Right to education | RTE Act of 2009
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Right to Education: Time to involve the judiciary

Author: Sameet Panda
Posted on: Wednesday, 1st May 2013

The Right of Children to Free and Compulsory Education ACT of 2009, which is popularly known as RTE ACT 2009 completed its three years on the 31st March 2013. It is an important deadline that went past us. The legislation was passed with a clear three-year target in mind to enact all the necessary provisions like infrastructural facilities, teacher recruitment and other mechanisms guaranteed under the ACT.

I was part of the National Level Stock Taking Convention on status of implementation of RTE ACT, held in Delhi on the 3rd of April 2013. The convention was organized by the RTE Forum in New Delhi.

RTE forum is a network of civil society organizations and individuals working on the issue of Right to Education across India. This was the third National Convention held since the inception of the ACT.

The convention was attended by the chairperson of National Commission of Protection of Child Rights (NCPCR) Dr. Shanta Sinha, renowned educationists like Prof Yashpal, Prof Krishna Kumar, RTE activist Dr. Vinod Raina, Mr. Harsh Mander, human rights lawyer Mr. Colin Gonsalves, Country representative of UNICEF India Mr. Louis George Arsenault and different civil society actors.

Among the various presentations made by the RTE forum that day, the one made on the status of the implementation of the ACT so far was of utmost importance.<.p>

While the issue of justiciability of the RTE Act was lauded by many of the speakers, we are still so far away from enacting the basic guarantees that the ACT spelt out.

Here is an example. As per the recent Economic Survey 2012-13, 95% of schools did not comply with the RTE norm, which is also corroborated by the ASER school report card 2012.

It was also evident from both the reports that the issues of adequate financing, regulation of private providers, setting up transparency and redressal mechanism have not been addressed on the ground yet.

However, on a positive note, it was highlighted in the presentation of the RTE stock-taking report that 77% of schools complied with the neighbourhood norms as required under the ACT and were indeed within a three-kilometre radius of the community.

Involving the Judiciary

The civil society organisations (CSOs) working on the issue of Right to Education, in addition to the communities that they often work with, have been constantly engaging with  two important pillars of the state; the executive and the legislature for  the implementation of the Act, but in the process leaving the other powerful pillar the Judiciary untouched.

Given that much need to be achieved even after the stipulated time frame, it is now important to engage with the Judiciary in bigger and more effective ways.

To remind ourselves, it was indeed judicial activism that paved the way for the enactment of RTE ACT in 2009. The Unnikrishnan vs. State of Andhra Pradesh judgment by the Supreme Court of India in 1993 led to 86th constitutional amendment, which made the right to education as one of the fundamental rights.

In this almost revolutionary interpretation of the Constitution, the Supreme Court stated that Article 45 in Part IV of the Constitution must be read in “harmonious construction” with Article 21 (Right to Life) in Part III since Right to Life is meaningless if it is without access to knowledge [Source: Counter Currents]

It is this much needed judicial activism that actually led the way to what we now know as the RTE ACT, 2009.

All constitutional guarantees and legislative provisions such as RTE ACT are subject to judicial review and in the case of their violation, the citizen of the country can approach the Court against the state by filing Public Interest Litigation. The concept of Public Interest Litigation (PIL) is in consonance with the objectives enshrined in Article 39A of the Constitution of India to protect and deliver prompt social justice with the help of law.

Vinod Raina, a speaker at the event, pointed out that while the civil society has not yet taken the judicial route for implementing the ACT, it has already been explored by the association of unaided private schools, which pleaded before the Supreme Court to declare the RTE Act unconstitutional.

This was an interesting correlation indeed. And an important one.

The association went to court citing that the RTE Act violates their fundamental right under Article 19 (1) (g) of the Constitution of India. The said article guarantees the citizen of the country “to practice any profession or to carry on any occupation, trade or profession independently” without the interference by the state.

However the three-member bench, which went into the petition quashed it, while upholding the constitutional validity of the ACT.

In its order the bench stated that the ACT will apply to all Government, Government aided and private unaided schools except for the unaided minority private schools.

The group has re-appealed in the Supreme Court for reviewing its verdict by a larger constitutional bench, which has already been accepted by the court.

At the convention, both Vinod Raina and Colin Gonsalves expressed their strong views, which were in favor of taking the judicial route to get the ACT implemented.

It makes sense.

The civil liberties movement of the country already has good experience of taking the route of judicial intervention in various issues. The Right to Food case, which is one of the longest-running cases in the Supreme Court of India, is one such example. It is the intervention of the Supreme Court that forced the government to accept the right to food as one of the rights of the Indian citizen. The case also led to the issuance of many progressive orders, which not only talked about the rights but also made the food delivery system robust throughout the country. The route can also be explored by streamlining the implementation of the RTE Act in the country, where the Government can be made answerable and accountable for its laxity.

Now it is the right time for the CSOs working on the issue of Right to Education to prepare for the judicial route for the effective implementation of the Act. In the course of taking up judicial intervention, it is important to document the cases of violation of the RTE ACT across the country, whether it is related to policy or implementation. This can later on be turned in to a Public Interest Litigation, which can be filed both in the High Courts across the states as well as the Supreme Court.  We have many human rights lawyers having experience in dealing with PIL across states which can also act as an asset. While exploring the judicial route the present work of the CSOs with the Government and community also need to keep pace. The regular support coming from the ground can further strengthen judicial intervention.

Act for Children

Act for Children is an initiative by ActionAid India to ensure children in marginalised and vulnerable communities have access to their basic rights especially education, healthcare and protection. The initiative is aimed at creating an enabling environment for children so they may enjoy a childhood all children deserves.


(You can contact the author at sameet.panda@actionaid.org  The author would like to acknowledge the contribution of Alex George, Leader – Child Rights Hub at ActionAid India)

Edited by: Abhilash Babu