The majority judgement of a three-judge bench delivered on April 12 substantially upheld the constitutional validity of the Right to Free and Compulsory Education (RTE) Act, 2009 and particularly its controversial reserved quota for poor neighbourhood children in private schools. Dilip Thakore report
An uneasy silence has enveloped india’s estimated 80,000 private primary-secondary schools countrywide following the Supreme Court’s April 12 verdict in Society for Unaided Private Schools of Rajasthan vs. Union of India & Anr (Writ Petition (C) No. 95 of 2010).
Delivering the majority judgement of a three-judge bench comprising Justices Swatanter Kumar, K.S. Radhakrishnan and himself, Chief Justice of India S.H. Kapadia upheld the constitutional validity of the Union government’s Right to Free and Compulsory Education (RTE) Act, 2009, and particularly its controversial s.12(1) (c) which makes it mandatory for all unaided (financially independent) private schools to admit 25 percent of children in class I or preschool if any, from among poor and socially disadvantaged children in their neighbourhood. However in a ruling which has elicited sighs of relief in the country’s upscale, unaided (i.e financially independent of government) Christian missionary and ‘convent’ schools much favoured by India’s fast-expanding 300 million middle class, all three judges of the apex court exempted unaided minority and boarding schools from applicability of s. 12(1) (c).
Although the Supreme Court has exempted independent minorities-run schools from this particular provision of the omnibus RTE Act — which enlarges the role of the Central and particularly state governments, despite their having spectacularly failed and neglected to raise standards of education or improve learning outcomes in the country’s 1.25 million government schools — the apex court’s April 12 verdict has most heavily impacted the parent communities of mid-rung private non-minority day schools which typically levy tuition fees of Rs.2,000-8,000 per student per month. With effect from the new academic year beginning June/July, they may well be obliged to subsidise the education of poor neighbourhood children admitted into their children’s schools.
And this cross-subsidy burden in addition to the annual tuition fee increases because of inflation, will have to be borne by parents of children in non-minority, private unaided (DPS, DAV, Ahlcon, etc) for eight years until the poor neighbourhood children complete elementary education. For households with two-three children enroled in mid-rung English-medium day schools, the additional financial burden is likely to be considerable. Middle class resentment against s.12(1) (c) is likely to snowball once its financial implications for household budgets — already stretched to breaking point by unremitting inflation — begin to bite.
A study of the convoluted history of the Right to Free and Compulsory Education Act, 2009 which became law on April 1, 2010, makes it abundantly clear that the motivation behind this legislation — and particularly inclusion of s.12 (1) (c) — is patently populist. Way back in 1950 when the Constitution of India was promulgated, Article 45 of the Constitution enjoined the State, i.e the Central and/or state and local governments, to provide early childhood care and education to all children in the age group 0-6. Unfortunately at that time, following the assassination of Mahatma Gandhi and the untimely death of Sardar Patel in 1950, stewardship of newly-independent India devolved upon Jawaharlal Nehru aka Master Joe, as he was known in Harrow and Cambridge where according to historian Stanley Wolpert (Nehru — A Tryst with Destiny, 1996) he was famous for sporting pink shirts with matching socks and little else. A botany graduate of Cambridge and a barrister who never practiced law, Nehru knew little about economics except for dangerous smatterings of trendy socialism he picked in the ideologically fashionable drawing rooms of London’s Bloomsbury Square.
The process of pauperisation of India was continued by Nehru’s daughter Indira Gandhi who nationalised the country’s major banks, banned corporate donations to political parties and famously described the consequent explosion of corruption and growth of the underground economy as a “universal phenomenon”. When confronted with Jayaprakash Narayan’s students-led revolt against corruption and her own disqualification from Parliament for corrupt electoral practices, she declared the infamous Emergency of 1975, amending the Constitution to abolish the fundamental right to private property.
