Morning prayers at a school in Jammu. Though the onus of providing accessible and quality education rests on the state, its apathy has ensured that there is a surge in the demand for admission to private schools.
EVERY day, in the Delhi High Court, eight to 10 postcards written by children across the national capital reach the chambers of an advocate who has been battling relentlessly for the right to education of children, especially those from the poor sections of society. Neat and legible, almost all the letters are in Hindi. They are complaints about the denial of admission to schools and the lack of infrastructure there, and about fees and teaching. One letter from a child in East Delhi reads thus: “Dear sir, there is no light in my school, no bench, no toilet, no discipline. Pupils constantly play on the ground, while teachers sit outside the class. When I asked my teacher to teach, I was slapped. I want teachers to be honest, and I want to be an honest police officer.”
Another letter, from Shruti, studying in class five of the government-run Sarvodaya Girls School, says: “Sir, the government has placed so many conditions for the Laadli scheme. I filled in the form but have not received the money or a receipt. If I get the money, I will give you a party.” The Laadli scheme, in several north Indian States, is an incentive-based scheme meant to promote education of the girl child and ensure her retention in school. At regular intervals or after the completion of certain levels, the child is given a cash entitlement. In a third postcard, a domestic help, requesting anonymity, pleads with the advocate to intervene on her behalf with the principal of a private school who had threatened to throw out her children for non-payment of fees.
The postcards speak volumes about the implementation of the Right of Children to Free and Compulsory Education Act, 2009, which came into force on April 1, 2010. It made the right to education justiciable, envisaging that every child in the 6-14 age group should have access to a neighbourhood school. The word “free” in the title stands for the removal by the state of any financial barrier that prevents a child from completing eight years of schooling.
Supreme Court judgment
In a recent majority judgment, a three-judge Bench of the Supreme Court upheld the constitutional validity of the Act and its application to schools owned or controlled by the government or a local authority; aided schools, including aided minority schools; schools belonging to specified categories; and unaided non-minority schools not receiving any aid or grant from the government or the local authority. The order exempted unaided minority schools from the Act's application on the argument that it infringed on the fundamental freedom guaranteed to such schools under Article 30(1), which gives minorities the right to establish and to administer educational institutions of their choice.
The petitioners in the case, associations representing various private schools, while calling the insertion of Article 21A of the Constitution (following which the Act came into existence) a revolutionary step, had challenged some sections of the Act that cast an obligation on all elementary educational institutions to admit children from their neighbourhood on the principle of social inclusiveness. They also challenged other provisions that were purportedly interfering with the administration, management and functioning of these institutions. For instance, they challenged Section 12(1)(c) of the Act, which cast an obligation on both non-minority and minority institutions to fill at least 25 per cent of the seats in class 1 and preschool sections with children from among those falling under Sections 2(d) and 2(e) (children belonging to the weaker sections and disadvantaged groups of society).
The Law Commission, in its 165th report, referring to the Constitution (Eighty-Third Amendment) Bill, 1997, which proposed to insert 21A in the Constitution, had advised that it was not desirable or advisable to keep unaided educational institutions outside the proposed Article altogether. The idea was that while the sole primary obligation of education was upon the state, educational institutions, whether aided or unaided, supplemented this effort. It recommended that these institutions must be made to impart free education to 50 per cent of the students admitted to their institutions.
In the recent Supreme Court verdict, the judgment of Justice K.S. Radhakrishnan, which disagreed with that of the other two judges in the Bench (Chief Justice S.H. Kapadia and Justice Swatanter Kumar), averred that where socio-economic rights had been given the status of constitutional rights, those rights were available only against the state and not against entities such as private schools or private hospitals unless they got aid, grants or other concessions from the state. Interestingly, it was also observed that a shift in the state's functions to private entities was because of liberalisation of the economy and privatisation of state functions. While the primary responsibility for children's rights lay with the state, it also had a duty to regulate private institutions that cared for children so as to protect children from violence, abuse and economic exploitation. At the same time, private entities were expected to respect and protect the rights of the child but were not expected to surrender the rights constitutionally guaranteed to them, it said.
The minority judgment was also critical of earlier judgments (in the T.M.A. Pai Foundation case and the Inamdar case) that placed a negative obligation on private educational institutions in a manner suggesting that there should be no profiteering, demand for excessive fee, capitation fee, maladministration or cross-subsidy. However, such judgments also said that acts by the state to control or regulate admissions to unaided professional institutions insofar as to compel them to give up a share of the seats to candidates chosen by the state would amount to nationalisation of seats and would be an encroachment on the autonomy and right of such institutions. Had the Constitution wanted the obligation to be shared by private unaided educational institutions, it would have been made explicit in Article 21A, Justice Radhakrishnan's judgment said.
