Human Rights and Right to Education

Human rights are rights inherent to all human beings, irrespective of their nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible.  Universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary international law, general principles and other sources of international law. International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups. Human rights are inalienable. They should not be taken away, except in specific situations and according to due process.  All human rights are indivisible, whether they are civil and political rights, such as the right to life, equality before the law and freedom of expression; economic, social and cultural rights, such as the rights to work, social security and education, or collective rights. The improvement of one right facilitates advancement of others. Likewise, the deprivation of one right adversely affects others.  Human rights entail both rights and obligations. States assume obligations and duties under international law to respect, to protect and to fulfill human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfill means that States must take positive action to facilitate the enjoyment of basic human rights. At the individual level, while we are entitled to human rights, we should also respect the human rights of others.  The right to education is an universal entitlement to education. This is recognized in the International Covenant on Economic, Social and Cultural Rights as a human right that includes the right to free, compulsory primary education for all, an obligation to develop secondary education accessible to all, in particular by the progressive introduction of free secondary education, as well as an obligation to develop equitable access to higher education, ideally by the progressive introduction of free higher education. Today, almost 70 million children across the world are prevented from going to school each day.  The right to education also includes a responsibility to provide basic education for individuals who have not completed primary education. In addition to these access to education provisions, the right to education encompasses the obligation to rule out discrimination at all levels of the educational system, to set minimum standards and to improve the quality of education.  International Conventions on Right to Education The right to education is reflected in following international conventions  Universal Declaration of Human Rights  Article 26 Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. Parents have a prior right to choose the kind of education that shall be given to their children. Articles 13 & 14 of the International Covenant on Economic Social and Cultural Rights “  Article 13 The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right: Primary education shall be compulsory and available free to all; Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education; Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education; Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education; The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State. Article 14 Each State Party to the present Covenant which, at the time of becoming a Party, has not been able to secure in its metropolitan territory or other territories under its jurisdiction compulsory primary education, free of charge, undertakes, within two years, to work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of compulsory education free of charge for all. Articles 28 and 29 of the Convention on the Rights of the Child  Article 28 (Right to education): All children have the right to a primary education, which should be free. Wealthy countries should help poorer countries achieve this right. Discipline in schools should respect children’s dignity. For children to benefit from education, schools must be run in an orderly way – without the use of violence. Any form of school discipline should take into account the child’s human dignity. Therefore, Governments must ensure that school administrators review their discipline policies and eliminate any discipline practices involving physical or mental violence, abuse or neglect. The Convention places a high value on education. Young people should be encouraged to reach the highest level of education of which they are capable.  Article 29 (Goals of education) : Children’s education should develop each child’s personality, talents and abilities to the fullest. It should encourage children to respect others, human rights and their own and other cultures. It should also help them learn to live peacefully, protect the environment and respect other people. Children have a particular responsibility to respect the rights their parents, and education should aim to develop respect for the values and culture of their parents. The Convention does not address such issues as school uniforms, dress codes, the singing of the national anthem or prayer in schools. It is up to Governments and school officials in each country to determine whether, in the context of their society and existing laws, such matters infringe upon other rights protected by the Convention. The Government must ensure that the human right to education “will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” The same has also been reiterated  Article 5 of Convention on the Elimination of All Forms of Racial Discrimination“  Articles 10 and 14 of Convention on the Elimination of All Forms of Discrimination Against Women.  Judicial Pronouncements on Right to Education The Constitution (Eighty Sixth Amendment) introduced Art. 21 which makes the right to education a fundamental right.  The right to education was initially not included as a fundamental right in the Constitution and was included as a directive principle under Article 45 which required the State to endeavour to provide within a period of 10 years from the commencement of the Constitution, for free and compulsory education for all children until they complete the age of 14 years. The directive in the Art. 45 was not confined merely to primary education; it extended to providing free education up to the age of 14 years, whatever the stage of education it came to. Therefore education for children of this age group should have been free, ideally speaking, at the latest by 1960. However, only fitful efforts were made by some states to pass laws according to Article 45.  