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Right to Education as a Fundamental Right


Education is one of the most important part in the development process of human life. Education builds an individual’s mind as well as a society with transparency and good governance. The growth and development of a nation are depended on the quality of education given to the people. The right to education is one of the challenges faced by both National and International communities. The perception of education has undergone many changes because of the Universal Declaration of Human Rights. It manifests that everyone has a right to education and especially elementary education should be free and compulsory. The World Conference on Education sanctioned that educational opportunities should be available to every person.

To confer with the international sanctions in the field of education, the Indian constitution had to change its provisions through constitutional amendments. On December 12, 2002, the president of India assented to the 86th amendment act of the Indian Constitution. This amendment made changes in Article 21 of the fundamental rights, Article 45 of the directive principle of state policy, and Article 51A of fundamental duties. To access the significance of this change, one has to know about the history of the unamended constitution and the reason behind few directions of the Supreme Court, which had led to the establishment of the 86th constitutional amendment.


The seventh schedule of the constitution contains a list of subjects that establishes the competency of state and central government to enact legislation. The three lists are: List I, the union list, enumerates the competency of central to enact legislation, and List II, the state list, enumerates the state government’s jurisdiction and List III, the concurrent list, enumerates the competency of both central and state governments. Since 1935, education as a subject was listed under the jurisdiction of the provinces, only they could enact legislation regarding education.  In the constituent assembly during the drafting of constitutional provisions regarding education, the framers had a debate “whether education should be shifted from state list to union list or concurrent list?” Some people argued that legislation of education should be under the control of the Central government, they thought that a uniform national standard for education could be brought only if the center has full power over the legislation. However, few other members thought the state had the competency to enact laws regarding education because there are several languages spoken across the nation, so education could be provided in the local language of each state.

The conflict was resolved by retaining the education in the state list and the higher education in concurrent and the union list. The central government was also given the power to frame national policies for educational services. But the Central government did not appear to give importance to education as a national priority. From a statistical report, it was observed that between 1951 and 1955, public expenditure on education in India was less than 1 percent of the total GDP. The percentage of public expenditure stayed below 2 percent until 1979.[1] For many years, this situation followed and education was given the least importance. The important change that was brought is the shift of education from the state list to the concurrent list.[2] Even though the center was given more power, neither central nor state government made progressive steps in the educational field. In the period of 1990s, due to the Public Interest Litigation movement, many Courts solved the concerns of the public.

The initiative of the Supreme Court in landmark cases

  1. Mohini Jain v. the State of Karnataka[3]

Mohini Jain is a medical aspirant student, who was a resident of Meerut. She applied for the MBBS course in a private medical college in Karnataka. The college management asked her to pay a sum of Rs.60000 as tuition fees for the first year and also demanded a bank guarantee for the remaining years’ fees. This exorbitant fee was charged from all students except the students belonging to “Government seat quota”. When Miss Jain’s father refused to pay the amount, the management denied admission of her in that college. She filed a petition in Supreme Court challenging this notification and informed the court that she was demanded by management an additional amount of four and a half lakhs, but this allegation was denied by the management. The question that arose, in this case, was “whether the right to education mentioned under article 45 is guaranteed for the citizens as a fundamental right under Article 21 by the Indian Constitution?”

The notification which was challenged in the case was issued by the Karnataka Government under Section 5(1) of the Karnataka Educational Institutions (Prohibition of capitation fees) Act, 1984. It fixed the fees to be charged from students in the private medical colleges:

  1. For government seat – Rs.2000 per annum

  2. For students from Karnataka, but not falling under the category of “government seat”, the maximum limit of fees that can be charged is – Rs.25000 per annum

  3. For Indian students, not a resident of Karnataka – Rs.60000 per annum

The Supreme Court held that there are many rights implicit in the right to “life and personal liberty” in Article 21 of the constitution. Even though it is not enumerated in Part III of the constitution, education is one such factor which is integrated into the Article 21 of the Constitution. Regarding the capitation fee, the court observed that only richer sections of people will get access to education if extra fees are charged, then poorer sections of people with better merit cannot avail of the opportunities. Further, the capitation fee is against the right to equality. The court took reference from a case that the right to equality has many new dimensions.[4] Therefore, education should not be sold for a price, it should be purely based on merit.

  1. Unni Krishnan v. State Of Andhra Pradesh[5]

The Court in this case showed disagreement with the findings of the earlier case. In this case, the constitutionality of state laws regulating capitation fees charged by institutions was challenged. The Supreme Court observed that Article 45 and Article 21 should be supplementary and complementary to each other. Article 45 should be read in harmonious construction with Article 21 of the constitution. The fundamental rights are construed in the light of directive principles. It was held that the right to education flowing from right to life (Article 21) should be read in conjunction with directive principles of state policy (Article 45). The reference was made to Minerva Mills’ case, where it was held that fundamental rights are not ended, but they are means to the end and the end is directive principles of state policy.[6] The court also observed that the higher education degree does not come under the ambit Article 21. It would be unreasonable if charging capitation fees is prevented for higher studies also, it would discourage the development of those institutions. So this case was against the idea of Mohini Jain’s case that “constitution guarantees the right to education at all levels”.

Due to public demands to enforce the right to education, the state after 9 years responded to this declaration by the 86th amendment. The 86th amendment added the following articles:

  1. Insertion of Article 21A: “Right to education”

“The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.”

