ABSTRACTChildren are a gift tosociety.
Neglecting a child is a loss to the society as a whole. Attitudetowards children differ around the world in different cultures. Protection ofchildren against abuse is considered an important goal. Article 14 of Indianconstitution and Article 18(1) of Nepal constitution states that “the stateshall not deny to any person equality before the law which also includeschildren”.1Right to Education Act makes education a fundamental right of every child betweenthe ages of 6 – 14 and defines minimum norms in elementary school.
In thisresearch paper we would be including references from Indian and Nepalese constitution.It contains judgments of Supreme Court of India. The United Nations Conventionon the rights of the child is a human rights treaty which defines rights ofchildren. This paper includes the work developed by the judiciary in right toeducation. Education is compulsory and it is the most essential right of everychild, every human being. It is critical for economic and social development. Judicialactivism has emerged as a tool to protect the rights of children. This paperfocuses on child rights which are an essential feature of human rights.
Therole of judiciary and its interpretation have expanded remarkably in recenttimes.Keywords:Childrights, Right to Education, Role of Judiciary, UN Child Right Convention,Constitution, India, Nepal INTRODUCTIONEducationis vital for development of personality. Knowledge gained through educationopens door to a lot of opportunities. Education forms the foundation of any society. It is responsiblefor the economic, social, and political growth and development of society.
Thethread of the growth of society depends upon the quality of education. Soschools play an important role in moulding a nation’s future by facilitatingall round development of its future citizens.Manychildren in need around the world do not get a quality education where they canlearn and develop.
Lifeis also about learning, apart from living. While we can learn to a certainextent from our parents, they tend to be unilateral. At school, children areexposed to various sources from whom they can imbibe immense knowledge,instrumental for their development.
Hence school is necessary for children toinculcate “the workings of life”Article 21-A2was inserted in 2002 in the Constitution Of India. Article 21-A of Indianconstitution states that, “The Stateshall provide free and compulsory education to all children of the age of sixto fourteen years in such manner as the State may, by law, determine”3and Article 31(1) of Nepalese constitution states that, “Every citizen shall have the right to access to basic education.”4Children have right to enjoy basic qualities of life. Judiciary plays animportant role in protection of child rights. One of the important child rightsis Right to Education. It clarifies that ‘compulsory education’ meansobligation of the government to provide free elementary education and ensureadmission and attendance. Judiciaryhas initiated many schemes and has taken many steps to promote basic educationfor children.
It has specified duties and responsibilities of appropriategovernments, local authority and parents in providing free and compulsoryeducation, and sharing of financial responsibilities between the Central andState governments. It providesfor appointment of qualified faculty and ensure all-round development ofchildren. Theright to education has also been recognized by the International Covenant onEconomic, social and cultural Rights in Article 13. It provides a normativeframework and essential elements of the right to education, with internationalobligations. RESEARCHMETHODOLOGYThepaper is based on the secondary data.
The data has been collected from variouswebsites of government and non-governmental bodies. This study followsdoctrinal research method in the compilation, organization, interpretation andsystematization of the secondary source material. The study is descriptive innature.HYPOTHESISGovernmenthave taken many initiatives to educate children such as Sarva Shiksha Abhiyan,Beti Bachao Beti Padhao etc. therefore, the role of government in providingeducation to all children is positive.ANALYSISJudiciaryand its scope have expanded remarkably in recent times because of tremendousgrowth of statutory intervention in the present era.
Judiciary plays animportant role in protecting fundamental rights of citizens which also includesrights of children. Protection of child rights is important for growth ofsociety as children are the youth which will help in development of a countryas they are the future generation. Education isvitally important factor that empowers every individual , youth and childrenmorally,intellectually and physically as well. Education is a process whichengages many different actors : the one who provides education (the teacher,also owner of an educational institution, the parents), the one who receiveseducation (the child) and the one who is legally responsible for the one whoreceives education (the parents, the legal guardians, society and the State). Article21-A5 i.e.
Right to Education provides that Educationis not a privilege but a human right. Education as a human right means6:· Rightto Education is legally guaranteed for all without any discrimination· Statehave the obligation to protect , respect and fulfill the Right to Education· Thereare ways to hold states accountable for violations or deprivations of the Rightto Education.Internationaland regional legal instruments have recognized The Right to Education intreaties (conventions, covenants, charters).
“The UniversalDeclaration of Human Rights (UDHR), adopted in 1948, states in Article 26:’Everyone has the right to education’. Since then, the right to education hasbeen 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 TheUnited Nations Convention is the first legal instrument which guarantees rightsof children across the globe, adopted on 20th November 1989. Amongthe 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 UNConvention lays stress on child’s Right to Education and on development of their personality. Article 288of this convention lays down that, “the State parties recognize the right ofthe child to education, and with a view to achieving this progressively and onthe basis of equal opportunity, they shall-(a) Make primaryeducation compulsory and available free to all;(b) Encourage thedevelopment of different forms of secondary education, including general andvocational education, make them available and accessible to every child, andtake measures such as the introduction of free education and offering financialassistance in case of need;(c) Make higher educationaccessible to all on the basis of capacity by every appropriate means;(d) Make educational andvocational information and guidance available and accessible to all children.”Children’sAct, 2048 (1992) of Nepal, article 4 mentions about the Right to maintenanceand upbringing, education and health care. 1.
