The purpose of this paper is to explore the trend towards the judicialization of the right to education, review the evidence on its drivers, dynamics, and effects, and assess the implications for efforts to promote better education outcomes in developing countries. We ask:

- Who has litigated for education rights, through what legal mechanisms, and to what ends?

- What kinds of education issues have they raised through litigation?

- What barriers have they faced in conducting litigation, and how have these been overcome?

- And most important, what has been the impact of education rights litigation on citizens’ access to and the quality of education?

With regards to the latter, we further ask: Has this litigation primarily served middle-class interests because they have easier access to the court system due to the costs involved? Or has it primarily helped the poor and marginalized? What factors have influenced the extent to which the poor and marginalized have benefited from education rights litigation? Finally, we ask, what are the implications of the answers to the questions above for efforts to promote improved education outcomes in developing countries—especially in terms of learning? In other words, can changes to the legal landscape make the right to education more effective by enabling poor people to hold states accountable for their rights?

To address these questions, we examine the experiences of two developing countries that have experienced an increase in education rights litigation in recent years, India and Indonesia.<sup>3</sup> Education rights litigation in both countries has been part of broader political and social struggles over the nature of education policy and its implementation, not simply an attempt on the part of individual justice-seekers to seek redress for breaches of their individual rights. Specifically, it has been a useful way for ordinary citizens and their allies in the NGO movement to contest neoliberal education policy reforms, challenge the capture of educational institutions by predatory political, bureaucratic, and market forces, hold governments accountable for rights-based commitments, and in general promote a more progressive vision of education. In Indonesia education rights litigation has taken an explicitly policy-related form—for instance, requests for superior courts to conduct judicial reviews of laws or regulations—reflecting the absence of effective legal mechanisms for citizens to make individualized claims for education services at public expense. But even where litigation has ostensibly focused on individualized claims, as has typically been the case in India, it has often aimed at precipitating policy change.

In both cases this policy-oriented litigation has principally served the interests of the poor and marginalized rather than the middle class (even though some sections of the middle class have been centrally involved in much of the litigation) to the extent that it has protected or enhanced the former’s access to education. The implications in terms of learning outcomes have been less clear because little litigation has been directly related to issues of education quality, and victories for equitable access have in some cases affected the quality of education for the

> 3 We chose these countries for pragmatic reasons. Given time and resource constraints, we were unable to carry out extensive fieldwork and had to rely largely on secondary material and previous research. India and Indonesia are contexts with which we are familiar and for which we could quickly assemble the required empirical material on education rights litigation. For Indonesia we relied primarily on Rosser’s previous work on education rights litigation. For India we used a small, focused sample because of the large number of cases. The RTE Act, which came into force in 2010, alone has a database of 41,000 cases, of which 2,477 have been heard in the Supreme Court.

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