## Thursday, April 01, 2010

### The Right to Education Act: A critique

by Parth Shah.

The Right of Children to Free and Compulsory Education Act 2009' (RTE Act) came into effect today, with much fanfare and an address by Prime Minister Manmohan Singh. In understanding the debates about this Act, a little background knowledge is required. Hence, in this self-contained 1500-word blog post, I start with a historical narrative, outline key features of the Act, describe its serious flaws, and suggest ways to address them.

### Historical narrative

After independence, Article 45 under the newly framed Constitution stated that The state shall endeavor to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.

As is evident, even after 60 years, universal elementary education remains a distant dream. Despite high enrolment rates of approximately 95% as per the Annual Status of Education Report (ASER 2009), 52.8% of children studying in 5th grade lack the reading skills expected at 2nd grade. Free and compulsory elementary education was made a fundamental right under Article 21 of the Constitution in December 2002, by the 86th Amendment. In translating this into action, the Right of Children to Free and Compulsory Education Bill' was drafted in 2005. This was revised and became an Act in August 2009, but was not notified for roughly 7 months.

The reasons for delay in notification can be mostly attributed to unresolved financial negotiations between the National University of Education Planning and Administration, NUEPA, which has been responsible for estimating RTE funds and the Planning Commission and Ministry of Human Resource and Development (MHRD). From an estimate of an additional Rs.3.2 trillion to Rs.4.4 trillion for the implementation of RTE Draft Bill 2005 over 6 years (Central Advisory Board of Education, CABE) the figure finally set by NUEPA now stands at a much reduced Rs.1.7 trillion over the coming 5 years. For a frame of reference, Rs.1 trillion is 1.8% of one year's GDP.

Most education experts agree that this amount will be insufficient. Since education falls under the concurrent list of the Constitution, financial negotiations were also undertaken between Central and State authorities to agree on sharing of expenses. This has been agreed at 35:65 between States and Centre, though state governments continue to argue that their share should be lower.

### Overview of the Act

The RTE Act is a detailed and comprehensive piece of legislation which includes provisions related to schools, teachers, curriculum, evaluation, access and specific division of duties and responsibilities of different stakeholders. Key features of the Act include:
1. Every child from 6 to 14 years of age has a right to free and compulsory education in a neighborhood school till completion of elementary education.
2. Private schools must take in a quarter of their class strength from weaker sections and disadvantaged groups', sponsored by the government.
3. All schools except private unaided schools are to be managed by School Management Committees with 75 per cent parents and guardians as members.
4. All schools except government schools are required to be recognized by meeting specified norms and standards within 3 years to avoid closure.
On the basis of this Act, the government has framed subordinate legislation called model rules as guidelines to states for the implementation of the Act.

