The Right to Education has been considered as a fundamental right of every citizen by the Judiciary in various conclusions and the Legislature, which subsequently implemented Article 21A of the Constitution by way of the Constitutional Amendment of 2002, thereby making Education a fundamental right. The Right Of Children to Free and Compulsory Education ACT, 2009 was implemented keeping in mind the importance and need for free and compulsory education to all children.

Whilst the pre-amended legislation specifically prohibited withholding or expulsion of children upto Class 8, the new amendment has relaxed the absolute prohibition against holding back of children upto Class 8. Whereas Section 16 of the Principal Act specifically states that states that no child admitted in a school shall be held back in any class or expelled from school till the completion of elementary education, the new amendment substitutes the present Section 16 wholly with a new provision.  The new provision mandates the need for regular examination in class five and class eight at the end of every academic year. It further states that additional opportunity for a student failing in such regular examination has to be provided within two months from the date of declaration of result.  Furthermore, state governments have been given the power to allow schools to hold back a student in class five or class eight, if he/she fails in the re-examination.  It is also clarified that the governments are at liberty to decide to not to hold back a student in any class till the completion of elementary education. Thus, the amendment gives discretion to state governments to decide whether or not to allow holding back of students until completion of elementary education.

The objective behind implementing the proposed amendment was to address and specifically target the issue of the adverse impact on children with reference to their learning capabilities. The provision of Section 16 of the Principal Act was seen as a tool by most children to evade the free education provided by the government as the end result was that children would directly get promoted upto Class 8 irrespective of their progress in each academic year.


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Bill: The Right OF Children to Free and Compulsory Education (Second Amendment) Bill 2017