Today, with thriving population in India, there are millions of children living on the streets, unattended, uncared for and with practically no future at all. Under prevailing political, social and economic situation in India, there’s little doubt that the percentage of children living on the streets and working as bonded labourers would manifold increase with time. The reason for pessimism is not statistics but the overwhelming truth that half of India’s children are illiterate and do not have access to basic primary education and despite policies promoting education, the benefits do not actually reach the deprived.
To counter such pessimism and alter the future of India’s children, the government of India introduced the Right of Children to Free and Compulsory Education Act, 2009, popularly known as the Right to Education (RTE) Act, from April 1, 2010 and took a grand step towards empowering all children of the age of six to fourteen years by providing them free and compulsory education. Although the intent has been correct, the legislation itself has left gaping questions for the judiciary to be answered while interpreting the different provisions of the RTE Act.
The road to RTE Act started sometime around 1913, during the British regime wherein the Government of India Act, 1935, specifically included provision that “education should be made free and compulsory for both boys and girls.”
In W.P. (C) No. 8533 of 2010 [Social Jurist, A Civil Rights Group vs. Govt. Of NCT of Delhi & Anr.] & W.P.(C) NO. 263 of 2011 [Delhi Commission for Protection of Child Rights vs. Union of India and Ors.] the Hon’ble Delhi High Court lucidly enumerated the importance of the RTE Act and held that “At the time our Constitution was framed, the following un- amended Article 45 provided as follows:
Article 45: Provision for Free and Compulsory Education for Children – The State shall endeavour to provide, within a period of ten years from the commencement of this constitution, for free and compulsory education for all children until they complete the age of 14 years.
The said Article was repealed and substituted by the Constitution (Eighty Sixth Amendment) Act, 2002 to provide the following:
Article 45: Provision for early Childhood Care and Education to Children below the age of six years. – The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.
Though the un-amended Article 45 enumerated the policy for the States to endeavour to provide free and compulsory education to all children until they complete the age of fourteen years in a period of 10 years from the commencement of the Constitution, by the amended Article 45, the States are directed to endeavour to provide early childhood care and education to all children until they complete the age of six years. Amended Article takes care only of early childhood care and education of children upto six years.
It has been now well settled that Right to Education of every children is a human right with immense power to transform the elementary education for children as the most important component of basic education. Considering such importance of elementary education and having noticed that access to education is necessary for enjoyment of other fundamental rights contained in Article 19, Article 21A was added to the Constitution by making free and compulsory education a fundamental right of children having age of six to fourteen years. Eighty Sixth amendment and the said Article reads as under:
Article 21A. Right to Education – The State shall provide free and compulsory education to all children to the age of six to fourteen years in such manner as the State may, by law, determine.
By the above Article, free and compulsory education is made a fundamental right, as against a directive under directive principle of State policy in Article 45 to provide early childhood care and education to all children till they complete the age of six years. The basic principle on which education policy in India should be formulated is to be found in Part IV contained in the Directive Principles of State Policy, Part III of fundamental rights and Part IV-A containing fundamental duties. In Article 39F, the States are directed that their policy should be towards acquiring opportunities and facilities to children to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. In Article 41, it is directed that the State shall within its economic capacity and development make effective provision for securing right, among others, to education. In Article 39F and Article 41, it is directed as follows:
Article 39(f): That children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
Article 41: Right to work, to education and to public assistance in certain cases. – The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.
Though the above Directive Principles cannot be strictly enforced as in the case of fundamental rights, nevertheless these directive principles obligated the States to enact law to achieve the above directives. The Constitution in Article 51A(k) casts a duty on every 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. While Article 21A in effect relates to the right of a children between the age of six and fourteen years to have free and compulsory education, Article 45 relates to the objective of the State to endeavour to provide early childhood care and education for all children below the age of six years. In order to achieve the object for which Article 21A was added to the Constitution, The Right of Children to Free and Compulsory Education Act, 2009 was enacted.
The RTE Act seeks to provide the following:
(a) that every child has a right to be provided full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards;
(b) “compulsory education” casts an obligation on the appropriate Government to provide and ensure admission, attendance and completion of elementary education;
(c) “free education” means that no child, other than a child who has been admitted by his or her parents to a school which is not supported by the appropriate Government, shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education;
(d) the duties and responsibilities of the appropriate Governments, local authorities, parents, schools and teachers in providing free and compulsory education; and
(e) a system for protection of the right of children and a decentralized grievance Redressal mechanism.”
