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The Constitution (Eighty-sixth Amendment) Act, 2002,[1] inserted article 21-A (“Right to Education”) in the Constitution of India, establishing education as a fundamental right.  Article 21-A stipulates that “[t]he 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.”[2]  Education is on the Concurrent List of shared subject matter, which enables both the central government and the individual states to regulate education.[3]  Prior to the insertion of article 21-A, the Supreme Court of India held in 1992 that the right to education was a fundamental right that flowed from article 21, concerning the right to life.[4]  In a 2011 decision the Supreme Court stated that

the right of children to free and compulsory education has been made a fundamental right under Article 21A of the Constitution.  Now every child of the age of 6 to 14 years has right to have free education in neighbourhood school till elementary education.[5]

In 2009, the Right of Children to Free and Compulsory Education (RTE) Act[6] was passed as enabling legislation to implement the recently added fundamental right.[7]  Both the constitutional amendment and the Act came into force on April 1, 2010.[8]  The Act requires that every child between the ages of six and fourteen years, including disadvantaged and low-income children, “have the right to free and compulsory education in a neighborhood school till the completion of his or her elementary education.”[9]  The Act also has provisions for nonadmitted children to be admitted to an age-appropriate class,[10] and “specifies the duties and responsibilities of appropriate Governments, local authority and parents in providing free and compulsory education, and sharing of financial and other responsibilities between the Central and State Governments.”[11]  Moreover, under section 12(c) of the Act unaided private schools are required to reserve 25% of their seats for children belonging to scheduled castes, scheduled tribes, and low-income or other disadvantaged or weaker groups (and provide free and compulsory elementary education for them).[12]

A landmark 2012 decision by the Supreme Court of India upheld the constitutionality of the Act, including section 12(c), but held that the RTE Act could not require private, minority schools to fulfill the 25% quota, as this would violate the right of minority groups to establish private schools under article 30[13] of the Indian Constitution.[14]  In defining the scope of article 21-A the Court held that

[i]t provides that the State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may, by law, determine.  Thus, under the said Article, the obligation is on the State to provide free and compulsory education to all children of specified age.  However, under the said Article, the manner in which the said obligation will be discharged by the State has been left to the State to determine by law.  Thus, the State may decide to provide free and compulsory education to all children of the specified age through its own schools or through government aided schools or through unaided private schools.[15]

The Court also held that

unlike other fundamental rights, the right to education places a burden not only on the State, but also on the parent/guardian of every child [Article 51A(k)].  The Constitution directs both burdens to achieve one end: the compulsory education of children free from the barriers of cost, parental obstruction or State inaction.[16]

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Prepared by Tariq Ahmad
Foreign Law Specialist
May 2016



[1] Constitution (Eighty-sixth Amendment) Act, 2002, http://indiacode.nic.in/coiweb/amend/amend86.htm, archived at https://perma.cc/EFV5-YHV6.

[2] India Const. art. 21-A, http://lawmin.nic.in/olwing/coi/coi-english/coi-4March2016.pdf, archived at https://perma.cc/K2UY-4MPY.  Note that Part IV of the Constitution establishes a number of directive principles of state policy: article 41 stipules that “[t]he 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”; article 45 states that “[t]he State shall endeavour to provide early childhood care and education for all children until they complete the age of six years”; article 46 states that “[t]he State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation”; and article 51-A, which lists fundamental duties, stipulates that it shall be the duty of every citizen of India “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.”  Note that directive principles of state policy and fundamental duties are nonjusticiable but have been used to interpret fundamental rights and also construed harmoniously with them.

[3] Id. Seventh Sched., List III–Concurrent List, “25. Education, Including Technical Education, Medical Education and Universities, Subject to the Provisions of Entries 63, 64, 65 and 66 of List I; Vocational and Technical Training of Labour.”

