[lg policy] India: Right of Children to Free and Compulsory Education Bill, 2009: The Story of a Missed Opportunity

Harold Schiffman hfsclpp at GMAIL.COM
Tue Sep 22 14:02:03 UTC 2009

Right of Children to Free and Compulsory Education Bill, 2009: The
Story of a Missed Opportunity
Monday 21 September 2009, by Muchkund Dubey

Both the Houses of the Indian Parliament have passed the Bill for
providing free and compulsory education for children in the age-group
of 6 to 14. There have been extensive debates on the extent to which
this Bill will help in implementing the right to education as provided
in Article 21-A of the Indian Constitution. What has been ignored in
these discussions is that the Bill as adopted misses the excellent
opportunity provided to the nation for bringing about a radical
transformation of the school education system in India.

While discussing the problems of school education in India, a few
issues are repeatedly raised: absence of teachers from schools, lack
of interest on the part of the parents or guardians, deficiencies in
curriculum and syllabus, wrong methods of teaching etc. But these
problems cannot be viewed in isolation and in a fragmented fashion.
For, their roots are spread deep in the entire system. Therefore, if
one wants to solve these problems, then it would be necessary to
transform the entire education system. What are the systemic and
fundamental problems of the Indian school education system?

Firstly, there is the problem of access. School education is simply
unavailable to the vast number of children in the country. During the
last few decades, there has been some progress in improving enrolment.
The gross enrolment ratio (GER) from Classes I to VIII was 94.9 per
cent and from Classes I to XII, 77 per cent. (Educational Statistics
at a Glance, 2005-06, the Ministry of HRD, 2008) The government
primarily relies on the GER to bolster its claim for progress made in
expanding school education in India. But enrolment is a very
unreliable basis for assessing the degree of access to school
education. Firstly, enrolment figures are generally rigged and
exaggerated for various administrative and political purposes.
Moreover, in order to assess the progress in expanding school
education, it is important to take into account the figures for
attendance and also for drop-out from among those who are enrolled.
The attendance has generally been found to be at least 25 per cent
below enrolment. The drop-out rates are very high indeed. For the
country as a whole, the drop-out rate from Classes I to X was 61.6 per
cent; and in a State like Bihar it was above 75 per cent. Among those
who drop out, the percentage of children belonging to the Scheduled
Castes in the country as a whole was 70.6 and of the Scheduled Tribes,
78.5. In Bihar, the figure was close to 90 per cent for both the
categories. The net result is that a sizeable percentage, as much as
30 per cent, of children in the school-going age in India are out of
school; the percentage is as high as 50 in Bihar (1.5 crores out of
three crore children in the school-going age-group).

Thus a huge number of children are excluded from school education.
This is thus a colossal waste of human resources. Besides, educational
exclusion is the worst form of exclusion because it means exclusion
from other walks of life and areas of activities such as livelihood,
knowledge, status in society, human dignity etc. Moreover, educational
exclusion becomes cumulative as it is carried over from generation to
generation. For, it is seen that educated parents are more inclined to
educate their children than those who are uneducated. Besides,
exclusion from school education, particularly at the primary level, is
a denial of human rights both in accordance with the provision in the
Indian Constitution and the relevant provision of the Universal
Declaration of Human Rights.

The Bill sets no deadline for the universalisation of education from
Classes I to VIII. Different deadlines have been given for different
purposes, which are not mutually consistent and in the absence of any
plan or resources required for achieving them, it is doubtful that
they would be adhered to. The most important deadline is in Section 6
of the Bill which states:

For carrying out the provisions of this Act, appropriate government
and local authority shall establish, within such area or limits of
neighbourhood as may be prescribed, a school, where it is not so
established, within a period of three years from the commencement of
this Act.

