“I beg to place the following resolution before the council for its consideration.…the state should accept in this country the same responsibility in regard to mass education that the government of most civilized countries are already discharging and that a well considered scheme should be drawn up and adhered to till it is carried out.. The well being of millions upon millions of children who are waiting to be brought under the influence education depends upon it...”
 
The above words are part of the resolution which Gopal Krishna Gokhale moved in the Imperial Legislative Council on 18th march, 1910 for seeking provision of ‘Free and Compulsory Primary Education” in India. This initiative must however be seen as part of the following sequence of events:

1870: Compulsory Education Act passed in Britain

1882: Indian Education Commission: Indian leaders demand provision for mass

education and Compulsory Education Acts.

1893: Maharaja of Baroda introduces Compulsory Education for boys in Amreli Taluk.

1906: Maharaja of Baroda extends Compulsory Education to rest of the state.

1906: Gopal Krishna Gokhale makes a plea to Imperial Legislative Council for

introduction of Free And Compulsory Education

1910: Gokhale proposes Private members Bill (Rejected)

1917: Vithalbhai Patel is successful in getting the Bill passed - First Law on

Compulsory Education passed (Popularly Known as Patel Act)

1918-: Every Province in British India gets Compulsory Education Act on its

1930 Statute Book

1930: Hartog Committee Recommendation for better quality (less focus on quantity)

hinders spread and development of primary education

Many of these initiatives, however, were not seriously implemented; lack of resources and enforcement being the chief reasons.

The situation worsened over the years forcing Mahatma Gandhi to give a stirring call for universal education in 1937. His plea for adequate finances for universal education was met with a response that if at all, the way out was to utilize revenues from liquor sales. That meant he had to either give up his stand on prohibition, or his plea for universal education with state support, which he expressed quite plainly: “the cruelest irony of the new reforms lies in the fact that we are left with nothing but liquor revenue to fall back upon in order to give our children education (Harijan 5, 222). He solved what he called the ‘Educational Puzzle’ by proposing self-funded education, in what came to be known nai talim later.

1946: Constituent assembly began its task

1947: Ways and Means (Kher) Committee set up to explore ways and means of

achieving Universal Elementary Education within ten years at lesser cost.

1947: Constituent Assembly Sub committee on Fundamental rights places free and

compulsory education on list of Fundamental Rights :

“Clause 23- Every citizen is entitled as of… right to free primary education and it

shall be the duty of the State to provide within a period of ten years from the

commencement of this Constitution for free and compulsory primary education for

all children until they complete the age of fourteen years.”

1947 (April): Advisory Committee of the Constituent Assembly rejects free and

compulsory education as a fundamental right (costs being the reason). Sends

clause to list of “non - justiciable fundamental rights” (later termed as ‘Directive

Principles of State Policy).

1949: Debate in Constituent Assembly Removes the First Line of ‘Article 36’…“Every

citizen is entitled as of right to free primary education and it shall be the duty of

the State to..” and replaces it with “The State shall endeavour to..”

Why was the word ‘primary’ education removed? … “ a provision has been made

in article 18 , to forbid any child being employed below the age of 14. Obviously

if the child is not to be employed below the age of 14, the child must be kept

occupied in some educational institution. That is the object of article 36..”

-Sh B. R. Ambedkar, 23rd Nov. 1949

1950: Finally, Article 45 of Directive Principles of State Policy accepted: “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”.

This denied a justiciable right. The inadequacy of the final Article 45 was foreseen

by K.T. Shah in his note of dissent in April 1947 thus:

“Once an unambiguous declaration of such a (justiciable) right is made, those

responsible for it would have to find ways and means to give effect to it. If they

had no such obligation placed upon them, they might be inclined to avail

themselves of every excuse to justify their own inactivity in the matter,

indifference or worse”.

These words of K. T. Shah proved prophetic. On the fate of Article 45 after independence, the noted Gandhian economist L.C. Jain has observed that there was no reference to education in any of the budget speeches during the ten year period after the adoption of the Constitution, which was the time target envisaged by Article 45. It should therefore be clear that the plea of lack of resources made even Gandhi think of alternative methods, and Babasaheb Ambedkar to accept dropping the draft Article 36 from the final Constitution. Many shortcomings of the 2009 Act, like excluding the 0-6 and 14-18 age groups stem from the same lack of resources argument, and even the fate of the implementation of the 2009 Act will crucially depend on the availability and proper utilization of adequate finances. In this context, where as it is heartening that the Prime Minister in his unprecedented address to the nation on the Act on April 1, 2010 said that financial availability will not be allowed to hamper the implementation of the Act, one hopes that this promise to the nation will inform state policy in the coming years.

