. The criticism is that a school's exemption from a child's fundamental right now turns on the identity of its management, and that the exemption creates an incentive to seek minority status. State it, and state the answer: that article 30(1) is itself a fundamental right and that the Court has consistently refused to subordinate it, as in [Articles 29 and 30: The Minority's Educational Rights].

Where the Act falls short

It stops at fourteen. Article 21A's range is six to fourteen. Secondary education is outside it, and fourteen is precisely the age at which child marriage and adolescent labour begin.

And it starts at six. Article 45's early childhood care and education is a Directive Principle, and section 11 makes pre-school an ENDEAVOUR of the appropriate Government rather than a duty.

The quality question. The Act is drafted in terms of inputs, the Schedule's teachers, buildings, working days and hours, and section 29's curriculum. Learning outcomes are not an obligation on anybody, and the surveys that measure them are not statutory.

The Schedule's norms are not met. Pupil-teacher ratio, teacher vacancies and infrastructure remain short in many States, and section 25's three-year deadline passed long ago.

Section 12(1)(c) in practice. Reimbursement at the LESSER of the State's per-child expenditure and the fee charged means a school with a high fee is under-reimbursed; and admission of a child of a weaker section into a school whose other parents pay many times the reimbursed amount raises questions of segregation within the school that no provision addresses.

And section 32's remedy is thin. A complaint to the local authority, decided in three months, with an appeal to the State Commission, whose orders are recommendations.

A worked example

A private unaided school run by a linguistic minority trust, charging a high fee, refuses admission to a child of a weaker section under section 12(1)(c), and separately holds a written test for admission to class I.

Does section 12(1)(c) apply to it? No. After Pramati, the Act does not apply to a minority school, aided or unaided, covered by article 30(1). The school must, however, be a minority institution in fact and not merely by assertion, which is the T.M.A. Pai and St. Stephen's question worked in [Articles 29 and 30: The Minority's Educational Rights].

And the written test? Section 13(1) forbids a screening procedure. But section 13 is part of the Act, and after Pramati the whole Act does not apply to it. So the answer is that neither obligation binds it, which is the criticism of Pramati in a sentence.

Change one fact: the trust is not a minority. Then section 12(1)(c) applies, twenty-five per cent of the strength of class I must go to children of weaker sections and disadvantaged groups in the neighbourhood, and the school is reimbursed at the LESSER of the per-child expenditure of the State and the fee it charges. The screening test attracts a fine of up to twenty-five thousand rupees for a first contravention under section 13(2)(b).

Change another: it received land at a concession. Then the proviso to section 12(2) applies and it gets no reimbursement, because it is already under an obligation to provide free education by reason of the facilities received.

And the parent's remedy? Section 32: a written complaint to the LOCAL AUTHORITY, decided within three months after a hearing, with an appeal to the State Commission for Protection of Child Rights.

What this does NOT mean

It does not mean the Act reaches every school. After Pramati it does not apply to any minority school, aided or unaided.

It does not mean education is free after fourteen. Article 21A stops there, and Unni Krishnan subjected the rest to the State's economic capacity.

It does not mean a child may be refused for want of documents. Section 14(2) says no child shall be denied admission for lack of age proof, and section 15 requires admission at any time in the year.

And it does not mean no-detention is still the law. Section 16 was substituted in 2019 to restore examinations in classes five and eight and to permit holding back subject to conditions.

Quick revision

Mohini Jain 1992: the right to education is concomitant to Part III and flows from article 21; capitation fee arbitrary. Unni Krishnan 1993, five judges: free education UP TO FOURTEEN as of right, and beyond that subject to the economic capacity of the State, from articles 21, 41 and 45. 86th Amendment 2002: article 21A, article 45 substituted, article 51A(k) added. Act 35 of 2009, in force 1 April 2010.