However when Rajiv Gandhi, an airline pilot, succeeded Mrs. Gandhi as prime minister after she was assassinated in 1984, he began the process of liberalisation and deregulation of the Indian economy. With the annual rate of GDP growth breaking out of the 3.5 percent per year penumbra and rising to 5-6 percent, the demand from industry for medical, engineering and business management professionals became more insistent. This prompted the cash-strapped Central and state governments to invite private initiatives in professional education. In keeping with India’s entrepreneurial tradition, a new genre of ‘edupreneurs’ responded handsomely with over 3,500 private engineering colleges, and an estimated 1,200 B-schools springing up country-wide, even as privately-promoted professional education conglomerates such as Manipal Group, Amity and VIT universities, among others, established excellent reputations attracting upwardly mobile students from across the country and abroad. It’s strange but true: 25 percent of all medical practitioners in Malaysia are graduates of Manipal University.
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Moreover the court held that the fundamental right granted to all citizens under Article 19 (1) (g) to “practice any profession, or to carry on any occupation, trade or business” is applicable to private promoters of education institutions. To get around the previous Supreme Court judgements disallowing the “commercialisation of education” by a somewhat strained interpretation of Article 19 (1) (g), the court held that running a professional education institution is a legitimate “occupation” and as such protected by this Article.
Since promoting and managing professional education colleges of the promoters’ choice was adjudged a legitimate occupation, government quotas (“nationalisation of seats”) were abolished. Although forbidden to charge capitation fees and “profiteer” (which were deemed reasonable restrictions under Article 19(6)), private college managements were given the freedom to conduct their own transparent entrance exams, admit students on merit, levy reasonable tuition fees and earn “reasonable surpluses” for re-investment in the growth and development of their education institutions.
For the political class and the education bureaucracy long accustomed to lording it over private sector providers of professional education as also to ideologically committed judges, the apex court’s judgement in the T.M.A. Pai Foundation Case came as a rude shock. Shortly thereafter the establishment struck back with a five-judge bench of the Supreme Court delivering a “clarificatory” judgement in Islamic Academy vs. State of Karnataka & Ors (2003), under which special admission and tuition fees committees headed by retired judges were constituted to ensure admission transparency and determine reasonable tuition fees.
Nevertheless in P. A. Inamdar vs. State of Maharashtra (2005 6SCC 537) a seven-judge bench upheld the ratio decidendi of the T.M.A. Pai Foundation Case confirming the fundamental right of private edupreneurs to provide professional education at reasonable prices without being subject to compulsory government imposed quotas. However in deference to the power of the State to harass private professional colleges, most of the latter have been allocating up to 50 percent of their annual intake capacity to state governments at ‘negotiated’ tuition fees.
In 2005, Singh piloted the Constitution 93rd Amendment Bill to overturn the T.M.A. Pai and Inamdar judgements by inserting Article 15(5) which specifically states that nothing in Article 15 “or in sub-clause (g) of clause (1) of Article 19” shall prevent the State from enacting any law or making reservations for scheduled castes, scheduled tribes or any socially and educationally backward classes in private aided or unaided education institutions. Through this stratagem, government quotas in favour of scheduled castes, scheduled tribes and OBCs (other backward castes/classes) were restored in private unaided institutions of professional education.
With Dr. Joshi and Arjun Singh, his successor in the Union HRD ministry, preoccupied with higher education during the first decade of the new millennium and investment in education stagnant at 3.5 percent of GDP, the government school system comprising 1.25 million mainly state and municipal primary-secondaries and a sprinkling of Central government schools, experienced steep decline. A turn-of-the-century PROBE (Public Report on Basic Education) report revealed alarming fraud and neglect in government schools — teacher absenteeism of over 25 percent per day, schools bereft of electricity, drinking water, toilets and other essentials. Simultaneously EducationWorld, the country’s first K-Ph D education-focused magazine was launched in 1999 to beam an unrelenting searchlight on public policies and provision made for education. And in 2005 the Mumbai-based Pratham — India’s largest and most respected education NGO (estb. 1994) began publishing its Annual Status of Education Report (ASER) compiled by 20,000 volunteers fanning out across rural India to measure learning outcomes in (mainly government) primaries. Unsurprisingly, the six ASER annual reports published thus far reveal consistently falling learning outcomes in the country’s 1.05 million rural primaries, indicating that over 50 percent of class V children can’t comprehend class II texts, or negotiate two-digit division and multiplication sums.
