“I beg to place the following resolution before the council for its consideration.…the state should accept in this country the same responsibility in regard to mass education that the government of most civilized countries are already discharging and that a well considered scheme should be drawn up and adhered to till it is carried out.. The well being of millions upon millions of children who are waiting to be brought under the influence education depends upon it...”
 
The above words are part of the resolution which Gopal Krishna Gokhale moved in the Imperial Legislative Council on 18th march, 1910 for seeking provision of ‘Free and Compulsory Primary Education” in India. This initiative must however be seen as part of the following sequence of events:

1870: Compulsory Education Act passed in Britain

1882: Indian Education Commission: Indian leaders demand provision for mass

education and Compulsory Education Acts.

1893: Maharaja of Baroda introduces Compulsory Education for boys in Amreli Taluk.

1906: Maharaja of Baroda extends Compulsory Education to rest of the state.

1906: Gopal Krishna Gokhale makes a plea to Imperial Legislative Council for

introduction of Free And Compulsory Education

1910: Gokhale proposes Private members Bill (Rejected)

1917: Vithalbhai Patel is successful in getting the Bill passed - First Law on

Compulsory Education passed (Popularly Known as Patel Act)

1918-: Every Province in British India gets Compulsory Education Act on its

1930 Statute Book

1930: Hartog Committee Recommendation for better quality (less focus on quantity)

hinders spread and development of primary education

Many of these initiatives, however, were not seriously implemented; lack of resources and enforcement being the chief reasons.

The situation worsened over the years forcing Mahatma Gandhi to give a stirring call for universal education in 1937. His plea for adequate finances for universal education was met with a response that if at all, the way out was to utilize revenues from liquor sales. That meant he had to either give up his stand on prohibition, or his plea for universal education with state support, which he expressed quite plainly: “the cruelest irony of the new reforms lies in the fact that we are left with nothing but liquor revenue to fall back upon in order to give our children education (Harijan 5, 222). He solved what he called the ‘Educational Puzzle’ by proposing self-funded education, in what came to be known nai talim later.

1946: Constituent assembly began its task

1947: Ways and Means (Kher) Committee set up to explore ways and means of

achieving Universal Elementary Education within ten years at lesser cost.

1947: Constituent Assembly Sub committee on Fundamental rights places free and

compulsory education on list of Fundamental Rights :

“Clause 23- Every citizen is entitled as of… right to free primary education and it

shall be the duty of the State to provide within a period of ten years from the

commencement of this Constitution for free and compulsory primary education for

all children until they complete the age of fourteen years.”

1947 (April): Advisory Committee of the Constituent Assembly rejects free and

compulsory education as a fundamental right (costs being the reason). Sends

clause to list of “non - justiciable fundamental rights” (later termed as ‘Directive

Principles of State Policy).

1949: Debate in Constituent Assembly Removes the First Line of ‘Article 36’…“Every

citizen is entitled as of right to free primary education and it shall be the duty of

the State to..” and replaces it with “The State shall endeavour to..”

Why was the word ‘primary’ education removed? … “ a provision has been made

in article 18 , to forbid any child being employed below the age of 14. Obviously

if the child is not to be employed below the age of 14, the child must be kept

occupied in some educational institution. That is the object of article 36..”

-Sh B. R. Ambedkar, 23rd Nov. 1949

1950: Finally, Article 45 of Directive Principles of State Policy accepted: “The State

shall endeavour 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”.

This denied a justiciable right. The inadequacy of the final Article 45 was foreseen

by K.T. Shah in his note of dissent in April 1947 thus:

“Once an unambiguous declaration of such a (justiciable) right is made, those

responsible for it would have to find ways and means to give effect to it. If they

had no such obligation placed upon them, they might be inclined to avail

themselves of every excuse to justify their own inactivity in the matter,

indifference or worse”.

These words of K. T. Shah proved prophetic. On the fate of Article 45 after independence, the noted Gandhian economist L.C. Jain has observed that there was no reference to education in any of the budget speeches during the ten year period after the adoption of the Constitution, which was the time target envisaged by Article 45. It should therefore be clear that the plea of lack of resources made even Gandhi think of alternative methods, and Babasaheb Ambedkar to accept dropping the draft Article 36 from the final Constitution. Many shortcomings of the 2009 Act, like excluding the 0-6 and 14-18 age groups stem from the same lack of resources argument, and even the fate of the implementation of the 2009 Act will crucially depend on the availability and proper utilization of adequate finances. In this context, where as it is heartening that the Prime Minister in his unprecedented address to the nation on the Act on April 1, 2010 said that financial availability will not be allowed to hamper the implementation of the Act, one hopes that this promise to the nation will inform state policy in the coming years.

The Supreme Court in 1993 held free education until a child completes the age of 14 to be a right (Unnikrishnan and others Vs State of Andhra Pradesh and others) by stating that: “The citizens of this country have a fundamental right to education. The said right flows from Article 21. This right is, however, not an absolute right. Its content and parameters have to be determined in the light of Articles 45 and 41. In other words, every child/citizen of this country has a right to free education until he completes the age of fourteen years. Thereafter his right to education is subject to the limits of economic capacity and development of the State.”

