By Nadim Nikhat,
[This paper is based on lecture delivered by the author in National Seminar on “Right to Education Act and Its Implementation” organized by Al-Ameen College of Education, Bangalore]
Introduction:
Children being non-essential or a weak constituency and have no ‘ballet value’ for the policy makers. They themselves are a non-actor, leaving behind a very little room to negotiate for them in an indirect and representative democracy. Though. Children are always at the receiving end despite the fact that they are the only claims holder or beneficiary of fundamental right to elementary education. This is perhaps one of the reasons why it took 60 years to legislate on this basic guarantee to elementary education.
It makes the task of evolving a democratic and inclusive education system in general and schools in particular, a very difficult task. Children’s cause are quite often looked from the point of approach of parents, families, caste, tribes, community and society at large.
Students of Hajjan Begum Sughra Hasan Memorial Urdu girls School, Darbhanga [Photo by Mudassir Rizwan, TwoCircles.net]
Families, caste, tribes, communities and society, generally are carriers of ethos, values, mores and culture etc. but truly not the only carrier. These values are necessarily not always in sync with the constitutional ethos and are usually patriarchal, feudal, castist and communal/religious and are based on inclusion and exclusion, hence largely discriminatory in nature.
Therefore, in order to make institution of schools democratic, participative and inclusive and free from discrimination, these institutions including the Panchayati Raj Institutions (PRI) should have to be made democratic, participative and inclusive and free from discrimination. Education and/or school is both means and end to achieve equity but education alone and itself cannot emancipate but simultaneously education has to be emancipated from the discriminatory ethos perpetuated by these institutions.
In other words an active citizenship will transform the institution of education in to an active, inclusive and discrimination free institution and an active, inclusive and discrimination free institution of education will progressively develop an active citizenship. This will not happen in isolation.
Many reports and studies such as Justice Rajindar Sachar Commission’s Report and the Position Paper on SC and ST and Girl’s education by National Curriculum Framework, NCERT, have shown than SC, ST, Religious Minorities and girl child are subjected to discriminatory and exclusionary practices in elementary schools by teachers and children from dominant caste and religion groups, which leads to low enrollment, high crop out rates amongst children from these communities and class. These reports have expressed an imminent need to make schools more inclusive, in line with the principles of equality enshrined and guaranteed under the Constitution of India.
India has enacted a progressive legislation called the Right of Children to free and Compulsory Education Act 2009 (RTE Act) to universalize elementary education irrespective of caste, class, gender and religious identities. Till now, nine states namely, Andhra Pradesh, Arunachal Pradesh, Himachal Pradesh, Madhya Pradesh, Manipur, Mizoram, Orissa, Rajasthan and Sikkimhave passed their Rulesand six Union Territories namelyAndaman Nikobar,Chandigarh, Dadar Nagar Haveli, Daman and Diu, Lakshadweep and Pondicherry have adopted Central Government’s Model Rule. Even after one and half years, twenty states including Assam, Bihar, Chhattisgarh, Delhi, Goa, Gujarat,Haryana, J&K, Jharkhand, Karnataka,Kerala, Maharashtra, Meghalaya, Nagaland, Punjab, Tamil Nadu, Tripura, Uttar Pradesh, Uttrakhand and West Bengal have not passed their State Rules.
RTE Act intends to promote and provide discrimination free schools and empowers the community and local self-governance bodies to play key role in monitoring and redressing discrimination in schools.
Minority Perspective
The poor representation of Muslimminority children at pre-primary as well as primary levels was emphasized by Justice Rajindar Sachar Commission Report. It was also noted about the discrimination faced by Muslim children in accessing anganwadis and primary schools.
The tables given below attest the gravity of problem.
% children covered under ICDS/Anganwadis: NSSO-2005
|
Category |
% age coverage |
|
Average |
10.5 |
|
All Hindus |
10.9 |
|
SC/ST |
10.2 |
|
OBC |
12.5 |
|
General |
9.9 |
|
Muslim |
7.6 |
|
Others |
13.5 |
% of Children Not Attending Schools: NSSO- 2005
|
Category |
Children Not attending school |
|
SC |
49 |
|
M-Gen |
55 |
|
M-OBC |
56 |
|
All India |
49 |
RTE Act Regime: Key Concerns
From the very day of its inception, the Act raised serious anxiety amongst the private schools and minority educational institutions regarding the seat sharing and minimum norms for schools for their registration.
