A futile act

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THE Right of Children to Free and Compulsory Education Act 2009 was notified to come into force from 1 April 2010. The 86th Amendment to the Constitution (2002) that guarantees education as a fundamental right, the 2009 Act, and finally the notification, have been hailed by many as landmarks in the history of development of education in the post-independence period. They are no doubt important developments. But they also signify our conspicuous failures of fulfilling, even 60 years after the Constitution came into force, the Directive Principle 45 of the Constitution (1950) that 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 and accomplished even with a delay of forty years after the deadline, the need for the 86th Amendment and the act would not have arisen.

Even after sixty years, along with an impressive progress, one notices major problems in terms of the daunting numbers of children outside schools, high rates of dropout, poor infrastructure facilities, high pupil-teacher ratios, high degree of inequality in the quality of education received by various socioeconomic strata of the society and, above all, deplorably low levels of learning of children. Inter alia, the problems are attributed to the vagueness and ambiguity in the Directive Principle, which did not define ‘free’ in free education, and even ‘education’. It was felt that the rulers in independent India would be enlightened ones and hence there was no need for elaborate and rigid definitions. This proved to be too high an expectation as governments in subsequent periods tried to give a distorted definition of free education, which too was not strictly adhered to, and defined all types of education – formal, non-formal, informal and distance learning – as education.

The government’s half-hearted attempts and failures necessitated new developments. The Supreme Court judgement in 1992 that proclaimed 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 fourteen years’ finally left no choice to the government but to make the constitutional amendment and now the act. It is also important to note that the Supreme Court, in what is 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 – to live like human beings with dignity. It is, therefore, necessary to examine the act and its provisions in this background – whether they are in line with the letter and sprit of the judgement and the Directive Principle 45 of the Constitution. While there are some positive aspects in the act, they are minor; many seem to be problematic and they are indeed major issues.

While the act defines ‘free’ education in a much better way than what is practiced, it is still not comprehensive enough. According to the definition adopted until recently, it meant tuition fee-free education; schools both public and private, were allowed to charge different types of other fees, sometimes even tuition fee. Though the act now prohibits all kinds of fees, including capitation fee and other charges ‘which may prevent him or her from pursing and completing the elementary education,’ it at the same time leaves scope to the authorities to decide whether a particular fee/charge prevents a child from going to school or not in a particular context. Instead the act should have simply and clearly promised prohibition of all kinds of fees and payments to schools without any qualification, and also to provide all necessary learning material like textbooks and stationery, uniforms, and noon meal to every child, some of which are already being provided. In a sense, the concept of free education is still left to the interpretation of our authorities.

Second, as a part of compulsion, the act makes it obligatory on the part of the government to provide free elementary education to every child – ensure compulsory admission, availability of a neighbourhood school, no discrimination, and good quality education. Unlike as the Directive Principle which is non-justiciable, the act finally makes it compulsory for the government to act. Yet, little compulsion on the parents to send the children to schools is indicated in the act. Similarly, while the constitutional amendment makes it a fundamental duty for the parents ‘to provide opportunities for education to his child...’, but again, there are some problems. The concept of neighbourhood schools, promised by the act, is not the same as the one that is understood by the educationists and argued by the Kothari Commission. If at all, the act actually misleads the people on this issue. The geographical limits of ‘neighbourhood’ are also left to be decided later. Further, the quality of education is defined in terms of ‘norms’ given in the schedule. While the norms referring to teachers, number of working days/hours of schools, and so on, are somewhat clearly defined in the Schedule, most other norms such as teaching learning equipment, library, play material, play grounds, size of the classrooms etc., are left unspecified; they shall be provided ‘as required’. It is only recently that the government stated that all schools in the state will be of the standard of Kendriya Vidyalayas in terms of resource endowments. But no such statement is incorporated in the act.

Third, historically, while few countries in the world relied on private schools for universalization of elementary education, the act not only allows the existence of private schools, but also promotes their growth. According to the act, private schools that do not receive any financial aid from the state, have to admit and provide free education to 25 per cent of the admissions in grade I, whose costs will be reimbursed by the state to the schools on a per student expenditure basis. The private schools have already gone to court contesting this provision. But it is important to note that when private schools receive indirect subsidies in the form of subsidized land and tax concessions, is it not right to expect them to provide free education without reimbursement, as in case of private hospitals? But the act promises to reimburse the costs. The reimbursement scheme is a different form of school vouchers, a method least practiced in case of elementary education even in those few countries where it is adopted for secondary or higher levels of education. The adoption of a good common school system would have meant gradual disappearance of private schools. After all, private schools are today the single most important source of inequalities in education in the country.

Fourth, the act provides for different layers of administration starting from central government, state government, local authority, school management committee etc., to issue guidelines. The school management committee has been given the main responsibility of providing free and compulsory education. In a sense, through 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 making the amendment and later the act. While the concurrent responsibility is recognized and it was stated that the central and state governments shall have concurrent responsibility for providing funds, the final responsibility is entrusted with 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.’ (I have discussed this and other issues relating to financing the act in ‘Who will Foot the Bill?’ Sahara Time, 17 April 2010).

Fifth, the act is meant to operationalize the 86th Amendment that 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 may mean no prosecution. The act almost prohibits all legal proceedings against any one in this case when it states, ‘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 wonders, what is justiciable in it now?

Above all, the act lacks a long term vision of development of education. In the long run, one would expect free and compulsory education to be developed into a common school system, essentially a public school system, covering the whole school education upto grade XII and until 18 years of age, that would ensure equitable quality of education to every child, and which would promote common national and universal human values for the development and sustenance of a humane society. The long struggle for the enactment of free and compulsory education seems to have been futile, as it promises nothing of this sort.

Jandhyala B.G. Tilak