Comment
A futile act
THE Right of Children to Free and Compulsory
Education Act 2009 was notified to come into force
from 1 April 2010. The 86th Amendment to the Con-
stitution (2002) that guarantees education as a funda-
mental right, the 2009 Act, and finally the notification,
have been hailed by many as landmarks in the history
of development of education in the post-independence
period. They are no doubt important developments. But
they also signify our conspicuous failures of fulfilling,
even 60 years after the Constitution came into force,
the Directive Principle 45 of the Constitution (1950)
that promised to provide free and compulsory educa-
tion to all children within a period of ten years. Had
the Directive Principle been implemented in letter and
spirit and accomplished even with a delay of forty years
after the deadline, the need for the 86th Amendment
and the act would not have arisen.
Even after sixty years, along with an impressive
progress, one notices major problems in terms of the
daunting numbers of children outside schools, high
rates of dropout, poor infrastructure facilities, high
pupil-teacher ratios, high degree of inequality in the
quality of education received by various socioeco-
nomic strata of the society and, above all, deplorably
low levels of learning of children. Inter alia, the prob-
lems are attributed to the vagueness and ambiguity in
the Directive Principle, which did not define ‘free’ in
free education, and even ‘education’. It was felt that
the rulers in independent India would be enlightened
ones and hence there was no need for elaborate and
rigid definitions. This proved to be too high an expec-
tation as governments in subsequent periods tried to
give a distorted definition of free education, which too
was not strictly adhered to, and defined all types of edu-
cation – formal, non-formal, informal and distance
learning – as education.
The government’s half-hearted attempts and fail-
52 ures necessitated new developments. The Supreme
Court judgement in 1992 that proclaimed that ‘the citi-
zens of this country have a fundamental right to edu-
SEMINAR 610 – June 2010
cation… every child/citizen of this country has a right
to free education until he completes the age of four-
teen years’ finally left no choice to the government but
to make the constitutional amendment and now the act.
It is also important to note that the Supreme Court, in
what is regarded as one of the most enlightened judge-
ments in judicial history, observed that the fundamen-
tal right to education flows from the right of the people
to live – to live like human beings with dignity. It is,
therefore, necessary to examine the act and its provi-
sions in this background – whether they are in line with
the letter and sprit of the judgement and the Directive
Principle 45 of the Constitution. While there are some
positive aspects in the act, they are minor; many seem
to be problematic and they are indeed major issues.
While the act defines ‘free’ education in a
much better way than what is practiced, it is still not
comprehensive enough. According to the definition
adopted until recently, it meant tuition fee-free educa-
tion; schools both public and private, were allowed to
charge different types of other fees, sometimes even
tuition fee. Though the act now prohibits all kinds of
fees, including capitation fee and other charges ‘which
may prevent him or her from pursing and completing
the elementary education,’ it at the same time leaves
scope to the authorities to decide whether a particular
fee/charge prevents a child from going to school or not
in a particular context. Instead the act should have sim-
ply and clearly promised prohibition of all kinds of fees
and payments to schools without any qualification, and
also to provide all necessary learning material like text-
books and stationery, uniforms, and noon meal to every
child, some of which are already being provided. In a
sense, the concept of free education is still left to the
interpretation of our authorities.
Second, as a part of compulsion, the act makes it
obligatory on the part of the government to provide free
elementary education to every child – ensure compul-
sory admission, availability of a neighbourhood
school, no discrimination, and good quality education.
Unlike as the Directive Principle which is non-
justiciable, the act finally makes it compulsory for the
government to act. Yet, little compulsion on the par-
ents to send the children to schools is indicated in the
act. Similarly, while the constitutional amendment
makes it a fundamental duty for the parents ‘to provide
opportunities for education to his child...’, but again,
there are some problems. The concept of neighbour-
hood schools, promised by the act, is not the same as
the one that is understood by the educationists and
argued by the Kothari Commission. If at all, the act
actually misleads the people on this issue. The geo-
graphical limits of ‘neighbourhood’ are also left to be
decided later. Further, the quality of education is
defined in terms of ‘norms’ given in the schedule.
While the norms referring to teachers, number of work-
ing days/hours of schools, and so on, are somewhat
clearly defined in the Schedule, most other norms such
as teaching learning equipment, library, play material,
play grounds, size of the classrooms etc., are left
unspecified; they shall be provided ‘as required’. It is
only recently that the government stated that all schools
in the state will be of the standard of Kendriya
Vidyalayas in terms of resource endowments. But no
such statement is incorporated in the act.
Third, historically, while few countries in the
world relied on private schools for universalization of
elementary education, the act not only allows the
existence of private schools, but also promotes their
growth. According to the act, private schools that do
not receive any financial aid from the state, have to
admit and provide free education to 25 per cent of the
admissions in grade I, whose costs will be reimbursed
by the state to the schools on a per student expenditure
basis. The private schools have already gone to court
contesting this provision. But it is important to note
that when private schools receive indirect subsidies in
the form of subsidized land and tax concessions, is it
not right to expect them to provide free education with-
out reimbursement, as in case of private hospitals? But
the act promises to reimburse the costs. The reimburse-
ment scheme is a different form of school vouchers, a
method least practiced in case of elementary education
even in those few countries where it is adopted for
secondary or higher levels of education. The adoption
of a good common school system would have meant
gradual disappearance of private schools. After all, pri-
vate schools are today the single most important source
of inequalities in education in the country.
Fourth, the act provides for different layers of
administration starting from central government, state
government, local authority, school management com-
mittee etc., to issue guidelines. The school manage-
ment committee has been given the main responsibility
of providing free and compulsory education. In a sense,
through a seemingly decentralized mechanism, the
higher levels of government tend to abdicate their
responsibilities and leave the whole task to the lowest
unit. This is clearer when it comes to funding, an issue
which was believed to be mainly responsible for the
delay in making the amendment and later the act. While
the concurrent responsibility is recognized and it was
stated that the central and state governments shall
have concurrent responsibility for providing funds, the
final responsibility is entrusted with the state govern-
ment. The act states, ‘Notwithstanding anything… the
state government shall …be responsible to provide
funds for implementation of the provisions of the
Act.’ (I have discussed this and other issues relating
to financing the act in ‘Who will Foot the Bill?’
Sahara Time, 17 April 2010).
Fifth, the act is meant to operationalize the 86th
Amendment that made education a fundamental right,
a justiciable right. But according to the act, it may not
be possible for any person to approach the courts in this
regard, as any prosecution requires prior sanction of
the appropriate government, which in effect may mean
no prosecution. The act almost prohibits all legal
proceedings against any one in this case when it states,
‘No suit or other legal proceedings shall lie against the
central government, the state government, the National
Commission for Protection of Child Rights, the State
Commission for Protection of Child Rights, the local
authority or the school management committee, or any
person, in respect of anything which is in good faith
done or intended to be done, in pursuance of this Act,
or any rules or order made thereunder.’ One wonders,
what is justiciable in it now?
Above all, the act lacks a long term vision of
development of education. In the long run, one would
expect free and compulsory education to be developed
into a common school system, essentially a public
school system, covering the whole school education
upto grade XII and until 18 years of age, that would
ensure equitable quality of education to every child,
and which would promote common national and uni-
versal human values for the development and suste-
nance of a humane society. The long struggle for the
enactment of free and compulsory education seems to
have been futile, as it promises nothing of this sort. 53
Jandhyala B.G. Tilak
SEMINAR 610 – June 2010