Killing the bill


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IN advancing excuses for not providing all its children at least eight years of basic education – despite political independence in 1947 or passing the 86th amendment of the Constitution in 2002, making education of 6-14 year olds a fundamental right – nothing of essence seems to have changed. Seventy years earlier, Gandhiji’s plea for universal education was countered with a response that the only possible way to meet this objective was by relying on revenues generated from liquor sales. This led him to remark, ‘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).

Now, after getting a draft Right to Education Bill (RTE 2005) prepared by the apex educational advisory body, the Central Advisory Board for Education (CABE), the present central government, in total disregard of its constitutional duty to bring in such a central legislation, has sought to hide behind the argument of insufficient funds and pass on the burden of the constitutional amendment onto the state governments. Accordingly, the Union secretary for school education wrote to the state governments sometime in July 2006 that they should introduce their respective legislations based on a Model Bill enclosed with his letter. Frankly, even diehard educational activists (and I consider myself one) could not have imagined that the events would unfold thus, a year after the CABE adopted the draft in August 2005 for what was to be a central legislation.

What we had expected was a twin battle: one from those who found the August 2005 draft lukewarm or inadequate in some respect (which includes this writer who was on the drafting committee), and the other from government officials and private school owners, who saw many clauses of the draft as alarming. The battle had already started in the media, and it was expected that it would get carried into the Parliament as and when the bill was introduced. In the end, it appears that even the somewhat diluted and inadequate bill was much too strong and potent for the central government, and to everyone’s astonishment, its spin doctors (a committee appointed by the PM to explore the financial implications of the bill) recommended a change in rules to bowl a doosra; pass the buck on to the state governments!

The question is: How justified and legal is this particular doosra? Though more sophisticated than silencing Gandhi by linking education funding to liquor revenue, in essence the message remains the same –the Indian state does not consider it its duty to ensure that all children receive an education of equitable quality. This was true seventy years ago and it is true today. So what is new?


The CABE draft of August 2005: The committee that drafted the bill for CABE approached the task using the following facts and guiding principles:

1. Government data (Selected Education Statistics, 2002, MHRD) suggest that out of nearly 21 crore children in the 6-14 age group (as per Census, 2001), three crore are still unenrolled. Worse, of the 18 crore children formally enrolled from class I to VIII, 52%, i.e. over nine crore drop out. This implies that a total of 12 crore children are not receiving eight years of free and compulsory education, mandated as their right by the 86th amendment.

2. Of the nine crore children supposedly in schools, a majority do not reach acceptable minimum achievements in numeracy and reading skills, confirming that the quality of education in government schools is abysmal.

3. Whereas the population of 6-14 year olds is 21 crore, the number of children enrolled at class 12 level is just over one crore. This provides an indication of the massive exclusion operating at the elementary stage, affecting mostly the dalit, poor, adivasis and girls – the underprivileged.

4. Article 21A, inserted as a part of the 86th amendment reads that ‘the state shall provide free and compulsory education to all the children in the age group 6 to 14.’ The drafting committee spent a considerable amount of time in debating the implication of three key words – free, compulsory and all. It concluded that ‘free’ would relate to any tariff barrier that may serve to keep a child out of school, the major components at present being fees, uniforms and teaching-learning materials, but could imply other expenses in different parts of the country, and in future. Similarly, it was of the view that ‘compulsory’ should imply compulsion to provide on the state rather than on the parents or the children.


The implication of ‘all’ led to heated debates. One view was that ‘all’ should be read as – all the children in the country will receive free education, foreclosing the option for a parent to send her child to a fee charging school (this implies that fee charging schools could not be given recognition, and that every child would be provided with free education of equitable quality – which could eventually become the National System of Education). The other view, one that prevailed, was that the choice to pay fees cannot be denied to a parent; a parent can forfeit her child’s right to free education by sending a child to a fee charging school. The right would, however, be restored if the parent decided to withdraw the child from a fee charging school and sought admission into a school providing free education.

5. Since both dropping out and under-achievement are linked to the quality of education being provided, particularly in terms of interest and relevance to the child, the major effort of the legislation should be to ensure provisions regarding quality that are justiciable. For curriculum and classroom transactions, and teacher quality, the draft bill favoured upholding the NCERT and NCTE norms, as determined from time to time, but laid down the basic norms for infrastructure, teacher-pupil ratio and so on through an attached mandatory schedule.

6. In preparing the schedule, the drafting committee noted the fact that the government itself runs different kinds of schools, each following differing norms. The national annual average per learner cost for ordinary government schools, for example, is about Rs 1800 (varying from state to state). However, for Kendriya Vidyalayas, it is around Rs 11,000. The draft bill assumed that in order to improve quality the overall governmental school system should try to approximate the KV norms all over the country. The financial estimates were based on such a consideration, though diluted in some cases, like allowing for multi-grade teaching situations.

