Right of Children to Free and Compulsory Education Bill, 2009: The Story of a Missed Opportunity

Both the Houses of the Indian Parliament have passed the Bill for providing free and compulsory education for children in the age-group of 6 to 14. There have been extensive debates on the extent to which this Bill will help in implementing the right to education as provided in Article 21-A of the Indian Constitution. What has been ignored in these discussions is that the Bill as adopted misses the excellent opportunity provided to the nation for bringing about a radical transformation of the school education system in India.

While discussing the problems of school education in India, a few issues are repeatedly raised: absence of teachers from schools, lack of interest on the part of the parents or guardians, deficiencies in curriculum and syllabus, wrong methods of teaching etc. But these problems cannot be viewed in isolation and in a fragmented fashion. For, their roots are spread deep in the entire system. Therefore, if one wants to solve these problems, then it would be necessary to transform the entire education system. What are the systemic and fundamental problems of the Indian school education system?

Firstly, there is the problem of access. School education is simply unavailable to the vast number of children in the country. During the last few decades, there has been some progress in improving enrolment. The gross enrolment ratio (GER) from Classes I to VIII was 94.9 per cent and from Classes I to XII, 77 per cent. (Educational Statistics at a Glance, 2005-06, the Ministry of HRD, 2008) The government primarily relies on the GER to bolster its claim for progress made in expanding school education in India. But enrolment is a very unreliable basis for assessing the degree of access to school education. Firstly, enrolment figures are generally rigged and exaggerated for various administrative and political purposes. Moreover, in order to assess the progress in expanding school education, it is important to take into account the figures for attendance and also for drop-out from among those who are enrolled. The attendance has generally been found to be at least 25 per cent below enrolment. The drop-out rates are very high indeed. For the country as a whole, the drop-out rate from Classes I to X was 61.6 per cent; and in a State like Bihar it was above 75 per cent. Among those who drop out, the percentage of children belonging to the Scheduled Castes in the country as a whole was 70.6 and of the Scheduled Tribes, 78.5. In Bihar, the figure was close to 90 per cent for both the categories. The net result is that a sizeable percentage, as much as 30 per cent, of children in the school-going age in India are out of school; the percentage is as high as 50 in Bihar (1.5 crores out of three crore children in the school-going age-group).

Thus a huge number of children are excluded from school education. This is thus a colossal waste of human resources. Besides, educational exclusion is the worst form of exclusion because it means exclusion from other walks of life and areas of activities such as livelihood, knowledge, status in society, human dignity etc. Moreover, educational exclusion becomes cumulative as it is carried over from generation to generation. For, it is seen that educated parents are more inclined to educate their children than those who are uneducated. Besides, exclusion from school education, particularly at the primary level, is a denial of human rights both in accordance with the provision in the Indian Constitution and the relevant provision of the Universal Declaration of Human Rights.

The Bill sets no deadline for the universalisation of education from Classes I to VIII. Different deadlines have been given for different purposes, which are not mutually consistent and in the absence of any plan or resources required for achieving them, it is doubtful that they would be adhered to. The most important deadline is in Section 6 of the Bill which states:

For carrying out the provisions of this Act, appropriate government and local authority shall establish, within such area or limits of neighbourhood as may be prescribed, a school, where it is not so established, within a period of three years from the commencement of this Act.

It is further stated that teachers will acquire the requisite qualification and prescribed training within a period of five years. At another place, it is laid down that the pupil-teacher ratio of 40:1, prescribed in the Bill, will be achieved within six months. Does this mean that all the teachers required, even though they are not qualified, will be recruited within six months? Is it at all feasible? Even if it is so, but if the schools are not there, where will they teach? This provision also implies that the pupil-teacher ratio could be maintained, at least until the next five years, by continuing the practice of appointing para-teachers. The Bill makes no estimate of the additional number of schools to be built, additional number of teachers to be recruited and trained, and training institutions to be created and restored. This has all been left to be determined by the appropriate government and local authority. This makes the attainment of the target set in the Bill and of the overall goal of universalisation highly improbable.

The Common School System Commission, Bihar, in its report, estimated that in order to universalise free and compulsory education for children in the age-group of 5 to 14 in five years, universalise education for children from Classes IX to X in eight years and to facilitate transit to Classes XI to XII of 70 per cent of those who will pass Class X in nine years, 25,900 additional primary schools, 15,500 middle schools and 19,100 secondary schools will have to be built. The number of additional teachers to be recruited for achieving the above goals would be 2.55 lakhs at the primary level, 3.24 lakhs at the middle level and 4.29 lakhs at the secondary level. It stands to reason that the very first and most essential requirement to be fulfilled for universalising quality school education, is to build these additional schools, recruit these additional teachers and provide training for them. As already stated, the Bill does not make any attempt even to quantify these requirements.