Spurred by the Unnikrishnan judgment and a public demand to enforce the right to education, successive governments from 1993 worked towards bringing a constitutional amendment to make education a fundamental right. That led to the 86^th amendment in December 2002 which inserted the following articles in the Constitution:

1. Insertion of new article 21A- After article 21 of the Constitution, the following article shall be inserted, namely:-

Right to education.-

"21A. The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine."

2. Substitution of new article for article 45- For article 45 of the Constitution, the following article shall be substituted, namely:- .

Provision for early childhood care and education to children below the age of six years.

"45. The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years."

3. Amendment of article 51A- In article 51A of the Constitution, after clause (J), the following clause shall be added, namely:-

"(k) who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years."

The original Article 45 of the Directive Principles had used the term ‘up to 14 years’ and the Unnikrishnan judgment said ‘till he completes the age of 14 years’. Both these definitions contain the age group 0-6 years. Article 21A restricted the age group from 6 to 14, thereby removing the 0-6 age group from the right; relegating it to the new article 45 of Directive Principles. The Unnikrishnan judgment had further observed that the right to education existed and would not be contingent upon the economic capacity of the state up to 14 years of age. Article 21A said that it would come into force ‘in such manner as the State may, by law, determine’. So it was made contingent on a law that the state may bring in. This Act is that law, and it took another eight years to come since the 86^th amendment was passed. So it took seventeen years for the right to be enforced since the Unnikrishnan judgment, that too for the restricted age group of 6 to 14 years. It may be noted here that it was the Parliamentary Standing Committee on Education that recommended the age group 6 to 14 years for the eventual 86th constitutional amendment, paving the way for the restricted age group.

After the 86^th amendment in December 2002 the following actions took place:

• 2003: The Free and Compulsory Education For Children

Bill, 2003 (NDA government)

• 2004: The Free and Compulsory Education For Children

Bill, 2004 (NDA government)

• 2005: The Right to Education Bill, 2005 (June) (CABE Bill) (UPA I government)

• 2005: The Right to Education Bill, 2005 (August) (UPA I government)

• 2006: Central legislation discarded. States advised to make their own Bills based

on The Model Right to Education Bill, 2006 (UPA I government)

• 2008/9: Central legislation revived. The Right of Children to Free and

Compulsory Bill, 2008, introduced/ passed in Rajya Sabha

and Lok Sabha. President’s assent in August 2009. However, the

notification of the Act and the 86^th amendment, issued on Feb 19, 2010 in

the Gazette of India, stating that implementation will begin from April 1,

2010, eight months after the presidential assent. (UPA II government).

Notice that the word ‘Right’ was missing in the first two drafts of the Bill and was used from the 2005 CABE bill onwards. The central legislation was dropped in 2006 in preference to state legislations based on a token model bill draft, for the recurring ‘lack of central resources’ argument, but it was intense public pressure based on independent financial estimates that made it possible to revive and bring back the central legislation in 2008.

This Indian Act is unique from amongst such Acts from many other countries for the following reasons:

• the definition of ‘free’ that goes beyond tuition fees

• the ‘compulsion’ being on the governments rather than on parents

• the stress on ending discrimination, and on inclusion

• prescribing quality principles for the teaching-learning process

• an external constitutional body for monitoring the Act

• defining minimum norms and standards for the school

• addressing the emotional, stress and anxiety issues of children

The Act is also momentous since it took over a hundred years to bring it in. If we take 1857 war as the milepost for the fight for India’s independence, it took ninety years, up to 1947, for that to become a reality. But for the Right to Education, it has taken a decade longer, sixty two of those years being after the nation became independent. That gives the Act a very serious historic significance.

They would have to be brought in conformity with the central Act. As per article 254 of the constitution reproduced below, a state Act can not violate the provisions of the central Act in a concurrent subject. States could amend such a central act, but that would require presidential assent. However, if the state Act contains anything on which the central Act is silent, then that may remain as a part of the state Act.

254. (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause

(2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(3) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.

Education being a concurrent subject under the constitution, meaning both the central and state governments have responsibility for it, appropriate government in the Act refers to either of these governments, or the government of a Union Territory with a legislature (like Delhi). The full definition is at 2(a) in the Act.

As mentioned earlier, by confining the Act to Article 21A. The government’s decision to do so has obviously got Parliamentary approval with this Act. The original Article 45, and the Unnikrishnan verdict both include the age group 0-6. The Juvenile Justice Act defines a child up to age 18. The United Nation’s Child Rights Convention (UNCRC), to which India is a signatory, also defines a child from 0 to 18. In principle, by referring to the JJ Act, the UNCRC and Article 21 (right to life) in the Aims and Objects of the RtE Act, the age could have been defined from 0-18. However, citing economic compulsions, the present Act has been confined to the age group 6-14 as contained in Article 21A. A great deal of public pressure would need to be kept up in order to have the Act amended to incorporate the 0-18 as the age of the child.

The Act makes school education a tripartite partnership between the community (school management committees), the PRIs, and the government. As is evident from definition 2(h), the purpose of defining a local authority is to decentralize administrative control by bringing in panchayati raj institutions. However, since differing situations exist in states, the term is flexible and it is left to the state governments to notify an appropriate local authority. For example, Jharkhand continues to be a state where panchayat elections have still not been held, and West Bengal already has a Primary Education Council that it may decide to designate as the local authority. Similarly NE states like Meghalaya have District Councils, which they may want to retain as ‘local authority’.

