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Right to Education in India – Why not all Children?

“Learning starts in infancy, long before formal education begins, and continues throughout life. Early learning begets later learning and early success breeds later success, just as early failure breeds later failure.”

James J. Heckman (Henry Schultz Distinguished Service Professor of Economics at the University of Chicago, a Nobel Memorial Prize winner in economics and an expert in the economics of human development)


Education is one of the key elements consisting of sustainable living. Having education helps people think, feel, and behave in a way that contributes to their success, and improves not only personal satisfaction but also their community. Besides, education develops the human personality, thoughts, dealing with others, and prepares people for life experiences. Formal education gives us a chance to have a good career, and it also makes us a valuable source of knowledge in society.[1] The UDHR[2] in its Art. 26 first recognised the Right to Education (hereinafter referred to as RTE) as a human right. Besides this, many other International instruments have recognized RTE.

Article 28 of the United Nations Convention of the Rights of Child[3] (UNCRC) guarantees RTE to all children. India being a signatory to the document, has this right enshrined as a fundamental right in Art. 21A[4]. The Right of Children to Free and Compulsory Education Act, 2009[5] is also formulated on this behalf. However, this fundamental right persists only when children are between the ages of 6 to 14 years. Free of cost education at wider levels is needed to uplift many children who cannot afford to pay for it. Through this article, the author attempts to reflect on the reasons why India needs to include all children in its purview of RTE.

Evolution of RTE as a Fundamental Right

Initially, RTE existed only as a directive principle under Art. 45[6] of the Constitution. Judicial voice as well as a public force was responsible for the laws that we have today. RTE was first discussed by the Supreme Court in Mohini Jain v. State of Karnataka[7]. It was observed that RTE at all levels is a fundamental right under Art. 21[8] of the Constitution and charging a capitation fee for admissions was illegal and amounted to a denial of citizens’ right to education. The judges also held it to be violating Art. 14[9] and stated that education in India has never been a commodity.[10]

In Unni Krishnan v. State of A.P,[11] the SC was asked to determine the correctness of the decision given in Mohini Jain. The judges partly agreed with the judgement with regards to RTE being a fundamental right under Art. 21 as ‘it directly flows’ from right to life. However, it overruled the case vis-a-vis the fundamental right being available to all children and stated that the right is only available to children between the ages of 6 to 14 years. After that, it is the obligation of the State to provide education, subject to the limits of its economic capacity and development.[12]

Post these decisions, the need to making RTE a fundamental right was highlighted in public minds, who then started pushing the executive and legislature towards action on free primary education. This pressure was fuelled by NGO’s and many other grass-root organizations across India. It was only after pursuing the reports of Saikia Committee and other panels, the Constitution was amended.[13]

This Amendment[14] inserted a new Art. 21A in the Constitution that guaranteed the right to free and compulsory education to children aged 6 to 14 years. To emphasize this right in detail, The Right of Children to Free and Compulsory Education Act, 2009 was designed. Both of these enactments came to force on 1st April 2010.


Pre-schooling starts at age 3 and extends up to 6 years. These are crucial years of cognitive development for a child. At the preschool stage, children are curious and excited about the things around them. There is a demand to investigate, explore, and develop an understanding of their immediate and wider environment – human, social and cultural. Pursuant to this, children are involved in observation, questioning, discussion, prediction, analysis, exploration, investigation, and experimentation. Children begin to handle their feelings and emotions, learn to share, turn-taking, and cooperating with peers. They also develop their self-concept.[15]

Research has shown that early childhood care outside the home makes a very important contribution to the development of a child. This form of intervention, in combination with effective parenting, significantly impacts children when they enter primary school.[16] The American High/Scope study reveals that 71% of those on good pre-school programmes completed 12th grade (or better), as compared with 54% of those denied it. A British study showed that children who have experienced preschool education have higher scores on educational assessment at the age of seven (Shorrocks 1992).[17]