The second systemic problem of school education in India is its abysmally poor quality. This has been attributed to a variety of factors, including poor curriculum and syllabus, deficient pedagogy, negligent teachers and parents who are unconcerned. But the real reason is the gross under-funding of school education in India. If the required magnitude of funding is available, many of the factors, allegedly accountable for the poor quality of school education, would disappear. For example, it is unfair to blame teachers who are compelled to teach in a school which does not have blackboards, teaching aids, laboratories for experiment and adequate space, and which do not provide facilities or incentives for improving their skills and environment and for pedagogic innovation. Besides, a large number of teachers have no training. They are also obliged to carry out non-educational activities. The members of the Common School System Commission, Bihar, during their visits to schools, did not find any school which had a properly functioning laboratory. We simply cannot get away from the fact that the quality of school education in India is decisively influenced by the quantity or magnitude of funding.

The most effective and important means of ensuring quality is to establish minimum norms and standards relating to all relevant aspects of school education, and ensure that they are applied uniformally to all schools. No doubt, some norms have been laid down in the Schedule attached to the Right to Free and Compulsory Education Bill. But they are utterly inadequate. There is no mention in the Schedule of a number of some extremely important norms such as—distance of the school from the habitation of the child, sitting area in square metres per child, number of children per school, number of classes per school, furniture in the class and office rooms, teaching aides, computers, equipment in a laboratory, the qualification and training of teachers, scales of their pay, allowances and other conditions of service, including scope for promotion etc. Some norms are mentioned in the Bill only as items, and they are qualified by the phrase “as the government may determine†. This means that these norms will not be justiceable and may never be established. It also implies that the present practice of recruitment of para-teachers and the multi-grade teaching may continue. In the absence of adequate and legally enforceable norms, it is superfluous to talk about quality.

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The main reason for a large proportion of the children remaining out of school and the poor quality of education in schools is under-funding of school education. Normally, the Bill should have provided a Financial Memorandum which should have indicated the exact amount of resources required for giving effect to the Bill. There is indeed a brief Financial Memorandum attached to the Bill. But this can hardly be taken seriously. It states: “It is not possible to quantify the financial requirement on this account at this stage.†This statement is not correct. In the last 10 years or so, additional resources required for providing free and compulsory education to children in different age-groups have been estimated several times in the country.

Two expert groups set up by the Government of India and the Common School System Commission, Bihar laid down norms and standards for providing quality education, put price tags on these norms and standards, and on that basis calculated the additional cost to be incurred for providing free and compulsory education and universalising school education within a time-bound framework. The two Expert Groups set up by the Government of India confined themselves to providing free and compulsory education to children in age-group 6 to 14. The Expert Group under the chairmanship of Professor Tapas Mazumdar, set up by the Government of India in 1999, estimated an additional cost of Rs 13,700 crores per annum over the next 10 years for providing free and compulsory elementary education according to the norms prescribed by it. The Expert Group set up by a Committee of the Consultative Advisory Board on Education (CABE) estimated in 2004 a total additional cost of approximately Rs 73,000 crores per annum over the next six years for achieving the same goal. The Bihar Commission report, which covered the entire school education from one year of pre-primary to Class XII, estimated an additional expenditure of Rs 9950 crores per annum over nine years. The non-implementation of the recommendation of the Expert Group led by Professor Tapas Mazumdar resulted in a cumulative gap reflected in a manifold increase in the additional expenditure calculated in 2004, to be incurred for achieving broadly the same purpose. If the recommendation of the second Expert Group also remains un-implemented, as has been the case until now, then the cumulative gap will grow further and, say, in 10 years from now, we would need an astronomically large sum of resources for universalising elementary education. Perhaps at that time the government in power will raise its hands in despair and drop the whole idea of universalisation, and India will continue to stagnate for years to come at a low level of school education, both quantitatively as well as qualitatively, to the detriment of its unity and future development.