It is further stated that teachers will acquire the requisite
qualification and prescribed training within a period of five years.
At another place, it is laid down that the pupil-teacher ratio of
40:1, prescribed in the Bill, will be achieved within six months. Does
this mean that all the teachers required, even though they are not
qualified, will be recruited within six months? Is it at all feasible?
Even if it is so, but if the schools are not there, where will they
teach? This provision also implies that the pupil-teacher ratio could
be maintained, at least until the next five years, by continuing the
practice of appointing para-teachers. The Bill makes no estimate of
the additional number of schools to be built, additional number of
teachers to be recruited and trained, and training institutions to be
created and restored. This has all been left to be determined by the
appropriate government and local authority. This makes the attainment
of the target set in the Bill and of the overall goal of
universalisation highly improbable.

The Common School System Commission, Bihar, in its report, estimated
that in order to universalise free and compulsory education for
children in the age-group of 5 to 14 in five years, universalise
education for children from Classes IX to X in eight years and to
facilitate transit to Classes XI to XII of 70 per cent of those who
will pass Class X in nine years, 25,900 additional primary schools,
15,500 middle schools and 19,100 secondary schools will have to be
built. The number of additional teachers to be recruited for achieving
the above goals would be 2.55 lakhs at the primary level, 3.24 lakhs
at the middle level and 4.29 lakhs at the secondary level. It stands
to reason that the very first and most essential requirement to be
fulfilled for universalising quality school education, is to build
these additional schools, recruit these additional teachers and
provide training for them. As already stated, the Bill does not make
any attempt even to quantify these requirements.

The second systemic problem of school education in India is its
abysmally poor quality. This has been attributed to a variety of
factors, including poor curriculum and syllabus, deficient pedagogy,
negligent teachers and parents who are unconcerned. But the real
reason is the gross under-funding of school education in India. If the
required magnitude of funding is available, many of the factors,
allegedly accountable for the poor quality of school education, would
disappear. For example, it is unfair to blame teachers who are
compelled to teach in a school which does not have blackboards,
teaching aids, laboratories for experiment and adequate space, and
which do not provide facilities or incentives for improving their
skills and environment and for pedagogic innovation. Besides, a large
number of teachers have no training. They are also obliged to carry
out non-educational activities. The members of the Common School
System Commission, Bihar, during their visits to schools, did not find
any school which had a properly functioning laboratory. We simply
cannot get away from the fact that the quality of school education in
India is decisively influenced by the quantity or magnitude of

The most effective and important means of ensuring quality is to
establish minimum norms and standards relating to all relevant aspects
of school education, and ensure that they are applied uniformally to
all schools. No doubt, some norms have been laid down in the Schedule
attached to the Right to Free and Compulsory Education Bill. But they
are utterly inadequate. There is no mention in the Schedule of a
number of some extremely important norms such as—distance of the
school from the habitation of the child, sitting area in square metres
per child, number of children per school, number of classes per
school, furniture in the class and office rooms, teaching aides,
computers, equipment in a laboratory, the qualification and training
of teachers, scales of their pay, allowances and other conditions of
service, including scope for promotion etc. Some norms are mentioned
in the Bill only as items, and they are qualified by the phrase “as
the government may determine”. This means that these norms will not be
justiceable and may never be established. It also implies that the
present practice of recruitment of para-teachers and the multi-grade
teaching may continue. In the absence of adequate and legally
enforceable norms, it is superfluous to talk about quality.


The main reason for a large proportion of the children remaining out
of school and the poor quality of education in schools is
under-funding of school education. Normally, the Bill should have
provided a Financial Memorandum which should have indicated the exact
amount of resources required for giving effect to the Bill. There is
indeed a brief Financial Memorandum attached to the Bill. But this can
hardly be taken seriously. It states: “It is not possible to quantify
the financial requirement on this account at this stage.” This
statement is not correct. In the last 10 years or so, additional
resources required for providing free and compulsory education to
children in different age-groups have been estimated several times in
the country.

