Since the Right to Free & Compulsory Education Act, 2009 (RTE Act) became operational from April 1, the misgivings of private school managements and other stakeholders (parents, teachers) have transformed into snowballing fear of creeping erosion of academic and administrative autonomy. Dilip Thakore reports
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A pall of gloom mixed with anxiety and apprehension has descended upon India’s 188,178 private primary-secondary schools, and is snaking into the boardrooms of school trustees, governors and principals’ offices. This gloomy sentiment has been building up ever since the Right to Free and Compulsory Education Act, 2009 (aka RTE Act), unanimously passed by Parliament in August last year, became operational from April 1 this year. And with state governments across the country, which are obliged to implement the provisions of the RTE Act, beginning to publish their rules under this historic legislation, the misgivings of private school managements and other stakeholders (parents, teachers) have transformed into snowballing fear of creeping erosion of academic and administrative autonomy.
The majority of India’s 188,178 recognised private schools (segregated into primary-secondaries receiving financial support from state governments (‘aided’) and financially independent (‘unaided’) institutions) which boast a not insubstantial estimated enrolment of 85 million relatively privileged students drawn from the 200-300 million-strong great Indian middle class, have long histories. While some of them were modeled upon the great public schools of England such as Harrow and Eton, most of them were established by Christian missionaries for the children of British officials and military personnel posted in India during almost 200 years (1757-1947) of imperial rule over the subcontinent. With the passage of time, as also compulsions of economics, they began to admit children of the Indian elite. And contrary to popular expectation, after indepen-dence English medium private schools have not only survived but thrived, acquiring their own unique best-of-east-and-west character, with a growing number of them beginning to attract students from around the world. More-over after the liberalisation and deregul-ation of the Indian economy in 1991, a new genre of upscale international schools affiliated with offshore exam-ination boards has mushroomed across the country, patronised by children of newly wealthy post-liberalisation elites.
Against this backdrop, it’s quite obvious that the country’s 115,620 recognised unaided/independent private schools which have hitherto enjoyed almost complete autonomy from govern-ment intervention, are likely to be hardest hit by the inclusivity provisions of the RTE Act. Although independent school principals and stakeholders welcome this historic legislation which operationalises the 86th Constitution Amendment Act, 2002 and makes it mandatory for the ‘State’, i.e Central, state and/or municipal governments to provide all children aged six-14 years with free and compulsory education, s.12 of the Act which parcels out a part of this obligation to private schools, has aroused numerous misgivings.
In particular, there’s rising fear that for the first time private independent schools will be subjected to mainstream India’s notorious ‘inspector raj’ resulting in the gradual erosion of their academic and administrative autonomy, and dilution of proud standards of education. S. 12 (1) (c) of the RTE Act mandates that all schools including “an unaided school not receiving any kind of aid or grants to meet expenses from the appropriate government or the local authority” shall “admit in class I, to the extent of at least twenty-five percent of the strength of that class, children belonging to weaker section and disad-vantaged group (sic) in the neighbour-hood and provide free and compulsory elementary education till its comple-tion”. S.12 also mandates all pre-schools to admit poor neighbourhood children to the extent prescribed for class I.
While private-aided schools by virtue of accepting subsidies from the Central, state or local government (usually by way of teachers’ salaries) are accustomed to a measure of government interference and direction in matters relating to admission, tuition fees charg-eable, teachers’ terms and conditions of service etc, the managements of independent K-12 schools are shell-shocked by some provisions of the Act, especially the rules drawn up by state governments to implement the RTE Act. Perhaps for the first time, there’s clear and present danger of the much-prized autonomy (a politically-correct euphemism for exclusivity and elitism) of India’s renowned public (i.e exclusive, private) and expensive international schools which attract students from around the world, being eroded by interference from state and local government politicians given to demanding caste-based reservations for teachers and students, and super-vision by notoriously venal inspectors of state governments.
In particular, growing awareness that their traditional right to admit students of their choice is endangered, and of the financial fallout of the Act (which requires the state to reimburse the fees of students admitted under the 25 percent quota only to the extent expended in government schools), has prompted school managements across the country to make common cause to challenge the RTE Act, 2009 and the provisions of s.12 in particular. Consequently the first writ petition has been filed in the Supreme Court against the Union government challenging the constitutionality of the RTE Act and alleging infringement of the fundamental right of all citizens to engage in the “occupation” of managing and provi-ding private education without inter-ference from the State.
