Breach of Contract: Meaning, Essentials, Principles, Cases and Remedies under Indian Contract Act, 1872

Author: Monika Gurjar, Dharmashastra National Law University, Jabalpur INTRODUCTION The history of contract dates-back to ancient times where people used to enter into contract especially for domestic purposes. With the…

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Right To Education under Article 21 of the Indian Constitution

Author-Hemant Jarwal, University Five Year Law College, University Of Rajasthan

INTRODUCTION

"Knowledge is power. Information is liberating. Education is the premise of progress, in every society, in every family."- Kofi Annan, Former Secretary-General of the United Nations. From the Time a child is born, his or her education begins. At first, education is an informal process in which an infant watches others and learns from them by either copying them or listening to them. As the infant grows into a young child, the process of education becomes more formal by going to preschool. In grade school, academic lessons become the focus of education as a child moves through the school system. But it is not that simple, education is about much more than the simple learning of facts. Education in the bigger picture is the process of encouraging discovery and innovation in different sectors. From the time we are born, humans keep learning and still learning and will continue learning in the future. Sometimes consciously and many times subconsciously. Education is an effective method in different fields of acquiring knowledge, values, skills, habits, and beliefs. So after knowing and considering all the factors that tell us why education is so important and how can it change our life and our society's thinking or enhance their perspective from narrow mind to broad mind and how it can help in the overall growth and development of the nation. That’s why To eradicate education poverty, the government of India proposed the Right to Education Act (RTE) in 2009. It came into effect on 1 April 2010. It aims to provide free and compulsory education to children aged six to fourteen years under Article 21-A. Ensure that every child has his or her right to get a quality elementary education. This right also ensures the provision of fundamental or primary education for those who have not completed their basic education. Right to education includes the right to free, compulsory primary education for all, an obligation to develop secondary education accessible to all and an obligation to develop equitable access to higher education. India has a total of 19% of the children population in the world and almost one-third of the illiterate population in the world. But India can change this fact and figures by becoming the most educated population by using its resources to educate its youth. Education is a powerful tool for the uneducated population to grow and fully participate as citizens. And the Right to Education is also universally recognized by the main international instrument, the Universal Declaration of Human Rights (UDHR) as a basic human right to right to education in Article 26 Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit”.

Keywords : Right to Education, Article 21-A, Article 21  Constitution of India, Article 45, 86th Constitutional Amendment Act, UDHR, Right to Education Act.

Meaning, Definition & Explanation

Education is the way that gives us the ideas, skills, techniques, information, and knowledge to know, understand, and respect the duties we have towards our society, families, and nation. Education helps a person to get knowledge and enhance their confidence in life. It can help us to improve our careers and our personal growth. And as an educated person can become a great citizen in society and in the end educated persons help in the development and growth of society and nation. It helps you to make the right decisions in life. Therefore education is very important in life is because it helps everyone develop a good perspective of looking at the world and our society. Education helps us in getting new ideas and exploring new ideas. An uneducated person can never be fully aware of his/her responsibilities towards each other as human beings and the world as a whole. As human beings, we have to give back to the society that we have used and where we live in so that we can make it a better place to live for everybody. Proper education teaches an individual to think beyond their interests and helps them in developing an ability to make the world a happier, safer place for the next generation. It is difficult to give the answer of the question  What is education in a few lines. Because the Definition of education is given differently by different people at different times. Therefore, education cannot be defined or described by one's precise or perfect definition. The definitions given by different educators about its education are given below:
  1. According to Socrates "Education means the bring out of the ideas of universal validity which are latent in the mind of every man."
  2. According to Plato "Education is the capacity to feel pleasure and pain at the right moment it develops in the body and in the soul of the student all the beauty and all the perfection which he capable of."
  3. According to Aristotle "Education is the creation of a sound mind in a sound body it develops men's faculty especially his mind so that he may be able to enjoy the implementation of supreme court goodness and beauty of which perfect happiness essentially consists."