With teacher absenteeism rife and minimal learning dispensed in government primaries, rural parents began pulling their children out of them and enroling them in private budget schools. The latest ASER Report (2011) indicates that over 25 percent of rural children are attending the country’s estimated 400,000 private ‘budget’ schools which have mushroomed countrywide. These private primaries and upper primaries which aren’t ‘recognised’ by government have been eulogised by educationists including Prof. James Tooley in his path-breaking book A Beautiful Tree (2009). With parents voting in their favour and a growing number of social scientists veering around to the view that but for the country’s for-profit budget schools driven by committed social entrepreneurs, post-liberalisation India’s 7 percent annual GDP growth wouldn’t have been possible, quite clearly budget private schools have become an embarrassment to the HRD ministry and the education establishment.
Comments Madhav Chavan the promoter-chief executive of Pratham in the foreword to ASER 2011: “Private school enrolment in most states is increasing although the Right to Education Act for free and compulsory education is in place. Over 25 percent of rural India’s children go to private schools and the numbers will rise in coming years as education and wealth increase… The second piece of news is that not only are India’s learning levels very poor on an international scale, the levels of government schools in the North have steadily declined with the exception of Punjab and Himachal Pradesh. The decline is quite alarming.”
Yet despite the education establishment having plainly failed and neglected to raise teaching-learning standards in 1.25 million government schools, perhaps emboldened by the successful stratagem of substantially reversing the law laid down by the T.M.A. Pai Foundation and P.A. Inamdar cases, the government has struck back with the RTE Act to shut down private budget schools. And to mollify popular public opinion, children from underprivileged households (who properly should be in government schools) have been given token access to the country’s small minority of upscale private schools. These objectives are sought to be attained by the sly insertion (dressed up as public good) of ss.18, 19 and 12(1) (c) into the Act.
Under s.18, no private school can be established or function without a certificate of recognition from the Central, state and/or local government. S.19 requires all private (including budget) schools to provide infrastructure including an all-weather building, one classroom per teacher, separate toilets for boys and girls, safe drinking water, a kitchen and play-ground, library and play materials among other facilities detailed in a Schedule to the Act. Under s.19(2), budget schools have been given a time frame of three years (which expires in 2013) to fulfill these stringent norms “at its own expenses” (sic) failing which they will be forcibly shut down.
Moreover, in his 1,500-word essay, the minister (whose office routinely turns down all interview or access requests from EducationWorld) has forgotten to mention that no government of any democratic nation imposes government quotas upon private independent schools. Nor does he seem aware that a large number of independents including the Doon School and Indus International in India, Eton and Harrow in the UK and the Wasatch Academy, USA (see p.38) among others, voluntarily provide scholarships and freeships to poor household children. As Justice Radhakrishnan has observed in his dissenting minority judgement in Society for Unaided Private Schools of Rajasthan Case, this objective could have been attained by arousing the spirit of voluntarism within private independent schools. But this requires leadership skills of which the minister — whose 13 education reform Bills have been stalled in Parliament for over two years — is patently deficient.
Curiously, the majority judgement of Chief Justice Kapadia and Justice Swatanter Kumar in this landmark case naively fails to discern this obvious control-and-command stratagem of the education establishment, whose pathetic track record in managing the public education system during the past half century has transformed this high-potential nation into the world’s most educationally backward and illiterate country. On the contrary, unmindful of the ground reality that the State (government) has miserably failed to maintain even a semblance of infrastructure or teaching-learning quality in its own 1.25 million schools, the majority judgement speaks approvingly of powers invested by s.18 of the RTE Act in notoriously corrupt government education inspectors to “weed out those schools which are non-performing, or under-performing or non-compliance schools” — a provision which is a death sentence for private slum and village budget schools, the refuge of poor children fleeing non-performing government primaries and upper primaries. Moreover, the learned justices who speak approvingly of the three-year time period given to budget schools — for which there is clearly rising public demand — to scale up their infrastructure “at their own expenses”, didn’t feel it incumbent upon them-selves to suggest long-term government loans to enable their managements to discharge this obligation.
