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Status Of Implementation Of Right To Education Act, 2009: Reflections & Inferences From Uttar Pradesh

Mahatma Gandhi had stated that primary education “[will] lay the foundation of a juster social order in which there is no unnatural division between the ‘haves’ and the ‘have-nots’ and everybody is assured of a living wage and a right to freedom. The importance of basic education has been aptly described by Jean Dreaze and Amartya Sen in their book, “An Uncertain Glory: India and its Contradictions” (Penguin, 2013), as: “In a society, particularly the modern world, where so much depends on the written medium, being illiterate is like being imprisoned, and school education opens a door through which people can escape incarceration.”

When the Right of Children to Free and Compulsory Education (RTE) Act, 2009 was passed by Parliament which came into force on 1st April, 2010, we had hoped to see an air of change that the accessibility and quality of education for children in India would be improved. The Act had set a deadline for implementation of its various provisions. Seven years have been passed since the Act came into force, and we can only find failure on behalf of our governments to implement the Act within the deadline, as evident from the fact the Union Cabinet chaired by the Prime Minister has now approved the amendment to RTE Act, 2009 to extend the deadline, for training of all teachers to acquire the minimum qualifications prescribed by the academic authority, till 31st March, 2019. Earlier, the Proviso to Section 23(2) of the Act had specified that all teachers at elementary level who, at the commencement of the Act, did not possess the minimum qualifications as laid down under the RTE Act, need to acquire these within a period of five years i.e., 31st March, 2015. The implementation of the Act in letter and spirit could have changed the entire primary education system of the country. However, the reality is quite contrary to the objective of the RTE Act.

 Education Crisis

In their book “An Uncertain Glory: India and its Contradictions” (2013), Amartya Sen and Jean Dreaze have stated that as compared to other countries in South Asia, India lags behind in education by a long margin. It has further been observed in the book that:

“School Education in India suffers from two principal deficiencies: firstly, limitation of coverage, and secondly, poor standard of the education that is offered and received. While there has been some progress in the former, the quality of education in India schools seems to be exceptionally low over a wide range of institutions. Teaching methods are quite often dominated by mindless rote learning, including repetition- typically without comprehension- of what has been read, and endless chanting of multiplication and other tables. Children often learn rather little in these schools.”       

The failure to implement the RTE Act provisions has resulted in decline in education performance. As the Annual Status of Education Report (ASER) -2014 (brought out by an NGO, Pratham) shows, the percent of children in Government schools in Class IV that can read at Class 1 level or better has declined from 46.2% in 2010, down to 26.9% in 2014. Likewise, the percent of children in government schools in class V that can read at class II level or better has declined from 36% to 26.8%. Similarly, the 2014 ASER shows that the percent of children in class IV that can do subtraction arithmetic problems decline from 32.6% in 2010 to 17.5% in 2014. And the percent of children in class V (government schools) that can do division arithmetic problems declined from 18.7% in 2010 to 12.1% in 2014. While 28% of children in 6-14 age group could not even read capital letters in English, only 16.9% could reach easy sentences. The ASER 2016 Report states that there is no change in learning levels in Class V and a slight decline is visible in Class VIII. For example: “[I]n 2009, 60.2% of children in Std VIII could read simple sentences in English; in 2014, this figure was 46.7% and in 2016 this ability has further declined to 45.2%. In 2016, of those who can read words (regardless of grade), roughly 60% could explain the meanings of the words read. Of those who can read sentences, 62.4% in Std V could explain the meaning of the sentences. Both these levels are virtually unchanged since 2014.

Reflections from Case Study of Uttar Pradesh

When it comes to implementation of RTE Act, the situation is worse in the state of Uttar Pradesh. There are a lot of statistics which indicate that the Uttar Pradesh is way behind in improving its education system and in implementing the RTE Act in its letter and spirit. According to a Report titled “Education for All-Towards Quality with Equity” (2014) prepared by National University for Educational Planning and Administration (NEUPA), there were 8.15 million children out of school in 2009. Uttar Pradesh accounted 34% of these 8.15 million out of school children, i.e. 2.78 million children. Currently, the figure of “out of school” children in the entire country is counted up to 3.45 crore.