7. It is clear that a dual system of education, whereby the elites can segregate their children through unregulated fee charging schools, has been expanding rather than diminishing in recent times. The relevance of the Common School System, practiced in most advanced countries, and still the mainstay of the successful Japanese school system, is thus of greater relevance today, perhaps even more so than in the days when it was first proposed by the Kothari Commission in the ’60s. But can one include a principle like the CSS in a bill? Legislations normally do not contain long exegesis of principles; they have short clauses that can become justiciable.

Nevertheless, the CSS, building on the notion of the neighbourhood school, was seen by the committee as an eminently justiciable modality, and therefore defined and incorporated in the draft.

Even as all schools were incorporated into the ambit of the neighbourhood schools in the definition used in the draft, the prime question, whether each neighbourhood school would have to admit ‘all’ children free (which is related to the debate on ‘all’ referred to above) remained. Because if all neighbourhood schools are to admit all children and provide them free education, then charging fees would be outlawed, implying thereby that all schools charging fees at present would either have to close down, or would be mandated to provide free education. In the event the consensus was that this would be politically impossible.


After much debate, the committee decided that 25% children from the neighbourhood would have to be accommodated in the fee charging schools for free education. (It was stipulated that the state reimburse the schools for such children at a fixed cost per learner. Incidentally, this move has been flayed by many education groups, activists and lawyers who contend that in many instances, like in Delhi, this might result in further diluting the responsibility of private schools.)

8. The draft bill included two more important chapters. The first related to content and process, making it mandatory to provide education that conformed to values enshrined in the Constitution, and be child-centered. The other recommended setting up a statutory Commission on Elementary Education to monitor the implementation of the act and report directly to Parliament.

The process of finalizing the August 2005 draft laid bare the contentious nature of the issues involved. The CABE committee chaired by Kapil Sibal agreed on a draft on 27 June 2005. Sibal then set up a small team to polish up this draft, as also add justiciability and punishment clauses. He also requested the committee to authorize him to forward the final draft to the minister of MHRD, since having exceeded the time allotted, it was not feasible to arrange another meeting of the committee.


It is worth noting that the final draft presented by Kapil Sibal to the CABE in its August meeting differed from the 27 June draft in over two dozen instances! The more glaring differences being:

a) A key clause regarding regulation of private commercial schools had been removed.

b) Another detailed clause on the use of mother tongue as the medium of instruction was also removed.

c) Also missing were the promised justiciability clauses that were to be added to the June draft. Moreover, the August draft ruled out action for a violation of the act without first taking permission from the concerned authorities (against whom the grievance was likely to be)!

Expectedly this caused a furore in the CABE meeting of August 2005. At the end of the meeting, though it was agreed that relevant corrections would be made before making the draft public, as it transpired, what was made public was the Sibal draft without any further corrections.


The model bill: This brief history of the drafting of the bill may help us make sense of the government’s complete turnaround in circulating the model bill. That its intentions were less than honourable became clear when the bill drafted by CABE (and not a sub-committee) was forwarded for financial scrutiny to a group consisting of the Minister HRD, Minister Finance, Deputy Chairperson, Planning Commission and the Economic Advisor to the PM.

The fact the CABE draft already contained an annexure of financial estimates prepared by NIEPA (the National Institute of Educational Planning and Administration) which took into account the unenrolled, dropouts, as also the provisions of the draft bill, in particular those linked to ‘free’ education, infrastructure and teacher quality as referred to in the schedule and so on, was disregarded. Depending on different teacher salary scales, the financial annexure prepared by NIEPA presented three scenarios. In the best-case scenario, the additional expenditure countrywide was estimated at around Rs 36,000 crore per annum initially, decreasing over years. Since the current annual expenditure is around Rs 47,000 crore, alongwith the new provisions, the revised expenditure would escalate to Rs 83,000 crore per annum.

To date there is no official word available about the deliberations and conclusions of the PM appointed committee. Unofficially, however, one gathers that the committee disputed the NIEPA figures, and held that the required (lower) expenditures were well within the carrying capacity of the state governments, of course supplemented by central contributions under the Sarva Shiksha Abhiyan scheme. However, if one examines the model bill (incidentally, when I requested a ministry official for a soft copy, I was told that it had been declared a secret document!), what we have is a vandalized and mutilated version of the August 2005 draft with many of the key provisions and the annexure of financial estimates removed.


Even without going into those details, there is another reason that makes the decision to refer the bill to the states somewhat curious, one which has to do with the Common Minimum Programme of the UPA government ruling at the Centre. After years of lobbying, the CMP explicitly commited that the UPA government shall increase expenditure on education to 6% of the GDP in a phased manner. A committee was even set up to explore the scenarios for achieving that promise, and this report was available in November 2005. One would therefore expect that the group appointed by the PM would at least have looked at the scenarios presented in that report.

At the expected GDP for 2005, the committee calculated that by earmarking half, that is 3% of the GDP to school education, the amount available would be in excess of Rs 99,000 crore. It may be noted that the total anticipated expenditure in the draft bill was Rs 83,000 crore, well within the GDP figure limit. In terms of stated policies and promises thus, the bill could easily be accommodated. That it has still been discarded as a central legislation is therefore a clear indication that the UPA government is not serious about its CMP promises, at least regarding education.

