The Grievance Redress System under the Right to Education Act

Chapter 5 examines the conceptual set-up of the grievance redress system created by the Right to Education Act, and analyses studies on its performance. It highlights the deficiencies of the current system, and compares it to other, more effective systems such as grievance redress under the RTI Act. The different institutions that are part of the grievance redress system are either not sufficiently independent or do not have sufficient competences to enforce their ‘judgments’. These deficiencies, as well as additional implementation issues, also translate into a malfunctioning system ‘on the ground’. The chapter also examines other grievance redress systems for different state services (for instance, the ones created by the Right to Information Act), highlighting that some of the deficiencies found in the right to education system are actually not universal.

Enforcing Rights against the State in India

Chapter 4 deals with the issue of lack of access to justice and attempts to find reasons for the inaccessibility of the higher judiciary. While it appears to be clear to observers that the Supreme Court and high courts are not accessible enough, surprisingly, there are actually no empirical studies that examine why this is the case. Some factors can, however, be deduced from a study dealing with the inaccessibility of district courts, that is, the lower judiciary.The fourth chapter also shows that the institution of Public Interest Litigation, for various reasons, cannot compensate for lack of access to justice, and that the state is not properly implementing (or not at all exploring) many other possible alternative mechanisms.

History and the Current State of Elementary Education in India

Chapter 1 gives an overview of the history and current status of the education system in India. It identifies parts of the society whom Article 21A is primarily aimed at, and what the most pressing issues to be addressed in the field of primary and lower secondary education are. It is quite clear that those who might profit from having a right to education are those who do not have the means to already afford quality education for themselves by obtaining it from the private market and who are, therefore, dependent on some form of state action. Strangely, it will be shown, even after years of education being a fundamental right, decent-quality education is still not seen as a ‘public good’ that the state ought to provide for free but something that is supposed to be obtained from the market, with the government education system being considered as something ‘meant for (very) poor children’.

Article 21A

Chapter 3 offers some guidance concerning the content of Article 21A. This question is approached purely legally, not politically. Therefore, the chapter does not describe what content would be desirable. Instead, it discusses which concrete legal obligations the article might impose on the state. It also highlights that Article 21A, read with Articles 32 and 226, clearly imposes an obligation on the state to provide accessible and effective enforcement mechanisms to right-bearers. The fact that the petitioners in none of the cases concerning Article 21A decided by the Supreme Court, and in hardly any cases decided by the high courts, were aggrieved children or their parents shows that the higher judiciary is not accessible enough.

Grievance Redress and the Judiciary

Chapter 6 explains why the judiciary, when assessing the State’s measures for furthering access to justice, should focus on the RTE grievance redress system, and should order that it be improved in order to compensate for the current lack of access to justice. Strategic PIL litigation may play an important role. The chapter shows what alterations are necessary in order for the system to provide adequate and effective means of enforcement. It shall be concluded that a system of ‘micromanagement’ through grievance redress at the ‘bottom’, with right-bearers approaching the redress bodies themselves, and ‘macromanagement’ of systemic deficiencies through adjudication in the higher judiciary at the ‘top’, with advocacy groups raising issues at that level, might actually be superior to the system that was originally conceived by the Constitution.

From a Directive Principle to a Fundamental Right

Chapter 2 recounts the developments around adjudication of fundamental rights and directive principles that climaxed with the inclusion of Article 21A in the constitutional text. By examining the historical background of the Eighty-Ninth Constitutional Amendment, the chapter then tries to find some answers concerning its doctrinal and practical significance.Surprisingly, the chapter concludes, there was very little of a ‘vision’ of what the purpose of Article 21A would be. Still, the fundamental right to elementary education is now part of the constitutional text, and the fact that there is one explicitly justiciable socio-economic right might have a significance that goes beyond mere symbolism. Whatever the motivation for including Article 21A in the constitutional text may have been (even if the intention was only to symbolically declare that the State takes the matter of elementary education seriously, or to appease groups calling for State action), the provision is now part of the constitutional text, and the judiciary is called upon to adjudicate on it when it is approached.