Section 2(k) only defines the parents of a child, and section 10 also refers to parent’s duty in ensuring education of their children. However since under Section 8 (explanation (i)), the ‘compulsion’ is on the state and not on parents, the appropriate government shall have to take the responsibility to ensure education of children without parents.

Where ever the word ‘prescribe’ occurs, it implies that the appropriate government shall make relevant rules.

At section 2(n), four categories are defined: (i) funded and managed by the government or local authority, (ii) private but aided by the government or local authority, (iii) schools defined under special category, like Kendriya Vidyalaya, Navodaya Vidyalaya, Sainik School, school under the Central Tibetan Schools Association and similar others, and (iv) private schools receiving no aid from the government or local authority.

Any test or interview/interaction of the child or interview/interaction of parents would constitute a screening procedure to admit one child over another. Section 2(o) along with Section 13(2)(b) prohibits any of these screening procedures and calls for only random procedures to be used for admitting a child to school. This prohibition would apply to all schools, private or special category schools like Navodaya schools too. No school can claim special category status because it indulges in screening procedures at the elementary level. Random procedure implies that if the number of children applying to a school exceeds the available seats, an open lottery system shall be used to fill the seats. This applies to all categories of schools. Various methods could be employed for the open lottery system, the easiest being having name/number for each child that applied on a folded paper slip in a container, out of which children themselves fish out one each randomly, in the presence of parents in an open transparent manner.

Children belonging to disadvantaged groups are defined at 2(d). These include children from SC/ST, and other socially and educationally backward categories based on cultural, economical, social, geographical, linguistic, gender or other categories that the appropriate governments can separately notify. Appropriate governments can for example notify different categories in different districts and sub-districts of the state, educationally backward religious communities, for example as identified by the Sachar Committee and so on. Weaker sections as defined at 2(e) are children belonging to weaker economic categories that the appropriate governments have to notify, based on a minimum annual income of the parents/guardians.

The main challenges is to implement the 25 per cent reservation for poor students, keeping all children in school until class V while reaching acceptable standard learning levels, monitoring private schools’ recognition, establishing School Management Committees that function well, and all done with similar mechanism in all States and Territories.

Free education is often meant to imply waiver of tuition fees. But tuition fee is only a part of educational expense, and poor families are often not able to raise other expenses needed for education. These could include textbooks, copies and writing material, uniforms, transportation, educational and support materials for disabled children (hearing aids, spectacles, Braille books, crutches and so on), or even library fee, laboratory fee, etc. which are not covered under tuition fee. The phenomenon of drop-outs in particular is related to inability of parents to meet the educational expense of their children, often daughters, somewhere during the course of elementary education. Keeping this in mind, the Act at Section 3(2) enlarges the term ‘free’ by mandating that “no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education”. A list of free entitlements is made explicit in 5(1) of the Model Rules, but it is not restrictive; as per Section 3(2) of the Act, if any other charge or expense, other than that listed in Model Rules 5(1), for example, free residential facilities for children whose parents migrate, prevents a child from pursuing or completing elementary education, the state shall have to provide it.

In a country like India where such a large majority of parents are poor, migrate for work, do not have support systems, putting compulsion on them, with punishment, would imply punishing them for being poor – which is not their choice. As the well-known educationist J.P.Naik once jocularly remarked, if parents are sent to jail for not sending their children to schools, there may be more parents in jails than children in schools!

Section (10) of the Act makes it the duty of the parents to ensure that their children go to schools, without prescribing any punishment. This implies that SMC members, local authorities and community at large must persuade reluctant parents to fulfill their duty. For child labour and street children, the government would have to ensure that they are not compelled to work and provide schools for them, perhaps residential in many instances. Parents and communities who traditionally forbid their adolescent girls from going to school, or indulge in child marriage would have to be persuaded, or the child marriages act would need to be invoked against them. Civil society interventions would be crucial here.

No, it is universal. Any child who is a citizen of India, rich or poor; boy or girl; born to parents of any caste, religion or ethnicity shall have this right. If a rich parent decides to send his/her child to a school owned by the government/local authority, that child would also have a right to all the free entitlements. Only those children who are sent by their parents to a school that charges fees (private aided/unaided) will surrender their right, as per Section 8(a) of the Act, to free entitlements; they can not claim reimbursement from the government for their educational expenditure (except for the obligatory 25% quota for children of disadvantaged groups and weaker sections to unaided schools, described later).

There are deficiencies in the Act as it was passed in August 2009 in relation to children with disabilities. They should have been included in the definition of disadvantaged groups, but were inadvertently left out. The Act says that their education shall follow the provisions of the Disabilities Act 1996, but that Act has deficiencies in as much that it does not include mental disabilities. The central government has acknowledged these lacunae and promised to bring appropriate amendments in the Budget 2010 session of Parliament, as also to amend the Disabilities Act 1996 appropriately. The proposed amendments are at Q83.

As the Act stands, education would be inclusive for all categories of disability, including severe and profound.

The Act, at Section 4 lays down that all children who are out of school, as never enrolled or drop outs (in the 6-14 age group), would have to be admitted in age appropriate class in regular schools, and they would have a right to complete elementary education even after crossing age 14.

It means giving admission in a class where the child would normally be if she had joined school from class 1 at six years of age. So if a child is 11 years old and has never been to school, she will be admitted to class 5, but shall be given special education to make her come to the level in a time frame ranging from three months to two years (model rules 3(1)).