Historical Background / Evolution of Education:

The importance of education in India has been seen from the ancient times. Human education in India can be traced back to ancient times when the Gurukul system was working. In this Guru-Shishya (teacher-disciple) system, those who wanted to study would go to teachers and request to be accepted as a disciple. If they were accepted then the disciple had to stay at the teacher’s place, and apart from learning, he also had to help in other household chores. This system made a strong tie between the Guru and Shishya, and it also taught the disciple that how to run a household. Teachers of that era taught all the subjects in open classrooms like under shadow of trees, under the sun. Languages like Sanskrit and holy scripture, as well as metaphysics and mathematics, were part of the learning process. Learning was based more on the understanding their surroundings and nature, not just memorizing verses or shlokas. This education system got an impetus and developed with universities like Nalanda, Ujjain, Takshashila, and Vikramshila. Lord Thomas Babington Macaulay brought the modern form of education and the English language to India in the 1830s. The development of education in India was started by classroom confinement, and by teaching modern subjects like science and maths were part of this curriculum. Subjects like metaphysics and philosophy were deemed unnecessary or not important at that time. And you know what The right to education was initially not included as a fundamental right in the constitution but was included as a Directive Principle under Article 45 which states that it is the duty of the state to endeavor to provide, within a period of 10 years from the commencement of the constitution, for free and compulsory education for all children until they complete the age of 14 years. The directive in Article 45 was not limited to merely primary education rather it extends up to providing free education up to the age of 14 years, whatever the stage of education it came to. Therefore, education for children of this age group should have been free. During this period the Supreme Court also held that  the ‘Right to education' get from other Articles of the Constitution such as Articles 21, 24, 30(i), and 39(e) & (f). The Court emphasized that the primary obligation placed on the state by Article 45 is “to provide for free and compulsory education for children” and it can be discharged through government and aided school and that Article 45 does not required that obligation to be discharged at the expense of the minority communities.

Comparison of Right to Education with other Countries:

Status of Right to Education in India:

Like in India the Right to Education is mentioned under the Constitution of India by The 86th  Constitutional Amendment Act, 2002 which is made with objective to protect the citizen’s rights of education, as well as to overcome the challenges in India regarding education. The 86th Amendment act 2002, makes three exact provisions in Constitution to provide understanding of free and compulsory education to children’s of age between 6 to 14 years as a Fundamental Right. These are as follows:-
  1. Adding Article 21A in part III initiated that every child has a right to full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards.
  2. Bring alteration and modification in Article 45 and substituted as the state shall endeavors to assure early childhood care and free and compulsory education for all children until they complete the age of 6 years.
  3. The insertion of new clause in Article 51 A, clearly mandates the parents or guardians to furnish opportunities for education of their children between the age group of 6 to 14 years.[Article 51A (k)].

Status of Right to Education in the United States of America:

The right to an education is guaranteed and recognized as a fundamental or basic Human right by the  International law in the Universal Declaration of Human Rights. Similarly, UNESCO’s Constitution sets out the right to an education as necessary in order to “prepare the children of the world for the responsibilities of freedom.” However — and this might come as a surprise to many Americans — The U.S. Constitution mentions no such right nor has the U.S. Supreme Court recognized one. But All kids living in the United States have the right to a free public education. And the Constitution requires that all kids be given equal educational opportunity no matter what their race, ethnic background, religion, or sex, or whether they are rich or poor, citizen or non-citizen. Even if you are in this country illegally, you have the right to go to public school. In addition to this constitutional guarantee of an equal education, many federal, state and local laws also protect students against discrimination in education based on sexual orientation or disability, including pregnancy and HIV status. In fact, even though some kids may complain about having to go to school, the right to an equal educational opportunity is one of the most valuable rights you have. The Supreme Court said this in the landmark Brown v. Board of Education case when it struck down race segregation in public schools. Many people assume that the Federal Court had found a federal Right to Education in Brown v. Board of Education, 347 U.S. 483 (1954). However the court in that case did not held that all students had a right to an education. Rather, it held only that where a state makes public education available, it cannot withhold access to education based on race. Further, it espoused — or at least suggested the possibility of — an individual right to an education. The Federal court came closer to recognizing a federal right to education in Plyler v. Doe, 457 U.S. 202 (1982). There, the state of Texas had foreclosed public school education for undocumented students, and plaintiffs had made an Equal Protection claim. The court found that even though education was not a fundamental right, the state did not have a sufficient interest to withhold education from students whose parents had brought them to this country illegally. Since education is not specifically mentioned as a right or a power of the federal government, Congress does not have the authority to directly regulate education. Education is not currently recognized as a fundamental right in the United States. In 1973’s San Antonio Independent School District v. Rodriguez, the Supreme Court found that education is not explicitly protected under the U.S. Constitution, and its precedent has remained unchallenged at the Supreme Court for over 30 years. Advocates for the right to public education have offered divergent strategies to overcoming the ruling, but none has found success in federal court.

