THE RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT, 2009

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The Right of Children to Free and Compulsory Education Act, (Act No. 35 of 2009) came into force on 1st April 2010. The Act, commonly known as the Right to Education Act, 2009 (RTE Act) was enacted by the Parliament of India by exercising its power conferred under article 21A of the Constitution. The Right to Education Act provides for free and compulsory education to all children of the age of six to fourteen years. It was passed by the Rajya Sabha on 20th July 2009 and by Lok Sabha on 4th august 2009. The President gave assent to it on 26th August 2009.

Article 21A which consider the right to education as a fundamental right was incorporated in the Constitution by the Constitution (eighty-sixth Amendment) Act, 2002. Earlier it was considered as a Directive Principle of State Policy under article 45, but later two of the decisions of the Supreme Court viz; Mohini Jain v.State of Karnataka, A.I.R 1992 SC 1858 and Unnikrishnan v. State of Andhra Pradesh, (1993) 1 S.C.C 645 made it a fundamental right. By the commencement of both 86th amendment Act and RTE Act, India became one of the 135 countries which considered education as a right.

The RTE Act provides that elementary education, from 1st standard to 8th standard should be free and compulsory. The children of the age group between six to fourteen should get such elementary education in a neighboring school. It is the duty of the parents to admit their children in a neighboring school for elementary education and it is the duty of the appropriate government or local authority to provide free and compulsory education for them. The RTE Act make both Central and State governments concurrently responsible for funding to carry out the provisions of the Act. The appropriate government or the local authorities are bound to establish schools for the purpose of the Act, if it is not established.

From the Statement of Objects and Reasons of the Act it is clear that the Act intended to provide free and compulsory education with satisfactory quality to the children from disadvantaged groups and weaker sections of the society. The children from Scheduled Casts, Scheduled Tribes, socially and educationally backward classes or such other group having disadvantage owing to social, cultural, economical, geographical, linguistic, gender, etc are included in the disadvantaged groups. Children belonging to the parents below the specified annual income constitute weaker sections.

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Under the provisions of the Act, an aided school should provide a minimum of twenty five percent of children admitted therein, the free and compulsory education. In the case of unaided schools twenty five percent of the strength of Class 1 children has to be admitted from weaker sections or disadvantaged groups of the neighborhood. However State shall reimburse such expenditure. Apart from these, the Act prohibited capitation fee for admission to elementary education, provides for the qualification to teaching, and make recognition for a school compulsory. The act completely prohibited the physical and mental harassment of the children. Under the act, no child is required to pass any Board examination till the completion of the elementary education. It also prevented teachers from private tuition.

The Act provided for the establishment of School Management Committees with community participation for the monitoring of the working of the school, monitor the utilization of grants by the schools and to make school development plan. It intended to create a child friendly whole school environment through the working of the School Management Committee.

The Act empowered the National Commission for the Protection of Child Rights (NCPCR) to review the safeguards for the rights provided by the Act. Every State should constitute either the State Commission for the Protection of Child Rights (SCPCR) or Right to Education Protection Authority (REPA) for the purpose of the Act.

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The constitutionality of the RTE Act was checked by the full Bench of the Supreme Court in Society for Unaided Schools of Rajasthan v. Union of India, (2012) 6 S.C.C 1. The Court made the Act not applicable to the unaided minority educational institutions which are protected under article 30(1) of the Constitution. Subsequent to it, the Act was amended by the Amendment Act, 2012 so as to make the Act, 2009 subject to provisions of articles 29 and 30 0f the Constitution. Later the Constitutional Bench in Pramati Educational and Cultural Trust v. Union of India, A.I.R. 2014 SC 2114 provides the sections of the Act inapplicable insofar it is inconsistent with the right of the minorities to establish and administer educational institutions under article 30(1).