Amendments to the Right to Education Bill 2008
Preliminary Remarks:
(i) These amendments address the text of February 2, 2008, of the Right to Education Bill circulated by the Government of India among the Ministries concerned before the Bill could be introduced in the Parliament. Since the Bill is still under consideration by the Government, it may be further revised. But the revisions are not likely to be many.
(ii) The amendments suggested here are not completely inclusive. Only essential amendments are suggested. It is assumed that once some of the basic amendments are accepted, consequential amendments would have to be made. There is no attempt here to suggest such consequential amendments.
(iii) There is also no attempt to suggest exact formulations of the amendments. Only the substance of the amendments to be made are indicated.
(iv) These amendments are confined to the text of the Right to Education Bill. Other issues relating to school education which are of great concern to many of us are not raised here. These include providing compulsory and free education to children in the age group 4 to 6, defining the term “children” to include those in the age group 15 to 18, commodification of education, privatisation of education, likely offer in the primary education sector in the ongoing negotiations on services, in WTO etc. These issues will have to be raised independently in other appropriate forums and contexts.
A. Non-negotiable amendments:(1) Financial implications of the Bill:There is no attempt in the Bill to calculate the financial implications
of ensuring the availability of the various components of free and compulsory education. Some norms and standards are specified in the schedule to the Bill but there is no effort to put any price tags to them. Unless the required financial resources are calculated and provision made in the Bill that the State shall provide them in a time bound framework, the time targets set out in the Bill are unlikely to be met, and free and compulsory education to the children in the age group 6 to 14 is unlikely to be available in the foreseeable future. It is, therefore, necessary to calculate the over-all financial implications of the Bill and submit to the Parliament a Financial Memorandum attached to the Bill.
Regarding financial resources, the assumption in the Bill is that the enhanced financial resources made available to the Sarva Shiksha Abhiyan (SSA), including States’ contribution to it, will take care of the financial requirement. This assumption is not justified. To illustrate this point by one set of figures, it may be pointed out that the total resources for Sarva Shiksha Abhiyan including the contribution of the State governments, in the 11th Five Year Plan is Rs.1,51,453 Crores. This comes to an annual resource allocation of a little above Rs.30,000 Crores. This is far short of approximately Rs.73,000 Crores per annum which was the estimate given by the Expert Group set up by the CABE Committee on the Right to Education Bill.
(2) Norms & Standards:Norms and Standards are the most crucial requirement for ensuring the quality of and equality in school education. The norms and standards given in the Schedule to the Bill are grossly inadequate and skimpy. There are not only numerous omissions like norms regarding availability of school at a particular distance from the habitation of children, types of schools, students per school and per class room, school furniture, laboratories, medical facilities etc., but also a number of the norms are left to be prescribed by the government. This is in spite of the fact that these norms have been specified or prescribed in the recent past by a number of committees, commissions, and agencies of the Government of India. The Schedule, therefore, is a caricature of norms and standards for school education which are essential for ensuring its quality.
(3) Responsibility of Schools to provide free and compulsory education:Section 17(1):
Different scales of responsibility have been assigned to different types of schools for providing free and compulsory education. The net result of this provision will be the perpetuation of different types of schools, some meant for privileged classes and others for the poorer classes. This violates both Article 14 (equality before law) and Article 21A (Right to Education) of the Constitution. This Section should, therefore, be amended to state that “all schools shall provide free and compulsory education to the children in the age group of 6 to 14 years and in the manner specified in the Bill”. Points (i),(ii) and (iii) and the proviso under Section 17(1), should be deleted.
In this connection it may be emphasised that the Common School System is the most effective, if not the only, framework for universalising free and compulsory school education of an equitable quality within a specified period of time. The RTE Bill, therefore, must be rooted in the framework of CSS which must bring within its fold all schools, including private unaided schools, the so-called specified category schools etc.
(4) Exclusion of Non-aided private schools from the obligations under the Bill: Unaided private schools are excluded from a large number of obligations
under the Bill. To give only a few examples, the provision relating to not permitting more than 10 percent vacancies of teachers (Page 24, Section 27(1); Accountability of Teachers (Page 25, Section 30); and Obligations to Constitute School Management Committees (Page 23, Section 25), do not apply to unaided private schools.