Two expert groups set up by the Government of India and the Common
School System Commission, Bihar laid down norms and standards for
providing quality education, put price tags on these norms and
standards, and on that basis calculated the additional cost to be
incurred for providing free and compulsory education and
universalising school education within a time-bound framework. The two
Expert Groups set up by the Government of India confined themselves to
providing free and compulsory education to children in age-group 6 to
14. The Expert Group under the chairmanship of Professor Tapas
Mazumdar, set up by the Government of India in 1999, estimated an
additional cost of Rs 13,700 crores per annum over the next 10 years
for providing free and compulsory elementary education according to
the norms prescribed by it. The Expert Group set up by a Committee of
the Consultative Advisory Board on Education (CABE) estimated in 2004
a total additional cost of approximately Rs 73,000 crores per annum
over the next six years for achieving the same goal. The Bihar
Commission report, which covered the entire school education from one
year of pre-primary to Class XII, estimated an additional expenditure
of Rs 9950 crores per annum over nine years. The non-implementation of
the recommendation of the Expert Group led by Professor Tapas Mazumdar
resulted in a cumulative gap reflected in a manifold increase in the
additional expenditure calculated in 2004, to be incurred for
achieving broadly the same purpose. If the recommendation of the
second Expert Group also remains un-implemented, as has been the case
until now, then the cumulative gap will grow further and, say, in 10
years from now, we would need an astronomically large sum of resources
for universalising elementary education. Perhaps at that time the
government in power will raise its hands in despair and drop the whole
idea of universalisation, and India will continue to stagnate for
years to come at a low level of school education, both quantitatively
as well as qualitatively, to the detriment of its unity and future

Perhaps the assumption in the Bill regarding resources is that those
available for the Sarva Shiksha Abhiyan (SSA) in the 11th Plan would
suffice to meet the resources required. But the fact is that in spite
of these resources having been nearly doubled in the 11th Plan as
compared to the 10th Plan, they are at the level of about Rs 30,000
crores per annum, which is less than half of Rs 73,000 crores per
annum of additional resources required, according to the Expert Group
of the CABE Committee (2004). Even under an assumption of higher
pupil-teacher ratio, the additional resources required per annum,
calculated by this Expert Group, is Rs 53,500 crores per annum which
is much higher than Rs 30,000 crores.


India’s National Education Policy lays down the goal of setting aside
at least six per cent of the GDP for expenditure on education. This
target, originally recommended by the Kothari Commission, has also
found place in the manifestos of almost all major political parties.
But the maximum share of the GDP devoted to education in India has
been close to four per cent and on most occasions it has been around
three per cent. The Minister for Human Resource Development has
recently conceded that the resources gap is huge, particularly when we
consider the fact that in many advanced and several more developed
among developing countries, the expenditure on education is 10 per
cent or above of the GDP. He has expressed the view that only the
private sector can fill in the gap. He has, therefore, made a plea for
public-private partnership in education.

Though private-public partnership in education has been talked about
for the last few years, the progress in this direction has been
negligible. Even otherwise, the record of the private sector in
meeting the demand for school education is not at all impressive. As
many as 89.1 per cent of the primary schools in India were in the
public sector (government and local body) and only 10 per cent in the
private sector. (Educational Statistics at a Glance 2005-06, Ministry
of HRD, 2008) For upper primary schools, the percentage was 72 to 78
respectively. (Source: the same HRD data) The enrolment from Classes I
to VII/VIII was 72.23 percent in government schools and only 27.61
percent in private schools. (DISE Data: NUEPA, 2007-08) In the case of
Bihar, the contribution of the private sector to school education at
the elementary level, in terms of number of schools as well as
percentage of enrolment, is below six per cent.