If NGO’s qualify as per the teacher qualifications and other norms, they could be associated, but as part of the regular school where the children are first admitted, and not as running separate residential or non-residential non-formal centers.

Pioneering work by groups like the MV Foundation has shown that it is indeed possible to do so. However certain flexibility could be used after the duration of special training. If a child after completing special training is 13 years old and should be in class 7 by the age appropriateness criterion, but the teacher/school feels that it would be better for the child, in terms of coping, to be in class 6, they could advise the child/parents accordingly.

They would have the right to get free education till they complete class 8, even if they exceed age 14. This would apply, for example, to a 13 year never enrolled child who may take 5 years to complete class VIII, up to the age of 18 years, or more.

In the absence of a regular birth certificate issued under the Births, Deaths and Marriages Registration Act 1886, a certificate based on hospital/ANM record, anganwadi record or an affidavit by the parents/guardian would suffice (Model Rule 9). However, under section 14(2) of the Act, if none of these are available, including a notarized affidavit, a child would not be denied admission, meaning if the parents say the child is six years or more, admission would have to be given, while any of the above mentioned documents is simultaneously arranged.

The head teacher would have to immediately issue a transfer certificate to a child moving away from the school, or face disciplinary action in case of delay. However, no child shall be denied admission in the absence of a transfer certificate, (Sections 5 (2) and (3) of the Act).

There is a certain overlap and complementarities in their functions. Essentially however, the appropriate government shall lay down policy, prescribe curriculum, make arrangements for teacher recruitment and their proper deployment, and make financial arrangements, and provide technical support. The local authority on the other hand will ensure the enumeration, admission and attendance of children, school mapping and availability of neighbourhood schools, and monitoring.

For example, to ensure proper school mapping and availability of neighbourhood schools, a GIS mapping of schooling facilities could assist the appropriate governments to understand the geographic dispersal of schools, the distance to schools from the habitations and the physical barriers, if any, as some state governments are already doing. This would require the appropriate government and the local authority to work in unison.

As per Section 8 (explanation) (1) and (2), the state is compelled to provide free education and ensure compulsory admission, attendance and completion of elementary education. The implication is that if a child in the age group 6-14 is working at a tea shop, agricultural field and so on, cooking at home or simply wandering around when the school is functioning the government is violating his/her fundamental right. It is the government that must ensure that all children are attending, and complete elementary education. This has immediate impact on child labour. If the child is engaged in child labour and is not in school, it is the government now that is in violation of law. Consequently, the Child Labour Act 1986 is no more in coherence with this Act and there is already pressure building on the Labour Ministry to review and amend the 1986 Act to bring it in harmony with the Right to Education Act.

Yes, and that shall not require a parliamentary amendment. As per Section 20 it can be done by the central government through a notification. Most likely, the National Advisory Council shall be assigned the task of reviewing the schedule periodically.

The Act lays down minimum norms and standards for all schools, government and private, through a mandatory schedule. This includes number of teaching days per year, number of teaching hours per day, number of rooms, availability of teaching learning materials, library, toilets, safe drinking water, playground, kitchen for mid-day meals, Pupil Teacher Ratio, subject teachers in classes 6 to 8, part time art, work and physical instructors and so on. Governments and private managements have three years to upgrade their existing schools to these minimum norms, barring which they will not be allowed to operate. Governments have to provide such a neighbourhood school to all children within three years, i.e. by March 31, 2013. The prescribed norms are minimum, which implies that nothing stops state governments/managements to have higher norms than those listed in the schedule. In particular, if some schools already have higher norms, it does not imply that they reduce those norms to match the schedule.

To ensure that instead of a rigid national norm, the states define it in terms of their geographical, social and cultural realities. The Model Rule (4) indicates these realities, like difficult terrain, risk of landslides, floods, lack of roads, and in general, danger to young children where the 1 km and 3 km norm could be reduced. For children of small hamlets, it could mean free transportation by extending the distance limits, or residential schools. The Rules also prescribe that governments will have to take responsibility to ensure children with disabilities are helped to reach school, as also to ensure that social and cultural barriers, like low caste children and young girls not being able to access their schools due to social interference, are taken care of. The model rules for neighbourhood and access could be further improved by the state governments in terms of their realities.

It is a common misconception that the Kothari Commission Report recommended that the common school concept that it envisioned would be implemented by having just one kind of ‘common’ school. The Report accepted that there would be ordinary government and government aided schools, but their quality would be raised to a minimum standard; about 10% government schools would be of better quality (like the Navodaya and Kendriya Vidyalayas); and private schools would exist; which would have to be kept out of the common school system. Here is what the Kothari Commission said:

A nation-wide programme of school improvement should be organized with three objectives: (a) to raise all schools to at least to a minimum prescribed level; (b) to assist every school to rise to the highest level of which it is capable; and (c) during the next ten years, to raise at least ten percent of the institutions to an optimum standard.

Raising all schools to a minimum prescribed level is what the mandatory schedule of norms and standards in the Act is intended for. As for private schools, the Kothari Commission (section 10.77) acknowledged that:

“The right to establish private schools for any purpose whatsoever has also been given to all citizens under clauses (c) and (g) of Article 19 which provide that all citizens shall have the right ‘to form associations’ and to ‘practice any profession, or to carry on any occupation, trade or business’ and which obviously covers the right of individuals and groups to establish and conduct educational institutions of their choice. Private schools may, therefore, be established under the provisions of the Constitution and, if they do not seek aid or recognition from the State, they will have to be treated as being outside the national system of public education.”