(5) Neighbourhood School:The concept of “neighbourhood” is defined (Page 9, aa) in relation to a
child and not in relation to a school. This has the effect of exempting certain schools, mainly unaided private schools, from the responsibility of admitting all the children in the neighbourhood. Both the definition of “neighbourhood” as well as the operative paragraph relating to it (Page 12, Section 3(1)(i) ) should be amended to define “neighbourhood” in relation to a school. In the definition part, it should be stated “as prescribed by the competent authority for each school taking into account the need to optimise the socio-cultural diversity of the children” and in the operative part it should be provided that every school shall admit all the children in the age group 6-14, in the neighbourhood. Without this, the goal of compulsory education for these children is unlikely to be met.
(6) Responsibility of Local Authorities:The Bill, on page 17, Section 13, spells out the responsibility of the Local
Authorities. To discharge these responsibilities, the Local Authorities require both capacity and devolution of finances. The provision regarding the devolution of finances is made in Section 11(2)(i) where it is stated that this will be in accordance with “such formula regarding sharing of cost - - - as the appropriate government may determine from time to time”.
It is difficult to know how long it will take to arrive at such a formula and whether there would at all be a proper devolution of finances to the Local Authorities. The provision made in the Panchayati Raj Act that the State Finance Commission would suggest the formula for the devolution of finances to the Local Authorities has been implemented by only a few States. State Finance Commissions have submitted their recommendations but no action on them have been taken by many States.
Moreover, Panchayats are still in a rudimentary state of evolution in a majority of the States. In one State, no Panchayat elections have been held. In several other States, there is only nominal devolution of authority to the Panchayats. In this context, the provision in the Bill relating to the responsibility of the Local Authorities is unlikely to be implemented in most States in the near future. Taking into account this reality on the ground, the responsibilities entrusted to Local Authorities should be given to the School Management Committees in cases where Local Authorities lack capability, empowerment or resources. Section 13 should, therefore, be amended accordingly.
(7) School Management Committees:Page 23 Section 25
School Management Committee (SMC) is the critical link in the chain of institutions ensuring free and compulsory education of equitable quality to children. The provisions on SMC in Section 25 are utterly inadequate. The total membership of an SMC is not given. A very large SMC can become non-functional. Besides, there is no indication as to how the Chairperson and other office bearers of the SMC would be elected. In many States, local MLAs and M.Ps become Chairpersons of SMC in their ex-officio capacity. This lies at the root of several of the abuses to which the schools are subjected. There must be a clear cut provision that the Chairperson and the other office bearers must be elected by and from among the elected members of the SMC. Moreover, the functions of the SMC (Section 25(3) should be spelt out in greater detail. These functions will have to be considerably expanded particularly because in several States, the SMCs will be required to take over most of the functions that are assigned in the Bill to the Local Authorities.
(8) Language Policy:Page 27, Section 32(2)(iii)
The provision in this Section on language is also utterly inadequate. It only states that the child’s “mother tongue” will be used as the “medium of instruction as far as possible, at least during the first five years of the elementary stage”. This clause does not define the word “mother tongue”. It has to be clarified that the “mother tongue” of a child can be other than Hindi (such as Bhojpuri, Maithali) in a Hindi speaking region, or other than Bengalee or Marathi in a Bengalee speaking or Marathi speaking region etc. Secondly, distinction has to be made between using language as a medium of instruction and teaching a language. Thirdly, a provision must be made in order to start implementing, at least from now onwards, the 3-language formula recommended by the Kothari Commission and in the 1986 National Education Policy and since then reiterated several times by the Government of India. The text in Annex-II to the Legislation on Common School System and Right to Education, recommended by the Common School System Commission, Bihar, provides a good basis for drafting a text on this subject for this Bill. Lastly, the question of choosing the language as a medium of instructions or teaching languages cannot be left to the discretion of the Government, as done in the Bill. It must be a clear-cut legal obligation. It is, therefore, necessary for the Bill to have a separate Annex, fully spelling out the language policy.