Admitting the petition of the Society for Private Unaided Schools of Rajasthan (Writ Petition (C) No. 95 of 2010) on September 5, the court referred the case to a specially constituted five-judge constitutional bench of the apex court, giving the Union government four weeks time to file its reply. “This is a very important case which requires deeply considered adjudication by the constitutional bench of the Supreme Court. The court’s judgement will deter-mine the future of Indian education. I am confident that since all our schools are financially independent of govern-ment, the court will uphold our right to manage and administer our schools without unwarranted interference from government,” says Damodar Goyal, president of the association which has a membership of 105 independent schools with an aggregate 150,000 students.
In the well-drafted 20-page writ petition which Goyal says will be argued in the apex court by renowned Supreme Court counsel and former solicitor-general of India Harish Salve, the petitioners have challenged ss. 3, 4, 6,11-15, 17, 23(i), 24(i) (d) and 29-30 of the RTE Act, 2009 as being unconsti-tutional and ultra vires the Consti-tution; the 93rd Constitution Amend-ment Act, 2005 (which permits the Union government to prescribe reserved quotas for backward caste/classes in education institutions under a new Article 15(5) inserted into the Consti-tution) as invalid “for not specifically excluding private unaided schools from its ambit”; and the 86th Amendment Act, 2002 as “violative of the basic structure of the Constitution for creating a fundamental right of free and compulsory education to all children till the age of 14 years”.
Down south in peninsular India as well, particularly after publication of draft rules under the RTE Act by the Karnataka state government (all the nine members of the committee which drafted the rules are former state government bureaucrats), there’s a rising tide of anger against the Congress-led UPA-II government and Union HRD ministry who educationists believe, have recklessly endangered India’s independent schools system of two centuries vintage, which has shaped and formed the country’s middle class entrepreneurs, engineers and scientists who have transformed “begging-bowl India” into one of the world’s fastest growing economies during the past two decades. In Bangalore the managements of over 40 CBSE affiliated schools with an aggregate enrolment of 60,000 students have united under the banner of MICSA (Managements of Indepen-dent CBSE Schools Association), to file a writ petition in the Supreme Court challenging the wide ambit of the RTE Act and s. 12 in particular.
“India’s middle class which has brought glory to the country has been almost entirely nurtured by the private school system, although private schools constitute only 20 percent of the total number of primary-secondaries in the country. Under s.12 which mandates 25 percent reservation for poor neigh-bourhood children, the autonomy of the private school system built up over the past 200 years is being endangered. This is populism run wild. The compulsory admission and compulsory promotion among other provisions of the RTE Act constitute blatant interference with the management autonomy of private unaided education institutions, expressly forbidden by the Supreme Court’s judgement in the T.M.A Pai Foundation Case. The focus of the Central and state governments should be the upgradation and improvement of government schools — a national imperative in which we are ready to participate and cooperate — rather than target and damage the private school system,” says M. Srinivasan, president of MICSA. An alumnus of Mysore and Connecticut universities (with a Masters in gifted education from the latter institution), Srinivasan is the founder-principal of the CBSE-affiliated Gear Innovative International School, Bangalore (estb. 2001) which has an aggregate enrolment of 800 students.
The indignation expressed by Srinivasan and spokespersons of the private schools associa-tions which are daubing war paint to do battle with the Union government and the HRD ministry in particular, is under-standable. While the RTE Act unequi-vocally imposes the 25 percent poor neighbourhood children burden upon the country’s 188,000 private indepen-dent schools with scant respect for their autonomy or financial viability, it is very dilatory about the obligation of the state and local governments to raise teaching-learning standards in the country’s 930,000 government primaries/upper primaries.