Common school is defined as part of the National System of Education in the Report.

The Act is very much in line with these prescriptions; perhaps better because it mandates private schools would be obliged to take 25% children from disadvantaged groups from their neighbourhoods, without screening; where as the Kothari Commission Report suggested that talented children should be sent on scholarships to these schools, that would entail admission tests.

Financial estimates made by the National University for Educational Planning and Administration suggest that an additional 1.71 lakh crore rupees (about thirty four crore rupees per year) shall be required to implement the Act in the next five years. Since the Bill was introduced in the Rajya Sabha first, a financial estimate was not attached (only a financial memorandum was, which committed funds from the consolidated funds of the government). With an attachment of financial estimates, the Bill would have had to be introduced in the Lok Sabha first (as a money Bill), where it would have lapsed since it was not passed before the end of the term of the last Lok Sabha. MHRD has recently revised the NUEPA figure of 1.71 lakh crore rupees to 2.33 lakh crore rupees for five years, taking into account the previous deficit of teacher recruitment under SSA, when the Act had not come into force.

A sharing pattern will be arrived at through mutual negotiations between the central and state governments. The SSA norms and sharing patterns will need to be reviewed. For example, the RtE-SSA harmonization committee’s report has already recommended a 75:25 sharing pattern between the center and the states instead of the present 55:45 sharing ratio under the SSA.

It implies that on the basis of a reference by the central government through the President, the Finance Commission could sanction monies directly to states for the Act, which would be in addition to the sharing ratio of the centrally sponsored scheme operating the Act. It provides an additional window for central funds to be allocated to states that need them most. The 13^th Finance Commission has since made allocations of Rs 24068 crore over a five year period specifically for elementary education. This will help States meet their 15% state share towards SSA – from the sliding scale of 65:35 in 2008-09 to 50:50 in 2011-12, but may be inadequate to meet the RtE requirements.

As per the Act, the local authority also has the right to do so. This opens up the possibility of decentralised school calendars suiting local conditions.

The implications of the number of hours for which a school shall function per day indicate that. This would go a long way in forcing children out of labour since double shifts allow them to go to schools as also to engage in labour.

Many states face this problem in urban areas in particular, but in rural areas too, as in Bihar where most of the land is in private hands. Since a school is a fundamental right of children now, the government will have to hire accommodation for schools, or consider acquiring or buying land, as it does for other projects of national importance.

Since the Governments have to provide a neighbourhood school to every child in three years, which includes a vast number of children who are out of school today, the need for land and school buildings should force the governments to refrain from removing schools on prime lands in big cities for making land available for commercial purposes. In any case it will require vibrant civil society interventions, as were seen in Indore, Karnataka and other places. Since such transfer of land has also been reported in PPP kind of school arrangements (in Mumbai), it should be clear that all memorandums for PPPs if at all signed, would be under the purview of the provisions of this Act for the age group 6 to 14. They can not be exempted from this Act. The government can not seek PPPs for schools catering to the age group 6 to 14 since providing a neighbourhood school to all children in three years is a compulsion on the state. But, as it appears, if the government signs MoUs for 3500 secondary schools which have classes 1 to 8 attached to them, then the provisions of the Act, like admission tests, capitation fees, CCE etc. would apply to these classes of such schools.

There are two options; if children migrate with parents, particularly small children, the schools in the migrated areas have to admit all children even if they can not produce transfer certificates. Or if the parents demand that their children be given education in their native place while they are away for work, appropriate governments/local authorities shall have to ensure the availability of free residential schools

Legally, of the appropriate governments, local authorities and the schools; monitored by the SMCs, civil society groups and the NCPCR/SCPCRs. Model Rule 5, (3) and (4) explains this in clear terms:

(3) The State government/local authority shall ensure that no child is subjected to caste, class, religious or gender abuse in the school.

(4) For the purposes of clause (c) of section 8 and clause (c) of section 9, the State

Government and the Local Authority shall ensure that a child belonging to a weaker section and a child belonging to disadvantaged group is not segregated or discriminated against in the classroom, during mid day meals, in the play grounds, in the use of common drinking water and toilet facilities, and in the cleaning of toilets or classrooms.

The governments and the academic institutions under them, like the NCTE, NCERT, SCERTs and so on, by ensuring that the norms and standards of the schools are adhered to within three years, all teachers are professionally trained in a maximum of five years, curriculum, content and process follows principles laid out in Section 29, a comprehensive and continuous evaluation system is in place, and children learn in an atmosphere free of fear, anxiety and trauma. The governments would be well advised to seek collaboration from university education departments and civil society groups that have experience in quality elementary education in this effort. These would be monitored by the NCPCR/SCPCRs and civil society institutions.

In addition, as per the model rules 21(3), the appropriate governments must undertake systemic quality reviews periodically through institutions of renown, which are not confined only to testing children’s achievement scores, but include assessment of teacher quality, curricular issues, social discrimination, infrastructure and other parameters that impact on quality. The involvement of institutions of higher learning on a continuous basis would be critical in this respect.

