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The Right to Free and Compulsory Education under Indian Law

The Right to Free and Compulsory Education under Indian Law

The Indian education system in the Primordial Period

Indian society has always given importance to education for the overall development of every person who wants to live a civilized life and become a better human being, be a good resource person who can contribute something valuable to enlighten the peoples who are living around them.

When the world had no proper educational institution or learning centre, India had universities like Nalanda and Takshila where thousands of scholars used to come from around the world to get an education. These universities were built in the 5th century when most human civilizations were living in caves and were fighting with each other to establish their dominance.

Buddhism started in India 2600 years ago and the eightfold path doctrine taught by Buddhism has spread to most southern and southeast nations, Today, It is the most widely practised religion around the world

When education for women was most difficult and they had few rights to enjoy, had to face many social, economic, patriarchal atrocity in society. Same time names like Ghosha, Apala, Indrani, and Lopamudra women scholars in Vedic times had given their imprint on Indian culture and tradition.

They were given access to education and the freedom to live their own life. This reminds us that India’s ancestors knew the importance of imparting the right educational values among its people. India had a Gurukul system of education where the focus was made on the development of the individualistic personalities of students. Stress was given both to the physical and mental development of students.

Even Lord Rama had to go to the jungle to attain education under the guidance of his Guru (Teacher ) Vashishath who was known as a  Saptarishi. This shows that India has always been a place of learning from its ancient times.

The Medieval period has been ruled by many brave Muslim rulers such as Akabar and Humaunyu, and Aurangzeb. These rulers too understood the importance of education. Akabar Established the institution where, grammar, Philosophy, Astronomy, and Persian Arabic were taught. Humayun established the institution for the study of Astronomy and Geography in Delhi.

Evolution of the Modern Education System In India

Indian education got a modern look during 200 years of British rule when the colonial government introduced the English education system. Such as Macaulay’s minute plan and woods dispatch act 1854 got introduced in which education in college was imparted in  English and the vernacular at the primary level. The charter act of 1813, officially laid a broader plan of education in India. It gave responsibility to East India Company to accept the authority of imparting education to the Indian masses.

Raja Ram Moha Rai, Ishwarchand Vidhya Sagar Dayanand Saraswati, and Savitribai Phule were renowned personalities who sacrificed their life into enlightening the Indian masses and supported causes such as girl’s education and their empowerment and their persistent effort to the abolition of Sati Tradition which claimed many innocent lives for centuries and the abolition of child marriage.

The architect of the Indian constitution Dr Baba Saheb Ambedkar has said that education is like a movement. It will not be fruitful unless it fulfils its objective as real education generates means of livelihood for humanity and also an opportunity for marginalized communities to come out of incessant poverty and get respectable social status.

The aim of primary education should be that every child who enters primary-level schooling leaves the only at phase when he becomes literate and continues to be literate for the rest of his life. We find that out of every hundred children who enter a primary school only eighteen reach the fourth standard, the remaining 82 get trapped in a state of illiteracy.

Gandhiji said the aim of primary education would include the elementary principles of sanitation, hygiene and nutrition apart from compulsory physical training. This method of education would make students strong, confident and useful to their parents and society.

Education in the Millennial period

Education got a major shift from 1990 onwards when the age of computers and media got space in Indian society. Remote and distance learning got a fillip. Now age old Gurukul Method is outdated. Anyone with a having computer and Android phone can learn anywhere, there is no need to go to physical classes.

India will have 600 million smartphone users by 2022. In 2013 India had 190 million internet users according to the Mobile Association of Indian report and it jumped to 692 million in the last 10 years till 2022.  This exponential rise has given an opportunity to millions of Indians to access cheap and easy education through online mediums such as youtube and other app-based learning.

The 2020 pandemic was a game changer for the whole world and for the Indian masses when the physical classroom was not possible for children. The trend of online classes got to its peak. Still according to reports around 35 million children aged between 6 to 14 do not attend school and 53% of girls aged from 5 to 9 are illiterate. In spite of online classes still, millions of children in rural areas do not have access to smart mobile phones and internet connections which left them vulnerable get into child labour or remain away even from basic primary education.

India has a 22 crore population who are living in poverty and can not afford basic daily livelihood so attaining education for their children is a huge challenge for their parents. The literacy rate in India is still 74% among them female literacy is just 65% so 35% female population do not have access to the education they are living an illiterate life in spite of 75 years of India’s independence.


The inception of Laws on compulsory education in India.

