Critique of Right to Education Act 2.0 (amendments to 1.0)

The Right to Education Act 2009  is the single most devastating and sectarian piece of legislation in recent times.   I can  sense from my interactions that there is a general and growing negative feeling about this law. Post Pramati vs Union of India, the situation on the ground is that all minority schools – aided or unaided – are completely exempt from the law. This has the effect of instantly immunizing the top and most sought after schools from RTE.

Given this judicial position grounded in an Idea of India positive rights cocktail jurisprudence – the only solution is to repeal the act. This is well within the mandate won by the Narendra Modi led govt. It is time to go back and honor the most fundamental maxim of the Rule of Law —  uniform application. It it cant apply to all, it cant apply to any.

I feel there is an ongoing effort to temporize by civil society activists and think tanks. By conceding some minor provisions they hope to salvage and retain the core of the law. This will probably get a lot of play in the media too.  They will simply not pay any attention to the sectarian exemption that looms large – which gives rise to serious doubts about their agenda.  If you ignore the exemptions, what you have left is a mirage or an academic exercise at best. We must all pretend and use terminology like “private schools” which have no real life meaning.

RTE 2.0 civil society amendments – will it really help?  Credit : SMH Ben Doherty

RTE 2.0 amendments by Centre for Civil Society

In this light, the New Delhi based Think Tank Centre for Civil Society has proposed a set of amendments. If accepted, these will lead to what they call RTE 2.0.

Link to RTE 2.0 Amendments Summary  http://ccs.in/sites/default/files/research-rte20-summary.pdf

In consultation with : Absolute Return for Kids, Accountability Initiative, Bharti Foundation, Central Square Foundation, IPE Global, J-PAL South Asia, NUEPA, Pratham, Teach for India, The World Bank, University of Chicago Center in New Delhi, Vidhi Centre for Legal Policy and Yuva Foundation

Its a high power 5-star activist lobby.  It is kind of distressing to note that a govt body (NUEPA) is involved in this. Needless to say these recommendations would carry a lot of weight in the HRD Ministry. However, this  should not deter us from critiquing it.  Here is a point by point assessment of these amendments.

Fixing RTE – the real way

The real issue with RTE is that schools are split into “RTE Enabled” and “RTE Exempt” in an environment already fraught with dreadful regulation and arbitrariness.  In other words, the common parts are arbitrarily regulated and the RTE doesn’t do anything about that, but only lays on special burdens on top of  the common part on the non minorities.  This is what makes the law so unique – you cannot make a secular critique of a sectarian law.  The problem with the civil society folks is that they simply will not engage with this aberration at all.

The way to fix RTE is to frame policies such that post enactment of the statute the Enabled Schools are not left worse off  vis-a-vis the Exempt schools.  This simple rule should be the touchstone of any policy.  So how to do this ?

One way is to treat the 25% quota as a taking in the sense of eminent domain and fully compensate without questions what the schools charge for other students.  This includes all fees in vogue such as extra curriculars, uniforms, swimming, etc.  This is clearly a nutty scheme – just for activist feel good kicks – you will send up sponsoring a kid to Vasant Valley while you could educate 10 kids for the same amount in govt schools.

The real intractable issue is  with Section 13 – which bans ANY screening procedure even for the 75% that is not reserved for caste or income quota.  I have painfully documented the multi layer lotteries conducted in Delhi last year for nursery admissions. The hectic litigation followed by sheer fatigue resulted in an  questionable judgment.  Essentially the RTE Act results in all admissions to private “Enabled” schools being nominated by the state.

I conclude that the burdens imposed by #RTE on Enabled schools are so onerous and of a such a nature that you cannot compensate in a way that they end up at the same level as Exempt schools.

This is why repeal of the #RTE act is the only way out.

Critique of RTE 2.0 proposal

Now lets turn to a point by point critique of the proposed amendments. For your reference here is a link to RTE 2.0 Amendments Summary  http://ccs.in/sites/default/files/research-rte20-summary.pdf

Sec 3 : Extends RTE to lower and upper kindergarten by extending RTE from 6-14 to 4-14.  Makes it worse because total number of subsidy years is now extended to 10 instead of 8 earlier.