If after 60 years of independence, the private schools have filled in
a gap of only a little over 10 per cent, so far as the total number of
primary schools are concerned, there can be no assurance that they
will be able to contribute significantly to providing free and
compulsory education to children in the age-group 6-14 and to
universalising secondary education. At the current rate of their
contribution, and if the state does not step in to cover the gap, we
may have to wait till the end of the century for universalising school
education in India and even then it may not come about. It may take
even longer to universalise secondary education, because the number of
additional schools to be constructed and additional teachers to be
recruited at this level, is colossal. Besides, school education is a
social good the provision of which is the responsibility of the state.
The provision of free and compulsory education is now a fundamental
right available to children in the 6-14 age-group. It is incumbent
upon the state to ensure this right with immediate effect. It is
legally and morally untenable for it to make the fulfilment of this
right conditional upon the contribution of the private sector.

The third systemic problem of education in India is the rampant
discrimination characterising it. Children of the rich and the elite
have access to good quality private and special types of public
schools, whereas children of the vast majority of the poor, including
the minorities and marginalised groups, go to government schools which
are in a shambles. Thus, the class division in the society is
reflected in the division of the school system. The latter has been a
major contributory factor to the perpetuation and accentuation of
social inequality. It also makes for bad education. For, empirical
studies have demonstrated that schools which bring in children from
different communities and classes provide better education and even
the children of the rich and the elite stand to benefit from such a
school system.

The Right to Education Bill perpetuates the multi-layer discriminating
school system in India. It legalises the currently operating four
categories of schools in India—(a) government schools, (b) aided
private schools, (c) special category schools and (d) non-aided
private schools. According to the Bill, the government schools will
provide compulsory and free education to all children in the age-group
of 6-14 years admitted therein, and the aided private schools will
provide such education in such proportion of children admitted therein
as its annual recurring aid or grant bears to its recurring annual
expenses, subject to a minimum of 25 per cent. The special category
schools and non-aided private schools shall admit in Class I, to the
extent of at least 25 per cent of the strength of that class, children
belonging to the weaker sections or disadvantaged groups in the
neighbourhood and provide free and compulsory elementary education
till its completion. These last two categories of schools will be
reimbursed expenditure so incurred by them to the extent of per child
expenditure incurred by the state, or the actual amount charged from
the child, whichever is less.

These provisions, as already stated, perpetuate the present
multi-layer system of schools. In addition, they are in violation of
Article 21A which calls for the provision of free and compulsory
education to all children in the 6 to 14 age-group. As many as 75 per
cent of the children in this age-group in aided private schools will
not be provided free and compulsory education. In the last two
categories of schools, children in the age-group admitted therein, not
belonging to disadvantaged or weaker groups, will not be provided free
and compulsory education and for these groups also, only 25 per cent
of the children will be provided free and compulsory education in
these schools. This also is a violation of Article 21A.


There are two ways in which the government could have significantly
mitigated, if not eliminated, the discrimination characterising the
Indian school education system. The first was by establishing
exhaustive and justiceable norms and standards and applying them
rigorously to all schools, both public and private, and second, by
embracing and enforcing the concept of neighbourhood schools whereby
the state would delineate the neighbourbood for each school which
would be required by law to admit and educate till completion, all the
children residing in the neighbourhood. In India, we have advocates of
freedom of choice and freedom of profession who argue that the concept
of neighbourhood school militates against the exercise of these
freedoms. They forget that this concept has been applied for decades,
if not centuries, in countries where democracy has taken firmer roots
and where freedom is valued much more than in our country. I shall
illustrate this by a personal example. When I was posted to New York
in the early 1970s, I had to send my two children to a public school
there. Since I stayed on 89th Street and 1st Avenue in New York, I was
told that my children could go only to the nearest public school which
was on 96th Street and 2nd Avenue. This location is on the fringe of
Harlem which was known for its high incidence of crime and drug
addiction. But I had no choice but to send my children to this school.
This was according to the law of the city and nobody complained that
it was in violation of his/her fundamental rights. Apparently,
individual rights cannot take precedence over the public purpose
enshrined in the Constitution, of ensuring social equality. There is
no reference to the concept of neighbourhood school in the Right to
Education Bill except that there is a provision for making reservation
of 25 per cent of the seats for children of weaker and disadvantaged
groups coming from the neighbourhood. This is a far cry from the
concept of neighbourhood schools as practised in most developed
countries and a number of developing countries which have a common
school system.