Successful early education does more than just instil a few facts or simple cognitive skills. Its curriculum aims to nurture positive beliefs about one’s talents, and learning-orientation rather than performance-orientation. Pre-school learning helps children acquire resources for dealing with the stress of failure and the belief that achievement is not God-given but is, instead, acquired at least in part through persistence.[18] Positive impacts of pre-school are seen everywhere, but mostly on disadvantaged children[19], especially when they are mixed with children from various other social backgrounds.[20] Pre-schooling leads to the all-round development of a child. This includes acquiring intellectual and social skills[21] consequently leading to the boosting of self-confidence.[22] Most studies have unanimously concluded that the higher the quality of education, the better the progress.

Pre-schooling also helps in the early diagnosis of any issues surrounding the child. Typically, most parents want their children to excel and work towards the same, but their minds may not be equipped to recognise if there is a developmental delay, an audiological, or speech or language problem or a vision or gross or fine motor problem. At this time, it is the teaching professionals that help in diagnosing these issues since they are trained to identify such behaviour. Early intervention helps the child to overcome these issues for better growth and development.[23] Research shows that later interventions are likely to be less successful – and in some cases are ineffective.[24]


Just as pre-school, secondary (9th & 10th grade) and higher secondary (11th and 12th grade) also play a vital role in the life of a child. SSC (Secondary School Certificate) and HSSC (Higher Secondary School Certificate) years are portrayed as important academic years in India. Results of these exams assist children in choosing an appropriate field for themselves. Not covering these years under RTE has deterred children belonging to poor economic and social backgrounds from pursuing higher education.

Statistics have recorded high dropout rates amongst students during their high school years. In the year 2014-15, a high percentage of the dropout was shown to be amongst students in the 9th and 10th grade (Flash statistics 2014-15).[25]According to NSSO data (71st round 2014), one of the key reasons for dropping education remained to be financial constraints.[26] The year 2017-18 displayed high dropout rates among students in 9th & 10th grade, ranging up to 34% in the states of Assam, Bihar, Odisha, Tripura, Karnataka, and Madhya Pradesh. Again, the key reason for the same included poverty or economic constraints, as sourced from the Ministry of Human Resource and Development.[27] According to the Census of 2011[28], there are more than 12 crore children in India ranging between 15 to 19 years. But only a little over 7 crores attend school.

The existing age group of 6-14 was added to the Constitution during the time it was framed (to then DPSP Art. 45) and the same has not been amended since. It is crucial to note that while many years back, passing primary/junior high school was enough to attract government and private jobs, it is no longer a parameter to bag jobs of high economic value. Free education is sought by children who cannot afford to pay for it. They seek to have a level of qualification to help them get recruited in a setting that will improve their economic and social conditions. Modern thinking has promoted that practical skills that are valued more than qualifications. However, not everyone is gifted. Some potential children seek to acquire these skills through education but lack the opportunity, which is why our scope of providing free and compulsory education must be widened.


The youth literacy rate stands at 97% in Sri-Lanka today. Schooling is compulsory for children from 5 to 13 years of age, however, education is state-funded and offered free of charge at all levels. The government also provides free textbooks to school children.[29] In France, pre-school is a free education programme with access from age 3. Sweden provides free schooling from 6 to 19 years of age.[30] Free higher education is offered in Germany, Norway, and Finland.[31]

In India, the Unnikrishnan case[32] ruled that after 14 years of age, it is the obligation of the State to provide education, subject to the limits of its economic capacity and development. However, in the recent past, States have only promulgated free education for all with no enforcement.

In 2019, Chhattisgarh announced free education in government schools till Class 12, but there is no news of its implementation.[33] Telangana had announced free education from Kindergarten to Post-Graduation in 2017, but it has not been implemented clearly.[34] The same is the case with Punjab[35] & Karnataka[36] that had declared free education for all girls till post-graduation, with no acting upon.