s.2(n) FOUR CATEGORIES: government, aided, specified category, and unaided. s.3 free and compulsory education six to fourteen in a NEIGHBOURHOOD school, no fee, charge or expense preventing completion; s.3(3) children with disability. s.4 age-appropriate class and SPECIAL TRAINING for a child not admitted or not completed, free until completion even after fourteen. s.5 transfer. ss.6 to 11 duties of the appropriate Government, the local authority and the PARENT, and pre-school as an endeavour. s.12 aided schools in proportion to aid subject to a MINIMUM OF TWENTY-FIVE PER CENT; specified-category and UNAIDED schools at least TWENTY-FIVE PER CENT of class I from weaker sections and disadvantaged groups of the neighbourhood, reimbursed at the LESSER of per-child expenditure and the fee, and NOT reimbursed where land or facilities were received free or at concession.

s.13 no capitation fee, ten times the fee; no SCREENING, twenty-five thousand and fifty thousand rupees. s.14 no denial for want of age proof. s.15 admission at any time. s.16 as substituted in 2019, examinations in classes five and eight, re-examination in two months, holding back permitted. s.17 no physical punishment or mental harassment. ss.18 to 20 recognition, the Schedule's norms, amendment. s.21 School Management Committee, three fourths parents, fifty per cent women.

ss.23 to 28 teachers, PUPIL-TEACHER RATIO per school, vacancies under ten per cent, no non-educational deployment except census, disaster relief and elections, and NO PRIVATE TUITION. ss.29 and 30 curriculum, mother tongue as far as practicable, no board examination till completion. ss.31 to 34 monitoring by the Commissions, grievance to the LOCAL AUTHORITY in three months with appeal, and the Advisory Councils. ss.35 to 39 directions, sanction for prosecution, good faith, rules, and removal of difficulties.

Society for Un-aided Private Schools 2012: the Act valid and applicable to government, aided including aided minority, specified category and unaided NON-minority schools; ss.12(1)(c) and 18(3) inapplicable to unaided MINORITY schools under article 30(1); Radhakrishnan J dissenting that article 21A binds the STATE alone. Pramati 2014, five judges: the 86th and 93rd Amendments valid and not basic-structure violations; the Act ultra vires so far as it applies to MINORITY schools, AIDED OR UNAIDED, and the 2012 holding as to aided minority schools not correct.

Test yourself

1. How did education become a fundamental right before article 21A? Through Mohini Jain in 1992, which held the right to education concomitant to the rights in Part III and flowing from article 21, and Unni Krishnan in 1993, which held that every child has a right to free education up to fourteen and that beyond that the right is subject to the economic capacity and development of the State, reading articles 21, 41 and 45 together. The Eighty-sixth Amendment 2002 then gave it a text.

2. State section 12(1)(c) and the reimbursement rule. A specified-category school and an unaided school shall admit in class I at least twenty-five per cent of the strength of that class from children of weaker sections and disadvantaged groups in the neighbourhood and give them free and compulsory elementary education till completion. The school is reimbursed at the per-child expenditure incurred by the State or the amount it charges, WHICHEVER IS LESS, and gets nothing where it is already bound to provide free education by reason of land, building, equipment or other facilities received free or at a concession.

3. Set out the two judgments on section 12(1)(c) and the present position. In Society for Un-aided Private Schools of Rajasthan (2012) the majority upheld the Act and applied it to government, aided including aided minority, specified-category and unaided non-minority schools, holding sections 12(1)(c) and 18(3) inapplicable to unaided minority schools under article 30(1). In Pramati (2014) a Bench of five held the Act ultra vires so far as it applies to minority schools, aided or unaided, and said the earlier holding as to aided minority schools was not correct. So the Act does not apply to any minority school.

4. Name four obligations the Act imposes on a school. No capitation fee and no screening procedure, section 13; admission at any time in the year and no denial for want of age proof, sections 14 and 15; no physical punishment or mental harassment, section 17; recognition and compliance with the Schedule's norms, sections 18 to 20; a School Management Committee with three fourths parents and fifty per cent women, section 21; and the pupil-teacher ratio, no non-educational deployment and no private tuition, sections 25, 27 and 28.

5. State three respects in which the Act falls short. It stops at fourteen and begins at six, so secondary education and pre-school are outside the right, section 11 making pre-school only an endeavour; it is drafted in terms of inputs, so no learning outcome is anybody's obligation; and its remedy under section 32 is a complaint to the local authority with an appeal to a Commission whose orders are recommendations.