A new Article has been substituted in place of Article 45 which directs the State to endeavour to provide early childhood care and education for all children until they complete the age of six years.  In Unnikrishnan, J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178, 2231.   The Supreme Court implied the right to education from the right to life and personal liberty guaranteed by Art. 21. As the Fundamental Rights and Directive Principles are complementary to each other, the content and parameters of this right were deduced in the light of Arts. 41, 45, 46. Therefore, the right to education in the context of these Directive Principles means: (a) every child has a right to free education upto the age of 14 years; (b) thereafter, his right to education is circumscribed by the limits of the economic capacity of the State and its development.  The court had emphasized that “a child (citizen) has a fundamental right to free education up to the age of 14 years.” This obligation can be discharged by the State either through governmental schools, or private schools run by non-governmental bodies, aided and recognized by the State.  The Court further ruled that a citizen has a right to call upon the State to provide educational facilities within the limits of its economic capacity and development. This does not mean that the Supreme Court was seeking to transform a Directive Principle (Art.41) into a Fundamental Right. What the Court was doing was “merely relying upon Art. 41 to illustrate the content of the right to education flowing from Art. 21.” The Court has however cautioned that just because it has relied upon some of the Directive Principles to locate the parameters of the right to education implicit in Art. 21, “it does not follow automatically that each and every obligation referred to [in the Directive Principles] gets automatically included within the purview of Art. 21. We have held the right to education to be implicit in the right to life because of its inherent fundamental importance. As a matter of fact, we have referred to Arts. 41, 45 and 46 merely to determine the parameters of the said right.”  The Supreme Court has implied the “Right to Education” as a fundamental right from Art. 21. The word ‘life’ has been held to include ‘education’ because education promotes good and dignified life.  The question arose for the first time before a two Judge Bench of the Supreme Court in Mohini Jain v. State of Karnataka, AIR 1992 SC 1858.  The Court observed that without making the right to education under Art. 41 a reality, the Fundamental Rights would remain beyond the reach of a large majority which is illiterate; the Fundamental Rights including the freedom of speech and expression and other rights guaranteed under Art. 19, cannot be fully appreciated and fully enjoyed unless a citizen is educated and is conscious of his individualistic dignity. Further, ‘life’ in Art. 21 means right to live with human dignity, “Right to life” is the compendious expression for all those rights which are basic to the dignified enjoyment of life. Thus, ruled the Court, “the right to education flows directly from the right to life,” and that the “right to education” being concomitant to the fundamental rights, “the State is under a constitutional mandate to provide educational institutions at all levels for the benefit of the citizens.” The main question before the Bench was whether it would be permissible for private but Government recognized educational institutions to charge capitation fee for the admission of the students. The Bench characterized capitation fee as “nothing but a price for selling education” and amounting to commercialization of education adversely affecting educational standards. The Court characterized institutions charging capitation fee as “teaching shops”. The concept of ‘teaching shops’ is contrary to the constitutional scheme and is wholly abhorrent to the Indian culture and heritage.”  In Mohini Jain (ibid), the court took an extremely expansive view of State obligation to provide education to everyone at all levels. The State should provide adequate number of institutions of higher and professional education as there may be need for. From a practical point of view, such an approach was hardly viable, feasible and tenable in the present day economic situation of the country, for no State has the financial wherewithal to meet public demand for professional colleges. The said Mohini Jain ruling would have placed an impossible financial burden on the State Governments to provide education to all. All private educational institutions would have closed down and only Government aided institutions would have survived.  However, The Court limited the State obligation to provide educational facilities as follows:  Every citizen has a right to free education until he completes the age of 14 years; Beyond that stage, the State obligation to provide education is subject to the “limits of the economic capacity and development” of the State. In Associated Management of Primary and Secondary Schools in Karnataka v. The State of Karnataka by its Secretary, Department of Education and Ors., 2008 (5) AIR Kar R 261. Article 21-A read with Article 19(1) (a) has been construed as giving all children the right to have primary education in a medium of instruction of their choice.  In Avinash Mehrotra v. Union of India. 2009 AIR SCW 2589. Art. 21-A has also been construed as the fundamental right of each and every child to receive education free from fear of security and safety so that children have a right to receive education in a sound and safe building.  Recently, in Deepak Rana v. State of Uttarakhand and others decided on 19 November, 2016, Writ Petition (PIL) No. 201 of 2014, Division Bench of court defined the scope of Art. 21-A.  