Report No. 165
Implementation of The Right To Education: Recommendations of The Law Commission
6.1. The need for compulsory education for children.-
The Law Commission had prepared a detailed note on free and compulsory education for children together with a draft Bill for a central legislation. In drafting the Bill, the Commission had taken into consideration certain suggestions and comments received by it including those made at the National Conference on Education as a Fundamental Right organised by Pratham on 24th and 25th April, 1998 at New Delhi; and the National Consultation on Right to Education; a strategy to eliminate Child Labour, organised by the Centre for Child and the Law, the National Law School of India University with the support of UNICEF held on 16th and 17th May, 1998 at Bangalore. A copy of the same was forwarded to the Ministry of Human Resource Development, Department of Education, Government of India requesting for views of the Department.
6.1.1. The Law Commission has carefully considered various issues in the light of comments of the Department of Education as well as other available materials. Accordingly, it has come to the following conclusions.
6.1.2. If a Central Legislation is enacted as is being proposed by the Commission, it would not require ratification by the State Legislatures, being a subject falling under Entry 25 of Concurrent List of Seventh Schedule to the Constitution of India. Article 254(1) provides that the law made by Parliament with reference to a concurrent subject shall prevail over a law made by the State Legislature on the same subject irrespective of the fact whether the law made by the Parliament is earlier or subsequent to the State enactment. 1This provision is of course subject to clause (2) of Article 2541.
6.1.3. A view has been expressed that it may not be feasible to bring the private unaided institutions within the purview of the proposed Bill. In this connection, reference has been made to Article 21A(3) as proposed to be inserted by the Constitution (Eighty-Third Amendment) Bill, 1997 which provides that States shall not make any law for free and compulsory education under clause (2) in relation to the institution not .maintained by States or not receiving aid out of State funds.
6.1.4. The Department of Education may perhaps be right in saying that as of today the private educational institutions which are not in receipt of any grant, or aid from the State, cannot be placed under an obligation to impart free education to all the students admitted into their institutions. However, applying the ratio of Unnikrishnan case, it is perfectly legitimate for the State or the affiliating Board, as the case may be, to require the institution to admit and impart free education to fifty per cent. of the students as a condition for affiliation or for permitting their students to appear for the Government/Board examination.
To start with, the per centage can be prescribed as twenty. Accordingly, twenty per cent. students could be selected by the concerned institution in consultation with the local authorities and the parent-teacher association (see the appended Bill at Annexure A). This proposal would enable the unaided institutions to join the national endeavour to provide education to the children of India and to that extent will also help reduce the financial burden upon the State.
6.1.5. Further, imparting education, including primary/elementary education, is as much the obligation of the Central Government as that of the States after the 42nd amendment of the Constitution which has put "education" in the Concurrent List. It is the Commission's view that the Union of India has the primary responsibility for carrying out the mandate of Article 45 read with Articles 41, 46 and 21 of the Constitution. One cannot lose sight of the fact that substantial additional finances are required for this purpose and in the present state of things, the additional finances can only come from the Centre. It hardly needs mention that most of the high-yielding revenue resources are with the Centre.
6.1.6. Article 45 speaks of "free and compulsory education for all children until they complete the age of 14 years". The expression "compulsory" in the said article necessarily implies an element of compulsion, be it compulsion on the State to provide free education or a compulsion on the parents to send their children to the school or a compulsion on the society to ensure that all its children go to school at least until they complete the age of 14 years or for that matter upon any other institution, organisation or individual, as the case may be. It may not, therefore, be correct to say that the method of compulsion is inadvisable.
6.1.7. A statute imposing compulsory education is no encroachment on any fundamental right, for no one has any right to remain ignorant or illiterate1.
1. C.f. Colly Constitution Law, 4th Edn. 1931, p. 295 (as also referred to in Basu's Commentary on constitution of India, 6th Edn. Vol. E,p. 121.
6.1.8. The Law Commission is of the view that Universal Elementary Education (UEE) cannot be achieved except by the use of a certain amount of compulsion. In this context, it is relevant to notice that the method of persuasion has not yielded the desired results. It needs to be emphasised that the constitutional obligation is to provide "free and compulsory education" and all permissible means and measures ought to be employed to achieve the said goal. It may necessitate dispensing with the tuition fee, providing free text books or free uniforms, free lunch, etc. wherever necessary.
6.1.9. The Commission is aware that the basic reason for the children from the poor families being not able to attend the schools is poverty. The Commission recognises that no parent who can afford to send his child to school, would not do so and would prefer to send him to work. Undoubtedly, it would be the wish and desire of every parent to see that his child is educated and that he is not called upon to work whether as a domestic servant or in a factory or anywhere else. At the same time, it is recognised by all educationists that a little amount of compulsion may be necessary in certain cases apart from persuasion and incentives, to achieve the goal of a Universal Elementary Education which is basic to any democratic society.
6.2. The Commission has noted with some satisfaction that so far 19 States/ Union Territories have enacted legislation making primary/elementary education compulsory. (A list is attached as Annexure B). These are Assam, Andhra Pradesh, Bihar, Goa, Gujarat, Haryana, Himachal Pradesh, Jammu & Kashmir, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Punjab, Rajasthan, Tamil Nadu, Uttar Pradesh, West Bengal, Delhi and Andaman & Nicobar Islands. These enactments are in three parts:
(i) Power vested in the State Government to notify the area in which the Act can be implemented.
(ii) Penalties for not sending children to school.
(iii) Power in a vested authority to grant exemption from the legislation.