Affirmative Action, Right to Education, and Allied Indian Laws


Seminar Paper, 2016

9 Pages


Excerpt

2
INTRODUCTION
Whenever the term "Affirmative action" is used it is understood that what is being referred to
is `positive discrimination' or `reservation', in simplest of the meanings. If one goes by its
general meaning, it would mean any act done in furtherance of "fair treatment".
4
And with
the present large awakening era our country is going through, it is time, the meaning of
affirmative action shall be widened and not be confined only to `reservation'. Affirmative
action is every step taken, every action done and every statute enacted enabling every
underprivileged, prejudiced, deprived person belonging to a minority group or like, to stand
equally. And, especially in case of affirmative action in education, not only shall these
actions fall under the definition of `affirmative action' but should also include the duties and
roles of- the students, parents, teachers and of society as a whole- discharged in order to
achieve "education for all", as aimed by the UNESCO
5
- It is affirmative action when the poor
family sends its ward to the nearest school for education instead of forcing him/her to get
engaged with the family business. It is affirmative action when a child struggles with his
parents for permission to let him go to the school, it is affirmative action when a teacher finds
joy in imparting education to the children and the society encourages the school going
children and the education.
EDUCATION AS A RIGHT
Education is a basic human right, "the Dakar Framework for Action adopted at the 2000
World Education Forum, while re-affirming the vision of the World Declaration on
Education for all, stated, "all children, young people and adults have the human right to
benefit from an education that will meet their basic learning needs in the best and fullest
sense of the term, an education that includes learning to know, to do, to live together and to
4
Meaning of Affirmative action, available at http://www.thesaurus.com/browse/affirmative%20action?s=t (last
visited on Nov. 17, 2015)
5
Education for all, UNESCO available at: http://www.unesco.org/new/en/education/themes/leading-the-
internatio-nal-agenda/education-for-all/the-efa-movement/ [(last visited on Nov. 17, 2015) (The Education for
All movement is a global commitment to provide quality basic education for all children, youth and adults. The
movement was launched at the World Conference on Education for All in 1990 by UNESCO, UNDP, UNICEF
and the World Bank. Participants endorsed an `expanded vision of learning' and pledged to universalize primary
education and massively reduce illiteracy by the end of the decade. Ten years later, with many countries far
from having reached this goal, the international community met again in Dakar, Senegal, and affirmed their
commitment to achieving Education for All by the year 2015)].

3
be.
6
The future of the nation is in the hands of the youth and that future is determined by
training and education they receive today, education indeed is a barometer of advancement of
a society.
7
It is an enabling force in generating income, employment and self-respect for an
individual."
8
It gives a person human dignity, with it, he develops himself as well as
contributes to the development of his country. It is one of the basic elements for the success
of democratic system of government, as it is the citizens who have to choose the proper
representatives- prudently, who would form the government and it is important for that
citizen to be educated for, an educated citizen would know the need of the society and the
appropriate leader who would govern them fulfilling such needs.
9
The importance of
education on affirmative action and upliftment of masses is not lost on Indian policy makers.
In fact it is reported that China and India, which together make up one-third of the world's
population and are two of the most rapidly growing economies, are awakening to the
significance of education for technological development and for the global knowledge
economy.
10
The framing fathers of the Indian constitution, realising the importance of education, had
imposed a duty on the state under Art.45
11
to provide free and compulsory education to all
the children below the age of 14. Initially, the right was not included as Fundamental Right in
the Constitution, but it was included as a Directive Principle.
12
The framers perhaps were of
the view of the financial condition of a new state, it was not feasible to make it a fundamental
right under Part III of the constitution, therefore included it in chapter IV as one of the
directive principles of state policy.
13
6
Rumi Ahmed, Legal and Policy Response to Right to Education for Children with Disabilities in India, 2,
J
OURNAL OF
N
ATIONAL
L
AW
U
NIVERSITY
,
D
ELHI
, 85, 86, (2014)
7
P
ADMA
R
AMACHANDRAN AND
V
ASANTHA
R
AMKUMAR
,
E
DUCATION IN
I
NDIA
,
vii (1
st
ed. reprint, National book
Trust, New Delhi, 2007)
8
Supra note 2
9
D
R
.
J.
N.
P
ANDEY
,
C
ONSTITUTIONAL
L
AW OF
I
NDIA
, p.322-23, (52
nd
ed., Central Law Agency, Allahabad,
2015).
10
A.W. Khan, Learning for a Better Future: Overcoming Disadvantages (20th ICDE World Conference on
Open Learning And Distance Education, Düsseldorf, Germany, 2001). As cited by Abhinav Gaur and Vikram
Shah, Right to Education: Significance of Information and Communication Technologies (ICT) to Reach out to
Browbeaten Sections in India, OIDA
I
NTERNATIONAL
J
OURNAL OF
S
USTAINABLE
D
EVELOPMENT
06, 07 (2013)
11
It was substituted by the eighty sixth amendment to the constitution in 2002 and now reads: "Art. 45.
Provision for early childhood care and education to children below the age of six years- the state shall
endeavour to provide early childhood care and education for all children until they complete the age of six
years."
12
M
P
J
AIN
,
I
NDIAN
C
ONSTITUTIONAL
L
AW
, 1297 (6
th
ed. Reprint, Lexis Nexis, Guragaon, 2013).
13
Supra note 5.

