Reality Check India

RTE is constitutional says Supreme Court – big win for adhoc discrimination

Posted in Uncategorized by realitycheck on April 12, 2012

UPDATE:  Added links and a clarification

The Supreme Court in a 2-1 judgment today held that the Right to Education Act specifically the parts pertaining to govt mandated quotas in private unaided schools were valid.  It also exempted minority institutions from this act citing Article 30(1).  I will review the judgments in the next post as I think there are several flaws in it.

In a nutshell, the RTE consists of

  1. A long set of rules for schools to adhere to ; from land to building rules, to student records – all under inspector raj
  2. A 25% quota in private schools – the most contentious clause. This basically takes away 25% of school capacity and hands it over to the adhoc platforms of social justice. Read on.
  3. This 25% quota is only for class 1 intake. So if you see a poor kid who is older – RTE has nothing for him in private schools.  This is another adhocism that can be easily extended to all classes. I noticed this was heavily argued by the govt in court as a ‘reasonable restriction’ under 19(6).

The focus of this post is to explain what the RTE is really about – the media isnt telling you the truth. Sample this ill informed FAQ from NDTV

What does this mean for schools across the country?
Right to Education Act, 2009, mandates 25 per cent free seats to the poor in government aided and private unaided schools uniformly across the country. However this will not be applicable to private minority institutions that get no aid from the government. Government schools will have no quota. These schools have to admit all.
Schools will have to implement the 25% reservation at the entry level of the school. States will have to bear the cost of this.

How will the poor students be selected?
Poor students from neighbourhood areas have to be admitted, based on a lottery system.

Source : NDTV

Before I break it down, I’d like to introduce two new terms.

Disadvantaged vs Weak

These are critical for you to understand how this system is going to work. 

  1. Disadvantaged section and
  2. Weak section.

Cut to the RTE bill which specifically describes these terms (emp mine)

(d) “child belonging to disadvantaged group” means a child belonging tothe scheduled caste, the scheduled tribe, the socially and educationally backward class or such other group having disadvantage owing to social, cultural, economical, geographical, linguistic, gender or such other factor, as may be specified by the appropriate Government, by notification;

(e) “child belonging to weaker section” means a child belonging to such parent or guardian whose annual income is lower than the minimum limit specified by the appropriate Government, by notification;

..

So suddenly its not just about the poor. Its a bit more than that, isnt it?. At the very least,  the image painted by the media isnt the full picture. They are just showing you one section the ‘weaker’ and trying to sell the entire bill as a Right to Education for Poor. Sample these headlines :

SC upholds seats for poor under Right to Education – Yahoo! News …

Give disabled children a choice, amend RTE: NAC

SC upholds seats for poor under Right to Education‎ Daily Pioneer

Poor school students’ quota: Supreme Court to deliver verdict on … Times of India

Schools taught to leave no poor child behind

Even on TV shows such as Times Now and NDTV, the anchors took care to present the package as a case of allowing a poor kid to enter the bastion of the rich. If you protest you are instantly slapped with an elitist tag in the spirit of reasoned debate.   Reading the bill carefully we find that the disadvantaged category is nothing but the omnipresent standard caste based  grouping.

‎You havent seen anything yet – see what the next clause  one of the states Karnataka says in its draft rules  (page 10).

(6) While causing admission under the 25% quota, preference shall be given to children from disadvantaged groups.

Thats right !  Not only is this bill not about the “economic” poor as the media portrays it to be but it actually states that  can mean that preference can be given during implementation  to the caste based grouping over the poverty stricken grouping.

Reason for strikethrough:  Thanks to Easwar (see comments) from pointing out that the RTE Act as notified does not contain this clause. I had mentioned on Twitter to some folks that it did.  The original blog post did not have any links and implied that the notified bill itself had that clause.   The overall point is there exist two distinct categories and it isnt just about the poor. But that is no excuse for sloppiness.

I actually went and read the rules formulated by various states – here is what Kerala is planning to do. 15% caste based 10% economic based.

(4) For the purpose of filling up the requisite 25% of seats in Class I, provided in clause (c) of sub section (1) of section 12, 15% of seats shall be reserved for children from disadvantaged groups and 10 % for children from weaker sections from the neighbourhood. For the selection of such students, the school shall publish the list of applicants and selection shall be by drawing of lots for each category. The list of selected students shall be displayed

I also read Karnataka, Mah, TN – each state is planning to follow similar paths.

