The Right to Free and Compulsory Education Act, 2009, is a landmark legislation that concretizes thejudicial and constitutional status accorded to publicly supported education for children between six andfourteen years. I’ve embarked on some questions that hold jurisprudential significance to the Act, and theway its analysed. Please find a copy of the Act here.

Questions

Amartya Sen sees ‘individual advantages’ in terms of capabilities that a person has, to be a properyardstick for measuring social justice. His argument stresses on the recognition to be given to thedeprivation of capabilities as opposed to the ‘lowness of income’ approach. While maintaining thatincome remains a primary index in identifying poverty, Sen suggests three methods by which thediscussion on capabilities is inducted into mainstream discourse. Read from the perspective of theRight to Education generally (not in the context of Free and Compulsory Education), they are

How is the relationship between income and education affected by social indices such as age,gender, location and so on? Does the Act seek to rectify the problems that arise in this regard?

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How does the ‘coupling of disadvantages’, i.e., income deprivation and adversity inconverting income into functionings, affect one’s right to education? If handicaps reduceone’s ability to earn an income, and subsequently convert that income into investments ineducation, how’s the Act helping by brushing persons with disabilities under the carpet of thePWD Act?

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How does the distribution of income within the family affect/complicate the provision ofeducation? Is this aspect also discussed by the Act, or is the only solution to make it ‘free andcompulsory’ for all?

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What is the ambit of a ‘right’ to Education? From a Hohfeldian perspective, to derive the ‘definiteand appropriate’ meaning of a right, one must affirm the presence (and juxtapose the right) of acorrelative duty. In this regard, how is the enumeration of rights and duties done in the Act? Are theduties ‘correlative’, i.e., are they violated when the right is invaded?

From Hohfeld to Shue’s analysis in terms of rights and duties. Shue’s definition bears threecomponents, a right being a (i) rational basis for a justified demand (ii) that the actual enjoyment ofa substance be (iii) socially guaranteed against standard threats.

With regard to a justified demand and the constraints observed in fulfilling that demand, Shuestates that the justification means ‘that those who deny rights can have no complaint when

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The Right to Free and Compulsory Education: Jurisprudential Questions.... http://www.somethingaboutthelaw.com/2009/10/14/the-right-to-free-an...

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their denial….is resisted’. Does the 2009 Act respond to the justified demands of Free andCompulsory education?Re the actual enjoyment of a right, Shue observes that a mere proclamation of a right cannotamount to its fulfillment. On this count, has the 2009 Act been effective in managing thetransition from the host of cases on the right to education, and the subsequent induction intoArt. 21-A? In other words, has the judicial and Constitutional proclamation been fulfilled bythe legislature through this Act?

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Social guarantee against standard threats is an important component of a right: what are thestandard threats faced by the target group in access to education, and do the institutionalmechanisms envisaged in the Act provide guarantee against these threats?

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Is the right to education ‘basic’ as conceptualized by Shue? Is it comparable to the rights of securityand subsistence? Shue’s answer to this question is an emphatic no, as his grounds of classificationare based on the fact that basic rights are quintessential to the enjoyment of any other proclaimedright. Does it tie into a hierarchical structure, implying that resources must first tend to security andsubsistence, and then to other rights? If so, what is the future of this Act, in terms of theimplementation of infrastructural and resource set-ups?

In terms of the resources argument, is the Right to Education, prima facie a positive right? Withregard to the three types of correlative duties that Shue postulates, what is the relevance of the dutyto aid in the present context?

It cannot be an argument for curtailing a right, once granted, simply that society would pay afurther price for extending it. There must be something special about that further cost…to say thatalthough great social cost is warranted to protect the original right, this particular cost is notnecessary. Otherwise, the Government’s failure to extend the right will show that its recognition ofthe original right is a sham, a promise that it will intend to keep only until that becomesinconvenient –Dworkin, Taking Rights Seriously.To what limits can the Right to Education be extended, in terms of resources? Can appropriateauthorities cite lack of funds as a fundamental reason to deny the full-fledged enjoyment of theRight? In other words, should the Right, as envisaged in the Act, be given a narrow interpretation?

Examining Nussbaum’s approach to Central Human Capabilities, does she read in education as abasic tool to fulfill the capability of Senses, Imagination and Thought. Does this analysis accordgreater primacy to education as opposed to Shue’s stance?

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The Right to Free and Compulsory Education: Jurisprudential Questions.... http://www.somethingaboutthelaw.com/2009/10/14/the-right-to-free-an...

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