THE RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION BILL, 2009 FAILS THE TEST OF CONSTITUTIONAL MANDATE
Ashok Agarwal, Advocate & Social Activist
The Right of Children to Free and Compulsory Education Bill, 2009 (hereinafter referred to as RTE Bill, 2009) passed by the Parliament on 4th August 2009 though appears to be a progressive legislation but on examination thereof, it is not difficult to conclude that the same does not stand the test of constitutional mandate guaranteed under Article 14 (right to equality), Article 21 (right to life with dignity), Article 21-A (right to education) and Article 38 (right to social justice) of the Constitution of India.
Undoubtedly, some of the provisions of the RTE Bill, 2009 are laudable. Section 3 talks of right to free and compulsory education and admission in a neighbourhood school. Section 4 talks of admission of child in class appropriate to his or her age. Sections 8 & 9 talk of obligations of the government to provide compulsory education to children. Section 12 talks of obligation of the unaided recognised private schools to provide free seats to the extent of 25% to the children of the economically weaker sections. Section 13 (1) talks of “no capitation fee” and “no screening procedure” for admission. Section 14 talks of admission without insisting upon production of age proof. Section 16 talks of “no expulsion of a child”. Section 17 bans corporal punishment. Section 23 talks of formation of school management committees. Section 23 ensures recruitment of only qualified teachers. Section 25 talks of ensuring Pupil-Teacher Ratio as specified in the schedule. Section 32 talks of grievance redressal mechanism.
On the other hand, several provisions of the RTE Bill, 2009 are meant to legalise and to perpetuate the existing unjust and discriminatory school education system based on socio-economic status. Section 3 (b) defines “capitation fee” means any kind of donation or contribution or payment other than the fee notified by the school. The import of this provision is that a school is free to notify any amount of fee whether needed or not and once it is notified, it will be legal. The Bill does not provide any fee regulatory mechanism to check the menace of commercialisation of education. Moreover, the right of every child to receive free and compulsory education as guaranteed under Articles 21 and 21-A of the Constitution does not depend on the capacity of the parents to afford fee or not. Therefore, every child whether studying in private or State-run school, is entitled to free education. The State should bear the entire expenses even of the children studying in private-run schools. On the other hand, Section 8 disentitles a child studying in such private school even to claim from the State the reimbursement of expenditure incurred.
Section 2 (n) instead of permitting only same category of schools for all the children, sanctifies different categories of schools for the children of different socio-economic status. Most objectionable is; “a school belonging to specified category”. Section 2 (p) defines “specified category” in relation to a school, means a school known as Kendriya Vidyalaya, Sainik School or any other school having a distinct character which may be specified by notification, by the appropriate Government. How can you have such a specified category of school with ‘State Funding’ which does not provide equal opportunity to all the children in the matter of admission? That providing only 25% of seats to the children of weaker sections in such ‘specified category of school’ is a cruel joke.
Section 7 talks of sharing of financial responsibilities between the Centre and the States. It appears that the Central Government does not want to provide funds to the States uniformly. The State Governments cannot insist upon the Central Government to provide funds more than what is provided under Section 7 (3). The State Governments have been made responsible to provide funds for implementation of the Act. It is submitted that unless the Central Government takes upon itself to provide entire funds for the implementation of the Act, the object of the Act is not possible to be achieved, particularly when the State Governments have publicly declared their inability to implement the Act on account of paucity of funds.
Section 10 talks of duty of parents to admit his child in neighbourhood school. It is submitted that the duty of parent is alright but where is the duty of the State to bring the child to the school. The State has completely absolved itself of such duty. Section 13 (2) provides punishment with fine against a school, if it is found violating the provisions relating to ‘no capitation fee and screening procedure for admission’. Interestingly, the Central Government has lost sight of the fact that if a school is punished with fine; such amount of fine would simply be passed on by the school to the children by levying the same in the fee slip. It is submitted that thereby it is the child and not the school which would be punished. What is required is the punishment with imprisonment and not merely punishment with fine.
Section 26 permits the Government to keep the vacancies of the teachers unfilled up to 10% of the total sanctioned strength. It is a well known fact that on average 10% of the teaching staff at a time remains on leave for one reason or another. Therefore, there is a need to have 10% extra teaching staff instead of reducing it by 10% as contemplated in the RTE Bill, 2009. Section 31 talks of monitoring of child’s right to education by NCPCR. Experience with all the Commissions including NCPCR is that all these Commissions work like the department of the Government. Moreover, the Government has not so far appointed full strength members in the NCPCR. It is submitted that the District Judge of every district in the country, should be entrusted with the work of monitoring of child’s right to education. I am conscious of the fact that the Hon’ble Judges are already burdened with deciding so many pending cases but one can not lose sight of the fact that the right to education is a most precious human and fundamental right and any further delay in implementation of the same would be a great peril to the nation. The Bill is also mute on accountability of the authorities. Unless there are provisions for the penalties against the erring authorities at least similar to those available in the Right to Information Act, 2005, it is really doubtful if the authorities would honestly perform their tasks.
Our constitutional goal is to achieve a casteless and classless society as has been highlighted by a seven-judge bench of the Hon’ble Supreme Court in the recent decision in OBC reservation in educational institutions case. The Government should have brought a Bill which would have directions towards casteless and classless society. However, the Bill in the present form, on the other hand, perpetuates the inequality and unjust discrimination among children in the matter of right to education. That while expressing the above concerns regarding the serious drawbacks of the RTE Bill, 2009 particularly when it fails the test of Constitutional mandate, it cannot be over emphasised that the passing of the Bill is a welcome step. It will undoubtedly open the Pandora’s Box for a national debate on the same in the interest of the future of the children.
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