Wrong To Education, Part 2

(The introduction to this series analysing RTE can be found here:
http://kianayema.blogspot.in/2012/08/wrong-to-education-introduction.html)
(Part 1: http://kianayema.blogspot.in/2012/08/wrong-to-education-part-1.html)
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2. The Act does not flow from the Right (Art. 21A of the Constitution)

a) There are serious legal / interpretation issues with the Act.

The big controversy has been on whether "minority unaided institutions" must provide quotas under the Act. The Supreme Court finally decided that they need not. Apparently, this is to harmonise the new Right to Education (Art. 21A) & the precedent on this right (Mohini Jain vs. State of Karnataka >>> Unnikrishnan JP & Ors. vs. State of Andhra Pradesh >>> TMA Pai Foundation vs. State of Karnataka >>> PA Inamdar & Ors. vs. State of Maharashtra) with the right of minorities to set up & administer educational institutions for the preservation of their unique language & culture under Art. 30 (or, in general, with minority cultural rights under Art. 25-30).

Relative to the questions being considered, though, this is - at most - a procedural quibble. To see "Minority Rights" as the controversy is not so much to miss the wood for the trees as to miss the Veerappan for the moustache - sure, it's impressive, but the danger is everything else. (Oh, and those trees? Gone, while you were admiring the moustaches.)

b) Here is what Art. 21A of the Constitution says:

"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." 

What, you may ask, does this new Article mean?
(i) An (ostensibly) inescapable duty has been placed on the State, to provide education to all children (6-14) free of cost.

(ii) Note the language:
State shall provide <education> in such manner as the State may, by law, determine. Normally, when you say that the State will provide something, it means that the State itself will give it. When it is to be provided in such manner as the State may, by law, determine, you expect a legislation that will detail how the State will give it.
(iii) Note also this language: ... SHALL provide free & COMPULSORY education...

HOW?
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Spare me a minute on (iii) here.
<The Counterproductive Part, #2>
Remember, this is a Fundamental Right now. And not just any Fundamental Right, it's been appended to Art. 21 itself, which indicates that this provision is part of the Right to Life (read as a right to a certain quality of life, etc.) itself.
This means the State can be taken to court for failing to provide it.
If YOU choose, for whatever reason, not to send YOUR child to school, then THE STATE can be taken - directly, by writ petition under Art.32 - to the SUPREME COURT for failing in ITS obligation to provide COMPULSORY education (for free).

At least, that's the only way I can read it. I hope I'm wrong. But it just looks like ludicrous drafting to me. Everyone said "The Right to Free & Compulsory Education" as a phrase, and it found its way into the Constitution(!) as that same phrase. Excuse me while I go hit my head against the wall a little, maybe cry over the lack of editorial oversight that gives us such drafting. 

(If you want to see why it's ludicrous, replace "Education" with "Lunch".

"Beta, come & eat. It's a free lunch!"
"I'm not that hungry, sorry."
"No, you must. It is your fundamental right to free AND COMPULSORY Lunch."

See?)  

The only way I can see the State doing this is to make not sending your child to school an offence, and prosecuting you for it. Sec. 10 of the act currently says that it shall be the duty of every parent & guardian to admit their child/ward to elementary education in the neighbourhood school. They also made it a new Directive Principle of State Policy (the new Art. 45). So no penalty provided for failing to do this - Yet how it can be enforced without one?

 ("You must eat." / "No." / "But you must." / "No." / "It is your duty!" / "No." / <?> )

Now this might sounds scary, but it's really no big deal, right? Because we know everyone in India who can afford to send a child to school does it. (Ignore the case of those who can afford to send their child to school but choose home schooling or tutoring instead. They do present a challenge to this section of the Act, but one that is easily resolved, e.g. by certification through NIOS.) We are, without a doubt, enamoured of education - we want our children to have the best education we can afford.  And since it's free, we can all afford it, right? 

Except, there are still children not sent to school. (Our Gross Enrollment Ratio, while both encouraging & rising, isn't 100% yet.) Who are these people then? Precisely those for whom even the costs of free schooling are too high, whether that is simply the price of transport, or the loss of income from that child not working. (And just to avoid the issue of child labour being illegal anyway, assume I mean a child scavenging nuts & berries, or looking after younger siblings or cattle, or fetching water - all of which save the family money even if they are not "work", simply by reducing the parents' workload.)