Sec 4 : Introduce standardized testing to measure. No need for a statute like RTE for this. It is better to leave it to boards like CBSE.  I have some strong opinions on inter-board standards so that there is a uniformity at least in English, Science and Maths between states.

Sec 12 : EWS/DG Quota 

Removes the distance criteria, so that some schools will be absolutely flooded.  Given the lottery situation and amendment to Sec 12 (1) below it will lead to the absurd outcomes. Kid A from locality A will chug across town to attend School Z which is not his preference. While Kid Z will criss cross him from other side. This is how the lottery works. These dynamics are completely lost on Civil Society Centre.

Transfers all nominations to the government. On one hand this removes headache from school but on the other hand schools are now forced to accept dubious candidates. This is a deal breaker because there are cross subsidies involved.  NO ONE wants to enter into a philanthropic venture and being forced to indulge in immoral activity. The immoral activity in this case is  being forced to ask one of your poorer students to subsidized a richer student.

Payment. Any delay of more than 3 months attracts interest and penalty. This is a wash. If schools arent able to recover  refunds today, they wont recover refund + interest tomorrow.  Today non-payment from govt results in schools holding back teachers salaries, cutting back on safety and accessories. This will only result in a flight of qualified teachers and bright students from RTE Enabled schools to RTE Exempt schools. I am following a case in Pune where this is happening as we speak.

The entire idea that tier 2 and 3 schools can sufficiently contrast privilege and grant 10 years of freeship based on a temporary economic status is preposterous. The amendments also offer nothing on cross subsidy. Charging the hapless 75% fee paying students while their parents already pay Education Cess and Service Tax is the very definition of a capitation fee !!

Verdict : Eyewash #FAIL 

Sec 13 : Completely missing

No amendments are proposed to the most oppressive provision of the RTE – the right of school managements to select students.

Sec 13 outlaws any kind of screening for all intake including the 75%.  Sec 13 also includes jungle raj childish fines such as “If caught schools have to pay 10 times the amount of capitation charged from student”. Sec 13 of the #RTE is easily the most dangerous part and is directly responsible for the 7 month lottery ordeal in the national capital last year. Its about to start this week for the next year. Once again remember the balance – the RTE Exempt schools can select however they want.

Verdict : Intention not clear why this was omitted

Sec 16 : No kid failed

This has been modified to “kid can be failed with written consent from parents”. Really ? Piling on more and more paperwork while commonsense indicates no parent would agree to  fail their kid is not very smart.

Adding language to legal drafting like “Every effort shall be made to provide child special training..” is just screaming for litigation.

Verdict : Fail without permission

Sec 18 : Recognition Certificate 

Modified to include govt schools in recognition.  Adds in a new rule that says no private school shall be derecognized until all govt schools are recognized. Not sure how top civil society types and one Vidhi Legal can draft laws like this. One wonders how we can have a relative law ; you are all okay until there is ONE govt school in the red in your area.  This sort of belies the inability of these guys to understand how a complex society works. If the legality of your conduct is relative and is pinned to an outlier – then that will be focus of activism and litigation.  The govt will decree all schools to be compliant and the civil society activists will try to pull down one.  The most likely scenario is absent clear rules and only relative rules, NGOs will pick which ones to go after in court.

Verdict : Not workable

 Sec 19 : Budget schools

Learning outcomes to be included for budget schools. That is welcome. However the points system being assigned a maximum of 30% is arbitrary because we dont know what 100% is. Nor do we know what a passing percentage is.

Verdict : +ve needs cleanup

The rest of the recommendation applies to school management committees of aided Hindu schools. There is no point going into these given they are under a mountain of other onerous and outright discriminatory laws. A complete surrender to  local political and NGO types in SMCs is like humane slaughter. Welcome.

Why not amend ?

It is tempting to think that we can introduce and pass baby amendments and slowly blunt the edges of the RTE Act. In reality, it does not work that way. Parliament time is precious. If you pass these amendments in this winter session – you will not be able to debate the real substantial parts of the RTE Act. Before you know it, your five years are up and its time to go back to the people. This time with more chaos,shortage, sectarianism, and loss of quality  in the education sector.

This is not a personal attack.  Hope all the five star outfits mentioned take it in the right spirit.