The Right to Free and Compulsory Education Act 2009 was passed by the Parliament in August 2009, and after receiving Presidential assent immediately thereafter, it was notified for implementation from April 1, 2010. The 86th amendment that provides the children of India, in the age group 6 to 14 years, a fundamental right to free and compulsory education was simultaneously notified the same day.
It has now been three months since the implementation of the Act but questions are still looming in the minds of people. The Act is still a puzzle to many. To ease the understanding of the Act, Vinod Raina, a member of the CABE committee that drafted the Act, has put together a few FAQs. While the original document contains more than 80 questions, Teacher Plus presents here a few of the more relevant ones.
What was the sequence of events leading to the 2009 Act?
After the 86th amendment in December 2002 the following actions took place:
- 2003: The Free and Compulsory Education For Children Bill, 2003 (NDA government)
- 2004: The Free and Compulsory Education For Children Bill, 2004 (NDA government)
- 2005: The Right to Education Bill, 2005 (June) (CABE Bill) (UPA I government)
- 2005: The Right to Education Bill, 2005 (August) (UPA I government)
- 2006: Central legislation discarded. States advised to make their own Bills based on The Model Right to Education Bill, 2006 (UPA I government)
- 2008/9: Central legislation revived. The Right of Children to Free and Compulsory Bill, 2008, introduced/ passed in Rajya Sabha and Lok Sabha. President’s assent in August 2009. However, the notification of the Act and the 86th amendment, issued on Feb 19, 2010 in the Gazette of India, stated that implementation will begin from April 1, 2010, eight months after the presidential assent. (UPA II government).
Notice that the word ‘Right’ was missing in the first two drafts of the Bill and was used from the 2005 CABE bill onwards. The central legislation was dropped in 2006 in preference to state legislations based on a token model bill draft, for the recurring ‘lack of central resources’ argument, but it was intense public pressure based on independent financial estimates that made it possible to revive and bring back the central legislation in 2008.
Where do existing State Acts on Education stand in relation to the RtE Act?
They would have to be brought in conformity with the Central Act. As per article 254 of the Constitution reproduced below, a State Act cannot violate the provisions of the Central Act in a concurrent subject. States could amend such a Central Act, but that would require presidential assent. However, if the State Act contains anything on which the Central Act is silent, then that may remain as a part of the State Act.
254. (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.
Does Right to Education under the Act include home-based education, alternative education or education at other alternative sites? Could a child studying at home seek expenditure from the state?
No, the Act does not recognize a child’s right to free education at a site other than a school defined in the Act. In that sense, the Act is more like a “Right to Free and Compulsory Schooling’. Schooling would in fact be compulsory for all children.
Would special schools run by NGOs qualify as legal schools under the Act?
Not unless they attain the norms and standards as defined in the Act; within three years of notification of the Act.
Would education through the open schooling system be deemed to be equivalent to formal education as envisaged under the RtE?
Open schooling provides external certification at various levels in the 6 to 14 age group, even when a child is either not in a school, or is in an informal or non-formal school. Since the Act replaces board examinations by Comprehensive and Continuous Evaluation (CCE) in this age group, and makes education in a neighbourhood school of minimum norms and standards provided by the schedule of the Act compulsory, open school certification would no longer be admissible under the Act. The National Institute of Open Schooling has already withdrawn its certification process for the 6 to 14 age group. All children not in school, or previously under an open school situation have a right to be admitted to age- appropriate class to a neighbourhood school, without having to produce any certification of their earlier education.
How was the definition (age) of the child decided?
By confining the Act to Article 21A. The government’s decision to do so has obviously got Parliamentary approval with this Act. The original Article 45, and the Unnikrishnan verdict both include the age group 0-6. The Juvenile Justice Act defines a child up to age 18. The United Nation’s Child Rights Convention (UNCRC), to which India is a signatory, also defines a child from 0 to 18. In principle, by referring to the JJ Act, the UNCRC and Article 21 (right to life) in the Aims and Objects of the RtE Act, the age could have been defined from 0-18. However, citing economic compulsions, the present Act has been confined to the age group 6-14 as contained in Article 21A. A great deal of public pressure would need to be kept up in order to have the Act amended to incorporate the 0-18 as the age of the child.