Types / Kinds of Education in India:

Education means the development of the learning and thinking process. And It is not limited to the walls of the classroom but it goes beyond the four walls of the classroom. It is all about gaining experience and therefore we can divide education into three main types:
  1. Formal Education.
  2. Informal Education.
  3. Non-formal Education.
  • Formal Education: This is also known as formal learning which usually takes place within the premises of the school. It is the type of education where the basic academic knowledge that a child learns in a formal manner.This continues from an elementary school to secondary school and further on to colleges. Such type of education is provided by specially qualified teachers who are efficient enough with the art of instruction.Here both the student and the teacher are both aware of the facts and involve themselves into a process of education. Some of the examples of formal education are classroom learning, Institute grading/certification, or planned education of different subjects with a proper syllabus acquired by attending an institution.
  • Informal Education: This is the type of education where a parent teach his/her child things that are beyond academics like preparing a meal or riding a bicycle. People can also get informal education through books or educational websites. This is an education that is not taught in schools through a proper learning method. It is not pre-determined nor deliberate. It is an experience that an individual feel by undergoing regular practice and observing others. Some of the examples are like by teaching a child with some basic personality traits, learning a mother tongue, performing certain extracurricular activities, etc.
  • Non-formal Education: It is a type of education where a person learn about adult basic education, adult literacy education, or skill development. It can take different forms of learning, which is consistently and systematically provided in order to develop a particular skill or ability in an individual.This type of education is highly flexible and it includes a wide range of activities. Some of the examples may be fitness programs, community-based adult education courses, and free courses on different platforms, etc.

Constitutional Provisions Related to the Right to Education

The right to education is a constitutionally protected right in India. The Constitutional provisions which supports and protected the right to education under the constitution of India are:
  1. Article 21-A: It was included to make the right to education a Fundamental rightfor children aged 6 to 14. It states that “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”.This provision was not included in the Constitution of India 1950. It was inserted by the Constitution (Eighty-sixth Amendment) Act, 2010.
  2. Article 45: It talks about the provision for free and compulsory education for children. It states that “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 fourteen years”.
  3. Article 46: It talks about the Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections under which it is clearly stated that “The 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”.
  4. Article 51-A(k): was added as the fundamental duties under Part IV of the Indian Constitution which states that “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”.

Legislative Acts Related to the Right to Education:

Right to Education (RTE) Act 2009

The Parliament has enacted the Right to Education Act 2009 (RTE Act) with the objective of regulating the degradation of the standard of the education system and uplifting the education imparting procedure by implementing specific provisions that required certain reformations to live up to the spirit of catering a quality and equitable education irrespective of caste, creed, gender economic and social background. The Act was enacted on 4th August 2009 and came into force on 1st April 2010. The principal features of the Act are as follows:
  1. The Act clearly mentions that education is the Fundamental Right of every child.
  2. Private schools must keep 25% of seats reserved for children belonging to the backward classes in terms of social background.
  3. The Act also provide educational rights for dropout students.
  4. Unrecognized schools are barred and are not allowed from interviewing a child or a parent for admission.
  5. Schools are barred and are not allowed to charge any capitation fees at any step while providing admission to a child.
  6. The Children who are pursuing elementary or primary education shall not be expelled, held back, or pressured to pass a board examination.
  7. The Act mandates that every government and aided schools should create a School Management Committee which composed of 75% of members as parents or guardians.
  8. The Act strictly prohibited physical punishment, mental harassment and private tuition by the teachers.
  9. The Act states that the provisions for a child’s admission to an appropriate class should be based on his/her age in the event that child has never been admitted to any school. And in order To help the child to keep up with other students, provisions relating to special training have also been mentioned in the Act.
The RTE Act 2009 acted as a tool in accelerating and developing the spirit of imparting free and compulsory elementary education to children between the age group of 6 to 14 years. Subsequent to the enforcement of the Act, a drastic change came about in the standard of education both in access and enrolment levels; literacy rates of the states and also enhanced at large. However, lately, due to a lack of an appropriate regulatory framework, the practical application and compliance with the provisions of the Act are facing repeated failure.