Yes, under the Act, a school should be set up within 1-3 km of their homes. And yes, they can now sue the government for failing to provide this. Except, if you've read about rural schooling in India (Sainath's "Everybody Loves A Good Drought" is a good place to start) - or even simply travelled in the more remote parts of our country - you'll realise that this failure to provide is neither new, nor as yet remedied by lawsuits, & that terrain alone can defeat the government's intentions - or make such a rigid approach impractical.

So, potentially, the poorest parents in India may be prosecuted by the State, because in not sending their children to school they leave the State liable to litigation for not providing a fundamental right. Remember, even forcing them to send their children to school when they cannot afford it is a de facto fine levied on them.

How is this a step forwards, for educating the poor?

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c) Sorry for the detour. Next: What does the Act say?
The RTE Act says three things:
i) Government Schools will provide free education to all (Sec. 12a), and there WILL be a PROPER (as per the Schedule) government school near you (Sec.6-9).
ii) Aided or special category (basically the Sainik, KV, Navodaya etc.) schools will provide at least 25% of their seats to students for free (Sec. 12b).
If they receive more than 25% of their funds from the State, they will provide free seats in proportion to the percentage of such funding to their total expenses.
iii) Unaided schools will provide 25% of their seats AT EACH INTAKE TO CLASS I to students for free.
(And also, if any such school provides pre-primary education, this portion applies mutatis mutandis to such students as well.)

I'll take up which schools in #3, which students in #4. The point here is that this is an absolutely weasel way of interpreting "provide": How, via Sec. 12(c) is the State PROVIDING free education? It's the unaided school that is (forced into) providing it! More importantly, how is Sec. 12(c) justifiable as "providing" under Art. 21A?

So the State cannot provide free education for all - as is its duty now. Instead it will "provide FOR <education> by law". (If you think the government reading the word "FOR" into place where it didn't exist is fantastic, wait till you see what the Supreme Court did.)  I'm not saying here that the Act does not involve the State itself doing a lot: that is the core part of the Act, it is unexceptionable, and we are all eager to help with executing it. But to claim that, by forcing private schools - by law, no less - to admit students for free, the State is fulfilling ITS duty under Art.21A - this I reject completely. 

Just so we're clear: the quota under Sec. 12(c) is a bold experiment, and potentially one that can have great benefit. More on that in #4. But it is not the "Provision" which Art.21A envisages at all.

  

Not that this was unexpected: it was very much a part of the debate on the drafting of Art. 21A itself, i.e. before the RTE Act was even introduced. In hindsight, this little exchange looks prescient:

MINUTE OF DISSENT

"I vehemently oppose the State wanting to introduce free and compulsory education in private, unaided schools. 

Clause 21A (3) must be inserted as I do not wish the State to make laws regarding free and compulsory education in relation to educational institutions not maintained by the State or not receiving aid out of State funds. 

A Committee of State Education Ministers have already considered the issue in view of the Unni Krishnan case, and found it not feasible to bring unaided private educational institutions within the purview of the Bill.

Hence, I state once again that the proposed clause "21A(3") must be inserted in the Bill."

Clause 21A(3) would have read: 
"The State shall not make any law, for free and compulsory education, in relation to the educational institutions not maintained by the State or not receiving aid out of State funds."

When the Amendment was originally referred to a committee, this was their response:

"...As regards the interpretation as to whether the private institutions should provide free education or not, the Committee is aware of the Supreme Court judgment given in the Unni Krishnan case. This judgment provides the rule for application and interpretation. In view of the judgment, it is not necessary to make a clause in the Constitution. It would be appropriate to leave the interpretation to the courts instead of making a specific provision in black and white. ..."

<It was to this statement that a member attached the minute of dissent.>

Et voila, the actual RTE Act takes the ratio from Unni Krishnan (which created two classes of seats in private institutions, free seats & paid seats) - premised on the absurdity of a Right to Education under the increasingly expansive positive interpretation of Art. 21, which dilutes its essential nature as a negative right, a crucial restriction on the actions or powers of the State - into strange new territory. 

This, because the Amendment did not "make specific provision in black & white." And when the court was asked to interpret, we got a judgment that takes us into something stranger yet.

NEXT:
(Part 3, which is longer than the average, but is split into logical & legal analysis: http://kianayema.blogspot.in/2012/08/wrong-to-education-part-3-or-art-of.html)
(Part 4: http://kianayema.blogspot.in/2012/08/wrong-to-education-part-4-asses.html)