Right of Children to Free and Compulsory Education

"This article explains the Right of Children to Free and Compulsory Education"

        Constitution of India confers upon its citizens rights. When we talk about Right to   Education Act one cannot refer it without having to refer to the Constitution. It is by virtue of the Eighty- Sixth Amendment to the Constitution Right to Education was inserted by adding Article 21-A , a Fundamental Right. This particular provision of the Constitution gave birth to an act called The Right of Children to Free and Compulsory Education in the year 2009 and which was implemented in the year 2010.

         When we talk about private schools who can get into privately owned schools only whose parents can afford to get them into private schools so the other children who cannot get themselves into a privately owned schools them end up in studying government schools. Thus by the implementation of this Act 25% seats are reserved in the private schools at the entry level for those children belonging to the “disadvantaged”( Schedule Caste, Schedule Tribe, socially and educationally and economically backward class, or such other group having disadvantage owing to social, cultural, economic, geographic, linguistic, gender which the govt may specify ) and “weaker” sections (whose annual income is lesser than a specified amount) School is defined in the Act as any recognized school imparting elementary education and also includes

Category 1. Schools established , owned or controlled by the appropriate govt. or local authority  ;

Category 2. Aided school receiving aids or grants to meet whole or part of its expenses from the appropriate govt. or local authority;

Category 3. School belonging to a specific category;(kendriya vidyalaya,navodhaya vidyalaya, sainik school, or anyother schools having distinct character notified by the appropriate govt.  )

Category 4. Unaided schools not receiving aids or grants to meet whole or part of its expenses from the appropriate govt. or local authority;

What is the need of this particular Act?

Education in India was not within the reach of common people, initially; India was a country which believed that an extra member in the family is an extra hand for earning. Financial constraint was one of the reasons behind children not getting education, practice of untouchability in schools, lack of toilets etc. lead to drop out from schools.

As per the Act, every child who is between the age group of six and fourteen should get free and compulsory education in the neighbourhood school till the child completes his/her elementary education. The title of the act “The Right of Children to Free and Compulsory Education” itself conveys us that free education is ensured to children. The act states “that no child needs to pay any sum by the way of fees or expenses or charges which will prohibit the child from pursuing his/her primary education”. In other words it means that the parent’s inability to get their children elementary education should not be by the reason of one’s financial incapacity, thus providing an avenue for those children to get their primary education.  
The Act also deals

1. issues relation to children with disabilities.
2. issues relating to children not admitted to schools even after their attainment of six years or admitted but not able to complete the elementary education. In that case depending upon the child's age the child can be put the respective class they also have a right to receive special classes to be on par with the others students in their classes in which case these children can get elementary education(1st class to 8th class ) even after completion of fourteen years.
3. wherein a child is not able to complete his /her elementary education as that school does not have the provision to complete elementary education the act says that the child have a right to get transferred to those schools which has the provision for completion of the child's elementary education but the child cannot seek to get himself or herself transferred to schools of specified category and unaided schools. When the child is moved from one place to another whatever the reason be either from one state to another or within the state itself the child have a right to seek transfer to  a school but the school not being a school belonging to specified category or unaided schools to complete his/ her elementary education. The Head teacher or the in charge teacher should make the transfer certificate available at the earliest instance. Delay in getting Transfer certificates cannot be a ground for either delaying or denying the admission to the child. If it is found that the head of the school or in charge of the school delayed in providing the transfer certificates then disciplinary proceedings can be initiated against him or her under the service rules applicable to him or her.

Duties of the government, local bodies :

When we are discussing about any act we should also look into the duties of govt. to know what all we can expect them to do in reaching the objectives of the act. The first and foremost duty which is cast upon the govt. is that if there is no school in the neighbourhood within a period of three years from the commencement of the Act a school should be established.

Responsibilities of the schools :

With regard to the responsibilities of the schools- to what extent are the schools responsible to provide free and compulsory elementary education:

Schools belonging to the 1st category- schools should provide free and compulsory elementary education to all the children admitted.

2nd category - schools shall provide free and compulsory education to such proportion of children admitted therein as it annual recurring aid or grants, so received, subjected to receive a minimum of 25%

3rd and 4th category- the schools shall admit in class I to the extent of at least 25% of the strength of that class, children from weaker and disadvantaged class in the neighbourhood and provide free and compulsory elementary education till its completion. If the schools provide for pre-school education then the same procedure has to be followed with regard to its admission.