Under the said Article, the manner in which the said obligation would be discharged by the State has been left to the State. Thus, the State may decide to provide free and compulsory education to all children of the specified age through its own schools or through Government aided schools or through unaided private schools. The question which was raised in that case was whether such a law transgresses any constitutional limitation? Thus, when the courts are required to decide whether the impugned law infringes a fundamental right, the courts need to ask the question whether the impugned law infringes a fundamental right within the limits justified by the directive principles or whether it goes beyond them. To provide for right to access education, Article 21-A was enacted to give effect to Article 45 of the Constitution. Under Article 21-A , right is given to the State to provide “free and compulsory education”. Article 21-A contemplates making of a law by the State. Thus, Article 21-A contemplates right to education flowing from the law to be made which is the 2009 Act, which is child centric and not institution centric. Thus, as stated, Article 21-A provides that the State shall provide free and compulsory education to all children of the specified age in such manner as the State may, by law, determine. The manner in which this obligation will be discharged by the State has been left to the State.  Conclusion The Right of Children to Free and Compulsory Education Act, 2009, has been enacted by the Parliament. The Act provides among other things for the right of every child who has attained the age of 6 years to be admitted in neighbourhood school and to be provided free and compulsory education. Every State is responsible for making such neighbourhood school available. All schools, whether State schools, aided or unaided private schools will now have to provide free and compulsory education up to specified percentages of the total number of children admitted. Charging of capitation fees is prohibited nor can a child or her family be subjected to any screening procedure by a school. In keeping pace with Art. 51 -A, the Act casts a duty on every parent or guardian to admit or cause to be admitted his or her child or ward, as the case may be, to elementary education in the neighbourhood school.  The fulfillment of the right to education can be assessed using the 4 A’s framework, which asserts that for education to be a meaningful right it must be available, accessible, acceptable and adaptable. The 4 A’s framework was developed by the former UN Special Reporter on the Right to Education, Katarina Tomasevski, under right to education project.  Availability Funded by Governments, education is universal, free and compulsory. There should be proper infrastructure and facilities in place with adequate books and materials for students. Buildings should meet both safety and sanitation standards, such as having clean drinking water. Active recruitment, proper training and appropriate retention methods should ensure that enough qualified staff is available at each school.  Accessibility All children should have equal access to school services, regardless of gender, race, religion, ethnicity or socio-economic status. Efforts should be made to ensure the inclusion of marginalized groups including children of refugees, the homeless or those with disabilities in short there should be universal access to education i.e. access to all. There should be no forms of segregation or denial of access to any students. This includes ensuring that proper laws are in place against any child labour or exploitation to prevent children from obtaining primary or secondary education. Schools must be within a reasonable distance for children within the community, otherwise transportation should be provided to students, particularly those that might live in rural areas, to ensure ways to school are safe and convenient. Education should be affordable to all, with textbooks, supplies and uniforms provided to students at no additional costs.  Acceptability The quality of education provided should be free of discrimination, relevant and culturally appropriate for all students. Students should not be expected to conform to any specific religious or ideological views. Methods of teaching should be objective and unbiased and material available should reflect a wide array of ideas and beliefs. Health and safety should be emphasized within schools including the elimination of any forms of corporal punishment. Professionalism of staff and teachers should be maintained.  Adaptability Educational programs should be flexible and able to adjust according to societal changes and the needs of the community. Observance of religious or cultural holidays should be respected by schools in order to accommodate students, along with providing adequate care to those students with disabilities. Though the Right to Education has been included as a fundamental right and Right of Children to Free and Compulsory Education Act, 2009 has been enacted by the Parliament but still it is required to render all efforts with full dedication and involvement.  The teaching and State Governments apathy towards the infrastructure facilities in the schools and no effective monitoring is creating the hurdles in achieving the very object of Right to Education Act. Elementary education being made free and compulsory remains inaccessible to the poor as books could not pay for the food and clothes. A child is denied of the fundamental right because of poverty. In the economic disparity denial of human rights to weak becomes a norm.  The teachers who owe the responsibility to teach should also inculcate the values of education in the children. They need to establish the values in a humane society and must work towards this and at the grass-root level.  Right to education can be described as the most fundamental right and it stands above other rights as one’s ability to enforce one’s fundamental and human rights flows from one’s education.

Author Name: Dr. Anand Paliwal