The minority judgment lauded the purpose and object of the Act, that is, social inclusiveness in the field of education, but held that the means adopted to achieve that objective was faulty and constitutionally impermissible. Section 12(1)(c), it held, was only directional and it should be read as being open to private unaided educational institutions, both minority and non-minority, at their volition to admit children who belong to the weaker sections and disadvantaged groups in the neighbourhood in their educational institutions.
Types of schools
Apparently, of 12,50,775 schools imparting elementary education in the country in 2007-08, as many as 80.2 per cent were government schools, 5.8 per cent private aided schools, and 13.1 per cent private unaided schools. Almost 87.2 per cent of the schools were located in rural areas; the proportion of private unaided schools was only 9.3 per cent and that of aided schools 4.7 per cent. In urban areas, the proportions of private unaided and aided schools were 38.6 and 13.4 per cent respectively. Of the total students enrolled in primary classes in 2007-08, about 75.4 per cent, 6.7 per cent and 17.8 per cent respectively were enrolled in government, aided and unaided schools. Proportionately, the total number of teachers working in these schools was the highest in government schools, followed by aided schools and then private unaided schools.
There is no doubt that the onus of providing accessible and quality education rests on the state. But given the demand generated by the RTE Act itself, there has been a surge in the demand for admission to private schools. To realise the concept of neighbourhood schools and to make mandatory the reservation of 25 per cent of the seats for children from economically weaker sections in unaided schools as well, the Act provides for reimbursement by the state of the per capita expenditure of each child. Such reimbursement, it held, shall not exceed the expenditure incurred for a child by a school established, owned or controlled by the appropriate government or local authority.
“When the government can run its schools with a particular sum, we see no reason why an unaided private school should charge fees more than what is spent on a child by the government,” Ashok Aggarwal, advocate for the non-governmental organisation Social Jurist told Frontline. The organisation founded by him several years ago is singularly devoted to getting children, especially those with indigent backgrounds, admitted to schools. According to him, the surge in the demand for education overall has been an outcome of campaigns by government as well as non-government agencies working in the area of child rights. Unfortunately, as government schools were apathetic to this demand, parents were increasingly gravitating towards private schools under the impression that they were better in terms of quality, he said. And they were prepared to pay huge amounts as fees.
He said that on March 21, the Government of Delhi approved Rs.1,190 as the expenditure for a child a month on elementary education and reimbursable to private unaided schools in respect of children from economically weaker sections. It was also decided that no reimbursement would be made to schools that had been allotted land by the government at concessional rates. “The sum of Rs.1,190 can be safely taken as an ideal figure for the purpose of payment of school fees per child,” said Aggarwal.
Aggarwal, who founded the All India Parents Association, is of the view that if any unaided private school found that Rs.1,190 was not enough, it could show its financial accounts to the government and prove that the school was spending more on the student and hence was eligible to charge a higher fee. “When the Act came, the government began publicising the 25 per cent quota for the economically weaker sections [EWS] category. But no rules were framed. I had to approach the court for the rules, and finally it was ordered to be framed within two weeks. The problem is complex. Private schools used teachers to victimise parents and vice-versa. All categories of parents have a common issue and from the point of a constitutional right, every child should get free and quality education,” he said. Each year, he said, almost one lakh students dropped out of private schools because of the inability to pay fees and sought admission in government schools. There were cases, he said, where parents had to withdraw one child from school in order to educate the rest of their children. “What is bothersome is that the government's intention to improve schools is still wanting. The moot point is that the crisis lies in government schools and the solution is also there,” he said.
There were 9,835 seats vacant in the EWS category for nursery classes in 1,163 private schools in Delhi alone, he said, and the High Court had ordered that the seats be filled before the commencement of the summer break. Aggarwal estimated that almost one lakh children had benefited from seeking admissions under the EWS category.
On April 25, the Delhi High Court pulled up the Delhi government for being unsympathetic to some 700 students of a government school in north-west Delhi. For the last three years, the school was being run in tents. Incidentally, it was Aggarwal who pointed out that despite the orders of the court on February 12 to construct portable cabins as a temporary arrangement pending the construction of a permanent building, the government had done little in this regard.
On February 18, Aggarwal, as a member of the High Court-appointed committee for inspection of schools, visited the school concerned only to find that all the 700 students were sitting in the open. The school building, constructed 25 years ago, had been declared dangerous three years ago. The court has now ordered the government to submit a status report within a fortnight.
There is no doubt about a transformation taking place. The impetus to the transformation, unfortunately, has not come from the government. The lack of interest on the part of the government to enforce the law has led private educational institutions to challenge the clauses in the Act that make the inclusion of EWS category students mandatory. If the government dithers on pushing aggressively to ensure that every child is in school at least up to 14 years, the constitutionality of the Act will continue to be challenged by those who resist social inclusion.
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