Random Notes on the Right to Education Act, 2009

C.N. Subramaniam

Recently both the houses of the Indian Parliament passed the Right of Children to Free and Compulsory Education Act, 2009. Strangely it comes almost a century after the idea was initially mooted by Gopal Krishna Gokhale in 1911 in the Imperial Legislative Assembly, where it was turned down by the opposition of feudal elements like the Maharaja of Burdwan, Darbhanga and capitalists like N.K. Wadia and the lack of interest of the colonial government. Incidentally the draft of the bill presented by Gokhale had an important clause related to the banning of child labour which prevented children from attending schools as an integral part of the bill, something which the present Act does not even attempt to do.

There has been much debate about the present Act and its desirability and limitations. These notes should be read along with the debates.

Looking at the present education scenario one can outline the following problem areas:

1. Access does not cover a large number of working children.

2. The Government school system is becoming highly dysfunctional.

3. As a result of 2, the entire education system is grossly reproducing social inequities (gender/caste/tribe/region/class) rather than helping to reduce them.

4. The content and process of education remains poor across the board with a continued emphasis on stressful rote learning and the suppression of creative abilities of children

5. There is a clear disjuncture between the broad liberal framework of education espoused by the NCF 2005 and the ‘minimalist’ literacy and numeracy approach adopted by the education departments which has in turn facilitated ideas of minimalist schooling and minimalist teachers.

6. Education cannot be isolated from a comprehensive childhood programme that should necessarily include nutrition, health and acculturation.

7. While a child becomes a subject of education from birth to adulthood at 18 years, the formal education system addresses them only during the age of 6-14, thus leaving the crucial 10 years outside its purview.

While 2-4 have some bearing on 1, by and large working children are out of school due to the compulsion to engage in family reproductive labour and has deeper economic causes. Breaking this deadlock requires sustained and powered intervention by the state rather than mere ‘remedial action’.

Addressing the educational, nutritional and health requirements (5-6) of children from 0 to 18 requires basic structural changes in the institutional frameworks, financial outlay, etc. With the rapid breakup of the traditional forms of life, the family may no longer be able to cope with these tasks and they need to be socialised.

One of the principal criticisms that can be made of the RTE Act is that it isolates formal education from age 6 to 14 from the larger contexts and seeks to address it separately. Secondly it does not show any promise with regard to the education of children who are outside the school system today including the girls and other working children. What will be done to bring them to school and who will be responsible to bring them to school is not clear. The term ‘compulsory’ begs the question who will be compelled? The act absolves the parents, the children and the administration from this compulsion. Then who will be answering for the out of school children? It only implies that children who come to schools on their own will be given access.

Having made this general criticism of the self imposed limitations of the act we can now turn to the provisions of the act to educate the children who are keen to get educated between the ages of 6 and 14.

The Government School System and Privatisation

While it may not be within the realm of the possibility to wish away the private sector, from the point of view of both equity and quality the privatisation of education provision poses greater obstacles and threats. This is because private schools go against the principle of common schooling and build a hierarchy of schools catering to different strata of population. Secondly they lack an integrative mechanism through which pedagogic innovations and academic norms can be implemented across board. Thirdly, the monitoring mechanisms by the state are presently virtually absent.

Given these factors it would appear that any step that strengthens the tendency towards private schooling would be inimical both in the short and long term.

However we need to balance this view by the reality of growing dysfunctionality of the government school system. This can be seen as being fuelled by the neo-colonial policies of weakening the post colonial nation states by reducing their roles in shaping the civil society. The publically managed institutions have shown a remarkable vulnerability to political interference and this has generated structural limitations for accountability. Given this larger background, it would appear that with the state abandoning its responsibility for education, privatisation is today actually the only effective means of achieving equity and quality in education.

The RTE Act needs to be seen in this highly paradoxical context.

One may explore the difference between the private and government schooling today to identify the areas of advantage posed by the former over the latter. Private schools organised as an enterprise function with a coherence, integration and purpose as defined by its management. An important principle in most such institutions is the separation of academic and administrative work with at least a minimal clerical and support staff. Most government schools no longer show this institutional coherence. Single teacher or double teacher schools, at the beck and call of the CRCs, BRCs BEOs, tehsildars, etc. cannot function as such. Even in multi teacher schools the headmaster is without any leadership role, a mere clerk handling dak and not leading the school and answering for it. Separation of administration and academic work only starts at the block level (or high school) in the government system.

Secondly, the private schools appear to commit adequate person power to engage children in teaching-learning tasks. The immediate problem thus seems not so much the quality of the teacher – her training or qualification or salary or motivation – as the fact that there is a teacher at all to actually teach the children in the class room. While such factors affecting the professionalisation of teachers has long term consequences on the quality of education, in the short run, that takes a lower priority compared to the need for any adult presence in the class at all. These two factors ensure the edge of the private schools which appears as greater answerability and effective delivery of minimum quality. The fact that actual delivery and effectiveness may be the result of parental coaching – and also the fact that children without such back up anyway get filtered out in the private schools – need not detain us.