The Supreme Court in 1993 held free education until a child completes the age of 14 to be a right (Unnikrishnan and others Vs State of Andhra Pradesh and others) by stating that: “The 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 parameters 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.”

Spurred by the Unnikrishnan judgment and a public demand to enforce the right to education, successive governments from 1993 worked towards bringing a constitutional amendment to make education a fundamental right. That led to the 86^th amendment in December 2002 which inserted the following articles in the Constitution:

1. Insertion of new article 21A- After article 21 of the Constitution, the following article shall be inserted, namely:-

Right to education.-

"21A. 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."

2. Substitution of new article for article 45- For article 45 of the Constitution, the following article shall be substituted, namely:- .

Provision for early childhood care and education to children below the age of six years.

"45. The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years."

3. Amendment of article 51A- In article 51A of the Constitution, after clause (J), the following clause shall be added, namely:-

"(k) 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."

The original Article 45 of the Directive Principles had used the term ‘up to 14 years’ and the Unnikrishnan judgment said ‘till he completes the age of 14 years’. Both these definitions contain the age group 0-6 years. Article 21A restricted the age group from 6 to 14, thereby removing the 0-6 age group from the right; relegating it to the new article 45 of Directive Principles. The Unnikrishnan judgment had further observed that the right to education existed and would not be contingent upon the economic capacity of the state up to 14 years of age. Article 21A said that it would come into force ‘in such manner as the State may, by law, determine’. So it was made contingent on a law that the state may bring in. This Act is that law, and it took another eight years to come since the 86^th amendment was passed. So it took seventeen years for the right to be enforced since the Unnikrishnan judgment, that too for the restricted age group of 6 to 14 years. It may be noted here that it was the Parliamentary Standing Committee on Education that recommended the age group 6 to 14 years for the eventual 86th constitutional amendment, paving the way for the restricted age group.

After the 86^th amendment in December 2002 the following actions took place:

• 2003: The Free and Compulsory Education For Children

Bill, 2003 (NDA government)

• 2004: The Free and Compulsory Education For Children

Bill, 2004 (NDA government)

• 2005: The Right to Education Bill, 2005 (June) (CABE Bill) (UPA I government)

• 2005: The Right to Education Bill, 2005 (August) (UPA I government)

• 2006: Central legislation discarded. States advised to make their own Bills based

on The Model Right to Education Bill, 2006 (UPA I government)

• 2008/9: Central legislation revived. The Right of Children to Free and

Compulsory Bill, 2008, introduced/ passed in Rajya Sabha

and Lok Sabha. President’s assent in August 2009. However, the

notification of the Act and the 86^th amendment, issued on Feb 19, 2010 in

the Gazette of India, stating that implementation will begin from April 1,

2010, eight months after the presidential assent. (UPA II government).

Notice that the word ‘Right’ was missing in the first two drafts of the Bill and was used from the 2005 CABE bill onwards. The central legislation was dropped in 2006 in preference to state legislations based on a token model bill draft, for the recurring ‘lack of central resources’ argument, but it was intense public pressure based on independent financial estimates that made it possible to revive and bring back the central legislation in 2008.

This Indian Act is unique from amongst such Acts from many other countries for the following reasons:

• the definition of ‘free’ that goes beyond tuition fees

• the ‘compulsion’ being on the governments rather than on parents

• the stress on ending discrimination, and on inclusion

• prescribing quality principles for the teaching-learning process

• an external constitutional body for monitoring the Act

• defining minimum norms and standards for the school

• addressing the emotional, stress and anxiety issues of children

The Act is also momentous since it took over a hundred years to bring it in. If we take 1857 war as the milepost for the fight for India’s independence, it took ninety years, up to 1947, for that to become a reality. But for the Right to Education, it has taken a decade longer, sixty two of those years being after the nation became independent. That gives the Act a very serious historic significance.

They would have to be brought in conformity with the central Act. As per article 254 of the constitution reproduced below, a state Act can not violate the provisions of the central Act in a concurrent subject. States could amend such a central act, but that would require presidential assent. However, if the state Act contains anything on which the central Act is silent, then that may remain as a part of the state Act.

254. (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause

(2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(3) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.