The debate was pitched at a really low level that it neglected the very core constituency of the law i.e. children in general and children from minority community in particular. This approves the statement made in the opening lines of this paper.Let me rearticulate and reprioritize the ‘minority-order’ of the problem.
For me the key concerns around the present law should be firstly, whether the children form minority community would access quality education;secondlydoes RTE Act address issue of exclusion of children from Muslim minority groups; thirdly what is special for children from minority groups under the RTE Act; fourthly, does any regulation under the RTE Act interfere in the rightful exercise of ‘right to establish and administer’ minority educational institutions and lastly is the regulation provided under the RTE Act, a quality assurance measure or an infringement in rights of minority educational institutions?
RTE Act and ‘ChildBelonging to Disadvantaged Group’ (C-DG) and ChildBelonging to Weaker Section (C-WS)
RTE Act provides for free education up to standard 8th to C-DG and C-WS in all aided/unaided private schools and specified schools such as Kendriya Vidyalaya, Jawahar Navodaya Vidyalaya, and Sainik Schools etc. Accordingly, these schools are required to admit 25% [of total available seats] C-DG and C-WS in Standard One .
Further, the Act provides for proportionate representation of parents from above groups in the School Management Committee constituted in every government primary school, which is entrusted with the right to monitor and manage the neighborhood school.
RTE Act: Addressing Discrimination in Schools
The RTE Act intends to provide discrimination free schools and expect the government and local authority to ensure every C-DG and C-WS shall not be discriminated against and prevented from pursuing and completing elementary education on any grounds. The application of this provision is limited to the above two groups particularly but the Model RTE Rules proposed by the Central Government, obliges government and local authorities to ensure every schools free from abuse on ground of caste, class, religion or gender. Similarly in tune with the Model RTE Rule, States have incorporated this in their respective State Rules. Manipur and Andhra Pradesh have expressly provided for protection against denial of admission to schools on grounds of caste, class, religion and gender.
With reference to all government and aided private schools, the Model RTE Rule proposed by Union Government and State Rules have further elaborated the scope and specifically provides for obligation of government and local authority to guarantee that the child belonging to above two categories shall not be segregated or discriminated against in class rooms, during mid-day meals, in the playground, in use of common drinking water and toilet facilities and cleaning of toilets and class rooms.
With respect to unaided private schools and specified schools, the Model Rule and other State Rules prescribe for a mandatory duty on every unaided private and specified schools to not to segregate children belonging to the above two categories, admitted under the 25% free quota in line of the Section 12(c), from the other children in the classrooms nor shall their classes be held at places and timings different from the classes held for the other children. Further they shall not be discriminated from the rest of the children in any manner related to entitlements and facilities such as text books, uniforms, library and Information and Communication Technology (ICT), extra-curricular activity and sports.
The RTE Act includes SC and ST children as two broad categories within C-DG and leaves it to State Governments to include socially and educationally backward group/s or any other group/s on the basis ofsocial, cultural, economical, geographical, and linguistic and gender related factors. Similarly, RTE Act providesincome criteria for defining C-WS and the income limit is left for State Governments to decide. Different states have adopted different classification for defining C-DG and C-WS. Tables given below provide an overview of groups included within these two key definitions by different states.