### A critique

The RTE Act has been criticised by a diverse array of voices, including some of the best economists. MHRD was perhaps keen to achieve this legislation in the first 100 days of the second term of the UPA, and chose to ignore many important difficulties of the Act. The most important difficulties are:
Inputs and Outcomes
The Act is excessively input-focused rather than outcomes-oriented. Even though better school facilities, books, uniforms and better qualified teachers are important, their significance in the Act has been overestimated in the light of inefficient, corrupt and unaccountable institutions of education provision.
School Recognition
The Act unfairly penalises private unrecognised schools for their payment of market wages for teachers rather than elevated civil service wages. It also penalises private schools for lacking the infrastructural facilities defined under a Schedule under the Act. These schools, which are extremely cost efficient, operate mostly in rural areas or urban slums, and provide essential educational services to the poor. Independent studies by Geeta Kingdon, James Tooley and ASER 2009 suggest that these schools provide similar if not better teaching services when compared to government schools, while spending a much smaller amount. However, the Act requires government action to shut down these schools over the coming three years. A better alternative would have been to find mechanisms through which public resources could have been infused into these schools. The exemption from these same recognition requirements for government schools is the case of double standards -- with the public sector being exempted from the same requirements'.
School Management Committees (SMCs)
By the Act, SMCs are to comprise of mostly parents, and are to be responsible for planning and managing the operations of government and aided schools. SMCs will help increase the accountability of government schools, but SMCs for government schools need to be given greater powers over evaluation of teacher competencies and students learning assessment. Members of SMCs are required to volunteer their time and effort. This is an onerous burden for hte poor. Payment of some compensation to members of SMCs could help increase the time and focus upon these. Turning to private but aided' schools, the new role of SMCs for private aided' schools will lead to a breakdown of the existing management structures.
Teachers
Teachers are the cornerstone of good quality education and need to be paid market-driven compensation. But the government has gone too far by requiring high teacher salaries averaging close to Rs.20,000 per month. These wages are clearly out of line, when compared with the market wage of a teacher, for most schools in most locations in the country. A better mechanism would have involved schools being allowed to design their own teacher salary packages and having autonomy to manage teachers. A major problem in India is the lack of incentive faced by teachers either in terms of carrot or stick. In the RTE Act, proper disciplinary channels for teachers have not been defined. Such disciplinary action is a must given that an average of 25 percent teachers are absent from schools at any given point and almost half of those who are present are not engaged in teaching activity. School Management Committees need to be given this power to allow speedy disciplinary action at the local level. Performance based pay scales need to be considered as a way to improve teaching.
25% reservation in private schools
The Act and the Rules require all private schools (whether aided or not) to reserve at least 25% of their seats for economically weaker and socially disadvantaged sections in the entry level class. These students will not pay tuition fees. Private schools will receive reimbursements from the government calculated on the basis of per-child expenditure in government schools. Greater clarity for successful implementation is needed on:
• How will weaker and disadvantaged sections' be defined and verified?
• How will the government select these students for entry level class?
• Would the admission lottery be conducted by neighbourhood or by entire village/town/city? How would the supply-demand gaps in each neighbourhood be addressed?
• What will be the mechanism for reimbursement to private schools?
• How will the government monitor the whole process? What type of external vigilance/social audit would be allowed/encouraged on the process?
• What would happen if some of these students need to change school in higher classes?
Moreover, the method for calculation of per-child reimbursement expenditure (which is to exclude capital cost estimates) will yield an inadequate resource flow to private schools. It will be tantamount to a tax on private schools. Private schools will endup charging more to the 75% of students - who are paying tuitions - to make space for the 25% of students they are forced to take. This will drive up tuition fees for private schools (while government schools continue to be taxpayer funded and essentially free).

Reimbursement calculations should include capital as well recurring costs incurred by the government.
By dictating the terms of payment, the government has reserved the right to fix its own price, which makes private unaided schools resent this imposition of a flat price. A graded system for reimbursement would work better, where schools are grouped -- based on infrastructure, academic outcomes and other quality indicators -- into different categories, which would then determine their reimbursement.