(9) Pre-Primary Education:Page 15, Section 8
This Section is of far-reaching importance. There is a very strong view that the fundamental Right to Education should have been extended to at least two years of pre-primary education i.e. to the children in the age group if 4-6 years. There is no such provision in the Bill. This may be understandable because the Bill is designed to give effect to Article 21A, which excludes children below 6 from the Fundamental Right to Education. But, if pre-primary education is to be brought in this Bill, it has to be as a Fundamental Right and not as a Directive Policy. There is, therefore, no place for Section 8, as presently drafted, in the Bill. Provision for pre-primary education under this section is on a best endeavour basis as in the previous Article 45 of the Constitution. Secondly, the provision is applicable only when facilities for providing such education through the ICDS do not exist. The fact is that ICDS covers only a part of the population of the children in this age group, and the education component function of ICDS is discharged only perfunctorily. Section 8, therefore, is of little value and only a camouflage for not extending the Fundamental Right of Education to children in the age group 4 to 6.
(10) Monitoring of Right to Education:Page 29, Sections 36 to 39
It is not desirable to have, as recommended in the Bill, the Commission for the Protection of Child Rights Act, 2005, to monitor the Right to Education. The burden of monitoring the implementation of the Child Rights Act is really onerous which this Commission has only recently undertaken. The full discharge of this function will call for a sizeable expansion of its resources. The Commission will not be in a position to assume the additional burden of monitoring the Right to Education even with the augmentation of its resources that can be expected in the next few years. Besides, the members of the Commission have expertise in the area of child rights and the related fields. They are not necessarily best qualified or competent to deal with the subject of school education. In these conditions, if the monitoring of the implementation of the Right to Education Bill is entrusted to the Commission for the Protection of Child Rights, there is a real danger of the entire process of monitoring the Right to Education being sidelined.
Besides, Commissions for the Protection of Child Rights are yet to be established in several States. It may take many years to do so. The interim suggestion given in the Bill is that the State government may create a State-level authority to discharge the functions of monitoring at the level of the State. This will create a dual system of monitoring in the States and that between the Centre and the State.
It is, therefore, absolutely necessary to create a separate statutory body at the national level, and its counterparts at the State level, vested with the power to monitor the implementation of the Right to Education. Paragraphs 36 to 38 of the Bill would, therefore, require to be drastically amended.
(11) Penalty for Non-compliance:Page 31, Section 41
The inclusion of this Section under the Chapter on the monitoring of the implementation of the Bill, detracts from the very significance of the Bill. The provision under Article 41 is based on the assumption that there would be violations of some of the most crucial provisions of the Bill i.e. those relating to child labour, screening procedures and capitation fees for admission, recognition of schools and application of norms and standards. The implementation of these provisions depends mainly on the political will of the State, its earmarking adequate resources and exercising control over the schools, particularly the private schools. Imposition of fines is the least effective way of ensuring compliance of these measures. As a matter of fact, it may provide to schools, particularly the private schools, the easy way out of paying fines and getting away with non-compliance of the key provisions of the Bill. This section should, therefore, be deleted.
(12) Teachers: – Service Terms & Conditions:Section 28 of the Bill provides for pre-service training of teachers
and enabling those who are not qualified to acquire the necessary qualifications within a time limit. So far as other terms and conditions of the service of teachers are concerned, the Bill leaves it to the State Governments to lay down the rules and norms. This cannot be accepted. The service terms and conditions of teachers should have provided for the levels and scales of their salaries and allowances. This is absolutely essential because without motivated qualified teachers, it is not possible to deliver quality education. When the norms and standards recommended by most of the committees/expert groups and practised in government schools, clearly prescribe salaries and other service conditions for teachers, there is no reason why it should not be provided in this Bill.
(13) Teachers Training & Innovation:At the end of Section 35 (2), it is stated that “teachers shall be
provided opportunities for peer interaction and encouraged to engage in innovation”. It is not clear as to what precise form these opportunities will take and how encouragement will be given for innovation. There are norms laid down for these purposes also, like establishment of teachers forums for peer interaction, the empowerment of this institution, stipends to teachers for research and further studies etc. This clause should, therefore, be enlarged to include detailed and specific norms for achieving the purpose mentioned in it.
