ASHOK AGARWAL, a Senior Advocate practising in the Supreme Court and the Delhi High Court, has been litigating for the right of education, primarily for those belonging to the weaker sections of society. In fact, even before the actual enactment of the Right to Education Bill, he had campaigned forcefully among policymakers to reinforce the link between out-of-school children and child labour. He was involved in several rounds of discussions along with educationists in the formulation of the RTE Bill. While he considers the RTE Act to be a momentous step, he also feels that there is a need for a fundamental change in the manner in which the Central and State governments view the right to education.
Excerpts from an interview he gave Frontline:
It has been close to two years since the RTE Act was legislated by Parliament and one year since the rules were framed. You have been involved right from the beginning in the campaign to bring in a law to make education a right and to get the Act implemented by both private and government schools. What has been your experience so far?
The whole problem is that governments have never been serious and sincere about the education of the children of the masses. Except for lip service, there has been no substantial change in the attitude of governments. Problems like child labour, lack of physical and academic infrastructure in schools, [the issue of] good-quality education, teachers' absenteeism, dropping out by students, availability of schools within the reach of children, education of children with disabilities, among other things, have not yet been addressed despite the enactment of the law. One important thing has certainly happened: a lot of propaganda by the government machinery has led to a tremendous demand for education by parents and children.
However, on the supply side the government has failed utterly to meet the same. This has led to multifarious litigation on the basis of the rights arising out of the Act. Further, a total absence of provisions on accountability in the Act has made it shallow. In such a situation, the only hope is for the masses to force governments by individual as well as united means to implement the Act in its true letter and spirit.
The demand for a common school system has not been met still. Many educationists and social scientists believe that this would be a right step not only for making education equitable but also in the larger interests of a more equitable society. Do you think that the Act is a step forward in this direction?
I do think that the Act is a step forward in the direction of a common school system. But it undoubtedly suffers from some serious lacunae that contradict the principles of a common school system. For instance, “specified categories of schools” contemplated in the Act only perpetuate the ongoing discriminatory system of education with public funding.
With education being largely in the private sector and with more and more private schools coming up, is it going to be difficult to get the Act implemented in the interests of those who are getting left out of the school system?
Fortunately, government schools still cater to a large majority of school-age children. Moreover, government schools are the only hope for the children of the masses. Private schools, in law, are the extended hands of the government and are obliged to fulfil the constitutional goals. Therefore, if private schools are appropriately regulated by law keeping in mind the constitutional objectives, I do not see any harm in the growth of more private schools. The implementation of the Act largely depends upon those who are responsible for its implementation.
Many State governments have not framed the rules, and where they have framed rules, they are inadequate. What has been your experience? Is getting the Act implemented in the private sector more challenging or is it equally difficult in government schools?
Many State governments have woken up suddenly to formulate the rules. Many States have not framed the rules yet, and many others are still pondering over them. The rules are not only inadequate, but some of the provisions therein even violate the provisions of the Act. There is a bright side, too. Where State governments have involved civil society in the process of framing the rules, there has been a greater understanding of the issues involved. The implementation of the Act is equally difficult in government schools. One of the biggest reasons is that the persons running these schools are not sending their own children to government schools, and, therefore, they are not interested in the education of the children attending these schools.
Have private, unaided schools got off easily under the provisions of the Act? Many feel that the 25 per cent reservation provided for students of the weaker sections is arbitrary, that it could be have been more, and that there should be restrictions on the fees charged by private schools. There is also this notion that while teacher-pupil norms are prescribed for government as well as private schools, other norms relating to infrastructure and teaching workload are only for unaided schools.
The Act deals with unaided schools in a very limited manner. There is a need to have a comprehensive central law dealing with all the aspects of unaided schools, which include regulation of fee and other charges and adequate representation of parents in the school management committees. The Law Commission of India had recommended that it should be 50 per cent, but to begin with it could be 25 per cent. I wish and hope that this percentage goes up to 100 per cent to make the constitutional mandate of free education to all a reality. The minimum norms prescribed for a school in the Act is equally applicable to both private and government schools.
As one who has been continuously involved in the fight to get this right realised, do you think that the executive is withdrawing from its responsibility and that without a court order, most governments may not even implement the legislation?
It is correct. Inaction on the part of the executive to perform its constitutional and statutory duties forces the aggrieved to resort to avoidable litigation.
The common man is unable to provide quality school education to his/her child because on the one hand, government schools by and large lack basic physical and academic infrastructure and suffer from mismanagement, which results in inferior quality of education, and, on the other, the “good quality” unaided private schools mercilessly exploit parents and students by subjecting them to arbitrary, unjust and exorbitant fees and other charges. In other words, the common man is the victim of a purely state-designed situation.
The apex court has again and again reaffirmed the law of the land that capitation fee, charging of exorbitant fees, profiteering, commercialisation of education and exploitation of parents/students by unaided private schools are impermissible in law and the government has not only the powers but also the duty to regulate fees and other charges in these schools to prevent commercialisation of education.
However, the issue is that there is the total absence of a legal framework in the country to control and regulate unaided private schools in the matter of fees and other charges. The only exception is the Tamil Nadu Schools (Regulation of Collection of Fee) Act, 2009, but it is limited to the State of Tamil Nadu.
Parents and students all over the country have been agitating against the governments' failure to curb the commercialisation of education in unaided private schools. The need of the hour is to have a central law to regulate fees and other charges in unaided private schools throughout the country, maybe on the lines of the Tamil Nadu Act.
The Constitution of India mandates the state to provide free and compulsory good-quality elementary education to all children up to the age of 14. It may be kept in mind that this fundamental right is an independent right of every child of this country and does not depend upon the socio-economic status of the parents. It is submitted that unaided private schools are only the extended hands of the state and, therefore, they are also obliged to provide free education to schoolchildren. Unfortunately, such a constitutional mandate has remained elusive.
On the other hand, students and parents are being virtually looted by greedy school managements under the patronage of governments. Thus, child rights violation is a rampant feature here.