With regard to the 4th category schools,Government shall reimburse the expenditure incurred by it to the extent of per child expenses incurred by the state or the actual amount charged from the child, whichever is less.

The Act also provide for punishments for violation of its provisions. Section 13(1) of the act says that no person shall while admitting a child shall collect capitation fee or conduct screening test neither for the child nor to the child's parents. If there is a contravention of the above said provision say that the school or person has collected capitation fee or has conducted screening test then the person or the school shall be punishable with fine which may extend to ten times that of the capitation fee collected in case of the screening test fine of rupees twenty thousand and for subsequent violations fifty thousand each. Age proof of the children shall be the birth certificate issued or such other documents which the appropriate govt. may prescribe. No child shall be admitted when there is no age proof submitted. Child shall be admitted at the commencement of the academic year or if there is an extended period then within that extended period. Next question which comes to our mind when we read the above sentence is that can a child be denied admission solely on the ground that the child sought admission subsequent to the extended period the act has an affirmative answer and also states that such child admitted shall complete his/her education as per the appropriate Governments prescription. Act also made it mandatory that the child should not be held back or expelled until he/she completes elementary education.

The act also deals with manhandling of children in the schools whoever gives physical punishment or mental harassment shall be liable to undergo disciplinary proceedings as per their service rules applicable to them. Thus children are no more tortured for silly reasons like not eating lunch not finishing his/her homework.

Does a school need a recognition certificate? And what are its implications?

Schools other than the ones belonging to the 1st category should get a certificate of recognition from the proper authority, this applies to schools established and started functioning after the commencement of the act provided they follow what is required to be followed by them which is given in the schedule. If there is any contravention them the govt. by an order in writing shall withdraw the recognition in writing and also the order shall contain where the children are to be admitted. Audi alteram partem should be followed which is the natural law principle nobody should be unheard. Once the recognition is removed no school can function if they function they are punishable with a fine which may extend to one lakh rupees and for the subsequent contravention rupees ten thousand for each day.

So what happens to those schools that are established prior to the act?

Should they not be monitored is the question which strikes our mind the act also mentions about that as well. Schools established and started functioning prior to the act should meet the requirements of law within a period of three years from the commencement of the act if they do not fulfil then the law takes its course and the proper authority can cancel the recognition after it will have same effects as that of the school established after the commencement of the act the school cannot function and even if they function the contravention will amount to a punishment of fine which may extend to one lakh and for the subsequent contravention ten thousand for each day.

All schools other than the schools which belong to the 4th category must have a committee called school management committee constituting elected members from local authority, parents or guardian of the children so admitted  and teachers three- fourth of its members should be parents or guardian, adequate representation should be given to parents belonging to weaker and disadvantaged sections. The act also stresses the role of women, 50% of the committee should be women. Now what is the role of the committee they are:

1. Monitoring the working of the school
2. Prepare and recommend school development activities
3. Monitor the utilisation of the grants received by the appropriate govt. The committee shall also prepare developmental plan.

Qualification of the teacher:

They should have the minimum qualification which is laid as per the academic authority. Provided if there are no adequate number of people who has the said minimum qualification or if there are no adequate institutions to provide training in the state then the minimum qualification shall be relaxed for a period of 5yrs not more than that. And if the teachers so appointed have not got the minimum qualification then the teacher should get that qualification within a period of five years. Ratio should be in confirmation with the schedule. Teachers should perform the following functions:

1. Maintain regularity and punctuality in attending schools
2. Conduct and complete the curriculum
3. Complete the entire curriculum within the specified time
4. Assess the learning ability of each child and accordingly supplement additional instructions if any required
5. Hold regular meetings with parents and guardian and appraise them with the regularity of attendance, ability to learn, progress made in learning and any other information about the child. Teacher committing default will undergo disciplinary action as per the service rules on giving her with reasonable opportunity.

If the school does not satisfy the teacher –pupil ratio then within a period of six months from the date of commencement of the act the ratio should be met. A teacher appointed shall not be allowed for non – educational purposes other than for census purpose, disaster relief duties or in relation to election of local authority, state legislature or parliament.