Perhaps the assumption in the Bill regarding resources is that those available for the Sarva Shiksha Abhiyan (SSA) in the 11th Plan would suffice to meet the resources required. But the fact is that in spite of these resources having been nearly doubled in the 11th Plan as compared to the 10th Plan, they are at the level of about Rs 30,000 crores per annum, which is less than half of Rs 73,000 crores per annum of additional resources required, according to the Expert Group of the CABE Committee (2004). Even under an assumption of higher pupil-teacher ratio, the additional resources required per annum, calculated by this Expert Group, is Rs 53,500 crores per annum which is much higher than Rs 30,000 crores.

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India’s National Education Policy lays down the goal of setting aside at least six per cent of the GDP for expenditure on education. This target, originally recommended by the Kothari Commission, has also found place in the manifestos of almost all major political parties. But the maximum share of the GDP devoted to education in India has been close to four per cent and on most occasions it has been around three per cent. The Minister for Human Resource Development has recently conceded that the resources gap is huge, particularly when we consider the fact that in many advanced and several more developed among developing countries, the expenditure on education is 10 per cent or above of the GDP. He has expressed the view that only the private sector can fill in the gap. He has, therefore, made a plea for public-private partnership in education.

Though private-public partnership in education has been talked about for the last few years, the progress in this direction has been negligible. Even otherwise, the record of the private sector in meeting the demand for school education is not at all impressive. As many as 89.1 per cent of the primary schools in India were in the public sector (government and local body) and only 10 per cent in the private sector. (Educational Statistics at a Glance 2005-06, Ministry of HRD, 2008) For upper primary schools, the percentage was 72 to 78 respectively. (Source: the same HRD data) The enrolment from Classes I to VII/VIII was 72.23 percent in government schools and only 27.61 percent in private schools. (DISE Data: NUEPA, 2007-08) In the case of Bihar, the contribution of the private sector to school education at the elementary level, in terms of number of schools as well as percentage of enrolment, is below six per cent.

If after 60 years of independence, the private schools have filled in a gap of only a little over 10 per cent, so far as the total number of primary schools are concerned, there can be no assurance that they will be able to contribute significantly to providing free and compulsory education to children in the age-group 6-14 and to universalising secondary education. At the current rate of their contribution, and if the state does not step in to cover the gap, we may have to wait till the end of the century for universalising school education in India and even then it may not come about. It may take even longer to universalise secondary education, because the number of additional schools to be constructed and additional teachers to be recruited at this level, is colossal. Besides, school education is a social good the provision of which is the responsibility of the state. The provision of free and compulsory education is now a fundamental right available to children in the 6-14 age-group. It is incumbent upon the state to ensure this right with immediate effect. It is legally and morally untenable for it to make the fulfilment of this right conditional upon the contribution of the private sector.

The third systemic problem of education in India is the rampant discrimination characterising it. Children of the rich and the elite have access to good quality private and special types of public schools, whereas children of the vast majority of the poor, including the minorities and marginalised groups, go to government schools which are in a shambles. Thus, the class division in the society is reflected in the division of the school system. The latter has been a major contributory factor to the perpetuation and accentuation of social inequality. It also makes for bad education. For, empirical studies have demonstrated that schools which bring in children from different communities and classes provide better education and even the children of the rich and the elite stand to benefit from such a school system.

The Right to Education Bill perpetuates the multi-layer discriminating school system in India. It legalises the currently operating four categories of schools in India—(a) government schools, (b) aided private schools, (c) special category schools and (d) non-aided private schools. According to the Bill, the government schools will provide compulsory and free education to all children in the age-group of 6-14 years admitted therein, and the aided private schools will provide such education in such proportion of children admitted therein as its annual recurring aid or grant bears to its recurring annual expenses, subject to a minimum of 25 per cent. The special category schools and non-aided private schools shall admit in Class I, to the extent of at least 25 per cent of the strength of that class, children belonging to the weaker sections or disadvantaged groups in the neighbourhood and provide free and compulsory elementary education till its completion. These last two categories of schools will be reimbursed expenditure so incurred by them to the extent of per child expenditure incurred by the state, or the actual amount charged from the child, whichever is less.

These provisions, as already stated, perpetuate the present multi-layer system of schools. In addition, they are in violation of Article 21A which calls for the provision of free and compulsory education to all children in the 6 to 14 age-group. As many as 75 per cent of the children in this age-group in aided private schools will not be provided free and compulsory education. In the last two categories of schools, children in the age-group admitted therein, not belonging to disadvantaged or weaker groups, will not be provided free and compulsory education and for these groups also, only 25 per cent of the children will be provided free and compulsory education in these schools. This also is a violation of Article 21A.