According to Pratham, the highly-respected Mumbai-based NGO which manages 36 supplementary early child-hood learning centres in 19 states across the country and also publishes its Annual Status of Education Report measuring primary education learning outcomes in 575 districts of rural India, 24 percent of class VII children in primaries (90 percent of them govern-ment owned) can’t write the simple sentences (in their own vernacular languages) which they should have learned in class II. Similarly, 40 percent can’t do simple arithmetic sums they should have learned in class II. Moreover the fact that 25 percent of government primary school teachers countrywide are absent on any given day, is a globally notorious Indian statistic.
Yet apart from pious injunctions and homilies directing “appropriate governments” to provide the necessary infrastructure and facilities in government schools; to abolish all exams and testing; withdraw the right of primary/upper primary school managements to deny automatic promotion or expel students on any ground, the RTE Act is soft on government bureaucrats (ss.36 and 37 of the Act gives them immunity for all actions taken in good faith), school managements and absentee delinquent teachers in government schools. School management committees (SMCs) mandated to be constituted under s.21 comprising a majority of parents as also “elected representatives of the local authority” and teachers which were given wide-ranging powers to punish and cut the salaries of non-performing teachers in the first drafts of the RTE Bill, are deprived of these powers under the Act, “neutering” the SMCs, according to Prof. Geeta Kingdon, chair of education at London University (see Expert Comment).
On the contrary, far from being made more accountable for the pathetic conditions in the country’s 930,000 government primaries/upper primaries — characterised by ramshackle buildings, teacher truancy, lack of drinking water and toilets, and poor learning outcomes — failed state government educrats have been invested with great powers under the Act to punish private schools for a plethora of acts of omission and commission. For instance s. 18 of the Act prohibits the promotion of private schools without prior permission of the state and/or local government and enables the prescribed authority to withdraw recognition to already established private schools which do not meet infrastructure norms prescribed by s.19 (including playground, all-weather building, library, one teacher per class, separate toilets for boys and girls, safe drinking water, kitchen for mid-day meal etc). Moreover any person who promotes a school without obtaining a certificate of recognition or continues to run a school after withdrawal of recognition, is liable to pay a fine of up to Rs.100,000 plus Rs.10,000 for each day of contravention. Significantly, schools owned or controlled by the appropriate government or local authority are exempt from obtaining recognition or adhering to infrastructure norms.
Moreover as education is a concurrent subject under the Constitution, implementation of the provisions of the RTE Act enacted by the Centre, has devolved upon state governments. Inevitably the wide powers of recognition and supervision conferred upon “prescribed authorities” (i.e state and local government education inspectors) under the Act have been augmented and amplified. For instance, in the rules drawn up by the Delhi state government, private primaries which don’t pay their teachers as well as government primaries (Rs.23,000 per month as per the recommendations of the Sixth Pay Commission award), are not eligible for recognition under s.18.
The minimum infrastructure norms prescribed by s.19 of the RTE Act and the minimum teachers’ salary stipulation under the Delhi state government’s rules have placed the national capital region’s estimated 20,000 private budget schools (privately-promoted primaries and upper primaries in slum and down-market settlements) in an invidious position, confro-nted with the possibility of forced closure. India’s unique low-budget private primaries driven by committed localised small-time edupreneurs, and feted by Dr. James Tooley, professor of education at Newcastle-upon-Tyne University in his path-breaking book A Beautiful Tree (Penguin India, 2009), have sprung up across the country because of public disgust with the poor quality education dispensed by free-of-charge government schools. Patronised by poor but ambitious parents anxious to provide their children sound primary education, they charge between Rs.300-350 per month per child in urban areas, and Rs.100-150 in rural areas which is the maximum that poor socio-economic households can afford. If they have to adhere to the infrastructure norms stipulated by s.19 and pay teachers’ salaries stipulated under the Delhi state government’s rules, they will have to steeply raise tuition fees or shut down, although s.19 (2) gives them three years time to upgrade.
“Clearly budget schools exist and modestly prosper despite the availability of free-of-charge government school education because they serve a purpose and are demanded by parents. There-fore the stringent norms and standards mandated by the RTE Act need to be diluted to enable budget schools to survive and improve gradually,” wrote Jan S. Rao, associate director of the School Choice Campaign of the Centre for Civil Society, Delhi in Education-World last month (EW September p. 30). Adds management guru and author Gurcharan Das writing in the Sunday Times of India (September 19): “To want to close down institutions that genuinely serve the needs of the poor seems bizarre and immoral.”
