Work on access to education for all

Work on access to education for all

In its judgment titled Farzana Batool V. Union of India, delivered on April 9, 2021, by observing that, “while the right to pursue higher (professional) education has not been spelt out as a fundamental right in Part III of the Constitution, it bears emphasis that accesses to professional education is not a governmental largesse. Instead, the State has an affirmative obligation to facilitate access to education, at all levels”, the Supreme Court has hinted that its doors are open, although in dribs and drabs, for students who wish to pursue higher education and reach the zeniths in their career.

In this case, two students from Ladakh were nominated by the Administration of the Union Territory of Ladakh for admission to the MBBS degree course under the ‘central pool’ seats set apart by the Union Ministry of Health and Family Welfare. But the admission was not given. So they knocked on the door of the apex court, which directed the authorities to complete the admission formalities in a week.

Article 16

In the run-up to the 1997 elections in the United Kingdom, Labour Party’s candidate Tony Blair (who later became Prime Minister) said: “Ask me for my three main priorities for government and I tell you: education, education and education.” Quite contrast to that, in India, candidates appease voters on the grounds of caste, religion, freebies, leaving education to take a back seat or rather no seat at all. This abandonment of education is despite the fact that only because citizenry became conscious of their rights by educating themselves, India got its freedom.

As per Article 16 of the Constitution of India Bill, 1895, (this Bill was the first express demand for fundamental rights by Indians), “free State education” was demanded as a fundamental right. The same was the case with Annie Besant’s Commonwealth of India Bill, 1925, wherein all persons in Commonwealth India were to have “right to free elementary education”. But, under the Constitution of India, (enacted in 1949), education was made a Directive Principle of State Policy (DPSP). Under original Article 45, state was asked to provide free and compulsory education for children till they attain 14 years of age.

Dr BR Ambedkar, during a discussion on Article 45 in the Constituent Assembly on November 23, 1948, observed that the purpose behind making education up to 14 years of age as an obligation of state is because, as per Article 24, engagement of child below 14 years of age in hazardous industries is prohibited, hence, as a child is not to be employed in hazardous industries, they shall be kept engaged in an educational institution. The peculiar aspect of Article 45, which cannot be found in other Articles in DPSP, was that, this direction was to be attained within 10 years of commencement of the Constitution (ie, by January 26, 1960), but the state utterly failed in fulfilling this constitutional mandate.

Private Institutions

The lackadaisical approach of the state towards education led to a spurt in private educational institutions, which, by making education “a business”, restricted it only to affordable class. Seeing this, courts sprung into action and in Mohini Jain v. State of Karnataka, [(1992) 3SCC 666], after observing that “the concept of ‘teaching shops’ is contrary to the constitutional scheme and is wholly abhorrent to Indian culture and heritage”, the two-judge bench of the Supreme Court held that “right to education is concomitant to the fundamental rights enshrined under Part III of the Constitution. The State is under a constitutional-mandate to provide educational institutions at all levels for the benefit of the citizens”.

In simple words, this judgment held that education is a right of citizens of all ages. Trimming the mandate of the Mohini Jain judgment, a five-judge bench in Unnikrishnan JP v. State of AP (AIR 1993 SC 2178), although held that education is not a business, but, while observing that allocation of available funds by the State to different sectors of education will not allow the State to fulfil the other welfare activities mandated by the Constitution, held that “right to free education is available only to children until they complete the age of 14 years. Thereafter, the obligation of the State to provide education is subject to the limits of its economic capacity and development”.

After Supreme Court’s decision in the Unnikrishnan case, Parliament inserted Article 21A into the Constitution by the 86th constitutional amendment Act, 2002, wherein right to education of children between 6 and 14 years of age has been made a fundamental right. It is the fundamental duty, under Article 51A(k), of parents and guardians to provide education to their children between 6 and 14 years. As per amended Article 45, state shall make endeavour to provide education to children till they attain six years of age. Hence, access to education of a student below 6 years and above 14 years is at the mercy of state.

Specious Argument

The specious argument from the state has always been that meritorious students are provided admissions into government-run higher institutions, wherein, educational needs of meritorious students are taken care out of state funds, thereby, making it a “permissible classification”. It has to be observed that all students are not alike, because the socio-economic conditions like lack of initial nurturing and infrastructure facilities, hunger planks, etc, deprive the students an opportunity to become meritorious from the beginning.

The live example of depriving poor students of the privilege of education is the pandemic, which has transformed entire education into online. Without providing laptops/smartphones to students from a poor backgrounds and rural areas, who hardly have the privilege of three meals a day, and also lack of internet facility, we cannot expect access of education to all.

In Anuradha Bhasin v. Union of India, [(2020) 3 SCC 637], the apex court observed that Article 21A is the only fundamental right, which is a “positive right” that requires an active effort by the government concerned to ensure that the right to education is provided. Therefore, state has to start investing more in education by keeping in mind that it is only through education that everything can be achieved.


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