Another systemic malady which has afflicted school education in India
is the transformation of the very nature and meaning of school
education, brought about by the forces of globalisation and
liberalisation in which international agencies have played no small a
role. In most developing countries including India, education has to a
large extent been replaced by literacy for which it is strictly not
necessary to go to schools. According to the new paradigm, education
is defined in functional terms, that is, making the recipient
qualified for the marketplace. In this sense the educational system as
a whole has been commodified. Today, the purpose of school education
is merely imparting skills of literacy and numeracy. The basic
philosophical purpose of education is to enhance the capacity of the
children to comprehend, to discern, to contest what, according to
them, is wrong, and to develop the urge to transform what is wrong and
unjust. These philosophical goals have been set aside and replaced by
the functional goal of meeting the demand of the market. Under the
globalisation/liberalisation paradigm, schools have to a large extent
been replaced by literacy and informal centres, trained teachers have
been replaced by para-teachers, and the system of at least one teacher
for every class and for every important subject has been replaced by
multi-grade teaching. Training is no longer regarded as essential for
teaching. The Government of Bihar officially notified in 1991 that
training was no longer necessary as a qualification for appointment as
a teacher. This whole process of distortion of the meaning and purpose
of education started systematically since the mid-1980s and has by now
been completed.

This transformation of the nature of education has seriously affected
its quality and has relegated to the background the concept of
schooling as a means of socialisation, nation-building and formation
of social capital, which has been practised for centuries by important
developed countries. It has also been used to rationalise
non-universalisation of school education and its under-funding. The
Right to Education Bill does not make any provision for reversing the
process of the distortion of the meaning and purpose of education.


The Right to Education Bill should have covered the entire school
education system including one or two years of pre-primary education,
elementary education (that is, the 6 to 14 age-group which is its
present coverage) and secondary education. The distinction between
pre-primary, elementary and secondary education may be valid from the
pedagogic point of view, but this distinction becomes arbitrary when
it comes to guaranteeing right of education, universalising school
education, and ensuring its quality. There are strong reasons for
providing free and compulsory education preferably for two years and
at least for one year at the pre-primary level, and also for
universalising secondary education. A Group of Experts which met at
UNESCO Headquarters at the end of 2007, of which I happened to be a
member, arrived at the consensus that “basic education should consist
of at least nine years after pre-primary and ideally it should extend
to 12 years”. In most of the advanced developing countries, like
China, Mexico, South Africa, Brazil, Thailand, Indonesia etc., the
task of universalising elementary education was accomplished a long
time ago and the current pre-occupation of the educational planners
and policy-makers is for universalising quality secondary education.

Depriving the children in the age-group, say, 4 to 6, of free and
compulsory education, as the Right to Education Bill does, is totally
arbitrary and a flagrant denial of human rights. Article 45 of the
Indian Constitution directed the state to provide free and compulsory
education up to the age of 14, which included children at the
pre-primary level of education. The famous Unnikrishnan judgement,
which regarded right to education as a part of right to life, also
covered children up to the age of 14.

However, when the 86th Amendment to the Indian Constitution was
enacted in the form of Article 21-A, the government arbitrarily—almost
by a sleight of hand—excluded children in the age-group of 0 to 6 from
the ambit of the amendment. Thus, some 170 million children were
deprived of the right to free and compulsory education. However, this
right still exists because the amended version of Article 45 states:

The State shall endeavour to provide early childhood care and
education for all children until they complete the age of 6 years.

If this is read with Article 21, as was done in the Unnikrishnan
judgment, then the children in age group of 0-6 also enjoy the
fundamental right to free and compulsory education.