### What is to be done?

The RTE Act has been passed; the Model Rules have been released; financial closure appears in hand. Does this mean the policy process is now impervious to change? Even today, much can be achieved through a sustained engagement with this problem.
Drafting of State Rules
Even though state rules are likely to be on the same lines as the model rules, these rules are still to be drafted by state level authorities keeping in mind contextual requirements. Advocacy on the flaws of the Central arrangements, and partnerships with state education departments, could yield improvements in atleast some States. Examples of critical changes which state governments should consider are: giving SMCs greater disciplinary power over teachers and responsibility of studentsâ€™ learning assessment, greater autonomy for schools to decide teacher salaries and increased clarity in the implementation strategy for 25% reservations. If even a few States are able to break away from the flaws of the Central arrangements, this would yield demonstration effects of the benefits from better policies.
Assisting private unrecognized schools
Since unrecognized schools could face closure in view of prescribed recognition standards within three years, we could find ways to support such schools to improve their facilities by resource support and providing linkages with financial institutions. Moreover, by instituting proper rating mechanisms wherein schools can be rated on the basis of infrastructure, learning achievements and other quality indicators, constructive competition can ensue.
Ensure proper implementation
Despite the flaws in the RTE Act, it is equally important for us to simultaneously ensure its proper implementation. Besides bringing about design changes, we as responsible civil society members need to make the government accountable through social audits, filing right to information applications and demanding our children's right to quality elementary education. Moreover, it is likely that once the Act is notified, a number of different groups affected by this Act will challenge it in court. It is, therefore, critically important for us to follow such cases and where feasible provide support which addresses their concerns without jeopardizing the implementation of the Act.
Awareness
Most well-meaning legislations fail to make significant changes without proper awareness and grassroot pressure. Schools need to be made aware of provisions of the 25% reservations, the role of SMCs and the requirements under the Schedule. This can be undertaken through mass awareness programs as well as ensuring proper understanding by stakeholders responsible for its implementation.
Ecosystem creation for greater private involvement
Finally, along with ensuring implementation of the RTE Act which stipulates focused reforms in government schools and regulation for private schools, we need to broaden our vision so as to create an ecosystem conducive to spontaneous private involvement. The current licensing and regulatory restrictions in the education sector discourage well-intentioned edupreneurs' from opening more schools. Starting a school in Delhi, for instance, is a mind-numbing, expensive and time-consuming task which requires clearances from four different departments totaling more than 30 licenses. The need for deregulation is obvious.

Please support our efforts towards ensuring Right to Education of Choice through some of the activities suggested above. Join our RTE Coalition.

1. Every child from 6 to 14 years of age has a right to free and compulsory education in a neighborhood school till completion of elementary education.

Isn't it odd juxtaposing the word "compulsory" with "a right"?

2. Can RTE do something about the private tutions and coaching? Will RTE further increase the demand of these services?
Its funny it comes into force on April Fool's day without much of a process for an act that can have far reaching consequences.
For that matter,many if not most Acts come into force from April 1,maaybe thats the reason its called Fool's day :)

3. Yet another piece of nonsense by your friendly neighborhood politicians who should now be trusted with this inspite of not having delivered something that should have been done 60 years ago (and was arguably the single most important thing by far that should have been done)?

For a while it looked like MM was/is an economist? Apparently, he's not a particularly bright one or maybe he lacks a spine... same effect.

4. A lot of the analysis/commentary is correct. However, two points which escape me -

1. The objection to teachers wages. The suggestion is to let schools decide their own wages, I guess the way this would work for a Govt school would be to have an upper limit? I see a problem with incentives when the school can hire a teacher cheaper, if there is an upper limit - why would it do so? And how would this be monitored and enforced?

2. The tax on private school students who are not 'weaker section'. If this is not done in this manner, it would be taxed in some other manner. Either ways, its tax payer money. Not sure what perverse incentive this would create except making Govt. schools cheaper.

5. Nice overview, I have been hearing about RTE since last 7 years or so, never understood what it is.

I am going to comment about a total different topic:

Ajay, you are doing a great job disseminating the information on public policy. We need a C-Span kind of channel, where such policies and issues are discussed right from early drafts through the approval and implementation phases. It should be funded by public donations, no commercial ads, focus on the content rather than presentation (i.e. Content should be the focus rather than colorful studios, high pitch presenters, rap music ) . It may not have any impact in a year or two. But, In a five-ten year time period, such a channel can disseminate policy details to a much wider audience, increase transparency and accountability of policy makers, create awareness among a much larger set of public as to what policies are being worked on, how are they being made, what are the positives and negatives etc. Basically, it would be nice if this blog is transformed into TV Channel, with a bigger funding, so more issues could be discussed and disseminated to much wider public.

