GAYATRI DASS

OFTEN litigated in the courts with issues ranging from the right to wear religious headscarves in educational institutions (Leyla Sahin v Turkey, App No 44774/98) to challenges to disciplinary measures such as suspension taken by educational institutions (CP v the United Kingdom App No 300/11), one principle remains clear: the right to education is a fundamental human right.

This right has been resoundingly set out in numerous international instruments in various languages. The Universal Declaration of Human Rights provides at Article 26(1) that 'Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.'

The European Convention on Human Rights states at Article 2, Right to education, 'No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.'

The United Nations Convention on the Rights of the Child sets out at Article 28, 'States parties recognise the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity…' (and at Article 29) 'States parties agree that the education of the child shall be directed to…the development of the child's personality, talents and mental and physical abilities to their fullest potential.'

The Convention on the Rights of Persons with Disabilities states at Article 24, 'States parties recognise the right of persons with disabilities to education.' The International Covenant on Economic, Social and Cultural Rights at Article 13 provides that 'the States parties to the present covenant recognise the right of everyone to education' while Article 5 of the Convention against Discrimination in Education states that 'the States parties to this convention agree that...education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms.'

The European Court of Human Rights, also known as the Strasbourg Court, has taken a broad view of what constitutes education, noting in Campbell and Cosans v United Kingdom (1982) 4 EHRR 293 at paras 33 that '…[t]he education of children is the whole process whereby, in any society, adults endeavour to transmit their beliefs, culture and other values to the young, whereas teaching or instruction refers in particular to the transmission of knowledge and to intellectual development…[and] the process whereby a school seeks to achieve the object for which it was established, including the development and moulding of the character and mental powers of its pupils.'

At times we may have an inclination to take for