The Right of Children to Free and Compulsory Education Act (aka RTE Act), 2009 was notified on April 1, pursuant to the 86th Amendment to the Constitution (2002) which guarantees primary education as a fundamental right. The RTE Act and its notification is rightly hailed by many as a landmark in the history of education in post-independence India. But while these are momentous developments, they also highlight — even 60 years after the Constitution came into force — our conspicuous failure to fulfill the Directive Principle 45 of the Constitution (1950) which promised to provide free and compulsory education to all children within a period of ten years. Had the directive principle been implemented in letter and spirit, the need for the 86th Amendment and the RTE Act would not have arisen.
The plain reality of Indian education is that even after 60 years, there are major problems in terms of daunting numbers of out-of-school children, high dropout rates, poor infrastructure facilities, unmanageable pupil-teacher ratios, high degree of qualitative differentiation in the education received by various socio-economic strata of society, and above all, deplorably low learning outcomes of children.
These problems of Indian education are attributed to the vagueness and ambiguity in the directive principle, which did not define ‘free’ or even ‘education’. It was felt that the rulers of free India would be enlightened and hence there was no need for rigid and elaborate defini-tions. This has proved to be too high an expectation. During the past half century several governments have attempted to define free education, as formal, non-formal, informal and distance learning.
The government’s half-hearted attempts and consequent failures necessitated the Supreme Court’s intervention which in a 1992 judgement declared that “the citizens of this country have a fundamental right to education… every child/citizen of this country has a right to free education until he completes the age of 14 years”. This judgement obliged the then government to make the Constitutional Amendment which has been followed by the RTE Act. It is also important to note that the Supreme Court in its judgement, regarded as one of the most enlightened judgements in judicial history, observed that the fundamental right to education flows from the right of the people to live like human beings with dignity. It is necessary to examine the RTE Act and its provisions against this backdrop, to determine whether they are in line with the letter and sprit of the judgement and the Directive Principle 45 of the Constitution.
While the RTE Act defines ‘free’ education in a way much better than is the practice, the definition is still not compre-hensive. Until recently, free education meant tuition fee-free education. Schools, both public and private, were allowed to and levied charges under other heads such as admission, development, laboratory and library fees. Now the RTE Act prohibits all types of fees, including capitation fees and other charges “which may prevent him or her from pursuing and completing the elementary education,” leaving the authorities to decide whether a particular fee/charge prevents a child from going to school or not. The Act should have simply and clearly banned all types of fees and payments to schools without any qualification, and also made it mandatory for them to provide all necessary learning materials such as textbooks and stationery, uniforms, and noon meal to every child. In a sense, interpretation of ‘free education’ has been left to the bureaucracy and officialdom.
Secondly, the act makes it obligatory upon government to provide free elementary education to every child — ensure compulsory admission, availability of neighbourhood schools, eliminate discrimination, and guarantee quality education. Since the Directive Principle could not direct the government sufficiently, the Act makes it compulsory for the government to act. No compulsion on parents to send children to schools is indicated in the Act, though the 86th Constitutional Amendment makes it a fundamental duty of every parent “to provide opportunities for education to his child...”
Again there are more grey areas in the RTE Act. The concept of neighbourhood school, promised by the Act, is not the same as the one that is understood by educationists and argued by the Kothari Commission. Indeed the Act really misleads people on this issue. The geographical limits of the neighbourhood are also left to be decided later. Further, quality of education is defined in terms of ‘norms’ given in the Schedule of the RTE Act. While the norms referring to teachers, number of working days/hours of schools, etc, are clearly defined in the Sche-dule, most other norms such as teaching-learning equipment, library, play material, playgrounds, size of classrooms etc are not defined; they shall be provided as required.
Thirdly, while very few countries worldwide have achieved universalisation of elementary education by relying on private sector education, the Act not only allows the existence of private schools, but promotes their growth. According to the Act, private schools which don’t receive any financial aid from the state, have to admit poor neighbourhood children to the extent of 25 percent of admissions in class I, whose tuition fees will be reimbursed by the state to the schools on the basis of its per capita expenditure per student.
Indignant private school managements have already gone to court contesting this provision. But it is important to ask that since most private schools have received indirect subsidies in the form of concessionally-priced land and tax breaks, isn’t it right to expect them to provide free education without reimbursement, as in case of private hospitals? Nevertheless, the Act promises to reimburse the tuition fees of poor neighbourhood children. Instead adoption of a good common school system would have meant gradual disappearance of private schools. After all, private schools have become glaring monuments of education inequalities in the country.
Fourth, the RTE Act provides for different layers of administration starting from the Central, state, and local governments and school management committees to manage the primary-upper primary system. School management committees have been given the main responsibility of monitoring free and compulsory education. However, going by past experience in a seemingly decentralised mechanism, the higher levels of government tend to abdicate their responsibilities and leave the whole task to the lowest unit. This is clearer when it comes to funding, an issue which was believed to be mainly responsible for the delay in legislating the 86th amendment and later the RTE Act. While initially it was stated that the Central and state governments would have concurrent responsibility for providing funds, now final responsibility is of the state government. The Act states, “Notwithstanding anything… the state government shall… be responsible to provide funds for implementation of the provisions of the Act.”
Fifth, the Act is meant to operationalise the 86th Amendment which made education a fundamental right, a justiciable right. But according to the Act, it may not be possible for any person to approach the courts in this regard, as any prosecution requires prior sanction of the appropriate government, which in effect means prohibition of prosecution. Indeed the Act clearly prohibits legal action against anyone in government. “No suit or other legal proceedings shall lie against the Central government, the state government, the National Commission for Protection of Child Rights, the State Commission for Protection of Child Rights, the local authority or the School Management Committee, or any person, in res-pect of anything which is in good faith done or intended to be done, in pursuance of this Act, or any rules or order made thereunder.” One may wonder, what is justiciable in the Act?
Above all, the RTE Act is bereft of the long term vision required for development of education. In the long run, one would expect the free and compulsory education system to evolve into a common school system, essentially a public school system, covering school education unto class XII and 18 years of age. Unfortunately in this respect, the long struggle for the enactment of free and compulsory education seems to have proved futile, as the RTE Act promises nothing of the sort
(Jandhyala B. G. Tilak is professor at the National University of Educational Planning and Administration, New Delhi)