6. In the Kerala context..this bill is more or less irrelevant. for the folowing reasons

1. Already achieved near 100% school enrolement

2. Already the situation is such that students are dropping out of the aided and government sector and moving to unaided sector in large numbers and there is huge hue and cry over this

7. RTE ia another Act gifted to the country. We know the fate of UGC Act, AICTE Act and RTI Act. It appears these Acts are formulated at a time when it is necessary to divert public minds from real isues. In fact, the Acts; as required, were not introduced immediately after the the Constitution came into force. These Acts have given rise to several litigations with the passage of time and today we are introducing the Foreign Unversity Education in India. The main flaw is the provisions of the Acts are hardly adhered to in letter and spirit. There is no true measure of Process Management and Performance Management is totally missing. All stakeholders of RTE especially officers, teachers, Management need to be made accoutable for performance and the defaulters need to show their places. We need a stick and not a carrot. Wages need to be performance linked only. Basic wages are just to satisfy the basic needs and these will be enhanced on yearly basis as per the perforamce index of the preceding year.Non-performers will be fired.It is not a good policy to change our decisions now and then, improve the the existing system continuously. What has happened to NEP 1986 that says degrees be delinked from jobs?

8. Thank you for all your comments. As a part of the School Choice team, Centre for Civil Society, I'll reply to most here:

Anonymous, Thursday 1 April:
It is 'compulsory' for the government to provide education to all children in the age group of 6-14. It is however not 'compulsory' for parents to send their children to schools even though it is their 'right' to demand for this education. In this sense 'compulsory' and 'right' need not be contradictory or odd to use.

Bagdu, 2 April:
The RTE Act has been created to provide greater access and also improve educational services provided in schools. By improving quality of education it is hoped that the incidence of private tuition and coaching can be limited. Moreover, the Act does not allow school teachers to give tuitions.

Yunhi, 2 April: As of now the government has made it compulsory for all schools to provide high teacher salaries as stipulated by the 6th Pay commission. These salaries limit edupreneurs from setting up schools which cater especially to the poor as their costs increase and they become unaffordable. Instead, we suggest that schools should be allowed to set their own salary structures. If engineers and research associates don't have a minimum salary specified by the government then why teachers?

Prabhakar, 3 April: I am in complete agreement with you that most Act's lead to no real change due to limited implementation. To make sure that this does not happen with the RTE Act I hope that activists, civil society members and concerned stakeholders can all come together to ensure its proper implementation by conducting social audit, creating awareness and pulling up the government when it fails to deliver. If you would like to be part of this movement please join us at www.righttoeducation.in

Shreya Agarwal
Research Associate,
Centre for Civil Society

9. Hi,
I had a question regarding the teachers salaries. I dont see any norms specified in the RTE saying that the salaries need to be same as that of the Govt schools. Section 23 clause 3 says that the salaries may be prescribed. Besides the HRD minister Kapil Sibal had said in a press statement that the schools were free to fix the teachers salaries. Is there some clause in the act that i am not interpreting properly?

10. Hi,
I have a "technical" question regarding the duties and responsibilities of every stakeholder within the RTE Act:
under whom responsibility is it to make sure that the buildings are safe? Who is responsible for any incident? The Proviseur of the school, the SMC, the State?
The act doesn't clearly defines the role of each, do you have further details/informations that could help?
lda

11. Excellent summary and analysis of the Act. RTE is the bill that has the potential to change this country in about a decade from now. But the key is implementation and greater awareness. I appreciate this blog for doing its bit in the awareness part. Apart from this I have seen another blog that is analyzing RTE better than any govt. Publications. Ordinay people need to understand the implications of the Act. weekendpolitician.blogspot.com contains a good analsis and description for any body who want to understand what it is..

--Mihir

12. It's unfortunate Sri Shah doesn't state the obvious - that this new law will actually reduce opportunities for education for 6-14 year olds and increase illiteracy, while promoting corruption, as any legislative "mandate" program does. RTE is a classic govt controlled retrograde law.

