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The Right of Children to Free and Compulsory Education Act (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 are 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 definitions. 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 judgments 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 spirit 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 comprehensive. 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 Schedule, 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 universalization 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 concessional-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 decentralized 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 in the act, the state government shall be responsible to provide funds for implementation of the provisions of the Act."
Fifth, the Act is meant to operationalize 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 respect 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?
Sixth, the task to provide universal education to the girl child is even more complicated. The primary school enrolment of girls is far below that of boys even in the urban areas; the gap is much wider in the rural areas. The gulf widens as we move to the final years of elementary education. This implies that even those parents who send their sons to schools do not send their daughters and, in any case, they withdraw them from schools much before the completion of elementary education. The reasons for this are well known: social taboos, priority to education of sons, poverty, sibling care, domestic work, fuel wood gathering, fetching of water, cooking, early marriage, early parenthood and the like. These hard cases, where the parents have no inclination to send their wards to schools whether schools exist or not, whether they are free or not, are not exceptional. In several regions, especially in the BIMARU States, these cases are too large to be ignored. Therefore, tackling the schooling problem without tackling the basic livelihood and social problems is well impossible, RTE or no RTE.
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.
To attract and retain children of these families to/in schools is not possible through compulsion alone, nor is it a question of opening of schools in the neighbourhood. The children of these families remain uneducated because of the mere accident of their birth in such families. They must not be allowed to suffer for no fault of theirs. They have the right to be educated. The state has to step in. It should be noted that though often the trade-off between school and child labour has been underlined, the two activities need not be mutually exclusive. Education strategies should examine the possibility of combining work and school by reducing the duration of school to just half-a-day and/or by changing the school timings. Special problems require special solutions. Schooling may be provided when the children are free from domestic duties or paid or unpaid work through night schools, mobile schools and the like. This will involve no cultural break and no cost to the family. Involvement of NGOs and teacher entrepreneurs would be necessary in such conditions.
According to a latest government estimate there are 12.6 million children under the age of 14 working in various occupations. NGO estimates put the number of children in domestic work and roadside eateries alone at 2 million. The Centre for Concern for Child Labour, a Delhi-based NGO, estimated that there are nearly 70 million school-age going children in India who are out of schools. So the total number of working children in the country is much higher than the government estimates.
If the government wants to give compulsory education to everyone, where are the schools? Education is a state subject and several states like Uttar Pradesh and Bihar have already stated that they have no money to implement the Act. The implementation of the Act would require Rs 1.71 lakh crore for the next five years. The sharing of funds between the Centre and the state governments is in the ratio of 55:45. Granted that the states are persuaded by the Centre to set up additional schools, they will still find it difficult to get sufficient number of trained teachers. Even now it is a pathetic sight in the rural areas that have schools without proper buildings, toilets & playgrounds, and classrooms without teachers. There is already a shortage of five lakh teachers, while there are about three lakh untrained teachers at elementary stage.
Let us have a look at the present school system. Of the 12,50,775 schools imparting elementary education in the country in 2007-08, 80.2 per cent were all types of government schools, 5.8 per cent private aided schools and 13.1 per cent private unaided schools. Almost 87.2 per cent of the schools are located in the rural areas. In the rural areas the proportion of private unaided schools is only 9.3 and that of aided schools is 4.7. However, in the urban areas, the percentage of private unaided and aided schools are as high as 38.6 and 13.4 respectively (Arun Mehta: Elementary Education In India, Analytical Report 2006-07 and 2007-08, NUEPA) Thus running private unaided schools is mostly an urban phenomenon. Of these, several schools are special category schools, community schools like unaided madarsas or convent schools and private sector non-fee or low fee charging schools run by philanthropists.
Of the total students enrolled in primary classes in 2007-08 about 75.4, 6.7 and 17.8 are enrolled in government, aided and unaided schools. The total number of teachers working in these schools in 2007-08 was 56,34,589 of which 69.3, 10.4 and 20.7 per cent are teaching in government, aided and private schools, the average number of teachers per school being 3.9, 8.3 and 6.7 respectively. Nearly 10.3 per cent of the schools are single-teacher schools. Government schools have the highest percentage of teachers who are professionally trained at 43.4, followed by aided school (27.8 per cent) and unaided private schools (only 2.3 per cent). Thus very many private-for-profit schools are small-sized ones relying mostly on the services of relatively cheaper, untrained and locally available teachers. Thus, though the intent of the law is noble but there are a lot of hurdles in its implementation and government would need private interventions along with constant monitoring to see it through which would require all the stakeholders to help in the implementation in a transparent and efficient manner.