  1. Substitution in Article 45 of the constitution with this new provision:

“The State shall endeavor to provide, within ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.”

  1. Added clause (k) to Article 51A:

“Who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.”

For the first time in history, the right under Article 45 of directive principles of state policy has become a fundamental right under Article 21A and made it enforceable in the courts.

The Right to Education Bill, 2008

The 86th amendment provided for follow-up legislation and necessitated the drafting of the Education Bill. Therefore, the Education bill 2008 was drafted. The few highlights of the bill were:

  1. The right to Education Bill, 2008 seeks to give effect to the 86th constitutional amendment. It requires the state to provide free and compulsory education to children age between six and fourteen.

  2. Schools should not charge capitation fees during admission or expel the child before he/she completes elementary education. A certificate should be provided for a child who completes elementary education.

  3. The unaided schools should at least reserve 25% seats for the students’ belonging to disadvantaged and economically weaker groups.

  4. A grievance claim or appeals by a student shall be submitted to the specified local authorities.

  5. Removal of “no-detention policy”.

Some of the issues in the draft were:

  1. No penalties were specified if the authorities fail to provide elementary education.

  2. The constitutional validity of a reservation for weaker sections could be challenged based on the right to equality ensured under article 14.

  3. Minority schools were not exempted from this bill, so it would conflict the right guaranteed under Article 30 of the constitution.

After a few changes, the bill received the President’s assent and became an Act. In 2014, the Supreme Court held that the Right to Education Act does not apply to Minority Institutions.[7] The Right to Education Act has achieved many things in these years, the infrastructure of schools in rural areas have improved. The enrollment of students in the upper primary level has flourished. It made education accessible to nationwide. Many people have secured their admission through the 25% quota reservation under the Act.

The term “free education” means the child who is admitted to the school should not be asked for any kind of extra payment of fee or charges which may prevent him from availing the elementary education. “Compulsory education” is an obligation rested on the government and the authorities to provide elementary education to all children in the age group of 6 to 14. The right to education act also provides for the norms for the Pupil-Teacher Ratios. Thus it ensures that there is no imbalance in the posting of teachers in urban and rural areas. The enforcement of the Right to Education Act brings the country closer to achieving the goals of the Education for All (EFA) and therefore it is a historic step taken by the Indian Government.

Reservation in the Education system

Article 15(5) inserted by the 93rd amendment provided the reservation in educational institutions, except minority institutions, for the backward classes. The constitutional validity of Article 15(5) was challenged as unconstitutional because it violates the basic structure of the constitution. But the Supreme Court held that the 93rd amendment was valid and not unconstitutional.[8] The reservation is not based on caste, it is based on the economic and educational backwardness of the people. But some people are against this idea of reservation because it is violating their right to equality. The Court observes that a child should be given quality education without any discrimination on the ground of their background.[9]

Section 12(1)(c) of the Right to Education Act provides that all schools should make provision for reservation of minimum 25% of seats for the disadvantaged groups and the weaker sections of society. The beneficiary provided in this section is the same as the provision made under Article 15(4) and 15(5). “The RTE case”[10] is one of the popular cases where the special provisions for reserving seats under the Right to Education Act was challenged before the court. It was argued that as per Article 21A, the state must only provide free and compulsory education to children, therefore a plain reading of Article 21A and 45 explains that it was never intended to cast responsibility on private educational institutions. It was also argued that there was no special provision for reservation under Article 21A for the backward classes. But the court with a 2:1 ratio held that the Right to Education Act was constitutional. A review petition was subsequently filed after this case, but it was dismissed.[11]


Spurred by few judgments and the public demand led to the 86th constitutional amendment. Education has become a constitutional right. The Right of Children to Free and Compulsory Education Act, implemented the fundamental right and it created an enforceable law for the 86th amendment. Both the Constitutional amendment and the new law in force has elevated the field of education into higher levels. The Act ensures right for every child to avail education and makes it obligatory for the appropriate governments and authorities to ensure that they get free elementary education. Even though there are many oppositions to the special provisions under the Act, the motto behind those provisions is for providing opportunities to the educational and economically backward classes. Education is needed for the stability of democracy, social integration and to eliminate social evils. The Supreme Court by rightly balancing the provision of Part III and IV of the Indian Constitution has established the right to education as a basic fundamental right.

Case laws:

[1] Department of Education, Government of India, Selected Educational Statistics, available at

[2] Constitution (Forty-Second Amendment) Act of the Indian Parliament.

[3] Mohini Jain v. State of Karnataka, A.I.R. 1992 S.C. 1858.

[4] E.P. Royappa v. State of Tamil Nadu, (1974) 2 S.C.R. 348.

[5] Unni Krishnan v. State Of Andhra Pradesh, A.I.R. 1993 S.C. 2178.

[6] Minerva Mills v. Union of India, A.I.R. 1980 S.C. 1789.

[7] Pramati Educational & Cultural Trust v. Union of India, (2014) 8 SCC 1.

[8] Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1.

[9] State of Tamil Nadu v. K. Shyam Sunder, (2011) 8 SCC

[10] Society for Un-aided Private Schools of Rajasthan v. Union of India AIR 2012 S.C. 3445.

[11] Review Petition (C) No.1155/2012 in Writ Petition (C) No.95/2010.


4th Year

BBA LLB (Hons)

SASTRA Deemed University


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