Mainstream, Vol XLVII, No 49, November 21, 2009
Juridical Contours of the Right to Education
Tuesday 24 November 2009, by#socialtags
The recently enacted Right to Education Act, 2009 has extensively been debated in the media, civil society and academic palaver. Mainstream also intervened in the debate, and to the best of my recollection, published two pieces: first, a rather elaborate one by Muchkund Dubey on September 19, 2009, and thereafter by N.A. Karim on October 3, 2009. While entirely endorsing the views expressed in these two articles and sharing the perceptions of the learned contributors, I would like to add some other salient aspects particularly pertaining to the juridical nature and judicial response of education in order to supplement the opinions in view of the critical relevance of the subject matter for governance and indeed for the future of democracy.
The enactment of the Right to Education Act merely amounts to statutory codification of the existing constitutional command in the form of Article 21-A of the Constitution inserted by the 86th Constitutional Amendment in 2002. Even the 86th Amendment, brought through the exercise of the constituent power of Parliament, is merely an endorsement of what the Supreme Court pronounced first in the Mohni Jain case (1992)1 and subsequently by the Constitution Bench in the Unnikrishnan case (1993).2 Right to education was read into the text of Article 21 for the first time in Mohni Jain’s case and the Unnikrishnan judgment merely qualified it by confining it to the age-group of 6 to 14 in the light of the express mandate of Article 45 of the Constitution.
Article 21 of the Constitution guarantees right to life and liberty in negative terms. The Supreme Court, through dynamic interpretations in almost three decades, has carved out numerous other social, political and economic rights with the aid of the Directive Principles of the Constitution which is even otherwise fundamental for governance. Through creative judicial craftsman-ship, the right to life and liberty enshrined in Article 21 of the Constitution has succeeded in extending its emancipatory and liberating potential. The right to life now encompasses many positive attributes like right to dignity, privacy, livelihood, healthcare, pollution-free environment and numerous other rights. The right to basic education stands at the core of this right because denial to access to primary education will render meaningless the other peripherial rights read in the text of Article 21, through, what is known in the American Constitution literature, as “Penumbral Emanation”. The right to life and liberty would merely mean animal existence in the absence of the right to basic education. Herein lies the critical and central significance of the right to basic education in the very text of Article 21. The insertion of Article 21A through the 86th Constitutional Amendment in 2002 merely makes this implicit constitutional position explicit.
The jurisprudential legacy of the Mohni Jain case and the Unnikrishnan case has further been entrenched by the Apex Court in recent times. In 2008 the Supreme Court rendered two significant judgments pertaining to the ever increasing significance of education as a facet of the right to life under Article 21 of the Constituion. First, in a case of the Election Commission of India3 pertaining to the requisition of the service of a school teacher for election purpose, the Supreme Court held that the sovereign function of providing basic education will have precedence over equally compelling sovereign function of holding election by enunciating in unequivocal terms that the right to basic education stands at a higher pedestal than the right to franchise. Subsequently in a well-known case of Ashok Thakur4 pertaining to reservation in educational institutions, the Constitution Bench of the Supreme Court once again underscored the significance of education and the fundamental obligation of the government to make basic education available to all. The Constitution Bench further held that the fundamental duty cast on every citizen to develop a scientific temper and humanism, vide Article 51-A of the Constitution, could not be achieved in absence of the right to basic education becoming a pervasive reality on the ground. Similarly, the Constitution Bench in the Unnikrishnan case, while emphasising the structural linkage between education and culture, made the following pertinent observations:
Victories are gained, peace is preserved, progress is achieved, civilisation is built up and history is made not on the battlefields where ghastly murders are committed in the name of patriotism, not in the Council Chambers where insipid speeches are spun out in the name of debate, not even in factories where are manu-factured novel instruments to strangle life, but in educational institutions which are the seed-beds of culture, where children in whose hands quiver the destinies of the future, are trained. From their ranks will come out when they grow up, statesman and soldiers, patriots and philosophers, who will determine the progress of the land.
Right to Basic Education and Capability Approach
The theory of social exclusion and capability approach have gained considerable ground in recent times. Nobel Laureate Amratya Sen has pioneered this emancipatory trend. The most important factor for social exclusion is the absence of capability. Any discussion on capability must take into account the entitlement of basic education as a matter of right and corresponding duty of the government. It is this capability which lies at the heart of Article 21 in its positivist dimension. Reading of numerous social, political and economic rights into the text of Article 21 is intended to make the person capable of enjoying his life in a productive and meaningful manner and thereby ensure that she/is not excluded from the social mainstream.
The right to basic education stands at the core of the capability approach. No person can be capable even in a rudimentary sense of terms in the absence of basic education. Thus, there is a structural linkage between ensuring the right to basic education to all and enhancing the capability of a person which in turn would ensure that they are not subjected to social exclusion. This structural linkage between minimisation of social exclusion by enhancing the capability approach through making basic education available to all has escaped the attention of the Supreme Court in all the judgements pertaining to significance of education. This is the central weakness of the judicial response in enunciation of the right to basic education and the reason for this weakness lies in overlooking the ever-increasing importance of the inter-discipline approach. Any meaningful discussion on the right to basic education cannot be addressed wholly from only one perspective, whether it is juridical or social, political or economical. There cannot be any substitute for the inter-discipline approach. The fusion and fertilisation of the juridical postulate of the right to education and the capability approach, which is essentially a sociological and economical concept, cannot be ignored.
The very notion of ‘citizen’ carries not only the idea of right but also the idea of civic duty. The securing of the right to basic education to all the children between the age-group of 6 to 14 will ensure that the citizens are not only empowered about their right but also about their civic duty. While emphasising the role of education as a foundation for responsible citizens, I can do no better than to quote the landmark opinion of Chief Justice Earl Warren in the cause célèbre Brown versus Board of Education:5
Today, education is perhaps the most important function of State and Local Governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizens. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.
The right to basic education is central to the concept of human rights. The right to basic education is most fundamental of all fundamental rights only after the right to food because without it human life with even iota of dignity is inconceivable. Therefore, the right to basic education is clearly a facet of human rights, and thus does not depend on citizenship in view of its sheer universal dimension.
Today the ever-growing Naxal problem is posing the greatest internal challenge not only from the security standpoint but also from that of the developmental paradigm and the denial of the right to basic education is the major contributor. Ensuring free and meaningful basic education to all the children living in the rural and tribal areas would wean away the youth and tribal population from ever-increasing stranglehold of the Naxalite. If development is the greatest contraceptive, the access to basic education to all is the most important ingredient of development.
1. Mohni Jain versus State of Karnataka—(1992) 3 SCC 666.
2. Unnikrishnan versus State of AP—(1993) 1 SCC 645.
3. Election Commission of India versus St. Mary’s School and Anr.—(2008) 2 SCC 390.
4. Ashok Thakur versus Union of India—(2008) 6 SCC 1.
5. Brown versus Board of Education—98 L Ed. 873, 880: 347 US 483 (1954).
The author is a Supreme Court advocate.