Introduction to Education Law

Introduction

• Education is a systematic process through which a child or an adult acquires knowledge,

experience, skill and sound attitude.
• Education law is a field that covers all legal matters related to education.
• Its scope includes the rights of students, teachers, and schools.
• The field involves public education systems and private schools across the country, from
kindergarten through high school and beyond.
• Education law plays a vital role in education reform.
• Education law in India is primarily governed by the Constitution of India, which lays down several
provisions to ensure the right to education, promote equality, and protect the interests of various
sections of society.
Introduction

• Education law in India aims to create a just and equitable educational system, ensuring
access to education for all sections of society, protecting minority rights, and promoting
the development of the national language and culture.
• ​ The implementation of these laws relies on the cooperation of both the central and state
governments.
Constitution of India and Education

• The Constitution of India provides a comprehensive framework for the governance of education in
the country.
• ​ It includes several provisions aimed at ensuring the right to education, promoting equality, and
protecting the interests of various sections of society.
• ​ Here are the key constitutional provisions related to education:
 Right to Education:
• Article 21A: Guarantees free and compulsory education to all children aged 6 to 14 years as a
Fundamental Right.
• Article 45: Directs the state to provide early childhood care and education for all children until they
complete the age of 14 years.
Constitution of India and Education

 Equality and Non-Discrimination:

• Article 29: Ensures equality of opportunity in educational institutions and protects the
interests of minorities.
• Article 30: Grants minorities the right to establish and administer educational institutions
of their choice.
• Article 15(3): Allows the state to make special provisions for women and children,
including in education.
Constitution of India and Education

 Special Provisions for Weaker Sections:

• Article 46: Promotes the educational and economic interests of Scheduled Castes,
Scheduled Tribes, and other weaker sections.
• Article 337: Provides special educational grants for the Anglo-Indian community.
 Language and Cultural Rights:
• Article 350A: Ensures facilities for instruction in the mother tongue at the primary stage.​
• Article 351: Promotes the development and spread of the Hindi language.
Constitution of India and Education

 Higher Education and Research:

• Entries 63, 64, 65, and 66 of the Union List: Empower the central government to
coordinate and determine standards in institutions of higher education and research.
 Educational Institutions of National Importance:
• Entry 63: Recognizes institutions like Banaras Hindu University, Aligarh Muslim
University, and Delhi University as institutions of national importance.
 Regulation and Standards:
• Entry 66 of the Union List: Provides for the coordination and determination of standards
in institutions of higher education or research and scientific and technical institutions.
Constitution of India and Education

• The Constitution of India aims to create a just and equitable educational system,
ensuring access to education for all sections of society, protecting minority rights,
and promoting the development of the national language and culture.
• The implementation of these laws relies on the cooperation of both the central
and state governments.
International Scenario of Education

• Several international conventions, numerous writings and reports by United Nations (UN)
bodies stress the importance of the fundamental right to education.
• The right to education is codified in the Universal Declaration of Human Rights (UDHR),
International Covenant on Civil and Political Rights (ICCPR), International Covenant on
Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW) and Convention on the Rights of the Child
(CRC).
• The United Nations Educational, Scientific and Cultural Organisation (UNESCO) has,
therefore, placed the right to education at the forefront of its activities and the Education for
All (EFA) is high on its agenda.
International Scenario of Education

• At international level the ICESCR devotes two articles to the right to education, namely,
Articles 13 and 14.
• Article 2(2) of ICESCR requires states to guarantee the non-discriminatory enjoyment of
economic, social and cultural rights. The prohibition against discrimination enshrined by
the provision applies fully and immediately to all aspects of education and encompasses
all internationally prohibited grounds of discrimination.
Right to Education

• In India the judiciary has shown its deep concern for providing free and
compulsory education to all children below the age of 14 years. The right
to free primary education has now been declared as a fundamental right.
• The Supreme Court of India in the Bandhua Mukti Morcha case held that
the right to education is implicit in and flows from the right to life
guaranteed by Article 21. That the right to education has been treated as
one of transcendental importance in the life of an individual has been
recognised not only in this country since thousands of years, but all over
the world.
Right to Education