In contrast to the private schools the government schools retain two crucial advantages of being accessible to the remotest and the poorest of the poor and being a large integrated system with the possibility of enforcing common norms, pedagogies and standards. However the latter advantage is largely compromised by the lack of institutional memory and lack of professionalisation of the system leadership which is largely in the hands of whimsical bureaucrats. The former advantage is undermined by staff insufficiency; children have access to schools but not to teachers.

Given the complexity of the situation and the enormous inertia of the system, it is useful to take a pragmatic approach. Radical advocation of restriction of private schooling and promotion of government schools is fraught with danger as the government school system may not rise to the occasion. So we need to identify measures that will make the private school system more responsive to the goals of universal and equal education and ensure better functioning of the government school system and adequate public expenditure on education.

The RTE Act and After

The single most important aspect of the RTE Act is that it will make educational issues justiciable. This implies that its implementation can be forced to the extent that courts can force the administration. Secondly, it will open up the possibility of reinterpreting and changing the meaning of the act and its schedules in a court, especially the higher ones. This opens an avenue of policy formulation not available earlier.

RTEA and Privatisation

The RTE Act as has been pointed out does not advocate a common school system or the abolition of private schools but seeks to bring it within the ambit to serve the goal of universal ‘compulsory’ education. It seeks to do this by making it mandatory for private schools to conform to norms laid down in law and by competent authorities. Secondly it makes it mandatory for private schools of all descriptions to take children from deprived social backgrounds from the neighbourhood up to 25% of their strength. As we had indicated above this can to some extent address the gross iniquity which the emergence of the high end private schools has brought into the system by making them accessible to deprived children too. While the Act leaves the question of fees being charged by the private schools unregulated, the recent Supreme Court judgement brings it under government regulation.

What are the implications of the Act for the Private schools, especially the unaided ones?

1. All schools (old and new) should get a certificate for conforming to the Schedule mentioned in the Act (with immediate effect).

2. They need to conform to the rules outlined in the Act no capitation fee, no screening, no detention, no expulsion, no corporal punishment.

3. They will have to admit children from weaker sections, SC/ST/OBC up to 25% of the strength of their class 1 or pre-school starting point and provide them education till they complete class 8. If the schools are not already supported by the government through subsidised land etc, they will get from the government a fee as per the norm of per child expenditure of the government.

The Schedule which we shall examine presently has been drawn up keeping in mind the present state of Government schools. Most of the private schools will probably easily conform to them, except when it comes to teachers, if the act requires conformity from the private schools too on this score. This has special implications for teacher qualifications due to the condition that they conform to nationally laid down norms. However the act is ambiguous on this matter – it is not clear if section 23 of the Act applies to private institutions too for it is not a part of the Schedule on schools.

This can also lead to greater government control over the curriculum and materials in use in private schools: they can now be forced to conform to the curriculum and textbooks laid down by the government.

Given the scale of privatisation, a separate department needs to be set up to certify and monitor the private schools. Establishing transparency there will be a major problem given the enormous opportunities for graft.

The provision for enrolling children of weaker sections up to 25% of its strength from the neighbourhood is perhaps the most far reaching step. We can hope that the poorest children will now have access to the ‘best’ run schools if they are lucky enough to be living in their neighbourhood. Having at least one fourth of the class of such children may go a long way to change the complexion of private school culture. Needless to say, this is also fraught with problems: to what extent they can be culturally and socially assimilated within the school will depend upon a number of factors, including the attitude of teachers and privileged fellow students and their parents. What impact this will have on the relation between the children of weaker sections and their parents is also an imponderable. It is one thing to study in a common government school, but quite another to be admitted as a part of reservation in a private school which has a hidden implication that it is actually meant for the elite. This is known to produce serious adjustment problems. All this means that a small minority of such children will stand to benefit from this provision while the larger population will be subjected to stress and rejection. It is not that this is a problem that cannot be overcome. However it will not be possible without a concerted national effort and commitment percolating down to the civil society to bring those marginalised into the mainstream. All efforts need to be made to make it comfortable for the marginal children to participate in the school meant for their ‘social superiors’. Whatever may be the merit of the matter, it calls for a serious effort to reorient the teachers and schools to this task, without which it can create a mess for the children concerned. It also calls for the creation of a task force at various levels with a commitment to the idea.