Table- Groups Included within the Definition of C-DG Under State Rules:
|
Disadvantage Group |
State |
|
SC and ST |
All States |
|
Orphan |
Andhra Pradesh and Manipur |
|
Children in Special Need |
Andhra Pradesh, Himachal Pradesh, Manipur and Rajasthan |
|
Migrant |
Andhra Pradesh |
|
Street Children |
Andhra Pradesh |
|
HIV +ve children |
Andhra Pradesh and Manipur |
|
Girl Child |
Rajasthan |
|
Below Poverty Line OBC |
Rajasthan |
|
Below Poverty Line |
Mizoram |
|
Note- C-DG is not defined by State Rules of Arunachal Pradesh, Madhya Pradesh, Orissa and Sikkim |
|
Table- Groups Included within the Definition of C-WS Under State Rules:
|
Weaker Group/s |
State |
|
BPL |
Arunachal Pradesh, Himachal Pradesh, Rajasthan and Mizoram |
|
Backward Class |
Andhra Pradesh |
|
Minority |
Andhra Pradesh |
|
Other Class with annual income up to Rs. 60,000/ |
Andhra Pradesh |
|
Annual Income up to Rs. 40,000/ |
Manipur |
|
Note- C-WS is not defined by State Rules of Madhya Pradesh, Orissa and Sikkim |
|
Exclusion of Minority Children: A Problematic Area
Except Andhra Pradesh, none of the other states have included minorities within this special focus group and such exclusion of Minorities (Muslims) from CDG and CWG is problematic as it would mean exclusion from 25% free seats and other allied services/benefits provided to CWG and CDG in aided and unaided private schools, specified schools e.g. Kendriya Vidyalaya, Jawahar Navodaya Schools, Sainik Schools etc. and also exclusion from representation in School Management Committee.
Interesting, the AP Rule provides a clear formula for seat distribution amongst the C-DG and C-WS from neighborhood area in Standard One in all aided and unaided private schools and specified schools.
Table- Seat Distribution amongst C-DG and C-WS in Andhra Pradesh
|
Category of children |
% age of free seats |
|
C-DG |
|
|
SC |
10 |
|
ST |
4 |
|
Orphan, HIV infected, Children with disabilities |
5 |
|
Sub Total |
19 |
|
C-WS |
|
|
Minorities, BC and OC with annual income up to Rs. 60,000/ |
6 |
|
Grand Total |
25 |
Minority Educational Institution:
Constitution of India guarantees every minority group a right to ‘conserve’ (includes protection and promotion) language, script and culture (also covers right to impart religious and cultural education/teachings) as well as right to establish and administer/manage educational institution of their own choice (Including religious institutions).
Supreme Court of India while discussing the legality of regulation of the right of Minority to establish and administer educational has defined the extent of this right. It validates the imposition of reasonable regulations as a condition of granting aid or recognition to an institution coming under Article 30(1) by the state for the purpose of ensuring sanitation, competence of teacher, maintenance of discipline etc. Further, it reaffirms that there is no constitutional or other right for an institution to receive state recognition and the state may impose reasonable conditions for receiving its recognition e.g. as to the qualification or pay of teachers or qualification of governing bodies.
But the regulation regime is not absolute andunfettered thereforethe state cannot prescribe a condition that if an institution, including institution protected under Article 30(1), seeks to receive state aid, it must submit to the condition that the state may take over the management of the institution or acquire it, under certain condition. Such condition would completely destroy the right of community to ‘administer’ the institution. Further, state cannot impose any restriction on the right … so long as such institutions are unaided, except to the limited extent that regulation can be made for ensuring excellence in education.
RTE Act and Minority run Primary Schools
To analyze the possible impact of the RTE Act on minority run primary schools, one must look in to form and nature of new liabilities created on the minority run primary schools in the light of Constitution and Supreme Court of India.So far as rights of such institutions are concerned, prior to the RTE Act, it had right to establish institution of their choice; right to administer/manage institution of their choice; right to conserve language, script and culture; and Right to admit minority students up to 50% of total strength. This law doesn’t make any changes in these rights.
On the other hand, let’s explore the extent of the regulation in form of duties and prohibitions prescribed under the RTE Act is just the repletion of the old regulation or new. Prior to this Act, every private aided/non aided schools, including minority schools, were liable to register school; to maintain certain infrastructure standards; to maintain certain quality standards; to maintain pupil-teacher ratio;and to provide salaries to teachers as per the state norm. Similarly, corporal punishment, capitation fees and private tuitions were prohibited.
