The demand for free and compulsory education in India began more than a century ago. The narration of free and compulsory education during British rule in India was a chequered history of unfulfilled vision. India attained its independence from British rule in 1947. On 26 January 1950 when the Constitution of India came into operation, the constitutional directive for free and compulsory education was under the directive principles as a 'non-justiciable' right through Article 45 promising to fulfil within a period of ten years from its commencement. But the state failed to do so for the next 5 decades. Ultimately, the Right of Children to Free and Compulsory Education Act (Right to Education Act), 2009, came into effect on 1 April 2010, pursuant to the 86th Amendment to the Constitution of India (2002), which mandates elementary education as a fundamental right. India took more than a half-century in evolving free and compulsory education from the directive principle to fundamental right, from 'justiciable right' to 'non-justiciable right'. However, this article intends to analyse the dynamics of transformation of the right to free and compulsory education in India from directive principle to fundamental right in light of the history of persistent denial in the post-Constitutional era. The article also explores what actually happened at the time of framing the Indian Constitution that the right to education was finally shifted from a 'justiciable right' to 'non-justiciable right' in the final text of the Constitution of India.
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Asian Journal of Education and E Learning
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CASIHR Journal on Human Rights Practice
Dignity, liberty, and equality are fundamental guarantees which are enumerated in each constitution of around the globe and are basis of other human rights, underlying human existence. The Constitution of India, which is a living and organic document, starts its preamble with ―we the people of India‖, and establishes goals to achieve such as, ―justice, liberty, equality, and dignity of an individual. These goals have further been incorporated in Parts III and IV in the form of Fundamental Rights and Directive Principles of State Policy, respectively. Rights enshrined in the constitution are not absolute, having some restrictions required to be balanced between an individual and the society. The constitution is a document of a country that establishes various organs, their powers, and inter-relationship between them and how those powers should be exercised. Apart from that, it contains fundamental rights and liberties of an individual. Constitutional law contains both ―legal and non-legal norms‖ which are enforceable by the courts of law when violation occurs. Constitutionalism is another term which is the need of the hour. A country may have constitution not but necessarily constitutionalism. Constitutionalism means it works as check on unrestrained powers of various organs, such as legislature, judiciary, and executive. A written constitution, independent judiciary, power of judicial review, judicial activism, rule of law, and separation of powers are essential facets of constitutionalism. But when we talk about constitutionalism in context of inherent rights, these somewhere include the meaning of constituting or constructing on the basis of written provisions and applying these in modern times. Fundamental rights are quintessential for human survival, and without invoking directive principles of state policy which are socio-economic rights, former become somewhat redundant. So far as fundamental rights are concerned, the rule of law is very essential to foster equality, enable Indian citizens to enjoy their liberty and live dignified life. The Indian society is a caste-ridden society where inequalities are ingrained and hierarchal structure has subjugated the vulnerable communities and stigmatized them. The constitution of India is a living and organic document, which changes with time and judiciary is playing a very significant role in its pragmatic interpretation and accommodating all changing social norms. This paper analyses the living constitution theory and inherent rights in India, and that how far constitutional courts are interpreting the constitution as a living document keeping in mind the intent of drafters as well as accommodating changing social needs in such a diverse society.
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