What is the implication of ‘free education’ in the Act?
Free education is often meant to imply waiver of tuition fees. But tuition fee is only a part of the educational expense, and poor families are often not able to raise other expenses needed for education. These could include textbooks, notebooks and writing material, uniforms, transportation, educational and support materials for disabled children (hearing aids, spectacles, braille books, crutches and so on), or even library fees, laboratory fees, etc., which are not covered under the tuition fee. The phenomenon of drop-outs, in particular, is related to the inability of parents to meet the educational expense of their children, often daughters, somewhere during the course of elementary education. Keeping this in mind, the Act in Section 3(2) enlarges the term ‘free’ by mandating that “no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education”. A list of free entitlements is made explicit in 5(1) of the Model Rules, but it is not restrictive; as per Section 3(2) of the Act, if any other charge or expense, other than those listed in Model Rules 5(1), for example, free residential facilities for children whose parents migrate, prevents a child from pursuing or completing elementary education, the state shall have to provide it.
On whom does ‘compulsion’ lie?
As per Section 8 (explanation) (1) and (2), the state is compelled to provide free education and ensure compulsory admission, attendance and completion of elementary education. The implication is that if a child in the age group 6-14 is working at a tea shop, agricultural field and so on, cooking at home or simply wandering around when the school is functioning, the government is violating the child’s fundamental right. It is the government that must ensure that all children attend school, and complete elementary education. This has an immediate impact on child labour. If the child is engaged in child labour and is not in school, it is the government now that is in violation of law. Consequently, the Child Labour Act 1986 is no more in coherence with this Act and there is already pressure building on the Labour Ministry to review and amend the 1986 Act to bring it in harmony with the Right to Education Act.
Have the disabled children been adequately addressed in the Act?
There are deficiencies in the Act, as it was passed in August 2009, in relation to children with disabilities. They should have been included in the definition of disadvantaged groups, but were inadvertently left out. The Act says that their education shall follow the provisions of the Disabilities Act 1996, but that Act has deficiencies in as much that it does not include mental disabilities. The central government has acknowledged these lacunae and promised to bring appropriate amendments in the Budget 2010 session of Parliament, as also to amend the Disabilities Act 1996 appropriately.
What does ‘age appropriate class’ mean?
It means giving admission in a class where the child would normally be if she had joined school from class 1 at six years of age. So if a child is 11 years old and has never been to school, she will be admitted to class 5, but shall be given special education to make her come to the level in a time frame ranging from three months to two years (model rules 3(1)).
How will children of migrant families receive education?
There are two options; if children migrate with parents, particularly small children, the schools in the migrated areas have to admit all children even if they cannot produce transfer certificates. Or if the parents demand that their children be given education in their native place while they are away for work, appropriate governments/local authorities shall have to ensure the availability of free residential schools.
What does the 25% quota obligation of private schools imply? Can a private school admit more than 25%? What is the obligation of aided schools?
All private schools have to admit 25% children from disadvantaged groups in their neighbourhood for free education, which can be extended if the number is not filled up within the customary 1km radius; every year in the class in which they induct new children. If the induction class is class 1, then 25% children will be admitted therein each year, but if the induction is done in pre-school, then the quota will be filled there. The Act says ‘at least 25%’ instead of ‘at least and no more’, which implies that a school could offer to take more than 25% children.
Private aided schools shall have to admit children from similar backgrounds in the proportion of aid they receive from the government, in the induction class each year, and will not receive any extra reimbursement for these children. For example, if the total annual contribution from the government to an aided school is 70% of its total recurring expenditure for a particular year, it will have to admit 70% children in the induction class that year. Either of these admissions each year shall be in the induction class only, and not for each class of the elementary stage.