All private schools have to admit 25% children from disadvantaged groups from their neighbourhoods for free education, which can be extended if the number is not filled up within the customary 1km radius; every year in the class in which they induct new children. If the induction class is class 1, then 25% children will be admitted therein each year, but if the induction is done in pre-school, then the quota will be filled there. The Act says ‘at least 25%’ instead of ‘at least and no more’, which implies that a school could offer to take more than 25% children.

Private aided schools shall have to admit children from similar backgrounds in the proportion of aid they receive from the government, in the induction class each year, and will not receive any extra reimbursement for these children. For example, if the total annual contribution from the government to an aided school is 70% of its total recurring expenditure for a particular year, it will have to admit 70% children in the induction class that year.

Either of these admissions each year shall be in the induction class only, and not for each class of the elementary stage.

As for payments, the appropriate government shall work out its per-learner cost by adding up all the recurring costs it incurs in one year, from its own and central funds including mid-day meals, and divide it by all the children enrolled in its schools. It will reimburse the unaided school admitting 25% children at this rate, or the fee of the school, which ever is less. If the school is already obliged to admit a certain number of children by a separate MoU, for subsidized land or other benefits it obtained from the state, then it will not receive reimbursement for the percentage of children covered by the MoU. The detailed procedure is outlined in Model Rules (7) and (8).

They will have to adhere to the norms and standards prescribed by the schedule and have three years to do so. Their teachers shall also be required to have the nationally prescribed teacher qualifications, within five years. They will have to get recognition within the three year period; if they don’t have recognition after three years, they can not function, and heavy fines will be imposed on them if they do. They can not take tests or interview children or parents for giving admission; all admissions have to be based on random selection and violations will lead to financial punishments. They must announce at the beginning of the term the fees they will charge, after that they can not ask for other charges during the year (capitation fees).

At any time of the year when he/she attains six years of age, or is an older out of school child.

No school, governmental or private, can detain (fail) or expel any child at the elementary stage. The Delhi High Court has already given a verdict on this on the basis of the Act (April 7, 2010), against St. Xavier’s School, Delhi, which had to take back all the children they had declared failed and expelled from the school.

This is a common perception since it is difficult to see beyond the centuries old custom and culture of failing and expelling children. That the learning level of a child who is punished by failure at any time in the elementary stage shall improve the next year has no educational or research backing. If at all, the social stigma of failure, particularly for a child coming from a poor home is more likely to ensure that the failed child shall drop off from the next year. It is a method to weed out children who are harshly judged for being ‘weak’ or ‘dull’, which may have a lot to do with the learning environment of the school, the psychological and coping stress on the child, rather than any innate deficiency in the child. More often, failure and expulsion of the child hides the deficiencies of the learning environment of the class room. That is why the CCE, which continuously monitors the learning levels of the child and helps in timely intervention is far superior educationally to annual or board examination based punishments of failure and expulsions. CCE also takes into account the interests, abilities and talents of the child beyond the school subjects that must be recorded while issuing the completion certificate at the end of the elementary stage (see also Q71). Properly implemented, CCE will ensure that children do not advance without learning better than mindless testing of children. Private schools in particular use the failure and expulsion route to weed out what they call ‘dull’ and ‘weak’ in order to keep their school brand at a premium to charge more fees. The Act attempts to prohibit this malpractice, which has been upheld by the Delhi High Court decision in relation to a prominent private school of Delhi, mentioned previously.

No, all schools must adhere to the norms. As per section 19 (1), no school shall be established (by the government), or recognized (private), if it does not fulfill the norms and standards prescribed by the Act.

If the problem is not rectified locally, the matter can go to NCPCR/SCPCR or the courts, as a serious violation of the law.

All government, government aided and special category schools shall have to constitute SMCs as per Section 21 of the Act; since private schools are already mandated to have management committees on the basis of their trust/society registrations, they are not covered by Section 21. A proposed amendment (see Q83) makes the SMC an advisory rather than a statutory body for schools covered under Article 29 and 30 of the constitution (minority schools).

The detailed procedure for the formation of SMCs is outlined in Model Rule 13. State governments may modify the procedure if they deem necessary. Apart from the statutory requirement that 75% members shall be parents of children studying in the school, 50% of the total members women, the model rule prescribes that the Chair and Vice Chairpersons should be from amongst the parents; it should meet at least once a month, the minutes of its meetings should be made public and so on.

It is elaborated in Model Rule 14. It will be a three year plan estimating student strength, teacher requirement under the prescribed PTR, additional infrastructural, financial requirements and so on. The requirement is that the combined school development plans of a local authority will identify requirements in a bottom up decentralized manner, for each panchayat, rather than in a top down centralized manner, as is the common practice.

Yes, it does at Section 23(1). An academic institution of the central government shall prescribe teacher qualifications that all teachers of the country must have within five years. This will include both the academic and professional qualifications. The central government has already notified that the National Council for Teacher Education shall prescribe teacher qualifications. A broader committee under MHRD has already sent its suggestions to the NCTE regarding the new teacher qualifications.