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There are two ways in which the government could have significantly mitigated, if not eliminated, the discrimination characterising the Indian school education system. The first was by establishing exhaustive and justiceable norms and standards and applying them rigorously to all schools, both public and private, and second, by embracing and enforcing the concept of neighbourhood schools whereby the state would delineate the neighbourbood for each school which would be required by law to admit and educate till completion, all the children residing in the neighbourhood. In India, we have advocates of freedom of choice and freedom of profession who argue that the concept of neighbourhood school militates against the exercise of these freedoms. They forget that this concept has been applied for decades, if not centuries, in countries where democracy has taken firmer roots and where freedom is valued much more than in our country. I shall illustrate this by a personal example. When I was posted to New York in the early 1970s, I had to send my two children to a public school there. Since I stayed on 89th Street and 1st Avenue in New York, I was told that my children could go only to the nearest public school which was on 96th Street and 2nd Avenue. This location is on the fringe of Harlem which was known for its high incidence of crime and drug addiction. But I had no choice but to send my children to this school. This was according to the law of the city and nobody complained that it was in violation of his/her fundamental rights. Apparently, individual rights cannot take precedence over the public purpose enshrined in the Constitution, of ensuring social equality. There is no reference to the concept of neighbourhood school in the Right to Education Bill except that there is a provision for making reservation of 25 per cent of the seats for children of weaker and disadvantaged groups coming from the neighbourhood. This is a far cry from the concept of neighbourhood schools as practised in most developed countries and a number of developing countries which have a common school system.

Another systemic malady which has afflicted school education in India is the transformation of the very nature and meaning of school education, brought about by the forces of globalisation and liberalisation in which international agencies have played no small a role. In most developing countries including India, education has to a large extent been replaced by literacy for which it is strictly not necessary to go to schools. According to the new paradigm, education is defined in functional terms, that is, making the recipient qualified for the marketplace. In this sense the educational system as a whole has been commodified. Today, the purpose of school education is merely imparting skills of literacy and numeracy. The basic philosophical purpose of education is to enhance the capacity of the children to comprehend, to discern, to contest what, according to them, is wrong, and to develop the urge to transform what is wrong and unjust. These philosophical goals have been set aside and replaced by the functional goal of meeting the demand of the market. Under the globalisation/liberalisation paradigm, schools have to a large extent been replaced by literacy and informal centres, trained teachers have been replaced by para-teachers, and the system of at least one teacher for every class and for every important subject has been replaced by multi-grade teaching. Training is no longer regarded as essential for teaching. The Government of Bihar officially notified in 1991 that training was no longer necessary as a qualification for appointment as a teacher. This whole process of distortion of the meaning and purpose of education started systematically since the mid-1980s and has by now been completed.

This transformation of the nature of education has seriously affected its quality and has relegated to the background the concept of schooling as a means of socialisation, nation-building and formation of social capital, which has been practised for centuries by important developed countries. It has also been used to rationalise non-universalisation of school education and its under-funding. The Right to Education Bill does not make any provision for reversing the process of the distortion of the meaning and purpose of education.

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The Right to Education Bill should have covered the entire school education system including one or two years of pre-primary education, elementary education (that is, the 6 to 14 age-group which is its present coverage) and secondary education. The distinction between pre-primary, elementary and secondary education may be valid from the pedagogic point of view, but this distinction becomes arbitrary when it comes to guaranteeing right of education, universalising school education, and ensuring its quality. There are strong reasons for providing free and compulsory education preferably for two years and at least for one year at the pre-primary level, and also for universalising secondary education. A Group of Experts which met at UNESCO Headquarters at the end of 2007, of which I happened to be a member, arrived at the consensus that “basic education should consist of at least nine years after pre-primary and ideally it should extend to 12 years†. In most of the advanced developing countries, like China, Mexico, South Africa, Brazil, Thailand, Indonesia etc., the task of universalising elementary education was accomplished a long time ago and the current pre-occupation of the educational planners and policy-makers is for universalising quality secondary education.

Depriving the children in the age-group, say, 4 to 6, of free and compulsory education, as the Right to Education Bill does, is totally arbitrary and a flagrant denial of human rights. Article 45 of the Indian Constitution directed the state to provide free and compulsory education up to the age of 14, which included children at the pre-primary level of education. The famous Unnikrishnan judgement, which regarded right to education as a part of right to life, also covered children up to the age of 14.