The major mutilations made to the August 2005 draft are as follows:

a) The schedule detailing the mandatory infrastructure in schools (number of rooms, toilets, library and other details), teacher-pupil ratio, and so on has been removed.

b) The time frame within which existing teachers were to be brought on par with the statutory National Commission on Teacher Education (NCTE) norms has been made indefinite.

c) The responsibility of private unaided schools to provide for 25% free intake under neighbourhood schooling has been removed.

d) The entire chapter on content and processes, containing provisions for making education consistent with constitutional values has been removed

e) The entire chapter on monitoring, recommending the setting up of an independent and statutory Commission on Elementary Education has been removed.

There are other subtle mutilations made even to the preamble, leaving behind a disembowelled carcass. Moreover, since the existing legislations in many states are perhaps far more stringent than the provisions in the model bill, these states may well use this opportunity to switch over to milder legislations!


What prompted these changes? As the covering letter of the Union education secretary for school education makes clear, the HRD ministry officials remain convinced that the Sarva Shiksha Abhiyan scheme is sufficient, and nothing should disturb it too much. The letter links the proposed state legislations to be framed along the lines of the model bill to the quantum of money made available under the SSA. States that conform to the model bill are to get SSA money in the ratio of 75:25; those that do not, shall only receive central funding in the ratio 50:50.

The SSA has internalized and carried forward all the features diluting school education to non-formal education, first introduced under the World Bank funded District Primary Education Programme (DPEP). These not only include the setting up of education guarantee centres and various kinds of transitional schools but also encourage replacement/supplementing of regular teachers by para teachers. These cost-cutting measures have today been adopted by most states. If approved, the August 2005 bill, in particular through its mandatory schedule, would have not only proscribed all these ‘innovations’, but required the para schools to be transformed to regular schools with qualified teachers in a specified time frame.

Unfortunately, however, elements within the bureaucracy as also in some leading NGOs working closely with the SSA both at the Centre and in states, strongly resist changes in the SSA. Their effort has been to legalize the provisions of the SSA, just what the model bill will now do, since it no longer defines either the minimum infrastructure or the time frame for replacing casual teachers by regular NCTE norm based teachers.


Do the states have the financial capacity to ensure education of equitable quality to all the children in the 6-14 age group? The central government thinks so, particularly if the state education budgets are supplemented with SSA contributions.

The present ratio of expenditure between the states and the Centre in school education is about 88:12. The 2% central cess (around Rs 7000 crore annually), which currently finances the important mid-day meal scheme would of course not be available for implementing the provisions of the Right to Education legislations. Most states have now opted for casual teachers and transitional schools, both for reducing their expenditures as also for accessing SSA funds. Further, once Sixth Pay Commission recommendations come into effect, it is likely that the state revenues will be exhausted in merely covering the higher salaries of their employees. It is thus unlikely that the state governments can invest more in education.

This is why the CABE had proposed that the extra expenditure as a result of central legislation should be the responsibility of the Centre. The draft bill even incorporated a clause regarding the Centre-state financial responsibility, foreseeing the situation. As per this clause, each state was expected to maintain its expenditure at the highest level reached in the past five years; the balance expenditure under the bill would be the Centre’s responsibility. Intriguingly, even though the government representatives on the drafting committee agreed to the clause, some leading non-official educationists had it removed by questioning the very rationale behind the bill concerning itself about the modalities of sharing expenditure between the Centre and the states!


Those seeking to unravel the mystery behind the model bill also need to focus on the role of the Planning Commission. Having been forced to accept the Employment Guarantee Scheme and other similar welfare measures, key officials in the Planning Commission possibly feel that the deprived and marginalized have been sufficiently ‘pampered’, and that paying escalated salaries to ‘good for nothing’ teachers would only add to fiscal imprudence. The chapter on education in the approach paper to the 11th plan clearly demonstrates the Planning Commission’s attitude.

Media analysis also point to another source of resistance to the August 2005 draft, namely the private schools. They have openly opposed the proposed 25% free admissions from the neighbourhood, as also other provisions banning capitation fees and the use of screening procedures in admissions at elementary levels. That in the current dispensation their interests are paramount is evident in the manner the regulatory clause on private schools was surreptitiously removed from the draft presented to the CABE in August 2005.


So what should movements and groups working for an effective Right to Education legislation do? Prior to the government’s doosra in sending the bill to the states, many groups were involved in analyzing the August 2005 draft and pointing out its weaknesses. Yet, whatever the infirmities of the draft, it was still too potent for the central government. So do we still pursue preparing the ‘best’ draft, knowing fully well that it stands little chance of being accepted? Or is it better to work around the August 2005 CABE draft and lobby the central government to reverse its stand, such that at least proper infrastructural provisioning, teacher quality and justiciability can be ensured through a central legislation.

Having no central legislation, which is what the model bill amounts to, seems to the Union government’s intention. In the circumstances, lobbying for a better, more comprehensive bill may further reduce the likelihood of the government rethinking its decision. Many argue that the best should not become the enemy of the good. But should a country that has failed to properly educate even half its children sixty years after independence make do with the good, when it is the best that is required?