[4] The Supreme Court in the case of Miss Mohini Jain case held that the “ ‘Right to life’ is the compendious expression for all those rights which the Court must enforce because they are basic to the dignified enjoyment of life.  It extends to the full range of conduct which the individual is free to pursue.  The right to education flows directly from [the] right to life.  The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education.  The State Government is under an obligation to make endeavor to provide educational  facilities at all levels to its citizens.”  Mohini Jain v. State of Karnataka, (1992) 3 S.C.R. 658, http://judis.nic.in/supremecourt/imgs1.aspx?filename=12349, archived at https://perma.cc/5PXM-NYFU.  The Mohini Jain decision was partly upheld by the Supreme Court when it held, in Unni Krishnan & Others v. State of A.P. and Others, that

[t]he citizens of this country have a fundamental right to education.  The said right flows from Article 21.  This right is, however, not an absolute right.  Its content and para meters have to be determined in the light of Articles 45 and 41.  In other words every child/citizen of this country has a right to free education until he completes the age of fourteen years.  Thereafter his right to education is subject to the limits of economic capacity and development of the State.

  Unni Krishnan & Others v. State of A.P. and Others, (1993) 1 S.C.C. 645, http://judis.nic.in/supremecourt/ Chrseq.aspx, archived at https://perma.cc/ZQ9Z-B2VJ.

[5] Bachpan Bachao Andolan v. Union of India & Ors., Writ Petition (C) No. 51 of 2006, ¶ 67, available at https://www.unodc.org/res/cld/case-law/ind/2011/bachpan_bachao_andolan_children_in_circus_2011_case_html/ Bachpan_Bachao_Andolan_-_SC_Judgment_2011.pdf, archived at https://perma.cc/J38L-PYVB.

[6] Right of Children to Free and Compulsory Education (RTE) Act, No. 35 of 2009, http://indiacode.nic.in/ amendmentacts2012/The%20Right%20to%20Free%20and%20Compulsary%20Education%20Act.pdf, archived at https://perma.cc/7822-R4VC.  

[7] The Right to Education in India, India: Joint Report on India – Submission by National Coalition for Education and World Vision India for Universal Periodic Review, 13th session, 2012, http://lib.ohchr.org/HRBodies/UPR/ Documents/session13/IN/JS6_UPR_IND_S13_2012_JointSubmission6_E.pdf, archived at https://perma.cc/FY4A-WK9H

[8] Right to Education, Ministry of Human Resource Development (MHRD), http://mhrd.gov.in/rte, archived at https://perma.cc/R3C6-RWVM

[9] RTE Act § 3.  “Elementary education” under the Act means education from the first grade through the eighth grade.

[10] Id. § 4.

[11] MHRD, supra note 8.

[12] RTE Act § 12(c).

[13] Article 30 of the Constitution describes a fundamental right, declaring that “[a]ll minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.”

[14] Society for Un-aided Private Schools of Rajasthan v. Union of India & Another, Writ Petition (C) No. 95 of 2010, http://judis.nic.in/supremecourt/imgs1.aspx?filename=39251, archived at https://perma.cc/4Y4X-FST3.  The following sources provide a useful summary of the judgment: Supreme Court Upholds 25% Reservation in Private Schools, PRS Blog (Apr. 14, 2012), http://www.prsindia.org/theprsblog/?p=1442, archived at https://perma.cc/ XR6C-H8K3; Case-Law Summary: Society for Unaided Private Schools v. India (Supreme Court of India; 2012), Right to Education Project (July 2015), http://www.right-to-education.org/sites/right-to-education.org/files/ resource-attachments/India%20Supreme%20Court%2C%20Society%20for%20Unaided%20Private%20Schools %20v%20India%2C%202012.pdf, archived at https://perma.cc/QBN5-LN9S.  A larger constitutional bench of the Supreme Court considered the constitutional validity of articles 21A and 15(5) the RTE Act, and held that they are valid but that minority educational institutions are exempt from providing the 25% reservation.  Pramati Educational & Cultural Trust v. Union of India, Writ Petition (C) No. 416 of 2012, http://supremecourtofindia.nic.in/outtoday/ 41505.pdf, archived at https://perma.cc/XZ9M-2M3R.  For an overview of Supreme Court cases on the right to education see Ashley Feasley, Recognizing Education Rights in India and the United States: All Roads Lead to the Courts?, 26 Pace Int’l L. Rev. 1 (2014), available at http://digitalcommons.pace.edu/pilr/vol26/iss2/1.  

[15] Society for Un-aided Private Schools of Rajasthan v. Union of India & Another ¶ 9.  

[16] Id. ¶ 10.