A COMPARATIVE LEGAL ANALYSIS OF THE RIGHT TO ADEQUATE AND QUALITY EDUCATION

Abstract

By virtue of the importance attributed to basic education for individuals and society to transform and develop the country as well as the self-fulfilment of individuals brought forward that right to education contains not only a right of enrolment to a school but also adequate education which fulfil certain standards and criteria. The history of segregation and disparity in welfare in South Africa, India and the USA make this issue more important. The courts have not answered the legal questions on the adequacy in a uniform way, particularly whether this right guarantees a certain standard of education, and if yes, what standard is this. This essay will compare and contrast the courts’ understandings of the right to adequate basic education in these jurisdictions. This will be done through the analysis of the interpretations given to the constitutions and international instruments to determine the responsibilities of the states to realise this right. The first question of the analysis is how the courts interpret the legal instruments, particularly their constitutions, to decide whether the right to education includes a right to adequate education. The second point is how the courts determine and reason the adequacy standards of the basic education. It will be argued that the apex courts of India, Kentucky and New Jersey provided that basic education is subject to certain constitutional standards; however, these courts displayed different understandings of the adequacy. Kentucky Court examined the content of the right to education to provide a comprehensive adequacy criteria, whereas, New Jersey Court focused on substantively equal funding of schools. Indian and South African Courts considered the concept of adequacy in terms of the adequacy of school facilities rather than its content or finance.