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Rising criticism of Right to Education Bill, 2005

Education World, 30 Nov, 1999
By Dilip Thakore

There is increasing criticism that this new bill relies heavily upon the education bureaucracy which has conspicuously failed to improve the quality of learning in government schools and has imposed asphyxiating strangleholds on private education institutions. Dilip Thakore reports

Although with its 6-7 percent annual GDP growth of the past decade post-liberalisation India has dazzled the world and looms large on the radar screens of foreign investors, knowledgeable domestic monitors of the sub-continent's socio-economic scenario are only too well aware that the superstructure of the fast-track Indian economy is built on weak foundations. In particular despite loud proclamations of its socialist character (in sharp contrast to the nation states of the communist bloc who for all their other faults, universalised primary education) every government in post-independence India, preoccupied with high matters of state, criminally neglected the social sector - education and health.

Contemporary India 's education statistics make dismal - indeed shocking - reading. Of the estimated 200 million children who enroll annually in the nation's 900,000 primary schools, 53 percent drop out before they make it into secondary education (class VIII). Of the remainder only 10 million enter institutions of tertiary education, of whom some 3 million graduate annually. Hardly surprising considering that 20 percent of government primary schools (over 90 percent of school-going children enroll in state and local government-run schools) are multi-grade teaching institutions; another one-fifth don't have a proper building; 58 percent can't provide safe drinking water, and 70 percent lack toilet and sanitation facilities. Moreover corporal punishment is rife in India 's crowded classrooms which boast the world's highest teacher-pupil ratio - 1:63.

Instead of addressing this monumental waste of human resources, successive governments at the Centre and in the country's 29 states have never been able to raise their combined annual outlay for education to beyond 4 percent of GDP, compared with the global average spending of 5 percent of GDP per annum and 6-7 percent in the developed nations of the western world.

Impossible as it may seem, shining India 's child health statistics are worse. With the Central and state governments' combined annual allocation for public healthcare a mere 0.9 percent of GDP ( cf . the global average of 5 percent), 33 percent of the country's children under five years of age are underweight and 47 percent suffer malnutrition, making it difficult for them to derive optimal benefit from primary education, even if it ever becomes easily accessible. Although the nation's benighted politicians preoccupied with self-aggrandisement and primitive accumulation seem blissfully unaware of this astonishing neglect of education and health, social activists and NGOs (non-government organisations) are belatedly beginning to express rising indignation about the low priority given to human capital development issues by the nation's omniscient central planners who have engineered post-independence India's inegalitarian socio-economic development effort.

According to economics Nobel laureate Dr. Amartya Sen, often "the very institutions that were created to overcome disparities and barriers" to health and education for citizens and children in particular, "have tended to act as reactionary influences in reinforcing inequity". "The terrible combination that we have in India of immense food mountains on the one hand and the largest conglomeration of under-nourished population in the world on the other, is one example of this. The positive hopes of equity through high support prices of food and payment of subsidies have to a considerable extent, tended to produce exactly the opposite effect. Another example relates to the institutional features of delivery of primary education. The teachers' unions, which have a positive role to play in protecting the interests of teachers and have played that part well in the past, are often turning into an influence that reinforces the neglect of the interests of children from desperately underprivileged families. There is evidence of a hardening of class barriers that separate newly affluent teachers from the impoverished rural poor," writes Sen in his newly published bestseller, The Argumen-tative Indian - Writings on Indian History, Culture and Identity ( Allen Lane , 2005).

But by a curious coincidence, circa the turn of the century and the dawn of the new millennium when EducationWorld was launched with the objective of "building the pressure of public opinion to make education the # 1 item on the national agenda", education has begun to move from the periphery of the radar screens of the nation's politicians and industry leaders towards the centre. In the millennium year (2000) leaders of 189 nation states including India , signed the United Nations sponsored Millennium Declaration which set out the Millennium Development Goals (MDGs) to inter alia ensure that all children around the world are in primary school by the year 2015. In adherence with this declaration, the BJP-led National Democratic Alliance government in New Delhi announced its Sarva Shiksha Abhiyaan (Education For All) programme and tabled the 86th Constitutional Amendment Act, 2002 which was passed with unanimous acclamation by Parliament. The constitutional amendment included in the chapter under fundamental rights added a new Article 21-A which mandates free and compulsory education of all children in the age group six-14 "in such manner as the State may by law determine".

Box 1

Major provisions of RTE Bill, 2005

In 2002 parliament unanimously passed the 86th Constitution Amendment Act mandating the State (i.e. government) to provide free and compulsory education to all children countrywide under a new Article 21-A inserted into the Constitution.