Section 2(f) of the RTE Act defines “elementary education” as to mean the education from the first to the eighth standards.
Section 2(n) of the RTE Act defines the expression “school” as any recognised school imparting elementary education and includes-
(i) a school established, owned or controlled by the appropriate Government or a local authority;
(ii) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority;
(iii) a school belonging to specified category; and
(iv) an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority.”
Chapter II of the RTE Act provides in Section 3 for the right of every child of the age of six to fourteen years to have free and compulsory education in a neighbourhood school till completion of elementary education. The system then provides for special attention (through Section 4 of the Act) for such a child in the higher class to make up the deficiency in skills and ability.
Chapter III of the RTE Act provides for duties of the appropriate government, local authority and parents while Chapter IV defines responsibilities of schools and teachers.
Section 16 of the RTE Act, provides that No child admitted in a school shall be held back in any class or expelled from school till the completion of elementary education.
Section 17(1) of the RTE Act prohibits physical punishment or mental harassment of students. While a ban on physical punishment is laudable, the one on mental harassment is incompletely defined.
Section 18 of the RTE Act stipulates that every school, other than one established, owned and controlled by the appropriate Government or the local authority, shall, after the commencement of the Act, obtain recognition from such authority and after making an application in such form and manner, as may be prescribed. If such a school is already functioning, the Act prescribes that it be shut down within 3 years if it fails to meet norms.
In W.P. (C) No. 8533 of 2010 [Social Jurist, A Civil Rights Group vs. Govt. Of NCT of Delhi & Anr.] & W.P.(C) NO. 263 of 2011 [Delhi Commission for Protection of Child Rights vs. Union of India and Ors.] the Hon’ble Delhi High Court held that:
“A reading of the above provisions show that while a duty is cast upon the appropriate Government and local authority to establish schools within such area or limits of its neighbourhood irrespective of being pre- schools or elementary schools, a further duty is cast upon the appropriate Government to provide free and compulsory education to every child of the age of six to fourteen years only. In stricto sensu, the Act is applicable only to elementary education from Class I to VIII to the children of the age of six years to fourteen years.”
“as far as the private unaided schools referred in Section 2(n)(iv) of the said Act are concerned, the provisions of the Act, except the admission to the extent of 25% of the strength of the class, to the children belonging to the weaker sections and disadvantaged group, do not apply to the admissions made to the pre-elementary (pre- school and pre-primary) classes of such schools. Consequently, Section 13 of the Act which prohibits collection of capitation fee and adoption of any screening procedure also does not apply to the admissions made to the remaining 75% of the pre-elementary classes of unaided private schools.”
Further, the Hon’ble Delhi High Court went on to hold that:
“Unlike other fundamental rights, the Right to Education places a burden not only on the State but also on the parent or guardian of every child and on the child itself. Education occupies an important and sacred place in our constitution and culture. It is a tool for betterment of our civil institution, protection of our civil liberties and path to an informed and questioning citizenry. The Supreme Court in Mohini Jain Vs. State of Karnataka (1992) 3 SCC 666 has held that though the Right to Education is not explicitly inserted in Part-III of the Constitution as a fundamental right but Article 21 read with Article 39, 41 and 45 make it clear that the Constitution of India made it obligatory for the policy makers to provide education to its citizens. It has been observed as follows:- “The objectives flowing from the preamble cannot be achieved and shall remain on paper unless the people in this country are educated. The three pronged justice promised by the preamble is only an illusion to the teaming-million who are illiterate. It is only is the education which equips a citizen to participate in achieving the objectives enshrined in the preamble.(Per Kuldip Singh J)”
“Though we have held that Right to Education Act is not applicable to nursery schools, in our opinion there cannot be any difference yardstick to be adopted for education to children up to the age of 14 years irrespective of the fact that it applies to only elementary education. It is the right time for the Government to consider the applicability of Right to Education Act to the nursery classes as well, as in many of the States admissions are made right from the nursery classes and the children so admitted are automatically allowed to continue from Class-I. In that sense, the provisions of Section 13 would be rendered meaningless insofar as it prohibits screening procedure at the time of selection. Importance of education is per se applicable to every child right from admission to nursery classes till it completes the eighth standard. It is common knowledge that though the there is obligation on the State to provide free and compulsory education to children and the corresponding responsibility of the institution to afford the same, educational institution cannot be allowed to run as “Teaching Shops” as the same would be detrimental to equal opportunity to children. This reality must not be ignored by the State while considering the observations made in this judgment. Hence, we only observe that to avail the benefit of the Right to Education Act to a child seeking for nursery school as well, necessary amendment should be considered by the State. We hope and trust that the Government may take the above observation in the right spirit and act accordingly….”
