ABSTRACT

Children are a gift to society.
Neglecting a child is a loss to the society as a whole. Attitude towards
children differ around the world in different cultures. Protection of children
against abuse is considered an important goal. Article 14 of Indian
constitution and Article 18(1) of Nepal constitution states that “the state
shall not deny to any person equality before the law which also includes
children”.1
Right to Education Act makes education a fundamental right of every child between
the ages of 6 – 14 and defines minimum norms in elementary school. In this
research paper we would be including references from Indian and Nepalese constitution.
It contains judgments of Supreme Court of India. The United Nations Convention
on the rights of the child is a human rights treaty which defines rights of
children. This paper includes the work developed by the judiciary in right to
education. Education is compulsory and it is the most essential right of every
child, every human being. It is critical for economic and social development. Judicial
activism has emerged as a tool to protect the rights of children. This paper
focuses on child rights which are an essential feature of human rights. The
role of judiciary and its interpretation have expanded remarkably in recent
times.

Keywords
:

Child
rights, Right to Education, Role of Judiciary, UN Child Right Convention,
Constitution, India, Nepal

 

 

 

 

 

 

 

INTRODUCTION

Education
is vital for development of personality. Knowledge gained through education
opens door to a lot of opportunities. Education forms the foundation of any society. It is responsible
for the economic, social, and political growth and development of society. The
thread of the growth of society depends upon the quality of education. So
schools play an important role in moulding a nation’s future by facilitating
all round development of its future citizens.

Many
children in need around the world do not get a quality education where they can
learn and develop. Life
is also about learning, apart from living. While we can learn to a certain
extent from our parents, they tend to be unilateral. At school, children are
exposed to various sources from whom they can imbibe immense knowledge,
instrumental for their development. Hence school is necessary for children to
inculcate “the workings of life”

Article 21-A2
was inserted in 2002 in the Constitution Of India. Article 21-A of Indian
constitution 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”3
and Article 31(1) of Nepalese constitution states that, “Every citizen shall have the right to access to basic education.”4
Children have right to enjoy basic qualities of life. Judiciary plays an
important role in protection of child rights. One of the important child rights
is Right to Education. It clarifies that ‘compulsory education’ means
obligation of the government to provide free elementary education and ensure
admission and attendance.

Judiciary
has initiated many schemes and has taken many steps to promote basic education
for children. It has specified duties and responsibilities of appropriate
governments, local authority and parents in providing free and compulsory
education, and sharing of financial responsibilities between the Central and
State governments.         It provides
for appointment of qualified faculty and ensure all-round development of
children.

The
right to education has also been recognized by the International Covenant on
Economic, social and cultural Rights in Article 13. It provides a normative
framework and essential elements of the right to education, with international
obligations.                                

RESEARCH
METHODOLOGY

The
paper is based on the secondary data. The data has been collected from various
websites of government and non-governmental bodies. This study follows
doctrinal research method in the compilation, organization, interpretation and
systematization of the secondary source material. The study is descriptive in
nature.

HYPOTHESIS

Government
have taken many initiatives to educate children such as Sarva Shiksha Abhiyan,
Beti Bachao Beti Padhao etc. therefore, the role of government in providing
education to all children is positive.

ANALYSIS

Judiciary
and its scope have expanded remarkably in recent times because of tremendous
growth of statutory intervention in the present era. Judiciary plays an
important role in protecting fundamental rights of citizens which also includes
rights of children. Protection of child rights is important for growth of
society as children are the youth which will help in development of a country
as they are the future generation.

Education is vitally
important factor that empowers every individual , youth and children
morally,intellectually and physically as well. Education is a process which
engages many different actors : the one who provides education (the teacher,
also owner of an educational institution, the parents), the one who receives
education (the child) and the one who is legally responsible for the one who
receives education (the parents, the legal guardians, society and the State).

 Article
21-A5 i.e.
Right to Education provides that Education
is not a privilege but a human right. Education as a human right means6
:

·        
Right
to Education is legally guaranteed for all without any discrimination

·        
State
have the obligation to protect , respect and fulfill the Right to Education

·        
There
are ways to hold states accountable for violations or deprivations of the Right
to Education.

International
and regional legal instruments have recognized The Right to Education in
treaties (conventions, covenants, charters).

“The Universal Declaration of Human
Rights (UDHR), adopted in 1948, states in Article 26: ‘Everyone has the right
to education’. Since then, the right to education has been reaffirmed in
various international treaties including:

UNESCO
Convention against Discrimination in Education (1960)
International
Covenant on the Elimination of All Forms of Racial Discrimination (1965)
International
Covenant on Economic Social and Cultural Rights (1966)
Convention
on the Elimination of All Forms of Discrimination against Women (1979)
Convention
on the Rights of the Child (1989)
International
Convention on the Protection of the Rights of All Migrant Workers and
Members of their families (1990)
Convention
on the Rights of Persons with Disabilities (2006)”.7

 

The
United Nations Convention is the first legal instrument which guarantees rights
of children across the globe, adopted on 20th November 1989. Among
the rights mentioned in United Nation Conventions on the Rights of the Child,
Right to Education is the most important right. Article 28 and article 29 UN
Convention lays stress on child’s Right to Education and          on development of their personality. Article 288
of this convention lays down that, “the State parties recognize the right of
the child to education, and with a view to achieving this progressively and on
the basis of equal opportunity, they shall-

(a) Make primary education
compulsory and available free to all;

(b) Encourage the development of
different forms of secondary education, including general and vocational
education, make them available and accessible to every child, and take measures
such as the introduction of free education and offering financial assistance in
case of need;

(c) Make higher education
accessible to all on the basis of capacity by every appropriate means;

(d) Make educational and vocational
information and guidance available and accessible to all children.”