Apart from the above the RTE Act has introduced certain new norms in relation to school administration, viz. prohibition on admission test up to std. 8 and holding back and mandatory working hours for teachers are universal norms applicable to all schools including aided/unaided minority schools. In addition to this there are certain norms specifically mandated only for aided/unaided private schools including minority schools and specified schools such as:
• Duty to admit 25% C-WS and C-DGin Std. 1 and provide free education till the completion of 8th standard;
• Duty not to segregate children from disadvantaged groups and weaker section, admitted under the 25% free quota, from the other children in the classrooms and their classes should not be held at places and timings different from the classes held for the other children;
• Duty not to discriminate from the rest of the children in any manner related to entitlements and facilities such as text books, uniforms, library and Information and Communication Technology (ICT), extra-curricular activity and sports and
• Duty to declare tuition fee to the Govt. Authority.
In return to the 25% free seats, the cost will be reimbursed by the government as per their per child annual expenditure.
Table: Rate of Reimbursement @ Per Capita State Expenditure
Conclusion:
The concerns raised in the paper with respect to Muslim children are not new but RTE Act does not sufficiently give solution to the problems. Rather, it is reinforcing the exclusion of Muslim children as state governments have failed to recognize Muslim children as a special focus group.
The present elementary education system doesn’t have a definite and uniform mechanism to identify, address, monitor and redress the discrimination at this level. In the absence of which, it is a felt need to evolve methodology and to introduce a mechanism based of specific quality indicators, to fulfill the aim of inclusive schools. The existing Parent Teacher Committee (PTC) or the proposed School Management Committee (SMC) is not equipped to perform their role due to lack of institutional understanding and mechanism to fulfill the gap.
The question of general importance here is that will the new RTE regime emerge as a path breaker in synthesizing the schools, public and private, in to the farmland for cultivating citizenship and constitutional values? Or will it be just another brick in the wall? The next question follows from that how it will respond to the old challenges and new needs and balance between the two opposites?
———————
S. 12(1) (c), RTE Act
S. 21, RTE Act
S. 21(2), RTE Act
S. 22, RTE Act
Section 8 (c), RTE Act
S. 9 (c), RTE Act
Rule 5(3), Model RTE Rules
Rule 6(3)-Andhra Pradesh; Rule 5(3)- Arunachal; Rule 5(2)- HP Rules; Rule 5(2)- MP; 5(3)- Manipur; Rule 5(4)-Mizoram; Rule 7(3)-Orissa; Rule 4(3)- Rajasthan; and Rule 5(3)- Sikkim
Rule 5(4), Model RTE Rule; Rule 6(4)- Andhra Pradesh; Rule 5(4)- Arunachal; Rule 5(3 )-MP; Rule 5(3)- HP; Rule 5(4)- Sikkim; Rule 5(4)- Manipur; Rule 5(5)- Mizoram]
Rule 7- Model RTE Rule; Rule 8- Andhra Pradesh; Rule 7(1)(2)- Sikkim; Rule 7(1)(2)- Arunachal; Rule 7(1)(2)- HP; Rule 7(1)(2)- MP; Rule 7(1)(2)- Manipur; Rule 7(1)(2)-Mizoram; Rule 9(1)(2)- Orissa; and Rule 8(1)(2)- Rajasthan
———————————-
S. 2(d), RTE Act
S. 2(e), RTE Act
Rule 9(4) of the AP Rule
Article 29, Constitution of India
Article 30, Constitution of India
Re Kerala Education Bill case, AIR 1958 SC 956
Frank Antony Association vs. Union of India, AIR 1987 SC 311&GF College vs. Agra University, AIR 1975 SC 1821
St. Xavier’s College vs. State of Gujarat, AIR 1974 SC 1389
Fr. Thomas Shingare vs. State of Maharashtra, AIR 2002 SC 463
Source: DISE Flash Statistics 2009-10 (www.dise.in); http://ssa.nic.in/page_portletlinks?foldername=financial-management and State Budgets 2008-09 and 2009-10 Courtesy: Ms. Avani Kapoor, Accountability Initiative, Azim Premji Foundation; www.accountabilityindia.org
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Author is a Senior Research Fellow, Centre for Social Exclusion and Inclusive Policy, National Law School of India University, Bangalore, India