Nonetheless, few ongoing developments are noteworthy. A PIL[37] filed by an NGO – Social Jurist in April 2019 highlighted the difficulties faced by EWS (Economically Weaker Section) category students after they clear Class VIII since RTE does not give free education up to Class XII in unaided non-minority private schools. It was claimed that students from these categories were being harassed by schools across the country to pay fees, facing the threat of removal after passing Class VIII. The petitioner, Mr. Ashok Aggarwal highlighted that the immediate objective of the Act to help children gain access to education irrespective of their financial background would be defeated if EWS students were not allowed to study till Class XII.[38]

The Delhi High Court asked the Centre to give its stand on the issue.[39] The Centre, in turn, informed the Court in May 2019, stating that extension of the RTE Act beyond class VIII in schools is a “major policy issue” which could only be decided after the new government is formed post general elections. It further informed The Delhi HC in December 2019, that the draft policy on education has recommended extending the ambit of The Right of Children to Free and Compulsory Education (RTE) Act, 2009, to include early childhood education and secondary school education (3-18 years).[40]

Efforts are also ongoing in the Parliament to secure free and compulsory education for children aged between 3 to 18 years. Numerous Bills[41] on this behalf have been proposed that are pending before the Parliament. Their common objectives highlight the importance of pre-school and secondary education.


Formal education attained by children holds immense value. Free access to quality education during childhood will help achieve higher levels of literacy in the country. Vast importance is also attached to the youth (15-24 years) of a country who show strong passion, motivation, and willpower which also make them the most valuable human resource for fostering the economic, cultural, and political development of a nation. A country’s ability and growth potential is determined by the size of its youth population. According to the 2011 Census, India was expected to have a 34.33% share of youth in total population by 2020.[42] An investment in high and effective early education will substantially improve the quality of our youth that will provide a worthwhile social and economic return to society.[43]

On 29 July 2020, it was revealed that the Ministry of Human Resource and Development will be renamed as Ministry of Education,[44] the same received an official assent of the President on 18 August 2020.[45] The Cabinet has also approved the National Education Policy 2020[46], paving way for transformational reforms in school and higher education systems in the country. It is sincerely hoped that along with the introduction of a new policy, the Union of India will also consider the desired change in the age slot, thus bringing all children in the ambit of RTE.

[1] Abdulghani Al-Shuaibi, The Importance of Education (Aug. 17, 2020, 12:25 PM),

[2] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III),

[3] UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3,

[4] INDIA CONST. art. 21, cl A.

[5] The Right of Children to Free and Compulsory Education Act,2009,No. 35, Acts of Parliament, 2009(India).

[6] INDIA CONST. art. 45, cl. 6.

[7]Mohini Jain v State of Karnataka  (1992) 3 SCC 666.

[8] INDIA CONST. art.  21.

[9] INDIA CONST. art. 14.

[10] J.N. PANDEY, CONSTITUTIONAL LAW OF INDIA, 295 & 340 (54 ed. Central Law Agency 2017)

[11] Unni Krishnan v State of AP (1993) 1 SCC 645

[12] Id at pg. 295.

[13] Amardeep Garje, THE NAMESAKE RIGHT, SSRN (Aug. 17, 2020, 7:30 PM), .

[14] The Constitution (86th Amendment) Act, 2002.

[15] The Preschool Curriculum, Department of Elementary Education, NATIONAL COUNCIL OF EDUCATIONAL RESEARCH AND TRAINING (NCERT), 3 (2019)

[16] David Dodge, Human Capital, Early Childhood Development and Economic Growth, IMPORTANCE OF EARLY CHILDHOOD DEVELOPMENT, 6 (2007)

[17] CHRISTOPHER BALL, START RIGHT – THE IMPORTANCE OF EARLY LEARNING, (10 Educational Resources Information Center [ERIC] 1994).

[18] Id at pg. 35.