By virtue of S. 12 (1) (c), the RTE Act imposes ‘a legal obligation on the private unaided schools to enroll children from the Economically Weaker Section (EWS) and disadvantaged groups at entry level, with 25% seats to be reserved for them, in order to make these schools more inclusive’. Though the enrolment rate in EWS category under S. 12 (1) (c) of the Act increased from 21.5% fill rate in 2012-13 to 29% in 2013-14, in Uttar Pradesh, however, this rate was recorded the lowest at 3.62%, by “State of the Nation” (2015) Report. The Report was brought out collectively by Indian Institute of Management, Ahmedabad, Central Square Foundation, Accountability Initiative and Vidhi Centre for Legal Policy. The same Report estimates that the 25% reservation clause in UP would cover 633262 seats, out of which a total of only 5033 seats were filled in 2014-15 with a seat fill rate of 0.79%. In 2013-14, the seat fill rate was 1.17%. The attitude of elite private schools, in this regard, can be best seen from the attitude of City Montessori School (CMS) in the case, City Montessori School v. State of U.P. (2015), wherein the school was refusing to admit 31 EWS students in one of its branches. Interestingly, in State of U.P. v. Shiv Kumar Pathak (2014), the Division Bench of the Supreme Court recapitulated the objects and reasons from the RTE Act, 2009, in the following words: “Provision of free and compulsory education of satisfactory quality to children from disadvantaged and weaker sections is…not merely the responsibility of schools run or supported by the appropriate Governments, but also of schools which are not dependent on Government funds.”

The RTE Act has also specified several obligations on the authorities regarding physical infrastructure. These include the basic requirement of neighbourhood schools for all children age 6 to 14 (Section 3(1)), as well as basic amenities in these schools contained in Parts 2, 6 and 7 of the Schedule of the Act. Obligations to meet these infrastructure requirements fall on the State government through Sections 8(b) and 8(d), and on the local authorities through Sections 9(b) and 9(f). However, the physical requirements have not been met. In Uttar Pradesh, as the 2016 ASER Report noted, 33.6 % of schools do not have playgrounds. The Report also states that: Only 54.8% of schools had useable toilets, which also included that only 51.5% schools had separate useable toilets for girls. Only 42.8% of schools were found to have a working library for children. 97.3% schools did not have computers available for children. As per 2014-2015 RTE Forum Report, number of schools having hand wash facilities declined from 58.14% in 2010-11 to 44.66% in 2013-14.

Additionally, RTE Act creates several obligations on the government regarding the quantity and quality of teachers, and the operation of schools. The Schedule to the RTE Act includes numerous provisions which specify the number of teachers (at least 2 for class I to V, and at least one per class for class VI to VIII) and the Pupil-Teacher Ratio (no more than 30:1 in class I to V, for schools with 120 students or fewer, and no more than 40:1 for larger schools; and no more than 35:1 in class VI to VIII) as well as the types of teachers required in class VI to VIII. The target was supposed to be met by March 31, 2013. On U.P.’s schools, ASER 2016 states that only 30.8% comply with the RTE mandated pupil-teacher ratio.

The quality of education being imparted is also affected due to shortage of trained teachers. In State of U.P. v. Shiv Kumar Pathak (2014), the Supreme Court had observed that “[p]rimary education can be equated to the primary health of a child” and that “[t]he teacher shall serve the purpose of oasis in the field of education”. As per 2015-16 RTE Forum Report, Uttar Pradesh has 70,621 Teacher vacancies against total post sanctioned under SSA, and 1,43,527 vacancies against total post sanctioned under State programme, thereby making a combined vacancy of 2,14,148. This is in violation of Section 26 of the Act. The data as per the 2014-2015 RTE Forum Report shows that U.P. has 27.99% untrained teachers, which is in violation of Sections 8(i) and 9(j). While stating that “Studies on attendance of primary and upper primary school teachers show that the teacher attendance rates remain a concern”, the NEUPA Report 2014 has stated that Uttar Pradesh showed a decline in teacher attendance rate from 2006-07 to 2012-13. Thereby, the Report highlighted “the need to set up a reliable system for tracking teacher absenteeism and implement effective strategies for reducing teacher absenteeism and sustaining high levels of attendance throughout the school year”.

