As it stands, the Right to Education Act has several flaws that will prevent its efficacious implementation. Several amendments are called for.

Something that cannot work, will not work. This is a tautology applicable to the Right to Education (RTE) Act, which cannot meet the objectives for which it was enacted. There are several reasons for this.

First, the Act does not rule out educational institutions set up for profit (Section 2.n.(iv)). The protagonists of such institutions cite Article 19.1.g (“All citizens shall have the right to practise any profession or to carry out any occupation, trade or business”). However, they fail to realise that the Article is regulated by Article 19.6: it is because of the provisions in Article 19.6 that no one in the country can set up a nuclear energy plant, or grow narcotic plants, or build satellites, unless approved by the government.

P.N. Bakshi, a member of the Law Commission, in his book on the Constitution of India says: “Education per se has so far not been regarded as a trade or business where profit is a motive.” Yet, the TMA Pai Foundation vs Government of Karnataka judgment of the Supreme Court in 2003 said it is difficult to comprehend that education per se will not fall under any of the four expressions in Article 19.1.g. Therefore, appropriately, the model Rules and Regulations (R&R) for the RTE Act say in Section 11.1.b that a school run for profit by any individual, group or association of individuals or any other persons, shall not receive recognition from the government. However, this Section will not be binding on the States as it is not a part of the Act. If the Government of India were serious about the issue, it should have made this a part of the RTE Act.

The common-sense resolution of the discrepancy between the TMA Pai Foundation judgment and the model R&R for the RTE Act could lie in the fact that education is a generic term. We need to distinguish between the minimum quantum of education that a citizen should have in order to be able to discharge his or her responsibilities and claim rights, and the subsequent education geared to train him or her for a profession such as medicine or engineering.

As regards the first category, it is now virtually universally recognised that 12 years of school education beginning at the age of six, preceded by appropriate pre-school education, is a minimum requirement. Therefore, in virtually all developed countries, a vast majority of children including those of the rich and powerful go to government schools for 12 years of totally free education. The RTE Act is unconcerned about the four most important years of school education – that is, from Class IX to Class XII.

The second category would include three sub-categories: (a) higher education that could lead to a technical diploma, a first university degree in broad areas such as the liberal arts, science or commerce, or post-graduate education in these areas; (b) education leading to a university degree, in a common profession of prime public interest that would cater to the basic needs of society, such as medicine, engineering, law, or management; and (c) education leading to training in specialised areas (which could vary with time), such as flying, catering or hotel management, which does not lead to a degree but is a prerequisite to join the profession at an appropriate level.

It stands to common sense that the first category should be totally free with no hidden costs whatsoever. In the second category, in the public interest and to ensure that quality is maintained, education in sub-categories (a) and (b) must be in a non-profit organisation. The selections should be made on merit in a means-independent way which would imply that appropriate fees could be charged from those who can pay. Those who cannot pay must be able to continue their education through freeships or scholarships, or bank loans arranged by the institution.

There is no argument against education in sub-category (c) of the second category being provided for profit, for the employers will ensure quality in the institutions providing such education.

The judgment in TMA Pai Foundation would appropriately apply to sub-category (c). There is, therefore, a strong case to ensure that Section 11.1.b of the model R&R of the RTE Act is made mandatory for all schools without exception, through an amendment of the Act.

There is the argument that if people can pay for the education of their children they should have a right to have their own schools where the fee charged would be determined by them or the authorities of the school they set up. Indeed, according to the Constitution we cannot ban such schools, which will essentially be the de facto profit-making schools of today where almost exclusively the children of the rich and powerful go. However, the government will be within its rights to say that such schools would not be recognised as they would violate the principle of equity in regard to the minimum education that every Indian citizen should have.

The RTE Act and its R&R fail on many other counts. These are some of them:

•Experience tells us that no government school is likely to function well (or as well as the government schools did till about 1970) unless children of the rich and powerful also attend such schools. Further, it is a myth that private – de facto commercial – schools provide better training than, say a Central School of the Government of India or trust-run schools which are truly not-for-profit.

•The Act places no restriction on the fees that may be charged by unaided private schools ostensibly set up as a Society or Trust but, de facto set up to make money for the investors, just like a corporate company. If they are truly set up not to make any profit they should not be charging any fees, and the fees paid by the children should be reimbursed by the government. They could then function as a part of the common school system in which children of the neighbourhood would have to go irrespective of their class or status.

•Why should unaided private schools have a system of management with no obligatory participation of parents, unlike other schools that require the formation of a school management committee in which parents will constitute three-fourth of its membership?

•Why do we have only 25 per cent poor children in private unaided schools? Why not 10, 20, 40, 60 or 80 per cent? Would it not create a divide amongst the children of the poor, leave aside a greater divide between the children of the rich and the poor?

•No method is prescribed for selecting the 25 per cent poor students for admission into unaided private schools. Selection by lottery would be ridiculous. In the absence of a viable provision, the private unaided (de facto commercial) schools can choose the 25 per cent poor children in a way that the choice would benefit the school.

•There is nothing in the Act or its R&R that will prevent unaided private schools from charging students for activities that are not mentioned in the Act or its R&R. Examples would be laboratory fee, computer fee, building fee, sports fee, fee for stationery, fee for school uniform, fee for extra-curricular activities such as music, painting, pottery, and so on.

•Norms for buildings, the number of working days, teacher workload, equipment, library and extra-curricular activities are prescribed only for unaided schools, and not for other schools including government schools. Only an obligatory teacher-student ratio is prescribed both for government and unaided schools. This means that as long as the teacher-pupil ratio is maintained, the school would be considered as fit. Thus, even if a government school has 12 students in each class from I to V, it will have only two teachers.

•Two arguments often given for continuing to have, or even encouraging, private unaided schools is that the government has no money to set up the needed schools, and that government schools cannot be run as well as private schools. Both these are deliberate lies. There have been excellent studies and reports that show that the government can find money to adopt a common school system with a provision of compulsory and totally free education up to Class XII in the country over the next 10 years. Further, even today the best system of school education in the country is the Central School (Kendriya Vidyalaya) system run by the government. The country needs 400,000 such schools, and India can afford it.

The RTE Act and its R&R are destined not to work. We should recognise that if we do not take appropriate care of school education, agriculture and left-wing extremism – and all the three are related – we may be creating conditions that would encourage internal turmoil.

(The writer is former vice-chairman, National Knowledge Commission.)

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