4
Later, by the 86
th
amendment to the constitution,
14
the directive principle enshrined under
article 45 was substituted
15
as the provision for free and compulsory education for all children
until they complete the age of fourteen years. The Amendment also inserted a new Article 21-
A,
16
which made Right to Education a Fundamental Right. This Article makes right to
education for all children of the age of six to fourteen years compulsory. The Article covers
both primary as well as secondary education.
17
The Amendment also inserted a new clause
(k) to Article 51(A)
18
under Fundamental duties of a citizen that directs the parents to provide
opportunities for education to their children between the age of six and fourteen years. This
duty supplements the duty of the state under Article 21-A.
19
In 2009, the Right of Children to Free and Compulsory Education Act, 2009 (hereafter RTE
Act) was enacted. The Act lays down various norms to provide free and compulsory
education to all children of the age of six to fourteen years. It is the first Central Act in the
domain of elementary education that aims to increase the accountability of state governments
and local administration. The Act has many features that are bound to yield significant
results. It entails removal of any financial barrier that may prevent any child from availing
eight years of elementary education in a neighborhood school. It also specifies minimum
norms and standards applicable to schools, including infrastructure. A unique feature of the
Act is its focus on increased community participation by setting up of school management
committees, which include parents, teachers and elected representatives.
20
AFFIRMATIVE ACTION IN EDUCATION
The history of affirmative action in education, in India, begins in the late nineteenth and early
twentieth century with the development of organized movements, especially in the southern
part of India, designed to reduce the power of Brahmans. Although they constituted only
about three percent of the population in those areas, they dominated the elite positions in the
civil service and other professions that were open to Indians under British Colonial rule. The
14
The Constitution (Eighty- sixth Amendment) Act, 2002.
15
Id, Sec. 3 (w.e.f. Apr. 1, 2010).
16
Id., Sec. 2 (2) of the Constitution (Ninety- third Amendment) Bill, 2001, (w.e.f. Apr. 1, 2010).
17
State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya, (2006) 9 SCC 1.
18
Supra note 10, Sec. 4 (w.e.f. Apr. 1, 2010). [ Art. 51A It shall be the duty of every citizen of India- (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].
19
Supra note 8.
20
Right to education: Role of the Private Sector, Ernst and Young, 14 (2012) available at:
http://indiainbusiness.-nic.in/newdesign/upload/news/EY-Right-to-education.pdf (Last visited on Nov. 10, 2015)

5
anti-Brahman movements led to increasing pressure to establish reserved seats for non-
Brahmans in public service and also to provide aid for non-Brahmans in educational
institutions.
21
After India received independence from British Colonials in 1947, the illiteracy
had been widespread throughout the county. The government was totally committed to avail
the infrastructure and other facilities to its people. In order to achieve this task, it has
constituted various commissions from time to time. The first ever commission namely-
University Education Commission towards this effort was appointed in 1948 (later, in 1952
the Secondary Education Commission was constituted). The development of education in
India particularly after independence has in fact been guided by national aspirations as
embodied in Indian constitution.
22
However, the constitution originally did not allow any
kind of discrimination in government-aided educational institutions under Article 29 (2),
23
following the decision of Supreme Court, in 1951, in State of Madras v. Shrimathi
Champakam Dorairajan
24
where the government of Madras made provision for the
reservation of seats in state medical and engineering colleges for different communities in
certain proportions based on religion race and caste. The state pleaded for the
constitutionality of the law on the ground that it was enacted with a view to promote social
justice for all sections of the people as required by Article 46
25
of the Directive Principles.
But, the Supreme Court held the law void because it classified students on the basis of caste
and religion irrespective of merit, thereby rejecting discrimination (reservation) in
educational admissions under Article 15 (1)
26
. However, in 1951, Article 15 was amended
27
and a new provision, Article 15 (4), was added that states "nothing in this Article or in clause
(2) of Article 29 shall prevent the state from making any special provision for the
advancement of any socially and educationally backward classes of citizens or for the
Scheduled castes or scheduled tribes." Thus in independent India, since 1950s there has been
21
T
HOMAS
E.
W
EISSKOPF
,
A
FFIRMATIVE
A
CTION IN THE
U
NITED
S
TATES AND
I
NDIA
, 10 (Routledge Taylor &
Francis Group, London, 2004)
22
A
NIL K
Y
ADAV AND
M
ADHU
S
RIVASTAVA
,
E
DUCATIONAL
D
EVELOPMENT
I
NDEX IN
I
NDIA
, 8 (Institute of
Applied Manpower Research in association with Manak Publications Pvt. Ltd. Delhi, 2005)
23
Art. 29- Protection of interests of minorities- Cl. (2) No citizen shall be denied admission into any educational
institution maintained by the state or receiving aid out of state funds on grounds only on religion race, caste
language or any of them.
24
AIR 1951 SC 226.
25
Promotion of educational and economic interest of scheduled caste and scheduled tribes and other weaker
sections- the state shall promote with special care the educational and economic interest of the weaker sections
of the people, and, in particular, of the scheduled castes and scheduled tribes and shall protect them from social
injustice and all forms of exploitation.
26
Art. 15. Prohibition of discrimination on the grounds of religion, race, caste, sex, or place of birth- (1) The
state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any
of them.
27
Added by Constitution ( First Amendment) Act, 1951, Sec. 2, (w.e.f. June 18, 1951)
Excerpt out of 9 pages

Details

Title
Affirmative Action, Right to Education, and Allied Indian Laws
College
Damodaram Sanjivayya National Law University
Authors
Year
2016
Pages
9
Catalog Number
V375935
ISBN (eBook)
9783668537415
ISBN (Book)
9783668537422
File size
757 KB
Language
English
Tags
affirmative action, right to education, constitutional right
Quote paper
Shubham Raj (Author)G. Naga Lahari (Author), 2016, Affirmative Action, Right to Education, and Allied Indian Laws, Munich, GRIN Verlag, https://www.grin.com/document/375935

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