Right to Access Online Education Inclusive of Article 21A? Addressing the Digital Divide

Legal Aid Society, Campus Law Centre, University of Delhi

Right to Access Online Education Inclusive of Article 21A? Addressing the Digital Divide

April 26, 2022 Uncategorized 2

Right to Access Online Education Inclusive of Article 21A? Addressing the Digital Divide


This article has been written by Mr. Iman Abdul Muizz, a final year student of B.A. LL.B. at Central University of Kashmir, Ganderbal.



‘The Digital Divide’; an unprecedented crisis fostered by the deadly pandemic, resulted in education becoming ‘the casualty’ in India. Fortunately, the COVID-19 situation has started to improve. Yet, the receding curve of COVID-19 cases by no means renders redundant the need for adequate digital equipment, essential for the education of the (deprived) children. During the pandemic, an inevitable shift towards digital technologies has taken place, which in a way has been exceptionally transformative, however inequitable. The entire world is shifting drastically towards digitalization, becoming a global digital economy. Here, education has an important and critical role to play in transforming India into a digitally-empowered society and a knowledge economy.

However, access to this luxury – online education – in the 21st century is confined to the rich only. Recently, a report released by the Education Ministry has revealed that more than 2.9 crore children in India do not have access to digital devices. Shocking, isn’t it? What then transpired of their education during the lockdown and the consequent closure of schools? The answer is quite obvious, but let’s forgive the past and focus on the future course.

As it is said, “a good crisis should never be wasted”.


The National Education Policy, 2020 (“NEP”) aims to integrate technology with the prevailing educational system to improve and make it more holistic and inclusive, in order to meet the standards and requirements of these times. All of this, however, appears to remain on policy and paper only. The ideals of the NEP seem more rhetorical in nature, as its implementation is nowhere to be found. In fact, the previous education policies of 1968, 1986, and 1992 envisaged about 6% of GDP to be spent on education in India. However, this recommended threshold, as a matter of fact, was never reached.

The previous public expenditure on education in India has been around 4.43% of GDP in 2017-18, 2.8% of GPD in 2019-20, 3.1% of GPD in 2020-21, and again, 3.1% of GPD in 2021-22. This time, the education budget allocation for 2022 is around Rs. 1.04 crore, which is an 11.86% increase from the yesteryear education budget. However, to match the requisite level of 6% of GDP, the education budget for 2022-23 ought to have been almost double the previous year’s allocation. Thus, once again, the proposed education allocation budget is far from reaching the recommended level.


Our Constitution, through Article 21A read with Article 21, imposes an unequivocal duty on the State to provide free and compulsory education for all children in the age group of six to fourteen years. It is a fundamental right and has a close and unique relationship with most of the basic constitutional values.

In view of the immense importance education has, especially in this digital era, the moot question that arises is: “Can access to online education be denied to the children who cannot afford it?” More importantly, can a welfare state, such as India, as contemplated by the Directive Principles of State Policy, deny such a right?

In fact, the Apex Court, in Ashoka Kumar Thakur v. Union of India, while rejecting State’s argument on financial constraints being the reason for non-implementation of Article 21A, held that: “the children should be given any other necessary benefits so that the object of Article 21-A is achieved. Time and again, the Court, in a number of judgments, has observed that the State cannot avoid its constitutional obligation on the ground of financial inabilities.” (Emphasis supplied)

It must be noted that Articles 38, 39, 41, 45, and 46 of the Constitution of India, lay emphasis on the obligation of the State to secure the right to education of the weaker sections including the Scheduled Castes and the Scheduled Tribes.

Unfortunately, the underprivileged children are deprived not just of digital equipment but essentially of access to future opportunities and freedom. This freedom achieved from education has been put in the strongest words by the Supreme Court in Ashoka Kumar Thakur v. Union of India, where the Court observed that, “In essence, a citizen is only free when he can make a meaningful challenge to his fellow citizens or Government’s attempt to curtail his natural freedom. For this to happen, he needs a certain degree of education. This is why Article 21-A may be the most important fundamental right”.

In light of these judicial pronouncements, it becomes clear that the responsibility, therefore, lies on the State to remove all burdens and barriers to grant access to the deprived children of this country to online education and resources, for the fulfilment of the objectives of the Constitution.


