In this case, a resident of Uttar Pradesh state challenged a notification issued by the Karnataka government that permitted private medical colleges to charge higher fees to students who were not allocated 'government seats'. The Supreme Court of India 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 the absence of an express constitutional right, the Court interpreted a right to education as a necessary condition for fulfilment of the right to life under Article 21 of the Indian Constitution. In addition, the Court held that private institutions, acting as agents of the State, have a duty to ensure equal access to, and non-discrimination the delivery of, higher education.
In response to a petition filed by an Indian charity, the Supreme Court of India directed the governments of all States and Union Territories to ensure that all schools, whether private or state-run, provide proper toilet facilities, drinking water, sufficient classrooms and capable teaching staff. The court held that, under the Right of Children to Free and Compulsory Education Act (2009) and the Indian Constitution, central, state and local governments have an obligation to ensure that all schools, both public and private, have adequate infrastructure. Adequate infrastructure includes safe drinking water, toilet facilities for boys and girls, sufficient class rooms and the appointment of teaching and non-teaching staff.
In this decision, the Supreme Court of India upheld the constitutionality of section 12 of the Right of Children to Free and Compulsory Education Act (RTE Act), which requires all schools, both state-funded and private, to accept 25% intake of children from disadvantaged groups. However, the Court held that the RTE Act could not require private, minority schools to satisfy a 25% quota, as this would constitute a violation of the right of minority groups to establish private schools under the Indian Constitution. This case affirms that the authority of the State to fulfil its obligations under the right to education can be extended to private, non-State actors. Because the State has the authority to determine the manner in which it discharge this obligation, it can elect to impose statutory obligations on private schools so long as the requirements are in the public interest.
Education is a fundamental human right of every woman, man and child. In states’ efforts to meet their commitments to making the right to education a reality for all, most have made impressive progress in recent decades. With new laws and policies that remove fees in basic education, significant progress has been made in advancing free education. This has led to tens of millions of children enrolling for the first time and the number of out of school children and adolescents falling by almost half since 2000. Important steps have also been taken with regard to gender parity and states have made efforts to raise the quality of education through improved teacher policies and a growing emphasis on learning outcomes.
Despite these efforts, breaches of the right to education persist worldwide, illustrated perhaps most starkly by the fact that 262 million primary and secondary-aged children and youth are still out of school. Girls, persons with disabilities, those from disadvantaged backgrounds or rural areas, indigenous persons, migrants and national minorities are among those who face the worst discrimination, affecting both their right to go to school and their rights within schools.
To respond to the challenges, the Right to Education Initiative (RTE) with UNESCO have developed this handbook to guide action on ensuring full compliance with the right to education. Its objective is not to present the right to education as an abstract, conceptual, or purely legal concept, but rather to be action-oriented. The handbook will also be an important reference for those working towards the achievement of SDG4, by offering guidance on how to leverage legal commitment to the right to education as a strategic way to achieve this goal.