Problems with the Right to Education Act – II | Something About The Law http://www.somethingaboutthelaw.com/2010/04/09/problems-with-the-...

(Continued from the preceding analysis of the Act’s salient provisions)

Whereas the Act guarantees a right to seek transfer to any other school where the child is required
to move from the one in his/her neighbourhood, there are no measures to ensure that such a transfer
will be a smooth transition for the child. In this regard, the Act seems blissfully unaware of the
major phenomenon of labour migration between rural and urban areas; consequent to the transfer of
their migrant labourer-parents, children would need specially adapted curricula that would serve to
their linguistic and cultural requirements. It is also desired that adequate residential facilities be
provided to children if they so require upon migration to an urban area.[1] However, the Act does
not mention any special measure that would be concomitant to this right of seeking a transfer and
integral to the objective of completing education.

With reference to its treatment of differently abled children, the Act does a complete U-turn in
terms of its policy objectives: in brushing differently-abled children under the carpet of the Persons
with Disabilities Act, 1995, the Act has not only institutionalized a separate, ‘non-inclusive’
treatment, but has failed to commit the Government to facilities that are simply unavailable beyond
the four corners of this legislation. While the Persons with Disabilities Act provides for
infrastructural resources to be made available to differently abled persons to complete their
education, it is clearly diluted in comparison to the Act of 2009. The reticence of the Government in
mobilizing its resources to bring in education for differently abled children into the mainstream is
evident. In addition, the definition of ‘disability’ in the PWD Act does not include other disabilities
as mentioned in the National Trust Act, 1999 such as cerebral palsy and autism, which affect a
significant percentage of the target group.[2]

One of the most glaring deficiencies in the Act is the complete absence of any qualitative
enforcement mechanisms during the period of completing elementary education. While the Act
espouses a no-detention policy[3], such a provision is not backed by any steps to measure the
quality and standard of education (such as child learning levels, competencies etc). A passing
reference to ensuring ‘good quality’ education is enlisted as one of the duties of a school under the
Act; nonetheless, the only standards and norms under the Schedule to the Act are measured by the
number of instruction hours in a year.

Even the duties of a teacher are assessed in terms of punctuality and attendance, and there is no
attempt to secure qualitative learning outcomes from elementary education. In the absence of any
student or faculty assessment, it is not difficult to conclude that the system of elementary education
would produce students who are below par, as has been substantiated by a recent NCERT study.[4]
Further, the Act also takes away the option of parents/guardians to hold back their children in
school, until core competencies are acquired.

In multi-tracking education where a parallel State-sponsored education system exists, with its bare
essentials, alongside privatized and sophisticated institutions, the Act only perpetuates inequities in
society. The last-ditch measure by the Government to impose 25% reservation in private, unaided
schools was perhaps one method to rectify such disparities. However, such a mode of reservation,
apart from facing financial challenges, would also have to operate in a scenario where the
Constitution (through the 93rd Amendment) mandates reservation for the SCs, STs, and socially and
educationally backward classes.[5] The question of economic competency, which drives children to
State-sponsored education in the first place, is completely ignored.

The Act makes recognition of schools mandatory: it stipulates that recognition would be granted in

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Problems with the Right to Education Act – II | Something About The Law http://www.somethingaboutthelaw.com/2010/04/09/problems-with-the-...

pursuance of the norms and standards mentioned in its Schedule, and in the instance of violation of
the same, such recognition may be withdrawn.[6] However, such recognition is based solely on
infrastructural capabilities, pupil-teacher ratio and instruction hours, and hence is no benchmark of
quality. In addition, the penalties on operating a de-recognized school fall squarely on the shoulders
of private operators. Whereas non-government entities face fine and punishment, there is no
obligation for the State to enforce such standards in Government schools. Perhaps a State school
may lose its recognition, but there is no penal consequence that would ensue as a result of failure on
the part of the appropriate authority. Considering the surprisingly favourable impact that
unrecognized, private schools that offer cheap education have had on the education system, the Act
must enforce stop-gap measures to maintain the level of enrollment and quality in elementary
education.

[1] Azim Premji Foundation’s Position [Paper] on the Right of Children to Free and Compulsory
Education Bill, 2008 (November 2008).
[2] Supra n. 45.
[3] See §16 of the Act.
[4] The NCERT Study has been used by the Sarva Shiksha Abhiyan to document quality interventions in
the primary education system.
[5]Art. 15(5), introduced through the 93rd Amendment states: Nothing in this article or in sub-clause (g) of
clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the
advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or
the Scheduled Tribes in so far as such special provisions relate to their admission to educational
institutions including private educational institutions, whether aided or unaided by the State, other than
the minority educational institutions referred to in clause (1) of Article 30.
[6] §19(3) of the Act.

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