(14) Teachers Grievances & Complaints of Citizens regarding Violation of the Provisions of the Bill:
The provision relating to the redressal of teachers grievances is in Section 31 and on citizens complaints regarding the violation of the provision of the Bill in Section 40(3). In neither case, the statutory Commission to be established under the Bill, has been given the standing responsibility for the hearing and disposal of grievances on citizens’ complaints. The relevant provision of the Bill only states that the Commission can take suo moto cognizance of the violation of the Bill. Instead, the Bill should have provided for the Commission being the final authority to hear cases of grievances or violation and dispose of such cases. These should include teachers grievances which are not settled up to the level of the State Government.
(15) Definition of “Working Child” and payment for the opportunity cost of forgoing child labour: Page 11(tt)
The definition should include “children in bondage and those not sent to school because of their being obliged to take care of their siblings”.
In addition, the Bill should provide compensation to a household for the opportunity cost of foregoing child labour. The forms in which such a compensation should be paid is spelt out in the relevant section of the report of the Common School System Commission, Bihar.
B. Other Important Amendments:(I) Definition of Free Education:Page 7, (q)
As in other sections, in the definition of “free definition” also, the Bill leaves the matter vague and at the discretion of the government by using the words “as may be prescribed”. Most of the “other expenses” are very well known and they are charged in one form or the other even in a system of free education. Therefore, there is a need to spell out these expenses. This should include supply of text books, stationary, uniforms, mid-day meal, teaching aids, fees for tests, examinations and use of computers and other instruments, charges for such facilities as games, cultural or artistic performances, library and extra curricular activities etc.
(2) Specification of Schools for admission outside the neighbourhood:There is a provision to this effect in Section 5(1) of the Bill. This
provision should be amended to state that where education up to the level of class VIII is not available, the local authority shall take action to upgrade the present school to that level within, say, a year or two, or build a new school up to class VIII, rather than saying that the prescribed authority would specify another school which may be for removed from the habitation of the child.
(3) Education of Equitable Quality:It is stated in Section 6(4), page 14, that the State shall ensure that
“children in schools receive education of equitable quality”. This provision has no value unless the term “equitable quality” is defined or concretized. The only way this term can be concretized is through norms and standards. This Section of the Bill should, therefore, be reformulated to relate equitable quality to the norms and standards in the Schedule. As already stated, the Schedule itself should be drastically revised and expanded to include almost all the norms and standards which make for quality education.
(4) Prohibition of Deployment of Teachers for Non-educational purpose:Section 23, page 22
The exception made in this Section for deployment for the decimal population census, election to Local Authorities, State Legislatures and Parliament can have a crippling effect on the provision of quality education to children. Some of these events, particularly elections, have now become too frequent. If teachers are deployed for these purposes there will be continuing disruption in teaching. Therefore, deployment for these purposes should also be prohibited. The only exception to be made should be for disaster relief, the duty for which should be equally applicable to teachers in private schools also.
(5) Rules relating to Grant of Recognition:Page 20/21, Section 20(3)
At the end of this sub-section, some of the criteria to be taken into account for framing rules for recognition are mentioned. These criteria are fragmentary and incomplete. The sub-section should simply state that recognition should depend on the compliance with the norms and standards included in the Schedule of the Bill.
(6) Duties of Teachers:Page 25, Section 29
In this Section, teachers are supposed to report on cases of non-compliance to parents or guardians or to SMC. This Section should have provided for first reporting to the Head Teacher.
(7) Freedom of Expression by the Child:Section 32(2)(i)
In this sub-section, the exercise of the right of the child to express her views freely is qualified by the phrase “in accordance with the age and maturity of the child”. This qualification is unnecessary and undesirable as it can be made an excuse for effectively preventing a child from expressing her views. This phrase should be deleted.
(8) Maintenance of Pupil:Teacher Ratio:It is specified in Section 26 that the concerned authority should ensure the
enforcement of the specified pupil:teacher ratio within six months from the commencement of the Bill. This seems unrealistic because ensuring the enforcement of the ratio may call for recruitment of the requisite number of teachers and their training. In another Section of the Bill, it is provided that teachers’ recruitment should be completed in five years. How it is then possible to ensure the enforcement of the ratio within six months?
(9) Not Serving in any School Other than the School of posting:
Section 26(2)
The intention behind this provision is good. But the way it is formulated may imply that a teacher may not serve in another school even on transfer. It is, therefore, necessary to add at the end of the sub-clause the phrase “except on transfer”.
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