The Act is not clear yet on a number of questions on this issue. Firstly, it is necessary to clearly codify the entitlements of the children admitted to the private schools that it will encompass all that is required by the school to complete elementary education: this should cover not only fees, uniform, mid-day meal, textbooks, notebooks, other ‘project materials’ but also charges for cultural events like excursions etc. That the parents of such children will not be required to make any additional payments, etc. Secondly, the nature of reimbursement of expenses by the state is not clear. If a private school is to cover all the above requirements of the children free of cost, it would like the government to pay for it failing which it will recover the cost from the other parents through fee hike. The per child expenditure of a school will depend upon the nature of the school and reimbursement through a common norm will be problematic. Thirdly the calculation of state subsidy to such schools is not clear. Will it be the entire expenditure of the education departments divided by the children enrolled?

Fourthly, while the caste categories are well defined, the ‘economically weaker sections’ may be vague unless it is defined as those below the poverty line. Here again the definition of neighbourhood will be important. Typically one can expect the government to define it as say 1 km. radius in states like Madhya Pradesh but since the government only guaranteed Employment Guarantee Scheme in that range, it may go up to 3 km. range. Now many private schools especially in urban areas are concentrated in localities outside the town and there may not be sufficient population of deprived children in their neighbourhood so defined. When such a situation arises where the immediate ‘neighbourhood’ does not have sufficient number of children to cover the 25%, children of other neighbourhoods not so well endowed should be enrolled and their travel expenses taken care of by the school/state.

Will such provisions strengthen the secular trend towards privatisation or more specifically will the state be now recognising and subsidising the mushrooming private sector by paying the fees of a quarter of their students? On the face of it would appear that most private schools which have the qualifying infrastructure may actually benefit from the fee subsidy. The large ‘international’ ones may lose if they have to be satisfied with a loss of revenue on one quarter of their students. It is also likely that they will fight back ferociously as their social exclusiveness will be broken. We can hope for some orchestrated campaign and imaginative arguments on the matter.

The private school teachers are likely to be affected significantly by the act as most of the unqualified teachers are there. This will fuel the D Ed and B Ed industry to a great extent as there will be a race to get those qualifying degrees. This may also significantly raise the salary levels of teachers.

All this only if we have an effective public authority to enforce the law, which is rather less likely.

RTEA and the Government School System

Understandably this provision of the Act for reservation in private schools will evoke more interest than the provisions for strengthening the government school system. A sceptical interpretation can be that by pooling such private resources the government is actually diluting its primary responsibility towards universalisation. Let us see what it would do to the government schools.

Before we embark on this we need to keep in mind that the private schooling has a significant presence only in the urban areas and in developed rural districts. The overwhelming majority of children still go to government schools and there is no option available to them as private enterprise will not be sustainable.

The Act has a vision of a school which is laid down in the Schedule and no school will be allowed to function if it does not fulfil these conditions. What kind of a school the act envisages is to be seen in the schedule ‘Norms & Standards for a School’.

1. Let us see the minimum required to qualify as a primary school:

2. 2 Teachers

3. 2 all-weather class rooms + one store cum office cum HM-room

4. Separate toilets for girls and boys

5. Drinking water

6. Kitchen for midday meals

7. Playground

8. Library with newspapers, magazines and story books

9. Four hours of teaching every day for 200 days in a year (17 days a month)

We seem to have made little progress since the days of Adam’s Report on village schools of 18th century! The poverty of conception of a school which prepares the future citizens of a country aspiring to be a world leader is starkly evident here. A Lower Income Group Flat can now qualify for a school building!

As is evident, the act far from ensuring that government schools conform to the norm established by the poorest private school of giving one teacher per class and one room per class, only promises one teacher for 30 students in case of small schools and one teacher for 40 children in case of large schools.

In other words the Act does little to change the quality of the present government school which will mean that the private schools will continue to attract parents as the only viable educational institution. Read with the provision of support to them to the order of 25%, it will in actual reality mean a clear push to privatisation of education. It may certainly be argued that during the last few decades the government school system had managed to push down the norm considerably, to a single para teacher, no building conception and that the act will ensure that the minimum outlined above will be established now as the norm; that even this would mean a financial outlay which is far beyond what the state is willing to commit to education. The act may be expected to make significant difference to such schools. But this cannot override the fact that the expectation that parents place on a school have gone far beyond those standards, especially since the minimum delivery of education is critically linked to it.

Let us consider the issue of teachers. The act will provide for two teachers in a school. The service conditions of the teachers will certainly ensure them a minimum of 45 days of leave; training requirements, matters of national importance etc will at least require them to be absent from schools for 15 working days. Assuming that the two teachers are not absent on the same days we can safely infer that for 120 days out of the stipulated 200 days the school will function with just one teacher.

The Act provides for qualified and trained teacher, though the nature of qualification and training is left to be defined by a centrally named authority. However it lays down that salaries and service rules and terms and conditions are to be decided by the state government (see section 37, subsection 2, l, m & n). This effectively puts a seal of acceptance on the process of decimation of teacher cadre by several state governments.