Children’s
Act, 2048 (1992) of Nepal, article 4 mentions about the Right to maintenance
and upbringing, education and health care.

1.      Parents
shall be under obligation to make arrangements to bring up child and to provide
education, health care, sports and recreation facilities to child according to
the financial state of their family.

ROLE OF
JUDICIARY

Constitution
protects the rights granted by the state and judiciary takes decisions about
the rights and duties of an individual. If any rights are violated then it
gives verdicts and justice. Judiciary is the soul of any political system in
modern age.

Judiciary
plays an important role to promote Right to education Act but these efforts
will become worthwhile only if people are also interested. People also have to
make voluntarily efforts. Authority can only build schools, employ qualified
teachers and spread awareness  but it is
parents and children’s willingness to go to school. Government is trying to do
the best they can, they have developed infrastructure and constructed schools
in remote areas. The census of India 2011
estimated 20.78 crore children in 6-13 age group are going to school. There has
been a significant reduction in the number of out-of school children in the
6-14 years age group, from 134.6 lakh in 2005 to 81 lakh in 2009 and further to
61 lakh in 2014.

In Nepal, there is no judicial
activism due to the instability of constitution as the constitution has been
amended several times. Therefore, judiciary plays minimal role in promoting
child education in Nepal but with the new constitution of Nepal in 2015, it is
trying its best to encourage child education in both rural and urban areas of
Nepal.9

 

CASES

Following
are some of the  landmark Indian cases for
child education :

MOHINI
JAIN V STATE OF KARNATAKA10

A
great legal breakthrough was achieved in 1992 when the Supreme Court of India
held in Mohini Jain v State of Karnataka, that the ‘right to education’ is
concomitant to fundamental rights enshrined under Part III of the Constitution”
and that ‘every citizen has a right to education under the Constitution’. The
Supreme Court held that a ‘right’ to education ‘flowed from’ the enforceable
right to life and personal liberty guaranteed by Article 21 of the
Constitution, since there could be no ‘dignified enjoyment of life’, or the
realization of other rights, without adequate education. Again in later cases the
apex court gave specificity to the Mohini Jain holding by imposing an
obligation upon the State, again flowing from Article 21, to provide free
education to all children until the age of fourteen.

UNNI
KRISHNAN VS. STATE OF ANDHRA PRADESH11

The
Court held that the right to basic education is implied by the fundamental
right to life (Article 21), when read in conjunction with the directive
principle on education (Article 41). The Court held that the parameters of the
right must be understood in the context of the Directive Principles of State
Policy, including Article 45 which provides that the state is to endeavour to
provide, within a period of ten years from the commencement of the
Constitution, for free and compulsory education for all children under the age
of 14.  

CONCLUSION

From
the above observations we can conclude that government plays a positive role in
ensuring education to children with the help of various acts and incentives.
This proves that the hypothesis of the paper is true. Government is trying its
best to provide elementary education to children of age 6-14 of every society
but all these efforts go worthless if the parents or the children are unwilling
to send or go to school. Lack of initiatives by parents and children, these
provisions have not been able to spread its benefits. Parents are interested to
send their child to work in factories rather than to study in school to earn
few more bucks. Some people are still unaware about the Right to Education Act
even after so many workshops and campaigns being conducted by the government.
There should be awareness among people about the value of education.

SUGGESTIONS

Although
both Nepal and Indian judiciary are playing active role to elevate child
education using various schemes and incentives, but still there is room for
some improvements. Here are some suggestions to improve the implementation of
Right to Education:

1.       provide incentives for schooling

·        
Monetary support for parents

2.
Establish ownership and responsibility

3.
Focus on teacher training programs

4.
Keep reformulating Right to Education based on outcome

5.
Increase budgetary allocation on education

6.
Replicate successful government school systems

Above
suggestions can help judiciary and other government authorities to implement
education Acts in a effective way and help to spread more awareness. These also
help to encourage parents to send their children to school and children to
attend school more often.

1
Article 14 of Indian constitution and article 18(1) of Nepalese constitution

2 86th
Amendment of 2002,Constitution of India

3
Article 21-A, Constitution of India

4
Article 31(1), Constitution of Nepal

5 86th
Amendment of 2002, Constitution of India

6 http://www.right-to-education.org/page/understanding-education-right

7 http://www.right-to-education.org/page/international-law

8
Child right Convention article 28

9 http://pib.nic.in/newsite/PrintRelease.aspx?relid=155999

10 Miss Mohini Jain v State Of Karnataka And Ors
on 30 July, 1992

11Unni
Krishnan vs. State of Andhra Pradesh 1993 (1) SC 645 on Education of
Children.