Following widespread objections to a draft Free and Compulsory Education Bill 2004, a new Right to Education Bill, 2005 was drafted. This Bill is awaiting the approval of Parliament. Its major provisions:

Child's right to free and compulsory education of equitable quality. Every child who has attained the age of 6 years shall have the right to participate in full-time elementary education and to complete it, and towards that end shall have the right, subject to the provisions of this Act, to be admitted to a neighbourhood school in accordance with the provisions of s.14, and be provided free and compulsory education in such school, in the manner provided in this Act (s.3(1)) .

Responsibility of the state towards the non-enrolled child. The appropriate government shall take necessary steps to ensure that all non-enrolled children who are in the 7-9 years' age group at the commencement of this Act, are enrolled in a neighbourhood school within one year of the commencement of this Act... (s.6) .

Responsibility of schools to provide free and compulsory education. Schools shall provide free and compul-sory elementary education to children entitled under s. 3 to the extent and in the manner specified. State schools of specified categories, and unaided schools, to at least 25 percent children admitted to class I after the commence-ment of this Act, from among children belonging to weaker sections randomly selected by the school... (s.14(1)) .

Norms and standards for a school. No state school shall be established, and no other school shall be recognised, by any competent authority, after the commencement of this Act, unless such school fulfils the norms prescribed in the Schedule (s.18(1)) .

School management committees. A school management committee (SMC) shall be constituted for every state school and aided school, with such representation of parents, teachers, the community and representatives of the local authority, as may be prescribed (s.22(1)) .

Composition of the SMC shall be so prescribed that: At least three-fourths of its members are parents/ guardians of children studying in the school... (s.22(2)) .

Teachers of state schools to be a school-based cadre. After the commencement of this Act, teachers in state schools, except in state schools of specified categories, shall be appointed for a specific school by such local authority or SMC as may be notified by the appropriate government, and shall not be transferred therefrom (s.23(1)) .

Certification of completion of elementary education . No child shall be required to appear at a public examination during the elementary stage except, if at all, at the completion of such stage (s.30(1)) .

Prohibition of physical punishment. No child shall be awarded physical punishment in any form in a school (s.31) .

National commission for elementary education. Central government shall, by notification, constitute a body to be known as the National Commission for Elementary Education, to continuously monitor implementation of this Act, recommend corrective measures wherever necessary, and to exercise powers and perform other functions assigned to it under this Act (s.33) .

Responsibility of the parent/ guardian. It shall be the responsibility of every parent/ guardian to enrol his child or ward, who has attained the age of 6 years and above in a school, and to facilitate her completion of elementary education (s.50(1)) .

Protection of action taken in good faith. No suit or other legal proceeding shall lie against the Central government, an appropriate government, the commi-ssion, a local authority, a school manage-ment committee, or any person acting under the direction of such government/ commission/ authority/ committee, in respect of anything which is in good faith done, or intended to be done, in pursuance of this Act, or any rules or any order made thereunder (s.54) .

Inevitably, the giant education bureaucracies ('educracies') of the Central and state governments which have lorded it over the nation's one million-plus schools and 5.5 million teachers and academics and control an aggregate annual outlay of over Rs. 100,000 crore, are reluctant to dilute their traditional dominance of the education sector. Therefore, parlia-mentary efforts to legislate a procedural law to give effect to the 86th Amendment and Article 21-A have run into troubled waters. Last year Union ministry of human resource development educrats drafted a Free and Compulsory Education Bill, 2004 which multiplied and empowered so many government committees to supervise primary education, that it attracted heavy criticism from education NGOs and educationists. Consequently in August 2004 a special committee of the Central Advisory Board of Education chaired by Kapil Sibal, Union minister for science and technology was constituted to draft legislation to give effect to the new Article 21-A and to "examine other issues related to elementary education for achieving the objective of free and compulsory basic education".

The Sibal committee submitted its report to the Union HRD ministry in June 2005. On the basis of a draft of its essential provisions, the ministry has drafted a Right to Education Bill, 2005 which prunes the number of bureaucratic committees recommended by the Free and Compulsory Education Bill; provides for the establishment of an independent National Commission for Elementary Education (NCEE) and makes several other provisions (see box p.30). Most notably the Right to Education Bill, 2005 provides that all private schools will be obliged to provide free education to poor children from their neighbourhoods to the extent of 25 percent of their primary school enrollment (see cover story 'Quota cloud over private schools' EW September 2005).

Yet for reasons other than this radical provision, the new Bill is also drawing heavy fire from educationists and social scientists for being the old Free and Compulsory Education Bill, 2004 in a new bottle. There is widespread - and growing - disquiet that the new Bill also relies heavily upon the education bureaucracy which has conspicuously failed to improve the quality of learning in government schools and has imposed asphyxiating strangleholds on private sector education institutions.