In 2020, the Delhi High Court in Justice for all v. Govt. of NCT of Delhi and Othersheld that: “If a school decides to voluntarily provide … Online Education as a method/mode for teaching, they will have to ensure that the students belonging to EWS/DG category also have access and are able to avail the same. After all, equality of status and opportunity is one of the cherished goals of Indian Constitution… Segregation in Education is a denial of equal protection of the laws under Article 14 of the Constitution and in particular Sections 3(2) and 12(1)(c) of RTE Act, 2009. Colin Powell former Secretary of State USA, characterised the gap between those who have access to the wonders of digital technology and the Internet, and those who do not, as ‘digital apartheid’.” (Emphasis supplied)

In the appeal to the Supreme Court, the Court while staying the operation of the aforesaid judgment observed that: “Article 21A of the Constitution has to become a reality and if, that is to be so, the needs of children from the underprivileged sections to receive adequate access to online education cannot be denied.”

Another Public Interest Litigation, titled, ‘Centre for Public Interest Litigation & Legal Aid, CUK v. Union of India & Ors.’, is pending consideration before the High Court of Jammu & Kashmir and Ladakh. It seeks direction to the Governments (Central and Union Territory Government) to provide digital or other equipment, essential for the purpose of online classes and accessing online education, to the children belonging to ‘weaker sections’ and ‘disadvantaged groups’.


The term ‘education’ used in the Right of Children to Free and Compulsory Education Act, 2009 and Article 21A ought to be given a wide and liberal interpretation. The courts have to examine whether or not access to online education is inclusive of Articles 21 and 21A. The aforementioned petitions, if allowed, can become a turning point in terms of accessibility to online education and thus, will have significant implications on the educational sector in the coming years.

Notwithstanding the judicial interventions, the Government must analyse the situation at a micro level to understand what problems an individual child faces, in a particular area, and frame a more pragmatic and effective policy, accordingly. There is a disparity in access to electricity, internet, digital devices, and the resources to operate or make use of those devices; thus, the focus must be on these underlying factors. Then, we also have ‘children with special needs’ who require special equipment for their education, also the additional charges incurred during the use or repair of that equipment.

No doubt, the ‘Budget-2022’ lays stress on digital learning, following which an announcement was also made by the Finance Minister regarding the expansion of the PM e-VIDYA initiative, proposal to launch a “digital university” and development of e-content in all Indian languages. The fact that apparently has been overlooked is that there is a long way to go for a 6 years old child to reach the IITs and the IIMs. At the outset, the focus should be on the initial years of education, which help in building the foundation of a child that enables them to pursue higher education. On the contrary, the prevailing educational system is hollow at its very foundation, far from the requisite standard of contemporary times. In such a case, the persistently disadvantaged class will always remain devoid of the opportunities available to the well-off class of our society.

Ergo, to meet the aspirations of the NEP, its implementation at the bottom of the hierarchy is a sine qua non. These aspirations can be realized primarily through legislation (both at the Central and State level) and by adjusting funds (budget) to meet the recommended expenditure on education. Additionally, the Central and State Governments have to reach an understanding for a collective implementation policy; only then can the NEP be implemented in letter and spirit.

In furtherance of this objective, all various departments of the Central and State/UT Governments must work collectively to ensure that all necessary facilities required for accessing online education are accessible to all children. In fact, the investments proposed for infrastructure such as additional buildings, which otherwise yielded insignificant results, can be diverted and adjusted to provide digital equipment to the foregoing groups. Most importantly, the Parliament should either amend the RTE Act or enact an exhaustive and systematic framework to facilitate free and compulsory access to online education.


Concluding, it ought to be emphasized that education is the panacea to eliminate the problems of the poor and the deprived classes of our society. Education is all that a welfare nation can promise to its citizens. If we fail to render it, the whole edifice of the nation will become hollow. It may be argued that the State is deficient in the requisite resources, but if there is a fundamental right to education, and if that right would include the right to access online education, then the State is obliged to implement that right, at whatever cost. Since this issue has already reached the Supreme Court of India, it is now for the Court to come to the rescue of the budding blooms of our future nation.

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