The term ‘para’ has many connotations. In terms of qualifications, all teachers will have to have the same qualification in five years, so there can be no less qualified ‘para’ teachers after five years. It can also mean contractual. That is covered by service rules and conditions, and since teachers are mostly state government employees (except for Kendriya, Navodaya or similar schools of the central government) that is a preserve of state governments and as per the Act will be prescribed by them. The Model Rules however mandate that the service conditions prepared by the states provide for and enable long term stake of teachers in the teaching profession. Short term teaching contracts would therefore not be compatible with such a principle.

These too are within the purview of the state governments and are to be prescribed by them. The Model Rule 18 (3) however lays down the principle that salaries and other benefits of teachers, including those handling out-of-school children, shall be that of regular teachers, and at par for similar work and experience.

Disciplinary action can be taken against the teacher (Section 24(2)). Under Model Rules 18(2) (a), it is prescribed that the service rules of teachers should mandate the accountability of teachers to the School Management Committees.

There is a certain ambiguity about this in the Act. Section 25(1) says that the PTR ratio shall be maintained in each school within six months of notification of the Act. However for implementing the schedule of norms and standards of the school, that prescribes the PTR ratio, a three year time period has been given. States like Bihar, UP, Assam and Orissa that need to recruit a huge number of new teachers could use this ambiguity by sanctioning all the required posts and redeploying teachers in the first six months, and complete all the recruitments as early as possible, within the three year time frame.

The Act bans all non-academic work by teachers, except elections, decennial census and disaster related tasks. Where as census involves work once in ten years, and disasters are rare, increasingly frequent elections do keep teachers away from schools for long periods of time, particularly the preparation of electoral rolls, and can violate the child’s right to quality education. Where as disallowing election duties for teachers would therefore be very desirable, the constitution however mandates that all central and state employees could be drafted for election work, which the Supreme Court has upheld:

Article 324(6) of the Constitution of India read with Section 159 of the Representation of the People Act, 1951 makes it obligatory that the President (the Government of India), or the Governor (the Government of any state) as well as every local authority shall, when so requested by the Election Commission, make available to the Election Commission or to a regional Commissioner or to the Chief Electoral Officer or the Returning Officer, as the case may be, such staff as may be necessary for the performance of any duties in connection with an election.

In ELECTION COMMISSION OF INDIA, vs. STATE BANK OF INDIA,  the Supreme Court has made it abundantly clear that the services of those government servants who are appointed to public services and posts under the Central or State Governments as well as those who are employees of the local authorities will have to be made available for the purpose of election and any such government servant or employee of the local authority who shall defy the requisition, may receive suitable punishment.

Now that education is a fundamental right of children, the state governments could ensure, when requested by the Election Commission, to make available to the Commission staff other than school teachers, or for a minimal amount of time that does not interfere with their primary task of teaching.

It is banned for all teachers as defined under this Act, working in government or private elementary schools. Since this Act does not apply to secondary school teachers, the ban on tuitions under this Act shall not extend to them, though there might be other laws and service conditions at the state level that disallow tuitions for secondary school teachers, which will continue to remain in force.

Under Section 7(6b), the central government shall ‘develop and enforce standards for training of teachers’.

Providing technical support and resources to the state governments for promoting innovations, research, planning and capacity building is a task assigned to the central government (Section 7(6c)). Model Rule 19(2)(b) prescribes that a teacher may perform the tasks of curriculum formulation, development of syllabi, preparation of training modules and text book development, in a manner that these tasks do not interfere with his/her regular teaching.

What about innovation and research?

Yes, under Section 7(6a), the central government has to develop a framework of national curriculum with the help of academic authorities of state governments. This is significant since the present practice of the NCERT preparing the NCF was of an advisory nature; under the Act, it has become mandatory, and shall involve the state governments too.

The state governments shall have to specify academic authorities that will lay down curriculum and evaluation procedures at the state level. These could be SCERTs or other academic institutions of the state. The state curriculums must however be prepared according to certain common principles of content and process described in Section 29(2).

The Act upholds internationally accepted research and academic practice that says:

• All children have similar potential for learning. If one child is doing better than the other, the problem is not with the child, but the different nurturing processes and systemic inputs. It therefore puts the onus of learning on the school and the system, and does not prescribe punishing the child through failure, detention and expulsion.

• Failing in examinations psychologically demotivates and socially humiliates children. Instead of improving their scholastic quality, failure and detention is more likely to result in pushing small children out of the school system, as drop outs.

• The Act prescribes a learning environment that does not cause fear, anxiety and trauma to children, promotes their all round development rather than only excellence in school subjects, building up child’s knowledge, potentiality and talent, imbibing values enshrined in the Constitution, learning through activities, discovery and exploration in child friendly and child centered manner, using the mother tongue as medium of instruction as far as possible, and Comprehensive and Continuous Evaluation, rather than Board examinations.

The Act more or less legalizes the principles enunciated in the National Curriculum Framework 2005. As for implementation of these principles, the approaches described in the NCF 2005 and its accompanying 22 focus group reports, as also the text books, curricular material, in-service teacher training modules, CCE manuals etc. produced by the NCERT and a few other states would be a vital input for future implementation for quality improvement.

The procedure for certification is described at Model Rule 23. The certificate will include the Pupil Cumulative Record of a child which will contain the talents and abilities of the child beyond school subjects. The implication is that such a cumulative record, spanning eight years of elementary stage shall be kept for each child, and teachers shall be facilitated through trainings and other means to fulfill this task.