"The only positive aspect of the RTE Bill, 2005 is the formation of local school management committees for state and aided schools in which three-fourths of members will be parents. This provision will give them genuine power in the committees. The rest of the Bill is a catastrophe," says Dr. Parth Shah, an alumnus of Auburn University (USA) and former professor of economics at Michigan University who is currently president of the Centre for Civil Society, the well-regarded Delhi-based think tank.

According to Shah, who under the aegis of the Centre for Civil Society has prepared a detailed 14-page 'legislative analysis' of the RTE Bill, 2005, the Bill has several major infirmities which will perpetuate the status quo in elementary education and nullify the lofty intent of the newly legislated Article 21-A of the Constitution. Among them: the Bill mandates automatic promotion of government school students without providing for assessment of learning outcomes; it arbitrarily expands capacity in private schools which are obliged to admit poor children from the neighbourhood to 25 percent of their primary school capacity, without removing the impediments of "licence-quota-raj" to make it easier for education entrepreneurs or philanthropists to start new schools; it espouses the idea of the neighbourhood schools which is a "failed model"; has mandated additional layers of bureaucracy in the guise of several 'competent authorities', 'local authorities' and 'empowered authorities' in addition to a National Commission for Elementary Education; it imposes no obligation upon government schools to qualify for recognition by upgrading infrastructure or learning outcomes; binds teachers to one school for their entire careers; and while it penalises parents for not sending their children to school, it immunises government servants against dereliction of duty. "The outcome of the Bill will be to restrict the school choice of parents and teachers and to expand the layers and powers of the bureaucracy. This is not a Bill which would serve the cause of education," says Shah (see interview).

Certainly there is some substance in Shah's contention that the numerous district, local area and municipal committees with wide discretionary powers which were envisaged by the severely criticised and discarded Free and Compulsory Education Bill, 2004 have resurfaced in RTE, 2005 in the guise of 'competent authorities', 'local authorities' and 'empowered authorities'. But Union HRD ministry officials insist that the power invested in local authorities has the beneficial effect of decentralising decision making, empowering local government organisations which are closer to schools and local communities.

"If anything, the draft Bill if enacted into law will reduce the powers of education departments and Central and state government bureaucracies in favour of local governments. And even the powers of the latter will be circumscribed by the provision that all government and aided school managements will be supervised by local SMCs (school management committees) in which parents of children will constitute more than 75 percent of membership. In effect this provision will make teachers accountable to parent communities instead of the education departments of the state government or municipal authorities as hitherto," says a Union HRD ministry spokesperson who requested anonymity.

Moreover despite the pavlovian reaction of neo-liberals such as Shah to "layers of bureaucracy", there is room for optimism that an independent National Commission for Elementary Education (NCEE) proposed by s.33 of the Bill, will serve as a check on the runaway powers that the educracies of the Central and state governments have exercised over the country's 900,000 government and local authority managed schools. The Bill provides that the chairperson of NCEE shall be "an eminent person with proven record of service in the field of education" who will be assisted with other members "having expertise in the fields of elementary education, development of disadvantaged groups, child development/ child rights, finance and law" in addition to a member-secretary "having experience/ expertise in educational management".

Quite obviously for the RTE Bill, 2005 to translate into an effective enactment, the chairperson of NCEE will need to be an independent and knowledgeable educationist of high integrity. To its credit the Bill provides that he/ she will be appointed on the recommendation of a committee comprising the prime minister, Union HRD minister and leader of the opposition in Parliament. Moreover NCEE has been given wide powers to monitor all aspects, including quality of elementary education; to function as an ombudsman to whom appeals can be made against appropriate authorities and to issue directions to the Central, state and local governments regarding effective implementation of the legislation. Significantly the commission will be obliged to submit an annual report to Parliament on the implementation of the Act.

"The proposal in the RTE Bill, 2005 to establish NCEE is an excellent idea and will play a major role in strengthening the educational base of the country. However care should be taken to ensure that the commission is truly independent and empowered. The RTE Act, 2006 shouldn't suffer the fate of the Right to Information Act, 2005 under which retired bureaucrats have captured all the positions of over a dozen information commissioners appointed under the Act. We need a truly independent NCEE headed by a committed educationist who will be transparently accountable to the people. For this to happen the public and the media have to remain vigilant supporters of the forthcoming RTE Act which is born out of a constitutional landmark, i.e the 86th Amendment," says Dr. R. Govinda, an alumnus of M.S. University, Baroda, and senior fellow and head, school and non-formal education unit of the Delhi-based National Institute for Education Planning and Administration.