Initially, the Constituent Assembly did not make education a fundamental right. It provided for  Free and compulsory education as a Directive The principle of State Policy which was not enforceable by a court of law was fundamental in the governance of the country. In the original Constitution, education was limited to the DPSP of the Constitution.

Article 41 of the Indian Constitution provides that the State shall within the limits of its economic capacity and development make effective laws for securing the right to education. Further, to protect the educational interests of the religious and linguistic minorities special provisions have been made by  Fundamental Rights in Article 30, entitling them to establish and administer educational institutions of their choice.

In Article 51-A a new sub-clause (k) was added, which provides for a fundamental duty of every citizen who is a parent or guardian to provide opportunities for education to all children between the ages of six and fourteen years

The right to education has been embedded in the right to life in article 21 of the Indian constitution and the Directive principle of state policy under article 45 mandates the states to take initiative to provide early childhood care and free education until they attain the age of 6 years.

But the Government made the 86th  constitutional amendment which made the right to get free and compulsory education to children aged between 6 to 14 years and has made elementary education a fundamental right under article 21-A 

In the case of   Unni Krishnan vs State of Andhra Pradesh  court held that:

Every citizen has a right to education under the Constitution. The State is under an obligation to establish educational institutions to enable the citizens to enjoy the said right. The State may discharge its obligation through state-owned or state-recognised educational institutions.                                                                                                        When the State Government grants recognition to private educational institutions it creates an agency to fulfil its obligation under the Constitution. The students are given admission to educational institutions whether state-owned or state- recognised in recognition of their right to education under the Constitution.

UN Convention on Human Rights was adopted in 1948 It is the first international agreement which established education as a human right. Under Article 26 of this convention, it is mentioned that :

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 based on merit.

Education shall be directed to the full development of the human personality and to strengthen 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

In the present situation, there has been a proliferation of private schools. Most of these schools are delivering results as per the expectations of parents. As a result, there is an increase in the percentage of children who are going to these schools, whereas the trend is reversed in the case of the government schools.  With a nation of 262 million children attending over 1.5 million schools, Education is personal and political for Indians. They are more concerned about the future growth of their children.

Over the year, we have seen a major shift in the ownership of schools, with private schools, though a few in number but multiplying fast. As of 2011, there were 170 million children enrolled across government and private schools.

From 2011 to  2015, based on reported data from the Unified District Information System for Education the total enrolment in government schools fell by 9 per cent.

In the State of Bombay v  RMDC case:-

It was held that imparting education cannot be treated as a trade or business. Education cannot be allowed to be converted into commerce nor can the petitioners seek to obtain the said result by relying upon the wider meaning of occupation.                                                                                                                                                                                              The content of the expression occupation has to be ascertained keeping in mind that clause (g) of Article 19, employs all four expressions viz., profession, occupation, trade and business. Their fields may overlap, but each of them does certainly have a content of its own, distinct from the others.

Be that as it may, one thing is clear: imparting education is not and cannot be allowed to become commerce. 

Delhi High Court in 2022 had allowed the Murder accused to appear in the NLU-Delhi Entrance citing Right to education is a fundamental Right it can not be prohibited even to persons who are facing serious criminal charges

To attain universal compulsory elementary education Indian government has initiated various schemes such as  Sarva Shiksha Aban Abhiyan and Mid-day Meal, Beti Padahayo and Beti Bachao which have given the opportunity to millions of children to get basic primary education free of cost and accessible at their doorstep. 

The effort of the government to establish functional toilets in educational institutions from primary to Higher education. Non-availability of toilets is a major reason for girls to drop out of school at an early age. Though Gross enrolment in primary education and even higher education has risen, quality education such as infrastructure and the teacher-to-student ratio has not improved yet.

This is a major roadblock to providing quality and effective,   industry-ready education in university so that graduates do not have to struggle in the job market due to a lack of basic skills.

Though India spends 2.9% on education of its total GDP. But spending on education remains stagnant for years .whereas  in the US this percentage is 6.4%. Whereas China spends  10.40% of GD P on education. This reflects that India has to learn from these countries how investment in education is important for the growth of the nation.


Swami Vivekananda has said:-

If the mountain does not come to Mohammed, Mohammed must go to the mountain. If the poor cannot come to education, education must reach them at the plough, in the factory, and everywhere.

Swami Vivekanand has always been a supporter of universal education and at the same time emphasizes women’s education which is essential for the growth of a civilized society.

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