However, when the 86th Amendment to the Indian Constitution was enacted in the form of Article 21-A, the government arbitrarily—almost by a sleight of hand—excluded children in the age-group of 0 to 6 from the ambit of the amendment. Thus, some 170 million children were deprived of the right to free and compulsory education. However, this right still exists because the amended version of Article 45 states:

The State shall endeavour to provide early childhood care and education for all children until they complete the age of 6 years.

If this is read with Article 21, as was done in the Unnikrishnan judgment, then the children in age group of 0-6 also enjoy the fundamental right to free and compulsory education.

The Integrated Child Development Services (ICDS) is the only programme which provides for education to children in the age-group of 0 to 6, but access to services under the ICDS is neither universal nor a legal right. The ICDS covers only 42 per cent of the children in the relevant age-group. Besides, it is not a right but a development service voluntarily offered by the state. Evidence shows that a good percentage of the children covered by the ICDS are not enrolled under it. Besides, the delivery of prescribed service to those who are enrolled is irregular and inadequate. The education component of the ICDS is the most neglected service. It is either not delivered at all or only partially delivered. A Social Audit of the functioning of the ICDS in the district of Anantapur in Andhra Pradesh, recently carried out by the Council for Social Development, bears out these facts. The foundations of our educational system will remain weak until quality pre-primary education is provided to children in the age-group of 4 to 6. This will continue to severely hamper our effort to develop human resources in the country.

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The Bill should have provided for the universalisation of secondary education also, that is, for children in the age-group of 15-18. The definition of a child, according to the UN Convention on Child Rights, includes children up to the age of 18. India is a party to this Convention. Moreover, the universalisation of education at this level is also a logical consequence of universalising education up to Class VIII because if secondary education is not universalised, then the children who complete Class VIII would have nowhere to go except dropping out. For, according to regulations in force in the country, a child has to pass Class XII for getting entry into any academic institution of higher or technical education which can qualify it for entering the job market.

It was in view of these considerations that in the Report of the Common School System Commission, Bihar, a single legislation was recommended covering school education from one year at the pre-primary level to Class XII. The Report also prescribed separate norms and standards for the three levels of school education, that is, pre-primary, elementary and secondary. Though most of the norms are common to these three levels, there are also significant differences. The Right to Education Bill, therefore, should have covered the entire school education system, universalising education from pre-primary to higher secondary level, providing free education from pre-primary to at least Class VIII, if not Classes IX and X, and applying norms for ensuring quality and equity to all schools at all the three levels of school education.

The Right to Education Bill should have also included a language policy which would have provided the best opportunity for the flowering of the talents of the children and which, at the same time, would have been a major factor for uniting the country. Unfortunately, the government missed this opportunity also. The legislation has no language policy. It only states in one of the clauses that “medium of instruction shall, as for as practicable, be in child’s mother tongue†. The inclusion of the phrase “as far as practicable†will give a carte blanche to private schools even at the elementary level, to continue their present practice of giving instructions through the medium of English. Moreover, the term “mother tongue†is not defined. For example, for a child coming from the Maithili speaking region, will the mother tongue be Maithili or Hindi?

The enactment of the legislation also provided an excellent opportunity to make a beginning with the implementation of the three-language formula, recommended by the Kothari Commission and included in the National Education Policy. But this opportunity has also been squandered. The language policy laid down in Annex-II to the legislation recommended by the Common School System Commission, Bihar, demonstrates that the implementation of the three-language formula is feasible, if there is a political will to do so.

Finally, the Bill should have created a mechanism vested with the overall responsibility of overseeing progress in the restructuring of school education, bringing about improvements, through research and public discussion, in the norms and standards included in the Bill, adjudicating disputes where called upon to do so, and being the Court of Last Appeal so far as the implementation of the Act is concerned. This should have been possible only by establishing a fully empowered judicial or quasi-judicial Commission. The government seems to be very keen to set up such a Commission for higher education, which is perhaps needed and for which there is considerable public support. However, such a Commission is needed equally, if not more importantly, for school education. In lieu of this, the Bill provides for the establishment of a Central as well as State Advisory Councils. This is hardly likely to serve the purpose. Such Advisory Councils are vested with very limited power. Their membership is in the nature of patronage or favour bestowed by political leaders, and in most cases, their advice is seldom sought or sought only as a public relations and politically motivated exercise.

The author is a former Foreign Secretary of India.