Parentsshall be under obligation to make arrangements to bring up child and to provideeducation, health care, sports and recreation facilities to child according tothe financial state of their family. ROLEOF JUDICIARYConstitutionprotects the rights granted by the state and judiciary takes decisions aboutthe rights and duties of an individual. If any rights are violated then itgives verdicts and justice. Judiciary is the soul of any political system inmodern age.
Judiciaryplays an important role to promote Right to education Act but these effortswill become worthwhile only if people are also interested. People also have tomake voluntarily efforts. Authority can only build schools, employ qualifiedteachers and spread awareness but it isparents and children’s willingness to go to school. Government is trying to dothe best they can, they have developed infrastructure and constructed schoolsin remote areas. The census of India 2011estimated 20.78 crore children in 6-13 age group are going to school.
There hasbeen a significant reduction in the number of out-of school children in the6-14 years age group, from 134.6 lakh in 2005 to 81 lakh in 2009 and further to61 lakh in 2014.In Nepal, there is nojudicial activism due to the instability of constitution as the constitutionhas been amended several times. Therefore, judiciary plays minimal role inpromoting child education in Nepal but with the new constitution of Nepal in2015, it is trying its best to encourage child education in both rural andurban areas of Nepal.9 CASESFollowingare some of the landmark Indian cases forchild education : MOHINIJAIN V STATE OF KARNATAKA10Agreat legal breakthrough was achieved in 1992 when the Supreme Court of Indiaheld in Mohini Jain v State of Karnataka, that the ‘right to education’ isconcomitant to fundamental rights enshrined under Part III of the Constitution”and that ‘every citizen has a right to education under the Constitution’. TheSupreme Court held that a ‘right’ to education ‘flowed from’ the enforceableright to life and personal liberty guaranteed by Article 21 of theConstitution, since there could be no ‘dignified enjoyment of life’, or therealization of other rights, without adequate education. Again in later cases theapex court gave specificity to the Mohini Jain holding by imposing anobligation upon the State, again flowing from Article 21, to provide freeeducation to all children until the age of fourteen.UNNIKRISHNAN VS.
STATE OF ANDHRA PRADESH11TheCourt held that the right to basic education is implied by the fundamentalright to life (Article 21), when read in conjunction with the directiveprinciple on education (Article 41). The Court held that the parameters of theright must be understood in the context of the Directive Principles of StatePolicy, including Article 45 which provides that the state is to endeavour toprovide, within a period of ten years from the commencement of theConstitution, for free and compulsory education for all children under the ageof 14. CONCLUSIONFromthe above observations we can conclude that government plays a positive role inensuring education to children with the help of various acts and incentives.This proves that the hypothesis of the paper is true. Government is trying itsbest to provide elementary education to children of age 6-14 of every societybut all these efforts go worthless if the parents or the children are unwillingto send or go to school. Lack of initiatives by parents and children, theseprovisions have not been able to spread its benefits.
Parents are interested tosend their child to work in factories rather than to study in school to earnfew more bucks. Some people are still unaware about the Right to Education Acteven after so many workshops and campaigns being conducted by the government.There should be awareness among people about the value of education.
SUGGESTIONSAlthoughboth Nepal and Indian judiciary are playing active role to elevate childeducation using various schemes and incentives, but still there is room forsome improvements. Here are some suggestions to improve the implementation ofRight to Education:1. provide incentives for schooling· Monetary support forparents2.Establish ownership and responsibility3.
Focus on teacher training programs4.Keep reformulating Right to Education based on outcome5.Increase budgetary allocation on education6.Replicate successful government school systemsAbovesuggestions can help judiciary and other government authorities to implementeducation Acts in a effective way and help to spread more awareness. These alsohelp to encourage parents to send their children to school and children toattend school more often.1 Article 14 of Indian constitution and article 18(1) of Nepaleseconstitution 2 86th Amendment of 2002,Constitution of India3 Article 21-A, Constitution of India4 Article 31(1), Constitution of Nepal5 86th Amendment of 2002, Constitution of India6 http://www.
right-to-education.org/page/understanding-education-right7 http://www.right-to-education.org/page/international-law8 Child right Convention article 289 http://pib.nic.
in/newsite/PrintRelease.aspx?relid=15599910 Miss Mohini Jain v State OfKarnataka And Ors on 30 July, 199211Unni Krishnan vs. State of Andhra Pradesh 1993 (1) SC 645 onEducation of Children.