One particularly innovative aspect of the RTE Act is the requirement for School Management Committees (SMCs), covered by Sections 21 and 22 of the Act. Though 93.7% schools in U.P. had SMCs (as per ASER 2016), the success of SMCs should be measured by the functions they are able to perform. ASER 2014 Report states that only 26.2% schools reported having Schools Development Plans (SDPs) developed by SMCs and could show it.

The governments have also consistently failed to provide adequate resources for the financing of the RTE. As per the RTE Act, 2009, both Central and State governments have equal financial responsibility in ensuring that all the provisions of the Act are implemented entirely. The financial year 2015-16 saw a shocking cut in budgetary allocations for education, with a 29% cut in Sarva Shiksha Abhiyan (SSA) budget, reduced from 27,758 crores (2014-15) to 22,000 crores (2015-16). The RTE Forum Report 2015 states:

“What is more complex is that despite this allocation of funds, which the government agrees is not at all sufficient to ensure that the RTE Act is implemented in its true spirit and letter, expenditure has not been made towards meeting the targets of the Act. With the exception of 2010-11, for all other years the allocated budget could not be fully utilized. Such a trend does not indicate that funds are not required; but unfortunately misguides the Center in cutting budgetary allocations. Thus, the Center and State need to identify the problems that hinder usage of funds.”

The poor state of education system in the state of Uttar Pradesh has been criticized by Justice Sudhir Agarwal of Allahabad High Court, in Shiv Kumar Pathak v. State of U.P. (WRIT – A No. – 57476 of 2013, Judgment delivered on 18.08.2015), where he said that there are three categories of primary schools running in the State of U.P., imparting education to minor children of Uttar Pradesh- (i) Elite and highly privileged branded public schools; (ii) Semi-Elite Schools; and (iii) Common-men’s Schools. Justice Agarwal said that third category caters to the entire rural class, urban rural class and those who cannot afford expenses of other two categories. As per Justice Agarwal, the primary schools, mentioned in last category, which are catering to the need of almost 90 per cent of the population of minor children, are run by U. P. Board “in the most shabby conditions”. To quote from the judgment:

“The education in these Schools is supposed to be free, but that is how everything is free. Virtually a complete lack of infrastructure one can find in these Schools. After more than 65 years of independence, these Schools are still struggling to have basic amenities for children, coming thereat, like drinking water, space for natural calls etc. Even classrooms are in extremely shabby and bad conditions. At many places, classes are being run in open space. The structure, if any, is in dilapidated condition. Though huge money is being invested and spent every year in the name of welfare, of basic education to the wards of poor people but actually nothing has improved.”

Under the RTE Act, State Commissions for Protection of Child Rights (SCPCRs) have been given the responsibility to examine the implementation of the Act. Rule 24(6) of UP RTE Rules, 2011 states that the State government shall constitute a Cell in State Commission for Protection of Child Rights, which may assist the Commission in performance of its function under the RTE Act. However, this mechanism seems to be inadequate not only in Uttar Pradesh but in other states as well, as the orders of SCPCRs are only recommendatory.

The statistics from Uttar Pradesh infer the urgent need of a new mechanism to monitor the implementation of the Act.