Curriculum:

Childs development should be the centre of all. He/she should be given possibility exposure, and in all possible cases the child should be taught in his/her mother language.

By virtue of Commissions for protection of Childs Right Act 2005, two bodies where established national commission for protection of child rights and state commission for protection of child’s right. The said act lays down the functions that are to be performed .apart from the functions conferred by the parent act the right to free education act confers certain other functions like:

1. Examine and review the safeguards for rights provided

2. Inquire into complaints relating to the right to free and compulsory education

If a particular state has not been constituted then by means of this act a state commission for protection of child rights can be established and confer them the functions.

How to make Complaints:

When one has a grievance with respect to the right to free education act who is the proper authority to be approached would be our next question as the act cannot function if it does not have a redressal mechanism. Section 31. Says that not necessarily one should approach the commissions to get justice they can also by means of a written complaint to the local authority he can get remedied. The local authority should dispose the matter in three months. Next question to be answered is .Is there a provision of appeal. Yes there is. If the party is aggrieved by the decision of the local authority then the aggrieved part can go in for an appeal to the state commission for protection of child rights as a single right of appeal is more or less a universal requirement. It is based on the principle that all men are fallible and there are chances people deciding can commit mistake *1 . There is also provision for both the central government and the state government to constitute by means of a notification by the respective govt. national advisory council and state advisory council in order to help the respective govt. to help in the implementation of the provisions of the act. The constitution of which should not be exceeding fifteen in number and they should be people who are having experience and practical experience in the field of elementary education.

It is also mentioned that the punishment mentioned above that is with regard to the capitation and conducting screening test it cannot be done without the previous sanction of the government.

Schedule:

Schedule consists of information like how many teachers should attend how many children from first to fifth class, sixth to eight. Schedule also says that there should be separate toilets for boys and girls, a kitchen for mid-day meal scheme, infrastructure, playground under the heading buildings. Library facility should be available with newspaper facility, magazines, and story books.

Case laws:

Society for Unaided private school of Rajasthan V Union Of India (2012) 6 SCC:

This is a case wherein the constitutional validity of the right to free and compulsory education Act especially the provisions which mandate the schools to reserve 25% seats i.e Section 12 (1)(c)and with regard to the provision to get recognition was challenged on various grounds stating that the provision is violative of  Article 19 (1)(g). Whereas the minority schools argued that their fundamental right under Article30 (1)to establish and administer educational intuitions. In the majority judgement J. Kapadia and J.Swatander Kumar held that the act is applicable to all the schools except the minority unaided schools. The courts also held that the act is not applicable to madrasas and to vedhalayas which purports religious education. The court held that it is the duty on the part of the state to provide for free and  compulsory education and if the provisions like the above said are thrusted on them these minority unaided institutions will lose its characteristics thus removing the unaided minority schools from the purview of section 12(1)(c).

Kavi Bharathi Vidalaya –V- The Special officer 2013

Whether the state or the school fee determination committee has any power to interfere with the fees collected by the private unaided schools beyond school hours for the purpose and when they are totally unconnected to the curriculum? The court held that the state or the school fee determination committee has the power to interfere only when the course is connected with the course of study and made part of the curriculum or integral part of the students’ performance. The state govt. cannot interfere in extracurricular merely because the activities are conducted in the unaided school premises. When it is at the option of the student to choose to attend the course or not it becomes voluntary payment. Thus the fee collected will not come within the purview 2(e) of Tamil Nadu schools (regulation of collection) act 2009 so as to enable the committee to regulate the same.

Environment and consumer –V- Delhi administration and others (2012) 10 SCC 197

A petition filed by invoking article 32 of the Constitution seeking directions to improve the conditions of various schools so that the objective of the right to free and compulsory education act will be achieved  and the petition was filed in the year 2004.  While the matter was pending the said act was passed. The Apex court declared that all schools irrespective of whether they are state owned privately owned minority or non- minority schools they should have toilet facility for boys and girls, drinking water facilities, proper class room facility ,appointment of teaching and non- teaching staff if they are not available already within six months from the date of passing of this judgement (3rd October 2012) the judgement also makes it clear that if these directions are not fully implemented with , aggrieved can be knock the doors of this court appropriate orders.

"Author : Dhanya V, Final Year Law Student"