Landmark Cases and Judgement

 Case: - 1 Mohini Jain vs State of Karnataka(1992). In this case Miss Mohini Jain, a resident of Meerut applied for the admission in the MBBS course in a session which was commencing from 1991 in a private medical college located in the state of Karnataka. The college management asked her to deposit a sum of Rs 60000/- as the tuition fee for the first year and also to show a bank guarantee of the amount equal to the fee for the remaining year. When Miss Jain’s father questioned the management that the asked amount was beyond his reach, the management denied Ms. Jain’s admission to the medical college. Then Miss Jain informed the court that the management demanded an additional amount of Rs 450000/- however the management denied the allegation. Issues
  1. Whether “Right to Education” is guaranteed to the people of India under the constitution?
  2. Whether the charging of Capitation fees is violation of Article 14 and 21?
Judgment In this case the honourable Supreme Court held that although the right to education is as such has not been guaranteed as a fundamental right under the Indian constitution But it becomes clear from the preamble of the constitution and its Directive Principles contained in part 4 because the framers of the constitution intended that it the duty of  the state to provide education for its citizens. The court also held that the charging of a capitation fee by the private educational institutions violated the right to education as implied from the right to life and human dignity and the right to equal protection of the law. In additional the court held that the private institutions, which are acting as agent of the state have a duty to ensure equal access to and non discrimination the delivery of higher education. Thus we can conclude that The Court, in the absence of any Constitutional Provision for the Right to Education, held that the right to life and personal liberty under Article 21 also includes the Right to Education as education is required for the overall development of personality, without which one would not be able to have the enjoyment of his right to life. The purpose of the right to life is baseless without the Right to Education. Case:-2 Unni Krishnan, J.P & Ors vs State of Andhra Pradesh(1993) The case comes into existence through petitions filed by private educational institutions to challenge the state laws. These state laws were enacted with the objective of regulating the capitation fee charges in the states of Tamil Nadu, Karnataka, Andhra Pradesh and Maharashtra. These Laws mentioned that any person who is involved in the management and taking additional fees will be considered as capitation fees. Issues Whether Right to Education under Article 21 extend to technical education? Judgment In this case the Supreme Court with a Constitutional bench held that the education up to the age of 14 years to be a fundamental right and “It would be therefore incumbent up on the state to provide facilities and opportunity as enjoined under Article 39 (e) and (f) of the constitution in order to prevent exploitation of their childhood due to indigence and vagary”. In this case the Supreme Court By narrowing the approach taken by it in the Mohini Jain case, that the Right to Education is undoubtedly a Fundamental Right under Article 21. However, the right to free education is available to children until they attain the age of 14 years; after that, the obligation of the state to provide education is subject to economic capacity and development. Case:-3 Avinash Mehrotra vs Union of India(2009) In this case, The Court held that it is a fundamental right to have access to education free from the fear of security and shall have appropriate safety measures in case of any threat to life. Therefore, the right to education also includes providing safe schools in accordance with Articles 21 and 21A of the Indian Constitution. No matter where a family seeks to educate its children, even if it is a private institution, then the state must ensure that children shall not suffer any  harm while exercising their fundamental right to Education.