A common criticism of post-independence India's education system has been that the rigorous standards in terms of enabling infrastructure, classrooms, teacher-pupil ratios etc mandated for privately promoted schools are not applicable to government schools most of which lack proper buildings, equipment, drinking water and lavatory facilities. "One of the great weaknesses of India 's education system is that there is no standard definition of a school. Therefore we witness the phenomenon of shabby, crumbling buildings lacking any infrastructure being passed off as schools. Standardisation of schools in terms of minimal infrastructure, curriculum and testing from a normative perspective is very important if children from socio-economically under-privileged households are to be given access to meaningful education. The RTE Bill, 2005 hasn't given sufficient attention to this requirement," says Dr. A.S. Seetharamu, professor of education at the Institute of Social and Economic Change, Bangalore (estb.1972).

But while it's true that the RTE Bill, 2005 has left curriculum development to a vaguely defined "competent academic authority" and is silent about standardised testing, for the first time it attempts to lay down minimal infrastructure standards for an institution to be classified as a school. S.18 of the Bill requires all schools promoted after enactment to fulfill infrastructure and classroom norms prescribed in a schedule of the draft. The schedule lists the minimum number of teachers in primary and upper primary schools dependent upon the number of students enrolled; all-weather buildings with at least one classroom for every teacher; separate toilets for boys and girls; a separate kitchen for preparation of the free midday meal, and barriers to free public access. Already established primary and upper primary schools (government and private) have been granted a grace period of three years to upgrade infrastructure and classroom facilities to the prescribed norms.

Quite obviously such a massive school quality upgradation drive will cost a pretty penny. And given that post-independence India's foolish politicians and super-economists of the Planning Commission who in innumerable instances graduated to global poverty alleviation institutions such as the World Bank, Unesco, Unicef etc have never been able to provide more than an average of 3.5 percent of annual GDP for education (of which a mere one-third is allocated to primary/elementary schooling), there is understandable cynicism about sufficient financial provision being made for enabling the proposed RTE Act, 2006.

However to its credit, the Sibal Committee which drafted the essential provisions of the Bill has addressed this issue. It constituted a NIEPA task force (comprising Dr. K. Biswal, Dr. N.K. Mohanty, Dr. P. Geetha Rani and A.N. Reddy) working under the guidance of Prof. Tapas Majumdar and Dr. Govinda (quoted earlier) which after factoring in four alternative teacher-pupil ratios and average teacher salaries in elementary education nationwide, has projected additional financial requirements ranging between Rs.321,196 crore (average teacher-pupil ratio 1:40) and Rs.436,459 crore (1:35) over the five year period 2006-07 to 2011-12. Although prima facie these sums seem impossible, they require additional resource mobilisation of only Rs.64,239 crore and Rs.87,291 crore annually - equivalent to less than 1.8-2.5 percent of current GDP. Surely a small price to pay for fulfilling the long-standing promise of universal elementary education.

But while it must be conceded that the new RTE Bill, 2005 makes a spirited attempt to address several deep-rooted infirmities of the neglected primary education system, viz , infrastructure deficiencies, multi-grade teaching and high pupil-teacher ratios, there's widespread criticism that it fails to address the vital issue of learning measurement and outcomes. On the contrary in adherence with the philosophy of transforming classrooms into centres of joyful learning as advocated by the National Curriculum Framework, 2005 (see cover feature EW July 2005), s.30(1) of the Bill prohibits public examinations in elementary schooling, making it mandatory for school authorities to award school completion certificates to all students.

The apparent lack of concern for learning outcomes in the Bill worries Madhav Chavan, founder-director of the Mumbai-based Pratham, one of the country's most-respected education NGOs which is helping 200,000 children in 13 states across the country to receive better quality education. "The Bill has not fixed any parameters about the outcomes of education. A minimum set of learning outcomes schools deliver, needs to be clearly defined. In my opinion the acquisition of basic reading, writing, arithmetic and analytical skills should be stipulated in the final legislation. The RTE Act shouldn't merely stipulate the provisions to be made in schools, it must also define the results or outcomes expected," says Chavan.

Likewise Rashmi Sinha the Lucknow-based coordinator of distance primary education of the Uttar Pradesh Education Board is dissatisfied about the Bill's apparent lack of concern about learning outcomes. "There is no mention of minimum learning outcomes that schools must fulfill. The Bill is full of emotion and philosophies of which we already have a surfeit. It does not provide a road map to move forward. In particular there is no plan for pedagogical training without which even the most knowledgeable teacher is useless. In UP which has some 40 million children in the six-14 age group and at most 500,000 teachers. From where will we get the other 500,000 teachers to fulfill the basic teacher-pupil ratio? Regrettably there have been no attempts to make it a workable, practical Bill," says Sinha.