Adhoc Benefits

I have been writing about this for years now. The impugned RTE act is a grand example of the Supreme Court vacating its constitutional space and allowing adhocism to creep into lawmaking. Even when fundamental rights are threatened as in this case. Here are the main touchpoints of arbitrariness.

  1. The 25%  limit – why not 35% ?
  2. Class 1 intake – why not class 1 to 5
  3. Boarding school exemption – why not ? Isnt it better if poor lived with the rich for a while ?
  4. What is criteria for weaker section ? Is a quota envisaged ? Why not ?
  5. Obviously economic status changes for families – anomalies abound.
  6. No provision in constitution allowing quota on economic status (case pending in SC)
  7. All arguments are equally valid for caste quotas in private higher education.
  8. Brushes aside real problems arising due to wildly disparate classroom as being elitist.

The economic criteria is even more bizarre as folks on the edge frequently drop in and out of poverty. It is a massive moral hazard that a kid who gets free education for life from class 1 is preferred over a kid whose family entered debt and poverty in class 2 thus condemning him.  The court should have applied strict scrutiny to these  clauses, but that is in the next post.

When you get adhoc and arbitrary rules – you put great power into the hands of District Education Officer and a dozen other petty and mid level bureaucrats. The Act also envisages creating a NAC (thats right) and SAC (S = State).  The pressure of keeping each one of the authorities in good humour and constantly fending off NGO and activists will place a tremendous administrative burden on schools. This is not to mention the dual burden of fee caps + loss due to RTE reimbursements.

Minority Exemption

This is a whole another post.  Exemptions specifically to Christian unaided institutions puts most of your big name schools out of the RTE ambit totally. This benefit includes the clauses related to recognition as well as the quota.  Linguistic minority institutes are a grotesque byproduct of  social overengineering and are a whole another story.  Both these groups arent scrutinized enough to see if they fit the description of “preservation of distinct language, script, and culture”.   As of now,  it is only Hindu schools that are burdened with this wide ranging law. This is an unacceptable state of affairs in a secular country.

UPDATE

Added links.

  1. Notified Act
  2. RTE Rules by State
  3. Apr 12 Judgment upholding the act
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17 Responses

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  1. Nikhil_K2011 (@nikhil_k2011) said, on April 12, 2012 at 8:12 pm

    Eagerly waiting for the next post…

  2. Vijay said, on April 13, 2012 at 1:58 am

    I am sure, you know that dalit reservation will be taken away, even for the most socially-educationally-economiically disadvantaged, if they choose to profess a minority faith. Most minority institutions have a large percentage of disadvataged anyway (much more than 25%) except for a handful. In fact, minority organizations are accused of ‘allurement’ by providing free education to the dalits/poor etc, right? So, why is providing the same free education by hindu organization supposed to be a bad thing? RTE act will actually help counter the allurement by minority organizations? The arguments made against RTE in the name of hindu interest, in fact highlight the deep rooted problems with hindu society. The ‘disadvantaged’ sections are part of the hindu society, so how is solving of hindu problem, against hindu interests? You would rather prefer ‘allurement’ of hindu disadvantaged, by non-hindu organizations/schools?

    • Confused Hindu said, on April 13, 2012 at 2:15 am

      Brillinatly said Vijayy… The Author is an RSS man and an elitist who is not well read about the caste system and the history behind reservations etc. He doesn’t uderstand the meaning of disadvantage class to the extent one should.

      • realitycheck said, on April 13, 2012 at 5:54 am

        >> The Author is an RSS man and an elitist

        Ironically, If I summarily ignore your uncouth comment that can be interpreted as an elitist reaction.

    • realitycheck said, on April 13, 2012 at 5:52 am

      You incorrectly assume that Hindu orgs do not have “disadvantaged” folks as students. In fact, you mix up the definition of disadvantaged. You ignore that in the context of RTE it has a *statutory* meaning – you can conjure up images of poor kids on garbage heaps being elevated. This picture is hard to refute and is being sold to you in the media. The statutory (by law) meaning requires that your caste is in one of the lists (SC/ST/OBC) – if it is then fine – you compete with other communities sharing your group, if not tough luck. The act clearly says that in case of conflict between garbage heap poor vs social disadvantage – the social disvantage wins. Do you oppose any of this ? If yes, you owe a detailed comment.

      So the issue if analyzed superficially, sure it can work the way you described. It wont because implementation is real and not superficial. The fact is the garbage heap kid competes with well placed (not economically poor) kids. All bets are off the table. I assume by your tone you are loath to explore this issue in depth. If not, I suggest you read my blog a bit more.

