Review the law and amend the 2002 School Education Act
World over the Right to Education finds mention in three key international instruments: Universal Declaration of Human Rights, 1948, the International Covenant on Economic, Social and Cultural Rights, 1966, and the Convention on the Rights of the Child, 1989. India is a signatory to all the three. However, until 2002, “free and compulsory education” was only a Directive Principle of State policy, in the whole of India, by way of the then Article 45 of the Constitution of India, which provided that “the state shall endeavor to provide for free and compulsory education for all children until they complete the age of fourteen years.” In 1993, in the landmark case of Unnikrishnan against State of AP AIR 1993 SC 2178, wherein the Supreme Court of India 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, the Court said, is meaningless if it is without access to knowledge. This Supreme Court judgement accorded the status of a fundamental right to “free and compulsory education” of all children up to 14 years of age in India.
Right to Education is not a fundamental right in J&K
As is obvious from the celebrated Unikrishnan verdict, a constitutional amendment, which made free and compulsory education a fundamental right, saw the light of the day in year 2002 in the Indian legislative scene. The 2002 amendment, also 86th to the parent Constitution, inserted Article 21-A, in its part III, which provides that the State shall provide free and compulsory education to all children from the age of six to fourteen years in such manner as the State may, by law, determine, and made the new Article 45 to take care of their early childhood care and education.
Now the question here is whether the right to free and compulsory education is a fundamental right in the state of Jammu and Kashmir (J and K). In order to reach a conclusion, it is important to know that since the relationship of the state with the Indian Union is governed by Article 370 of the Constitution of India, the provisions of the Constitution of India with regard to the fundamental rights have been applied to the state through the Constitution (Application to Jammu and Kashmir) Order, 1954 promulgated by the President. Thus considered, any new amendment to the fundamental rights i.e., Part III of the Constitution of India can be made applicable to the State only by an enabling the order promulgated by the President of India as per the 1954 constitutional order. However, so far, the President promulgated no such order extending the benefits of the eighty-sixth amendment to the State. As it appears, the state government didn’t take any steps for such extension, thus leaving the already crumbled education system of the state in chaos.
Unlike other fundamental rights, the right to education, as guaranteed under the Constitution of India, requires an enabling legislation to be effective. Because Article 21-A ends up as ‘in such manner as the state may, by law, determine.’ After eight years of the amendment and a heated debate, the Indian Parliament finally came up with such an enabling enactment in the form of Right of Children to Free and Compulsory Education Act (RTE), 2009, which came into force on April 1, 2010. The RTE Act, 2009 is a detailed and comprehensive piece of legislation which includes provisions for the enforcement of the now fundamental right to education under Article 21-A of the Constitution of India. Now education being a concurrent subject, according to Article 254 of the Constitution of India, all the existing state legislations on education stand overruled by this 2009 Act. However, amendments to the Act, at the State level, would require presidential assent.
The only law having provisions for compulsory elementary education, which was not superseded, was the Jammu and Kashmir School Education Act, 2002. On close analysis, the 2002 Act contains partly fine legislative framework for achieving the goal of universalisation of elementary education. However, it surely misses many important provisions which now form part of the central RTE Act. For instance, inter alia, it does not provide for the reservation of at least 25 percent of the seats in private schools, both aided and unaided, for economically weaker and socially disadvantaged sections in the entry level class. The Act also does not provide for an effective monitoring mechanism. And importantly, it does not confirm to the nature of the very right at the Central level. The Act therefore has become obsolete in the wake of the developments across the globe and at the central level.
It is true that over the years a varied number of centrally sponsored schemes are operational in the state as part of the larger agenda of universalisation of elementary education. But, at the same time, it cannot be denied that the basic architecture appears missing. It is just like putting the cart before the horse. Much time has elapsed since the right to education received the status of a fundamental right in the whole of India. The State should not further kill its time in putting the right at the pedestal of a fundamental right. For that, steps need to be taken for the extension of the eighty-sixth amendment, which incorporates Article 21-A, to the State. Because there is no justification why the right to free and compulsory education is not given the status of a fundamental right in J&K, when it is a fundamental right elsewhere in India.
Besides, unlike at the central level, the J and K State need not require a new enabling legislation for making the right effective. All it needs to do is to amend its 2002 School Education Act on the lines of the 2009 central Act. That way it will be more convenient and will take lesser time than making of an altogether new legislation. Thus a rights-based approach, which requires the state to take steps for reinforcing the access to education, should be adopted as opposed to the one where an unwilling parent is penalized, the provisions for which unfortunately find place in the 2002 State Act. This is further emboldened by the Unnikrishnan judgment, wherein the court observed that the right to education up to 14 years would not be contingent upon the economic capacity of the state. The State should not forget that the school drop-out rate, out-of-school children, quality of education and availability of trained teachers continue to remain unaddressed in the state.
(Burhan Majid is a research student at Faculty of Law, University of Kashmir. Feedback at firstname.lastname@example.org