Amendments to Achieve Right to Education

86th Constitutional Amendment (2002)  In 2002, The constitution was amended by the 86th Amendment act with the objective to provide the Right to Education as a fundamental right.This Constitutional Amendment is made with the intent to protect the citizen’s rights to education, as well as to estimate the forthcoming and existing challenges in India concerning education. The Three main provisions in Constitution that 86th Amendment, 2002 incorporates and which promotes free and compulsory education to children between the age 6 to 14 years. They are as follows:-
  1. Article 21A: it was incorporated under the Fundamental Right which are mentioned under (Part III) of the Indian Constitution has expressly mentioned the right of every child to have access to full-time elementary education that would attain the standard of equality and quality through a formal school which would be satisfactory in terms of setting the norms and standard of the education.
  2. Article 45 was Altered and modified: Before the 86th Amendment 2002, Article 45 of Directive Principles of State Policy stated that free and compulsory education shall be provided to children up to the age of 14 years old. However, subsequent to the amendment, Article 45 was altered and modified, which states that “the state shall endeavour to impart early childhood care and education for every child till the age of 6 years instead of 14”. The age limit has been reduced to emphasize the prominence of early childhood care and education.
  3. Article 51-A(k): It was added as the fundamental duties under part IV of the Indian Constitution that it is the duty of the parents and guardians to provide and facilitate the opportunities for education to their children who are between the age group of 6 to 14 years.

CONCLUSION

Thus we can say that now The right to education is recognized today as a fundamental right under the Constitution of India. And This is a relatively recent development. The Constituent Assembly only included that it is the obligation of the state to provide free and compulsory primary education under Article 45 of the Constitution. But this is a Directive Principle of State Policy, which was not enforceable by courts. Articles 29 and 30, however, they are justifiable fundamental rights but they only prevent the state from discriminating against minority groups in access to education or in the establishment of educational institutions. So we all should say thank you to the honorable Supreme Court because it also plays an important role in directly reaching the journey of article 21 A by giving landmark judgments like the Mohini Jain judgment, Unni Krishnan judgment and many more which encourages and motivated the Indian Government to take necessary steps in order to provide Right to Education under Indian Constitution like 86th Constitutional Amendment Act, 2002 and enforcing laws like Right to Education Act, 2009 and many more So Because all of this The right to receive basic elementary education is one of the most important rights. And we can also say that the Right to Education is one of the best legislation in our country. And As per the layman’s perspective, the provision is either good or bad but the law holds the accountability, more.  And once A famous philosopher has said that “law is the public conscience” – Thomas Hobbes. Law is made for the welfare of society and not for the purpose of making the welfare of oneself.

REFERENCES

  1. Books / Commentaries / Journals Referred
    1. J N Pandey,”Constitutional Law of India”p.382 Central Law Agency, Allahabad 2022.
    2. Agrawal, Tushar. “Right to Education Act and Educationally Backward States in India.” SSRN Electronic Journal, 2012, doi:10.2139/ssrn.1985122.
    3. Gursharan Singh Kainth “Right to education” Bharti publications Delhi 2014, page no. 29.
  1. Online Articles / Sources Referred
    1. https://www.researchgate.net/publication/342734746_right_to_education_with_special_reference_to_Article_21A
    2. https://www.aclu.org/documents/your-right-equality-education
    3. https://kappanonline.org/underwood-education-american-right/
    4. https://law.vanderbilt.edu/a-novel-argument-for-the-right-to-public-education/
    5. https://eduhutch.blogspot.com/2021/07/definition-of-education.html
    6. https://en.unesco.org/themes/education/sdgs/material/04
    7. https://www.escr-net.org/caselaw/2009/mohini-jain-v-state-karnataka-1992-air-1858
    8. https://www.escr-net.org/caselaw/2006/unni-krishnan-jp-ors-v-state-andhra-pradesh-ors-cited-1993-air-217-1993-scr-1-594-1993
    9. https://www.cuemath.com/learn/3-types-of-education/
    10. https://www.lawctopus.com/academike/right-education-india/
    11. https://www.thehindu.com/news/national/India-joins-list-of-135-countries-in-making-education-a-right/article13666115.ece
    12. https://lawbhoomi.com/development-of-education-as-a-right-in-india/
  1. Cases Referred
    1. AIR 1992 SC 1858
    2. AIR 1993 SC 2178
    3. 6 SCC 398 (2009)
  1. Statutes Referred
    1. Article 21-A of the Constitution of India, 1950
    2. Article 45 of Constitution of India, 1950
    3. Article 51A(k) of Constitution of India, 1950
    4. RTE Act, 2009
    5. 86th Constitutional Amendment Act, 2002

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