If we agree with the initial premise that in the interest of both equity and quality it is imperative to improve the government school system to the point which it becomes a viable and attractive option for parents, then the minimum standards laid down in the Schedule needs to be urgently revised.

Redefining a School

1. We should visualise an integrated elementary school catering to children from Anganwadi to class 8, and not just a primary school or a middle school.

2. The school as a whole should have an academic and administrative leadership with a Headmaster and administrative staff (including cooking and cleaning) and teaching staff.

3. Besides qualified and trained teachers for each class and subject, the school should also have an art/music and sports teacher; each school should have a medical consultant and at least two staff members with para medical training. The total number of teaching staff should be such that it takes care of absenteeism legally allowed (permitted leave and training and deployment for national work). This may mean increasing the strength by at least 25%.

4. The building complex of the school should have a garden space for growing plants and trees, stage and assembly space, playground which is adequate for different kinds of sports(Kho, kabaddi, volleyball, cricket, football), all weather buildings with rooms for all classes, TLM store room, a library, an art room/lab, an administration and record room, a room for principal and staff, a kitchen, well-drained separate toilets for boys and girls.

5. Qualified and trained teaching staff with centrally laid down criteria, emoluments and service rules.

One can go on with this exercise; but this has already been done by the central government bureaucracy in defining schools for its own children, i.e. the Central Schools. The only important difference here would be that most of the schools will not require such a large investment as the Central Schools with their multi-section classes. Our conception of education too has become so stratified that the meaning of education is different for the elite and the masses. We are not any more thinking in terms of future citizens of the republic but in terms of children who will succeed to the riches and those who will serve them. If anything in our body politic is manuvadi, this is.

Quite obviously those who framed the RTE were restrained by the overall financial allocation the government was willing to commit. It appears that even to implement the watered down provisions strictly would mean a very large financial outlay and also institutional support (in terms of teacher training etc) which the central government is dragging its foot over. It has thus been argued that once we ensure that education is brought within the rights framework we can slowly force the government to increase its outlay and tone up the efficiency of the system in much the same way as the Right to Information Act has been growing in its implication. This will require public action and elaboration of jurisprudence on the subject.

The point at issue is that if we want to promote equity and quality in education we necessarily have to develop the public schools as viable and attractive institutions. Unfortunately the RTE Act in its present form does not assure us of this. On the contrary it further dilutes this promise.

Accountability and Redressal

Nor does the Act provide for a stricter accountability of the government schools system, which is by now recognised by all as the bane of the system. A meek and toothless School Management Committee has been provided for which has powers to monitor and recommend, which exist in most places and is known to be non-functional. We are told that teachers unions resisted the idea of having a more empowered SMCs.

As a result accountability is not within the system but outside of it within the judicial process. Let us see how the Act deals with this process.

There are only two main punishable offences as per this Act, viz, charging capitation fee or screening a child for admission to the school and establishing or running a school without a certificate of recognition. As can be seen these apply mainly to private schools. Even such a prosecution can be made only with the approval of designated officials. Beating children etc are to be dealt with under service rules of the teachers.

The chapter on protection of the ‘right of children’ provides for ‘any person having any grievance... may make a written complaint to the local authority...’ which has to respond ‘as early as possible’ by instituting hearings. An appeal against its decision may be filed with the State Commission for Protection of Child Rights.

We may presume from the above that a child or a parent deprived of the rights guaranteed by the act may approach a court of law only after its disposal by the ‘local authority’ and the ‘State Commission’. By such time the child would have grown into an adult! This is quite akin to the due processes established under the Factory Act. Is this not a neat denial of the gains of the Unnikrishnan Judgement? The legal pundits will have to unravel its implications.

In conclusion

The Right to Education Act promises much but ensures the delivery of very little. It does not ensure any significant change in the condition of the government school system. On the other hand it seems to enlist the support of private schools to fulfil its task, by forcing them to take poor and deprived children and subsidising this process. As we have seen it also seeks to control the justiciability of the right to education by outlining a complicated process. One may yet consider it a wedge in the edifice of education; as an exercise by the state to accommodate and control the fall outs of the Unnikrishnan Judgement. In many respects this can be compared to the NREGA which seeks to ensure the right to life of the poor in this era of jobless growth. The NREGA seems to have been able to make a much more radical break, thanks to the role of strong grass roots movements and NGOs. The RTEA falls far short of this mark probably due to the weakness of the civil society organisations and movements for mass education. It is to this that we must now turn. The extent to which these organisations and movements use the foothold provided by the Act and mount an offensive and mobilise the mass of the deprived will determine the direction in which the implications of the act go. It can serve the dream of the bureaucracy to control the implications of the Right to Education or it can open up radical possibilities to bring about equality of opportunities promised by the Constitution.

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