Need of an Independent Enforcement Mechanism

 The RTE Forum Report 2014-2015 stated that there are only 8.30% schools that comply with all the parameters and norms stipulated in the RTE Act. The situation has not improved in the next years. As per the “6th National Stocktaking Convention of the RTE Forum” held on March 21st, 2016, less than 10% schools are compliant with all the provisions of the Act. P. Sainath in his book “Everybody Loves a Good Drought” observes: “Contrary to what the elite would like to believe, the poor do want to send their children to school. But schools are less than a joke.” He further says: “The socio-economic system drives them away totally, though they may be keen on gaining an education. It’s not just the funds. It’s the lack of commitment.” He questions: “If what’s in the classroom is not ‘relevant’ to the lives of millions of Indians, why not make it relevant? Why destroy the classroom? No major reforms will last that do not go with basic change in this area.”Amartya Sen has also rightly observed in his book “The Country of First Boys” (2015) that: “Our children remain in the dire state in which they are mainly because of the lack of political and social engagement, not because of the lack of resources.”

All this calls for a strict and independent enforcement mechanism of the RTE Act, 2009. When a petition was filed before the Supreme Court of India to monitor the implementation of the RTE Act, it expressed its inability to monitor the implementation in the whole country. However, it advised to approach the High Courts of respective states to look into the issue.

In this regard, we should look into the “State of the Nation” Report (2015), brought out by IIM-Ahmedabad and others. One of the main assertions in the Report was that the chief hindrance to effective enforcement of obligations under the RTE Act is the recommendatory nature of orders by local authorities and SCPCRs. It therefore recommended for creation of a newly constitution RTE Commission. To quote from the Report:

“It is recommended that instead of prolonging the grievance redressal process by resorting to local authorities and thereafter to SCPCRs, aggrieved persons could approach a newly constituted RTE Commission that would be equipped to pass orders which would be binding in nature.

These orders of the new Commission would be enforceable, and not merely recommendatory.

The function of this RTE Commission would be to enforce implementation of the Act. Thus, the Commission would not only address the issues faced by aggrieved persons, whether parents or guardians of children, but also schools seeking enforcement of their entitlements from the government under the Act.

Thus, it is recommended that even though aggrieved persons could approach local authorities for a rapid and possibly amicable solution to smaller grievances, direct recourse to the RTE Commission should be permissible under the Act. Moreover, the Commission should also be required, under the statute, to endeavour to dispose of all its cases within a period of three months.”

This recommendation can be read in the light of the orders of the Hon’ble Supreme Court in the Right to Food Case (People’s Union for Civil Liberties v. Union of India, (Civil) No. 196/2001), where vide order dated 8th May 2002, the Supreme Court appointed two “Commissioners” for the purpose of monitoring the implementation of its interim orders on Right to Food. The Supreme Court Commissioners’ Office on Right to Food had been empowered to “investigate violations of interim orders related to the case and demand redress” and to monitor and report “the implementation status of said orders to the Supreme Court and conducting inquiry to respective government authorities on their efforts in placing the orders functional”.

 Conclusion

M C Chagla, the then Union Education Minister had addressed to the Central Advisory Board of Education in 1964 that: “Our Constitution fathers did not intend when they enacted Article 45 that we just set up hovels, put students there, give untrained teachers, give them bad textbooks, no playground and say we have complied with Article 45 and primary education is expanding. The compliance intended by our constitutional fathers was a substantial compliance. They meant that real education should be given to our children between the ages of 6 to 14.”

Even today, 70% of rural children attend government schools (ASER 2016). Therefore, the public school system must step up and improve the quality of education it provides. Unless the RTE Act is not implemented in totality in letter and spirit, the “real education”, about which Chagla mentioned, would not exist in practice. It is, therefore, important not just to count the existence of schools, but also to go into the running of schools, involving physical facilitates as well as teacher participation. The poor implementation of the Act is only symbolic of lack of commitment on the part of our governments to make this world a better place for our children. We need strict implementation and monitoring of the Act. We, therefore, need independent and separate RTE Commissions in all the states of India.

Anurag Bhaskar is an alumnus of Dr. Ram Manohar Lohiya National Law University, Lucknow. He tweets at @anuragbhaskar_ and can be contacted at anuragbhaskar007@gmail.com.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same].

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