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

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