What are the other regulations for private schools?
They will have to adhere to the norms and standards prescribed by the schedule and have three years to do so. Their teachers shall also be required to have the nationally prescribed teacher qualifications, within five years. They will have to get recognition within the three year period; if they don’t have recognition after three years, they cannot function, and heavy fines will be imposed on them if they do. They cannot take tests or interview children or parents for giving admission; all admissions have to be based on random selection and violations will lead to financial punishments. They must announce at the beginning of the term the fees they will charge, after that they cannot ask for other charges during the year (capitation fees).
Is it true that no child can be expelled or failed?
No school, government or private, can detain (fail) or expel any child at the elementary stage. The Delhi High Court has already given a verdict on this on the basis of the Act (April 7, 2010), against St. Xavier’s School, Delhi, which had to take back all the children they had declared failed and expelled from the school.
Will that not affect the quality of education since children will advance even if they are not learning?
This is a common perception since it is difficult to see beyond the centuries old custom and culture of failing and expelling children. That the learning level of a child who is punished by failure at any time in the elementary stage shall improve the next year has no educational or research backing. If at all, the social stigma of failure, particularly for a child coming from a poor home is more likely to ensure that the failed child shall drop off from the next year. It is a method to weed out children who are harshly judged for being ‘weak’ or ‘dull’, which may have a lot to do with the learning environment of the school, the psychological and coping stress on the child, rather than any innate deficiency in the child. More often, failure and expulsion of the child hides the deficiencies of the learning environment of the classroom. That is why the CCE, which continuously monitors the learning levels of the child and helps in timely intervention is far superior educationally to annual or board examination based punishments of failure and expulsions. CCE also takes into account the interests, abilities and talents of the child beyond the school subjects that must be recorded while issuing the completion certificate at the end of the elementary stage. Properly implemented, CCE will ensure that children do not advance without learning better than mindless testing of children. Private schools in particular use the failure and expulsion route to weed out what they call ‘dull’ and ‘weak’ in order to keep their school brand at a premium to charge more fees. The Act attempts to prohibit this malpractice, which has been upheld by the Delhi High Court decision in relation to a prominent private school of Delhi, mentioned previously.
What if a government school lacks the prescribed norms and standards?
If the problem is not rectified locally, the matter can go to NCPCR/SCPCR or the courts, as a serious violation of the law.
Are all schools required to have a School Management Committee (SMC)?
All government, government aided and special category schools shall have to constitute SMCs as per Section 21 of the Act; since private schools are already mandated to have management committees on the basis of their trust/society registrations, they are not covered by Section 21. A proposed amendment (see Q82) makes the SMC an advisory rather than a statutory body for schools covered under Article 29 and 30 of the constitution (minority schools).
Does the Act define a ‘Teacher’? Who will prescribe teacher qualifications?
Yes, it does in Section 23(1). An academic institution of the central government shall prescribe teacher qualifications that all teachers of the country must have within five years. This will include both the academic and professional qualifications. The central government has already notified that the National Council for Teacher Education shall prescribe teacher qualifications. A broader committee under MHRD has already sent its suggestions to the NCTE regarding the new teacher qualifications.
If there are no Board examinations, how will children be certified when they complete elementary education?
The procedure for certification is described in Model Rule 23. The certificate will include the Pupil Cumulative Record of a child which will contain the talents and abilities of the child beyond school subjects. The implication is that such a cumulative record, spanning eight years of elementary stage shall be kept for each child, and teachers shall be facilitated through trainings and other means to fulfill this task.
If a child is denied admission, beaten up or discriminated against, or his/her right is violated in any other manner, what will be the redressal mechanism?
One may assume that a number of complaints would be settled at the school and SMC level itself, through the intervention of civil society groups. If that does not happen, the next step would be for a complaint to be filed with the local authority. The complainant could appeal to the SCPCR (State Commission for Protection of Child Rights) if the action of the local authority does not redress the complaint satisfactorily.