There are other bizarre provisions being included in the rules drawn up under the RTE Act by state government educrats to serve their own private purposes. In the southern state of Karnataka (pop. 57 million), under the draft rules (drawn up by the Forum of Retired Education Officers, Bangalore) all private aided and unaided schools in the state will become subject to “inspection by any officer authorized by the state government or any local authority” to determine compliance with the infrastructure norms prescribed under s.19 and the related schedule of the Act. The draft rules also require every school (rather than government) to maintain a record of all children in its jurisdiction (one-three km radius for primaries and upper primaries) “through a household survey from their birth till they attain the age of 14 years” (Rule 6). Moreover the BEO (block education officer) will determine the jurisdiction of each neighbourhood school, and the state government/local authority will determine which children within the jurisdiction of every private school will qualify as ‘poor’ for admission under the 25 percent quota mandated by s.12.
In addition, not content with restricting government liability to reimburse private unaided schools to the extent that the state/local govern-ment spends per child in its ramshackle, rundown schools, under Rule 8(5) the Karnataka government has invested itself with a new power to “grade every private school based on the facilities provided by the school and fix the scale of fee based on a well-defined formula, that can be collected by a private unaided institution”. Therefore under the state government’s RTE rules, independent schools are prohibited from cross-subsidising the low fees paid by government for poor neighbourhood children by levying higher fees on parent stakeholders. A bizarre prescription for bankruptcy and/or leveling down standards.
“The RTE Act amplifies the disincentives for private participation in education by increasing the cost of running private unaided schools by 25-40 percent over eight years. The recurring cost of education — including tuition, uniforms, food, transport, field trips etc — per child in most EducationWorld top-ranked schools is more than Rs.100,000 per child per year. Against this the maximum the Karnataka government intends to reimburse per child is Rs.7,000 per year. Effectively the cost to school or parents of the other 75 percent of children would be Rs.93,000 per child admitted,” says Nooraine Fazal, a former IT, media and venture capital professional and promoter-director of Bangalore’s highly-rated Inventure Academy (estb.2005) which has an enrolment of 520 K-12 students.
Fr. Paul Machado, principal of the K-10 CISCE-affiliated Campion School, Mumbai which has an aggregate enrolment of 800 students and was ranked No.4 in the recently published EducationWorld league table of India’s most respected day schools and second in western India (EW September), is less concerned by the financial implications of the Act than he is by fear of losing administrative autonomy. “Provisions of the RTE Act such as the no-failure, no detention or expulsion of students until class VIII, will surely dilute the power of school managements and diminish the quality of primary education. The Supreme Court has confirmed the right of financially independent education institutions to administer themselves, and it’s plain to all reasonable citizens that we do a much better job of running schools than government. Therefore government should not interfere with the admin-istration of independent schools. Most private missionary schools have already introduced quotas for underprivileged children and are quite capable of managing the 25 percent quota mandated by s. 12 independently in a transparent manner. Under the RTE Act rules, the only proof that a child is from a socially disadvantaged background is a government official’s word. This type of inspector raj is certain to lead to corruption and misuse of power by government officials and needs to be challenged,” he says.
On the other hand experienced educators are critical of the failure of the RTE Act to distinguish between day and residential schools. “While reserving 25 percent capacity in classes I-VIII over eight years may not make much of a difference to a day school, s.12 will impact boarding schools more severely. The RTE Act may compel wholly residential schools to admit day scholars which will alter the character of the school. If underprivileged children are admitted as boarders, they are likely to experience psychological discomfort. Nor is the Act clear about the obligation of schools such as ours which admit children from class IV,” says Praveen Vasisht, principal of the Lawrence School, Sanawar (estb.1847), ranked among the country’s top five boarding schools in the EW-C fore India’s Most Respected Schools Survey 2010.