One may assume that a number of complaints would be settled at the school and SMC level itself, through the intervention of civil society groups. If that does not happen, the next step would be for the complaint to be filed with the local authority. The complainant could appeal to the SCPCR if the action of the local authority does not redress the complaint satisfactorily.

Yes, both the NCPCR and the SCPCRs can move on their own, suo moto, without any one specifically filing a complaint. As per Model Rule 25, SCPCRs shall set up child help lines, accessible by SMS, telephone and letter for receiving and registering complaints.

The problem at present (April 2010) is that the NCPCR is in the process of being reconstituted, and only five states have constituted their SCPCRs, that too with varying capacities. The exact rules and procedures for redressal shall have to be worked out by the NCPCR when it again becomes properly functional, and it will have to assist the SCPCRs to do the same. The reconstituted NCPCR is expected to carry forward its earlier initiatives of linking and networking with civil society organizations for monitoring, appointing state commissioners for the enforcement of the Act (on the lines of Supreme Court Commissioners for Right to Food), networking with other Commissions like the one’s for Human Rights, Women and Minorities, set up helplines and set up a separate division for enforcing the Right to Education.

The Model Rules provide that in states that do not have SCPCR at present (which is set up by the Women and Child department), the education department shall constitute a Right to Education Protection Authority (REPA) till the SCPCR comes into force.

Under the NCPCR Act 2005, the NCPCR and SCPCRs have quasi-judicial powers whereby they can investigate, summon and recommend cases to the courts. They can not, however, pass judgments and hand out punishments.

As a law flowing out of a fundamental right, it is justiciable from the lowest to the highest court of the country. One can file a case in the lowest civil court, or the Supreme/High Court, depending on the nature of complaint.

NCPCR has already initiated moves to work through civil society groups in a variety of ways. Independent of that, NGOs and other civil society groups can on their own bring violations to the notice of authorities and courts. An example of that is the civil society group Social Jurist working in Delhi. They can ensure opening of neighbourhood schools, monitoring teacher availability, and help in local redressal mechanisms.

Since the ‘compulsion’ in the Act is on the governments, the NCPCR/SCPCR and the courts shall have to investigate where the onus of a particular violation rests, and judge accordingly

Under article 370 of the Constitution, many central Acts do not automatically apply to J&K. The J&K state legislature can however pass a similar Bill to come at par with the rest of the country. Otherwise the Act will apply to all other states and UTs of India.

As it stands, the Act does cover such institutions too; with an amendment that has recently been introduced in the Parliament.

No, the Act does not recognize a child’s right to education at a site other than a school defined in the Act at section 2 (n) (see Q18). In that sense, the Act is more like a “Right to Free and Compulsory Schooling’. Schooling would in fact be compulsory for all children.

Yes, provided they attain the norms and standards as defined in the Act; within three years of notification of the Act.

Open schooling provides external certification at various levels in the 6 to 14 age group, even when a child is either not in a school, or is in an informal or non-formal school. Since the Act replaces external board examinations by Comprehensive and Continuous Evaluation (CCE) in this age group, and makes education in a neighbourhood school of minimum norms and standards provided by the schedule of the Act compulsory, open school certification would no longer be admissible under the Act. The National Institute of Open Schooling has already withdrawn its certification process for the 6 to 14 age group. All children not in school, or previously under an open school situation have a right to be admitted to age-appropriate class to a neighbourhood school, without having to produce any certification of their earlier education.

Since both the central and state governments are involved, both shall have to make rules. The central rules have already been finalized, and a set of model rules for the states have been circulated by the centre to the states. The states can either accept the model rules as circulated or make appropriate changes in them. Finally, the central government has to place the rules in the Parliament, and the states in their respective legislatures. The rules can be modified by the centre or the states as and when necessary.

The SSA would have to be harmonized with the RtE. That shall require changing various norms, working out a new fund sharing pattern and necessary changes in the governance structure. RtE, unlike the present SSA is not a scheme. If SSA remains the vehicle of implementation of RtE, it shall have to shed its project character. A RtE-SSA harmonization committee has considered these issues and its 217 page report is now public. It is like a blueprint for the implementation of the Act. It is hoped that the MHRD shall make available bulk copies of the report at the earliest.

They shall act as advisory bodies. They could also facilitate research and studies and systemic evaluation to help improve the implementation of the Act. The NAC is also likely to be the body that will monitor the norms and standards of a school contained in the schedule attached to the Act, and suggest changes to it whenever necessary.

A set of amendments have already been introduced in the Parliament during the 2010 budget session, which are likely to be incorporated during the following monsoon session. They are:

1. to insert in Section 2(d) after the word “means”, the words “a child with a disability or”

2. after clause 2(e) insert the following clause: ‘(ee) “child with disability includes” namely – (A) a child with “disability” as defined in clause (i) of the Persons with Disabilities Act 1995, (B) a child, being a person with disability as defined in clause (j) of section 2 of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999; (C) a child with “severe disability” as defined in clause (o) of section 2 of the National Trust Act, 1999.

3. In Section 21 of the Act, in sub-section (2), the following proviso shall be inserted, namely: “Provided that the School management Committee constituted under sub-section (1) in respect to a school established and administered by minority, whether based on religion or language, shall perform advisory functions only.”

Section 3 of the Act has also been amended to reflect the amendments (i) and (ii) and Section 22 has also been appropriately amended to reflect amendment (iii).