Right to Education Legislation

Comparisons with Kothari Commission’s Common School formulations

With the Lok Sabha passing the Right to Education Bill on August 4, 2009, education is finally a fundamental Right of children between ages 6 to 14. Having received the President’s assent, the Bill is soon going to be notified as an Act. This will make the controversial 86^th amendment of the Constitution, which inserted the Right to Education under Article 21A in 2002, operative. Since a CABE committee was set up in 2004 to draft the Bill, it has taken five years of struggle, during which time the Bill was abandoned as a central legislation in favour of respective states bringing in their own legislations based on a toothless model Bill, to resurrect it and get it passed.

That should bring to rest the current phase of advocacy and campaigning for the Bill. The task must be to ensure its proper implementation now. But because of some glaring shortcomings of the Bill, like the definition of the child, campaigns for amending the Act, including through the judicial process, to bring in the 0-6 and 14-18 age groups must simultaneously continue, since 0-18 is the internationally agreed definition of the child as per the United Nations Convention of Child Rights to which India is a signatory, and 0-6 was constitutionally mandated by the original Article 45 of the Directive Principles, and reconfirmed by the Supreme Court in 1993 through the Unnikrishnan judgment.  Though the Bill has some restraining components for private schools, the campaign to reinsert the clause on a complete regulation of private schools that was dropped from the final draft must also go on, in order to stop the reckless and unregulated charging of fees and questionable notions of quality being practiced by many of these schools.

A view however prevails that the Bill is unacceptable since it should have completely done away with private schools; some commentators even claiming that the Bill shall ‘promote’ privatization. As a recent example, in an opinion piece in the Hindu of August 11, 2009, the former vice-chairman of the National Knowledge Commission and a well-respected scientist, Prof. P.M. Bhargava states that “the Right to Education Bill … passed by the Rajya Sabha and the Lok Sabha, if notified by the government, will only be a boon for those who make money in the school business, while it will be a disaster for those who have no access to education today. Unfortunately, that is what the rich and the ruling classes want”. The statement imputes that there is nothing in the Bill that would help improve the governmental school system, and has no provisions that would curb certain undesirable practices of private schools. As will be discussed later, both the assertions are factually incorrect. It would appear that the sole concern of certain critics is that the Bill should have, by taking away the right to charge fees, sounded the death knell of private schools; anything else, like improvement of government schools is too little, rendering the Bill unacceptable.  While agreeing with the spirit that no one should be allowed to make profit from the education of children who have been provided a fundamental right to free education, it would be desirable to examine whether transforming such a spirit into law is realistic, politically and constitutionally, in the present times or, whether that was possible even in the past when privatization of education was much less rampant, like when the landmark and progressive Kothari Commission Report was prepared.