Indeed liberal private school educationists across the country tacitly acknowledge that the 25 percent quota for poor neighbourhood children, which in the long run will make post-liberalisation India’s uniquely pamp-ered middle and upper class children more aware of the material deprivations of their underprivileged counterparts and learn to empathise with them, is overdue. Yet it’s the fear of state education bureaucrats with a notorious reputation for unwarranted interference and extracting bribes on flimsy pretexts, converting the provisions of the RTE Act and rules to their own nefarious uses, which has triggered a revolt against some provisions of the Act.
“In principle the thrust of s.12 seems just and reasonable because every public or private school has an implicit social responsibility to improve its neighbourhood. But the danger is in its implementation. If government selects these children from within boundaries determined by itself and imposes them upon us with a whole set of do’s and don’ts, undoubtedly it will diminish our academic and administrative autonomy. Unfortunately the RTE Act seems to be part of a concerted effort to expand the control of government over private education. Recently the state government imposed its own fees structure upon 5,934 private unaided schools affiliated with the Tamil Nadu Matriculation Board, forcing the schools’ association to go to high court which stayed the order on September 14. Even CBSE schools have received a similar notification from the state government against which we have made plain our opposition,” says G. Neelakantan principal of the CBSE-affiliated co-ed Sir Sivaswami Kalalaya Senior Secondary School, Chennai which has an aggregate enrolment of 1,478 students.
The blatant attempt made under the pious cover of the RTE Act to extend the control of failed government educrats over the country’s flourishing 188,000 private schools has eroded much of the goodwill that Union HRD minister Kapil Sibal earned when he emerged as the most proactive reformist minister of the Congress-led UPA-II coalition government which was returned to power in New Delhi 18 months ago. Soon after being sworn in, Sibal earned widespread admiration and plaudits for decreeing several overdue reforms such as abolition of annual exams for primary and upper primary children and replacing them with a gradation system; providing a major thrust to vocational education and clearing the decks for the entry of foreign universities and education providers into India.
Yet in retrospect, most of Sibal’s reformist initiatives have been within the soft target private education sector. The much more important — and more difficult — tasks of upgrading the country’s moribund 1 million govern-ment schools, raising their abysmal teaching-learning standards and bring-ing notoriously slacking government teachers to heel, have received insufficient ministerial attention. Moreover within the Union cabinet Sibal has failed to press for the substantially higher budgetary allocations required for educating the world’s largest child population, and even the overdue enactment of the RTE Act is turning into an anti-private schools witch-hunt.
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“As a former top Supreme Court counsel, Sibal should have known that the 25 percent reservation for poor neighbourhood children he has included in the RTE Act, flies in the face of the Supreme Court’s judgements in the T.M.A Pai and P.A. Inamdar cases which expressly forbid government interference with the administration and admission processes of private unaided education institutions. Despite this, instead of focusing his attention on improving the pathetic teaching-learning standards in government schools, he has targeted the small minority of private independent schools, letting the notoriously predatory education bureaucrats of state governments loose on them. This is nothing but cheap populism of the worst kind. Like a bull in a china shop he could destroy the country’s best schools and reduce them to the status of dysfunctional govern-ment schools,” says an irate former top-ranked school principal turned education consultant, speaking on condition of anonymity.
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Nevertheless there are not a few educationists who believe that the over-arching objectives of the RTE Act which decrees higher norms and standards in government and private schools and greater inclusion in the latter, are commendable. They believe that with some tweaking — and in particular by expanding the role of School Management Committees decreed by the Act and involving NGOs — the broader objectives of the RTE Act can be attained. “The overall objectives of the RTE Act — improvement of the quality of primary education, reducing teacher-pupil ratios, switching to continuous evaluation and ensuring greater diversity in schools – are in the public interest. I believe that Akanksha and other education NGOs have a huge opportunity to make the RTE Act work. To make the RTE Act a reality requires a concerted and sustained effort, with government working closely with NGOs and school managements to ensure delivery of high quality education to all,” says Shaheen Mistry, an alumna of Tufts University, USA and founder-CEO of Akanksha (estb. 1989), the well-known NGO which provides supple-mentary education to 3,500 street children in Mumbai and Pune.