In spite of such insightful judgments, children in India are still forced to hard-labour and they are also forced to work by their own parents. Children who are employed as child-labours cannot get education due to lack of enforcement agencies who can put the perpetrators behind the bars and help such children to get education at any decent school in their neighbourhood.
Further, under the Juvenile Justice Act of 2000, a person up to the age of 18 years is treated as ‘child’. However when it comes to prohibition of Child Labour Act of 1986, the definition of child means a person who has not completed his fourteenth year of age. Thus, virtually there is no prohibition of child labour in case of children who are more than 14 years but less than 18 years of age. Furthermore, the Child Labour Act 1986 focuses on the prohibition of employment of children in certain specified work places, which are harmful for the children, and there is no absolute prohibition.
Recently, the Punjab-Haryana High Court held in W.P. No. 9968 of 2009 [Court on its own Motion vs. State of Punjab] that:
“RTE Act creates an obligation on the part of State to provide free and compulsory education to all children aged between 6 to 14 years. This is now the constitutional obligation as well. As right to education is made fundamental, it would, therefore, follow that as far as children up to the age of 14 years are concerned, since they are to be provided free education, there would be absolute ban/bar and prohibition from child labour. Thus, we are of the opinion that provisions contained in Section 3 of the Child Labour (Prohibition and Regulation) Act, 1986 authorising the use of child labour in so called non-hazardous industries would offend the aforesaid constitutional mandate and would no longer be good law after the passing of RTE Act and the amendment in the Constitution by inserting Article 21A.”
The Punjab-Haryana High Court went on to hold that “there shall be total ban on the employment of children up to the age of 14 years, be it hazardous or non-hazardous industries. This would, however, be subject to the exception that child should only be allowed to work with the family in only those trades/occupations notified by the Child Labour Technical Advisory Committee as constituted under Section 5 of the Child Labour (Prohibition and Regulation) Act, 1986 and for the sole purpose of learning a new trade/craftsmanship or vocation. This exemption too can only be permitted if the same is not in violation of Article 21-A and provisions of Article 51A (k) of the Constitution of India, i.e., where the child is attending regular school to get education. In case the child is not studying in a school, this exemption cannot be claimed even by the family as it affects rights of the child as protected by the Constitution of India especially those under Article 21 of the Constitution.
However, in case of children who are above 14 years of age and below eighteen years of age, even though there is no legal labour restriction, but there is provision under Section 374 of the Indian Penal Code, 1860 that employment of any person under 18 years of age is prohibited and forced labour, as by that time such a person has not attained majority and is incapable of giving any consent. Further, the Punjab-Haryana High Court held that whenever a child above the age of 14 years is forced to work, it has to be treated as an offence under Section 374 IPC and it is to be dealt with sternly. The problem, however, may arise when a child between 14-18 years of age is committed to labour by the parents willingly and with their consent. It may be difficult to prohibit the same. Having regard to the age of the child fixed under the Child Labour Abolition Act, we are of the opinion that in such circumstances, the case can still be brought before the State Commission formed under the CPCR Act, 2005 which has the jurisdiction to look into the matters of violation of child rights and deal with the same and pass necessary directions.
Thus, it can be seen that clearly the conundrum remains regarding the age of children and the kind of benefits that accrues upon them under the various prevalent Acts in India. The legislature must clearly decide upon enumerating strict guidelines to decide upon the age of children universally under the various laws and strictly enforce the same so that children in India do not end up spending the rest of their lives on the streets of India.