13. This comment has been removed by a blog administrator.

14. RTE speaks about the right to have a free and compulsory education , good but as we were taught that with every right there is a duty also .Every parent want their child to be admitted in a public school and when it comes to the payment of fees after the afdmission, it is a sad state of affairs in some cases . What is the provision for such cases in the RTE?

15. It is 'compulsory' for the government to provide education to all children in the age group of 6-14. It is however not 'compulsory' for parents to send their children to schools even though it is their 'right' to demand for this education. In this sense 'compulsory' and 'right' need not be contradictory or odd to use.

would like a clarification on is it not compulsory for a parent to send the child to school. if a villager decides that he doesnt want to send the child to the rotten govt. school and there is no other option. is he free to do that. as the teachers are told that there should be 100% enrolment.
what about home schoolers and alternative schools ?
aslo the whole discussion is about schooling not education and also we have to address the question about the worth of schooling which fails 98% children by the 12th class.

16. recently i came across a situation where
A child whose parents are illeterate enrolled him into an unrecognised school for his primary education...
and now after years when that kid has completed his 4th grade, he finds that the school does not provide further education..
and almost all the schools in the vicinity have denied admission for further studies...
so what i want to know is:
what should be done now?
is there any authority or something of similar kind which can help??

17. RTE has simply killed the Indian Education System. RTE if implemented in strict sense will eventually kill both aided and Unaided schools. I need not to talk about Govt schools because they are almost dead due to wrong policies of Govt. The day is not too long when affluent class will have no option than to send their kids abroad for School Studies. RTE is sheer Populist nonsense.

18. R.N.Bhaskar wrote this in the DNA on 21 May 2010 (http://www.dnaindia.com/opinion/column_sibal-s-kiss-of-deathr_1385602
21)
Sibal's kiss of deathr

Kapil Sibal, the Union minister for human resources development (HRD), is a man in a hurry.That
could explain why he has overlooked obvious loopholes in his Right to Education Act (RTE) which could virtually decapitate India’s education. The same could be said about his draft Foreign
Universities Bill.
Take the RTE first.Three provisions of the Act have consequences that could mean the virtual collapse of school education in India.
Consider these clauses:
Chapter II , 4 says: Where a child above six years of age has not been admitted in any school or, though admitted, could not complete his or her elementary education, then he or she shall be admitted in a class appropriate to his or her age.
ChapterIV, 16, says: No child admitted in a school shall be held back in any class or expelled from
school till the completion of elementary education.
And Chapter IV, 17 says: No child shall be subjected to physical punishment or mental harassment.
Collectively, these provisions will make it impossible for any teacher to teach his or her students effectively for several reasons.
More on the website...

19. This is yet another ridiculous vote-garnering act that, as usual, will end up screwing the middle class. These id$%^ts pass acts and determine prices without any common sense. The school will do nothing but simply pass it on to the 75% earning and tax-wasting middle class (i call it tax wasting since whatever has and will be paid is being put to utter waste, e.g. the government schools). When the government is unable to effectively run a simple government school system, they divert people's attention from real issues by tampering with education and private school governance. Real class act. To top it, this id$%^t Sibal wants to introduce CBSE-i, which is yet another money-grubbing worthless system.

20. What a depressing state of affairs! I wish you all the best with your proposed "sustained engagement with this problem".

21. What is the meaning of primary education as per RTE act, i.e up to which class??

22. hey you are violating the rules of copyright of CFOconnect , take this page down or i will have to report the violation of rules ----
http://righttoeducation.in/sites/default/files/cfo-connect_rte-critique_may2010.pdf

23. If RTE act is implemented what small budget school do. how do they salaries or manage the infrastructure as prescribed by the RTE act. all these acts are silly and cannot be put in action. everyday a innovative education is penetrating into this industry if one wants to give technology based education or through some innovative method it is going to cost. what about the huge playgrounds and equipment. is the government going to pay up.

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