 The issue of the scope and extent of right to education came up before the Supreme
Court in Mohini Jain (1982).
 This case addressed the charging of capitation fees by professional colleges. The Court
held that the charging of capitation fees was illegal and held that the right to
education flows directly from the right to life.
 The right to life and the dignity of an individual cannot be assured unless it is
accompanied by the right to education, and the fundamental rights guaranteed
under Part III of the Constitution of India, including the right to freedom of speech and
expression and other rights under Article 19, cannot be appreciated and fully enjoyed
unless a citizen is educated and is conscious of his individual dignity.
Right to Education

 In Unni Krishnan (1993) case the Court held that the fundamental right to
education flows from Article 21.
 The right to education which is implicit in the right to life and personal liberty
guaranteed by Article 21 must be construed in the light of the Directive Principles
in Part IV of the Constitution.
 While declaring the right to education as a fundamental right, it was held that it
was not to be construed as an absolute right, and its content was defined by the
parameters of Articles 41, 45 and 46 of the Directive Principles.
 It is in the light of these Articles that the content and parameter of the right to
education have to be determined.
Right to Education

 The Court further held that the right to education, understood in the context of Articles 45
and 41 means, in other words, that every child/citizen has a right to free education up to the
age of 14 years and thereafter the right would be subject to the limits of the economic
capacity of the state.
 It was ruled that since more than four decades have elapsed, it was high time that the state
must implement the Directive in Article 45.
 This was in the nature of waking up the state from hibernation so that it may be fully alive to its
obligations under the Directive and provide an expansion of ‘life’ or ‘liberty’ in Article 21.
 In this case, interestingly the Court took the support of the right to education as laid down in
the UDHR and Article 13 of the ICESCR and for the first time articulated it as a ‘social’ right.
Right to Education

 Following the judgments of the Supreme Court, a new Article 21-A has been
inserted by the 86th Amendment to the Constitution and made primary
education free for all children in the age group of 6 to 14 years.
 Further, this Amendment has inserted new clauses in Articles 45 and 51-A of
the Indian Constitution.
 Pursuant to the above, a Draft Bill on the Right to Education is approved by
the Ministry of Human Resource Development and sent to the state
governments.
 The Draft Bill on the Right to Education stipulates that free education be
provided to at least 25 per cent of children of weaker sections by partially
aided and unaided schools.
Right to Education

• In preliminary report to the Commission on Human Rights, the Special

Rapporteur on the right to education sets out “four essential features that
primary schools should exhibit, namely availability, accessibility, acceptability
and adaptability.”
(a) Availability – The availability of the educational institutions and programmes
have to be in sufficient quantity within the jurisdiction of the state party. All
institutions and programmes are likely to require buildings with adequate
facilities of sanitation facilities for both sexes, safe drinking water, trained
teachers receiving domestically competitive salaries, teaching materials, and
so on; while some will also require facilities such as a library, computers and
information technology.
Right to Education

(b) Accessibility – The educational institutions and programmes have to be

accessible to everyone, without discrimination, within the jurisdiction of the
state party. Education must be accessible to all, especially the most
vulnerable groups without discrimination. The educational institution has to be
within safe physical reach, by attendance at some reasonably convenient
geographic location. Education has to be affordable to all.
(c) Acceptability – The form and substance of education, including curriculum
and teaching methods, have to be acceptable to students.
(d) Adaptability – The education has to be flexible so it can adapt to the needs
of changing societies and communities and respond to the needs of students
within their diverse social and cultural settings.
Primary Education

• For the first time in the history of education in India a Department for Primary
Education has been opened in the Ministry of Human Resource Development
at New Delhi. A new primary education policy has been launched under the
scheme of Sarva Shiksha Abhiyan (SSA) at the district level throughout the
country in 2001.
• According to Article 13(2)(a) of the ICESCR, primary education shall be
compulsory and free to all. Primary education includes the elements of
availability, accessibility, acceptability and adaptability, which are common
to education in all its forms and at all levels.
Higher & Technical Education

• Article 13(2)(c) is formulated on the same lines as Article 13(2)(b) but with some differences.
• Article 13(2)(c) does not include a reference to either education “in its different forms” or
specifically to TVE (technical & vocational education).
• Another difference between Article 13(2)(b) and (c) is that while secondary education “shall be
made generally available and accessible to all”, higher education “shall be made equally
accessible to all, on the basis of capacity”.
• Technical and vocational education (TVE) forms part of both the right to education and the right to
work under Article 6(2) of the ICESCR. Article 13(2)(b) presents TVE as part of secondary education,
reflecting the particular importance of TVE at this level of education.