[19] Edward Melhuish, A literature review of the impact of early years provision on young children, with emphasis given to children from disadvantaged backgrounds, T he National Audit Office, 54 (2004)

[20] Kathy Sylva, Edward Melhuish, Pam Sammons, Iram Siraj-Blatchford & Brenda Taggart, The Effective Provision of Pre-School Education [EPPE] Project -Technical Paper 12 The Final Report: Effective Pre-School Education (2004).

[21] Id.

[22] Melhuish, supra note 20, at 4.

[23] Michael F. Shaughnessy & Kinsey Kleyn, The Importance of Early Childhood Education, HANDBOOK OF EARLY CHILDHOOD EDUCATION, 4 & 5 (2012)

[24] Jack Shonkoff & Julius Richmond, Investment in Early Childhood Development Lays the Foundation for a Prosperous and Sustainable Society, ENCYCLOPEDIA ON EARLY CHILDHOOD DEVELOPMENT, (2007)

[25] PRS Legislative Research, Trends in school enrolment and dropout levels, LIVEMINT, (Aug. 18, 2020, 9:45 AM),  

[26] Id.

[27] Telling Numbers: In primary and secondary schools, dropout rates highest in Assam, THE INDIAN EXPRESS, (Aug. 18, 2020 12:10 PM),

[28] Registrar General and Census Commissioner of India, Ministry of Home Affairs, New Delhi, India. Census of India 2011, (Aug. 17, 2020, 10:45 AM)

[29] The Educational System of Sri Lanka, FULBRIGHT (Aug. 19, 8:32 PM),

[30] Free education from age 6 to 19, SWEDEN SVERIGE, (Aug. 19, 9:36 PM)

[31] Shreoshe Ghosh, List of top 10 countries which offer free higher education, INDIA EDUCATION (Aug. 19, 5:28 PM)

[32] Supra note11

[33] Prerna Sindwani, Chhattisgarh announces free education till class 12 in government schools, BUSINESS INSIDER INDIA, (Aug. 19, 6:12 PM),

[34] G. Ram Mohan, Education for All Remains Pipe Dream in Telangana, THE WIRE (Aug. 19, 5:37 PM),

[35] Bharat Khanna, Free education for girls in Punjab? Awaiting notifications for 21 months, TIMES OF INDIA, (Aug. 20, 2:44 PM),

[36] ManuAiyappa Kanathanda, Karnataka to give free education to all girls till graduation, TIMES OF INDIA, (Aug. 19, 3:32 PM),

[37] Social Jurist, a Civil Rights Group v. Union of India and Anr., W.P. (C) 4865/2018.

[38] Pritam Pal Singh, Draft policy on education recommends extending ambit of RTE Act: Govt to Delhi HC, THE INDIAN EXPRESS, (Aug. 19, 3:45 PM), [emphasis added].

[39] Clear stand on plea seeking RTE extension, THE HINDU (Aug. 19, 4:43 PM),

[40] Supra note 39.

[41] No. 141 of 2019 [LS]; No. LIX of 2018 [RS]; No. 32 of 2019 [LS]; No. XLIII of 2017 [RS] & No. LXXIV of 2016 [RS].

[42] Government of India (Social Statistics Division), Youth in India, CENTRAL STATISTICS OFFICE MINISTRY OF STATISTICS AND PROGRAMME IMPLEMENTATION, 1 (2017)

[43] Ball, supra note 18, at 138.

[44] HRD Ministry renamed as Ministry of Education, LIVEMINT, (Aug. 16, 1:21 PM),

[45] Kanishka Sarkar, HRD Ministry is now officially Ministry of Education as it gets President’s nod, HINDUSTAN TIMES, (Aug. 20, 11:21 PM),

[46] National Education Policy 2020, (Aug. 18, 6:03 PM)

Cite this article (The Bluebook 20th ed.)-

Aloka Surendra Naik, Right to Education in India – Why not all Children?, Ex Gratia Law Journal, (April 1, 2021),

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Aloka Surendra Naik
Student - V. M. Salgaocar College of Law (Affiliated to Goa University)