Agreeing with critics that in many states the rules drawn up to implement the RTE Act confer “dictatorial powers” upon state and local authority officials, Dr. A.S. Seetharamu, hitherto professor of education at the Institute for Social & Economic Change (estb. 1974) suggests the establishment of an RTE Implementation Committee comprising the correspondent (communications manager), principal, BEO or his nominated representative, a distinguished local social worker (excluding politicians) and PTA (parent-teachers association) representative in every private school. “The RTE Implementation Committee should define the neighbourhood, identify underprivileged children, determine school fees, facilitate admission of eligible children, monitor their progress and submit periodic reports relating to its implementation. Moreover an appeals committee chaired by a retired high court judge should arbitrate complaints against violations of the provisions of the Act,” suggests Seetharamu.
On the other hand Prof. N.S. Ramaswamy, the founder-director of some of India’s finest institutions of higher education including NITIE, Mumbai, the Jamnalal Bajaj Institute of Management Studies, Mumbai and the Indian Institute of Management, Banga-lore who is currently chairman of the Bangalore-based think-tank Cartman, is of the opinion that admission of the writ petitions of private schools associa-tions challenging the ambit of the RTE Act and s. 12 in particular, offers the Supreme Court a good opportunity to review its steadfast opposition to the “commercialisation of education”, which has opened up a pandora’s box of licence-permit-quota regulations result-ing in the stunted growth of Indian education.
“Despite numerous controls and regulations imposed upon private education providers, the plain truth is that education has become a money-spinning business. In the circumstances, why not allow windfall and abnormal profits to educationists who provide society with solutions to felt needs? If rigid government rules and regulations relating to promotion of education institutions — in the US a university can be established by filling up a form on the internet — are removed, thousands of philanthropists, corporate organisations, religious orders and ashrams, and wealthy altruistic citizens would promote education institutions from pre-schools to universities across the spectrum. While hearing the petitions of private school manage-ments, the apex court has a great opportunity to review its sustained opposition to the commercialisation of education. If housing construction, food production, and provision of medical aid can be accepted as commercial activities, why not education provi-sion?” asks Ramaswamy.
Rational as is Prof. Ramaswamy’s argument, the precedents-bound Supreme Court is unlikely to revise its long-standing aversion to commercial-isation of education in the near future. In the circumstances, the writ petitions filed by the Rajasthan Unaided Schools Association and the Bangalore-based MICSA offer the apex court an opportunity to permit private schools to apply the 25 percent poor children from the neighbourhood provision (s.12) liberally, with alternative options to manage neighbouring government schools or establish parallel schools for underprivileged children.
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“The provision to include poor neighbourhood children in private schools is a welcome initiative. Private and independent schools should not become exclusive islands of privilege unconnected with their immediate environments. That’s why we not only welcome the s. 12 provision to induct poor neighbourhood children — next year we’ll have to admit a mere six children in class I — but have voluntarily established a parallel school on our campus offering means-tested nominally priced K-12 education to 300 poor children in the neighbourhood. I don’t agree that the financial obligation imposed by s. 12 on private independent schools — a mere 2-3 percent of our annual income — is onerous. We will easily be able to absorb the price of their tutition and supplementary education,” says Lt. Gen (Retd) Arjun Ray, PVSM, VSM, the Bangalore-based founder chief executive of the IBO (Geneva)-affiliated Indus International School (estb. 2003), ranked among the country’s top three international schools in the recently-concluded EducationWorld-C fore India’s Most Respected Schools Survey, 2010 (EW September). Signific-antly Indus International was ranked No. 1 under the parameter of quality of leadership/management countrywide.
Gen. Ray’s assertion that private independent schools should not be permitted to morph into bastions of privilege, has considerable validity. Particularly after the entry of a spate of expensive high-end international schools into India where students tend to have an exaggerated sense of entit-lement and petty snobbery. Therefore the modest provision in the RTE Act to promote student diversity in indepen-dent schools is an enlightened initiative. However the public interest demands that the long-established academic and administrative autonomy of the country’s legacy independent schools — islands of education excellence which have made huge contributions to the national development effort — is not eroded by failed educrats operating under the cover of the noble intent and purposes of the historic RTE Act.
If that happens, it’s likely to prove the beginning of the end of all efforts to transform the long-pending dream of quality education for all into reality.
With Bharati Thakore (Mumbai) & Hemalatha Raghupathi (Chennai)