Lack of emphasis on measuring learning outcomes and teacher development apart, another provision of the draft Bill which has attracted adverse comment is s. 50 which places the onus of enrollment of all children in the six-14 age group exclusively upon parents and guardians. Given the grassroots reality that one-third of the national population is obliged to eke out a living on less than $1 (Rs. 46) per day, and the poor quality learning dispensed in the overwhelming majority of government schools, it's hardly surprising that most below or near poverty line households put their children to work as soon as possible. This perhaps explains why reportedly shining India has the largest child labour pool in the world, whose number is variously estimated at between 44-100 million.

In the circumstances, to place the entire onus of sending children to schools which have been given three years to come up to scratch, and to punish perhaps illiterate parents who wouldn't know better for child truancy, is unjust. Surely truancy officers and social workers could be deployed from the ranks of the grossly over-manned educracies of state governments to supplement parental efforts to get all children to school, as is the norm in western countries?

"It is strange that the Bill does not recognise that parents' inability to send children to school has got much to do with the attitude of governments towards them. As long as it is half-hearted, which is reflected in the manner in which schools actually function, it cannot impose any kind of obligation upon poor parents. Significantly, the state has escaped all recourse to justice for dereliction of its obligations," writes educationist Shantha Sinha in the Asian Age (December 16) with reference to s.54 of the draft RTE Bill which immunises government officials against all acts of omission and commission in pursuance of the objectives of the proposed Act, as long as they are done (or not done) in good faith.

Union HRD ministry spokespersons who have fleshed out the draft Bill on the basis of the Sibal Committee's recommendations of its essential provisions, admit that the RTE Bill, 2005 is not perfect and express the hope that its wrinkles will be ironed out when its contents are debated in Parliament and academia. "It is important to remember that in a country the size of India , one legislation will never be able to solve all our problems. What is important is to view the draft Bill as a symbol of the government's commitment to elementary education, and to allow it to go forward as a first step. There will certainly be problems in implementation along the way, but we should be prepared to solve them as they arise, rather than abandon the reform process because of imaginary fears about issues that may or may not arise," says Amit Kaushik, joint secretary in the HRD ministry.

Certainly the RTE Bill, 2005 has been carefully crafted and represents an unprecedented effort of Parliament, the Sibal Committee and the HRD ministry. Nor is Parth Shah of CCS, the sternest critic of the Bill likely to dispute that it represents an important step forward from the moribund status quo. But the essence of his dissatisfaction with the Bill is that it relies excessively upon the education bureaucracy - variously described as appropriate, competent and local authorities - which has dug the elementary education system into a deep hole, to miraculously summon up the resolve and knowhow to deliver meaningful, quality education to 200 million-plus children aged six-14. Moreover the draft Bill is silent on the issue of deregulating education and ending licence-permit raj to permit greater participation by private sector education entrepreneurs who have repeatedly exhibited the capability to deliver high quality school education to all segments of the population.

"I believe that choice and competition should be the guiding principles of education reform. This requires the adoption of three basic principles - deregulation, decentralisation and depoliticisation. Archaic licensing rules, centralisation of decision making and politicisation of curriculums and textbooks have stifled the education system in our country. The licence-permit regime applicable to private initiatives in education needs to be abolished forthwith and the twin principles of autonomy and accountability promoted by the RTE Bill, 2005 need to be made applicable to private schools as much as to government schools," says Shah who advocates a US-style "voucher system" to cover tuition fees upto a specified amount which would leave every student to choose a school - government or private - of his choice (see interview p.32).

Undoubtedly there is considerable merit in Shah's contention that the private or independent school sector which, it is commonly acknowledged, has gifted the nation with a substantial number of globally benchmarked schools attracting students from around the world, has been completely bypassed and ignored by the RTE Bill, 2005. Quite clearly the freedom to promote and establish schools as per the norms stipulated in the Bill should be equally available to private sector educationists subject to the supervision of the SMCs (school management committees) and NCEE (National Commission for Elementary Education).

This is a glaring lacuna in the draft Bill which needs to be set right. Quite evidently the framers of the Bill seem to have momentarily forgotten that this is a free and democratic country in which - as has been repeatedly stressed by the Supreme Court - all citizens have the right to establish and administer educational institutions of their choice for the greater good of the greatest number.

With Vidya Pandit ( Lucknow ); Gaver Chatterjee (Mumbai) & Autar Nehru ( Delhi )

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