    • menkris said, on April 14, 2012 at 6:54 am

      Vijay, on your point about minority schools already providing education to a large percentage of the disadvantaged:

      1. If that is true, what is the problem with coming under the 25% rule bracket? As against other institutions that must scramble to adhere to the new provisions, these minority schools have a huge first mover advantage already (according to you) and should have no problem complying. In fact, they should be the first to welcome this stipulation since they, in any case, are already doing it. What the government therefore should have done is: make the 25% a blanket stipulation that all come under and use the exemplary practices of minority schools as a role model for the new entrants.

      2. Assuming that you are right in saying that minority schools already cater to the disadvantaged, how do we know that they are complying with the 25% rule. Admitting a poor child or two, clearly does not fit the bill as per the government mandate. It would clear the air, if these private exemplars of public education, released the numbers and percentages of their admission records.

      3. Public policy, by its very name, should be uniformly applicable to the extent possible. By always excluding the minorities, the government follows a pattern of discrimination that is condescending and elitist.

    • vivek said, on April 14, 2012 at 8:41 pm

      how do you arrive at such sweeping statements that most minority institutions have a large percentage of disadvantaged anyway! and if you go beyond this comprehension of minority n majority, u will realise that the kind of schools ur mind has as minority schools abound amongst hindu schools as well! so lets not shoot arrows in the dark!

    • hevinjose said, on February 6, 2014 at 1:39 pm

      Zia Mody is a cardinal legal consultant and also an important member of Bahai Faith in India. She is refer as to control over securities law and corporate merger.

  3. DP (@reach_pani) said, on April 13, 2012 at 4:15 pm

    @Vijay @confusedhindu You need to read completely and then react….realitycheck has already responded in detail …

    Yes at the outset it looks good (on paper) that now we dont allow ‘alluring’ of disadvantaged but what was the intention of the RTE bill ? Was it ensure every child gets educated or was it introduce caste based reservation at school level ? Saying that does not mean me (or anyone saying that) is against caste based reservation itsef, that can be a totally different topic for scrutiny and discussion !

    The intention of RTE is education to every child not to introduce competition for entry into school and there by ensure many children are still left uneducated !

  4. menkris said, on April 14, 2012 at 6:59 am

    Thanks for a good read and for highlighting problem areas in the act.
    I especially agree with your point about Class 1-5. Children coming under this quota are highly vulnerable in their new environment and what will probably ensue, is a large amount of drop-outs. Hard to now predict how many will be co-erced into dropping out by the school authorities themselves. How will the schools be forced to adhere to the ‘rte’ in the nuanced circumstance of the drop-out?

  5. […] should be given to the Identity over Income if they were ever to come into conflict. I dont want to rehash this blog post where I have analyzed the central rules. Did the media not read this bill […]

  6. Eswar said, on April 16, 2012 at 7:58 pm

    The link you have provided from the Gazette of India dated August 29 (Notified Act, under the update section) doesnt seem to speak anything about the clause “(6) While causing admission under the 25% quota, preference shall be given to children from disadvantaged groups.” you had mentioned.

    Could you please specify the page number where this clause has been provided. May be I overlooked.

    Thanks.

  7. realitycheck said, on April 17, 2012 at 2:18 am

    Easwar : I am sorry I misinformed you on Twitter that it was in the gazette nofication. You are right it isnt there.

    (6) While causing admission under the 25% quota, preference shall be given to children from disadvantaged groups.

    I found it in the Karnataka Rules http://righttoeducation.in/sites/default/files/legislation/draft-rules-karnataka-v.pdf (Page 10). So it certainly seems to be a state specific issue like the AP quota or Kerala quota.

    Quite sloppy on my part . I will specifically mention that it is a state rule (not notified yet) and provide a link, or I might even remove that line.

  8. realitycheck said, on April 17, 2012 at 2:39 am

    Easwar – I updated the post.

    • Eswar said, on April 18, 2012 at 5:20 am

      Thanks a lot. Really appreciate that 🙂

  9. […] currently classified as SEBC (OBC) in the state of Tamilnadu.  They were claiming benefits against Sec 12 (1) (c) of the RTE Act. The school conducted a lottery in the presence of two members of the School Management Committee […]

  10. […] that there are two categories. Roughly they are income based and identity based. I dont want to rehash this blog post where I have analyzed the central rules. Did the media not read this bill ? (Update : See clarification on prev blog post […]


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