The Integrated Child Development Services (ICDS) is the only programme
which provides for education to children in the age-group of 0 to 6,
but access to services under the ICDS is neither universal nor a legal
right. The ICDS covers only 42 per cent of the children in the
relevant age-group. Besides, it is not a right but a development
service voluntarily offered by the state. Evidence shows that a good
percentage of the children covered by the ICDS are not enrolled under
it. Besides, the delivery of prescribed service to those who are
enrolled is irregular and inadequate. The education component of the
ICDS is the most neglected service. It is either not delivered at all
or only partially delivered. A Social Audit of the functioning of the
ICDS in the district of Anantapur in Andhra Pradesh, recently carried
out by the Council for Social Development, bears out these facts. The
foundations of our educational system will remain weak until quality
pre-primary education is provided to children in the age-group of 4 to
6. This will continue to severely hamper our effort to develop human
resources in the country.


The Bill should have provided for the universalisation of secondary
education also, that is, for children in the age-group of 15-18. The
definition of a child, according to the UN Convention on Child Rights,
includes children up to the age of 18. India is a party to this
Convention. Moreover, the universalisation of education at this level
is also a logical consequence of universalising education up to Class
VIII because if secondary education is not universalised, then the
children who complete Class VIII would have nowhere to go except
dropping out. For, according to regulations in force in the country, a
child has to pass Class XII for getting entry into any academic
institution of higher or technical education which can qualify it for
entering the job market.

It was in view of these considerations that in the Report of the
Common School System Commission, Bihar, a single legislation was
recommended covering school education from one year at the pre-primary
level to Class XII. The Report also prescribed separate norms and
standards for the three levels of school education, that is,
pre-primary, elementary and secondary. Though most of the norms are
common to these three levels, there are also significant differences.
The Right to Education Bill, therefore, should have covered the entire
school education system, universalising education from pre-primary to
higher secondary level, providing free education from pre-primary to
at least Class VIII, if not Classes IX and X, and applying norms for
ensuring quality and equity to all schools at all the three levels of
school education.

The Right to Education Bill should have also included a language
policy which would have provided the best opportunity for the
flowering of the talents of the children and which, at the same time,
would have been a major factor for uniting the country. Unfortunately,
the government missed this opportunity also. The legislation has no
language policy. It only states in one of the clauses that “medium of
instruction shall, as for as practicable, be in child’s mother
tongue”. The inclusion of the phrase “as far as practicable” will give
a carte blanche to private schools even at the elementary level, to
continue their present practice of giving instructions through the
medium of English. Moreover, the term “mother tongue” is not defined.
For example, for a child coming from the Maithili speaking region,
will the mother tongue be Maithili or Hindi?

The enactment of the legislation also provided an excellent
opportunity to make a beginning with the implementation of the
three-language formula, recommended by the Kothari Commission and
included in the National Education Policy. But this opportunity has
also been squandered. The language policy laid down in Annex-II to the
legislation recommended by the Common School System Commission, Bihar,
demonstrates that the implementation of the three-language formula is
feasible, if there is a political will to do so.

Finally, the Bill should have created a mechanism vested with the
overall responsibility of overseeing progress in the restructuring of
school education, bringing about improvements, through research and
public discussion, in the norms and standards included in the Bill,
adjudicating disputes where called upon to do so, and being the Court
of Last Appeal so far as the implementation of the Act is concerned.
This should have been possible only by establishing a fully empowered
judicial or quasi-judicial Commission. The government seems to be very
keen to set up such a Commission for higher education, which is
perhaps needed and for which there is considerable public support.
However, such a Commission is needed equally, if not more importantly,
for school education. In lieu of this, the Bill provides for the
establishment of a Central as well as State Advisory Councils. This is
hardly likely to serve the purpose. Such Advisory Councils are vested
with very limited power. Their membership is in the nature of
patronage or favour bestowed by political leaders, and in most cases,
their advice is seldom sought or sought only as a public relations and
politically motivated exercise.

The author is a former Foreign Secretary of India.

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