The Right to Education: Is it Right?

| July 26, 2015 | 0 Comments

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 set up, for the following reasons.

(1) The Act does not rule out education 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 practice any profession or to carry out any occupation, trade or business”.) in their support. However, they fail to recognize that the above 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 drugs, or build satellites, unless approved by the Government. P N Bakshi (former member of the Law Commission) in his book on 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 judgement of the Supreme Court in 2003 said that 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, 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 GOI was serious about it, they should have made it a part of the RTE Act.

The common-sense resolution of the discrepancy between the abovementioned Supreme Court judgement 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 (a) the minimum quantum of education that a citizen should have to be able to discharge ones responsibilities and claim ones rights, and (b) subsequent education geared to train one for a profession such as medicine or engineering. As regards the first category, it is now virtually universally recognized 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 which could lead to a technical diploma, a first university degree in broad areas such as 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 the society, such as medicine, engineering, law, or management; and (c) education leading to training in highly specialized areas (which could vary with time), such as flying, catering or hotel management, which does not lead to a degree but is a prerequisite for joining the profession at an appropriate level.

It stands to common sense that the first category of education should be totally free with no hidden costs whatsoever. In the second category, in public interest, and to ensure that quality is maintained, the education in sub-categories (a) and (b) must be in a non-profit organization, the selections being 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 either freeships or scholarships, or a bank loan arranged by the institution.

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

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

The argument that if people can pay for education of their children, they should have a right to have their own schools where fees that is charged would be determined by them or the authorities of the school they set up. Indeed, according to our 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, it is within the rights of the Government to say that such schools would not be recognized as they would violate the principle of equity in regard to the minimum education that every citizen of India should have.

The RTE Act and its R&R fail on many other counts such as the following:

(a) Experience tells us that no Government school is likely to function well (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.

(b) 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 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 in the school 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 the class or status they belong to.

(c) 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?

(d) Why only 25 percent poor children in private unaided schools? Why not 10, 20, 40, 60 or 80 per cent? Wouldn’t it create a divide amongst the children of the poor, leave aside a greater divide between the children of the rich and the poor?

(e) 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 only the school.

(f) There is nothing in the Act or its R&R which will prevent unaided private schools from charging the students for various 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 stationary; fee for school uniform; fee for extra-curricular activities such as music, painting, pottery; and so on.

(g) Norms for building, 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, the school will have only two teachers!

(h) Two arguments often given for continuing to have – 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 contentions are deliberate lies. There have been many 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 upto Class XII in the country over the next ten years. Further, even today the best system of school education in the country is the Central Schools system run by the government. The country needs 400,000 such schools and we can afford it.

The RTE Act and its R&R are destined not to work. We should recognize that if we do not take appropriate care of school education, agriculture and left wing extremism – and all the three are related – we may very well be creating a condition that would encourage an internal revolution.

Pushpa M. Bhargava

The Right to Education: Is it Right? P.M. Bhargava. Nyaya Karan (published by Delhi State Legal Services Authority), Jan-Mar 2011, p.8-12.

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