With the non-performing education establishment at the Centre and in the states determined to close the window of opportunity which socio-economically disadvantaged households currently have to avail private budget school education which despite its infrastructure and other deficiencies, is widely perceived to be superior to government schools, the obvious intent of Sibal (hitherto a highly-reputed Supreme Court counsel reportedly in the elite group of lawyers who earn Rs.50 crore per year) and the framers of the RTE Act, was to compensate the poor minority with a populist sop of access into the country’s private schools. This has been accomplished by the insertion of s. 12 (1) (c) with its 25 percent reservation for poor neighbourhood children in class I.
To justify transference of the State’s (i.e government’s) obligation to provide elementary education to all children in the age group six-14 as clearly enunciated in Article 21A, to private independent schools, the majority judgement seizes upon the words “in such manner as the State may by law determine” of Article 21A. As interpreted by the majority judgement, the State has been empowered by Article 21A to enact appropriate legislation to provide education to all children in the six-14 age group. And the RTE Act which has been legislated in “terms of Article 21A” has been “enacted primarily to remove all barriers (including financial barriers) which impede access to education,” argues the majority judgement.
To get around the argument of counsel for the petitioners that a law (RTE Act) cannot abridge the fundamental right conferred under Article 19(1) (g) upon citizens to carry on the occupation of education as confirmed by the 11-judge bench which adjudicated the T.M.A. Pai Foundation Case, the majority judgement in Society for Unaided Schools of Rajasthan rationalises that even while conceding this fundamental right, the T.M.A. Pai Foundation judgement had reiterated that education provision is essentially a charitable activity. Therefore “if an educational institution goes beyond ‘charity’ into commercialisation, it would not be entitled to protection of Article 19(1) (g),” opined JJ Kapadia and Swatanter Kumar.
It is submitted that the majority judgement of Chief Justice Kapadia and Justice Kumar is based on strained logic, suggesting that its line of reasoning has been customised to fit a pre-determined conclusion to give a green light to a larger dose of licence-permit-quota-inspector raj in private school education. On the other hand, the minority judgement of Justice Radhakrishnan is more detailed, better argued and indicates that the dissenting judge has a better understanding of the grassroots realities of the moribund, government-dominated education system. Forthrightly declaring that the Supreme Court’s verdict in Unni Krishnan’s Case (1993) which sanctified an elaborate system of quotas in professional education had “created mayhem”, Justice Radhakrishnan writes that the T.M.A. Pai Foundation and P.A. Inamdar judgements which specifically overturned the apex court judgement in Unni Krishnan, had categorically ruled out imposition of quotas by the State on private unaided education institutions.
“Inamdar reiterated that nowhere in Pai Foundation, either in the majority or in the minority opinion, have they (the judges) found any justification for imposing seat-sharing quota by the State on private professional educational institutions… fixation of percentage of quota is to be read and understood as possible consensual arrangements which can be reached between unaided private professional institutions and the State…” says Radhakrishnan’s dissenting judgement. Moreover making a distinction between school and higher education, Justice Radhakrishnan interprets the Supreme Court’s judgement in the P.A. Inamdar case as stating that the State specially cannot impose quotas on schools, and that “upto the level of undergraduate education, minority unaided educational institutions enjoy ‘total freedom’” and there isn’t much of a difference between non-minority and minority unaided educational institutions.
Nevertheless while opinions may differ on whether the majority or minority judgement in the Society for Unaided Schools of Rajasthan is a better interpretation of constitutional and case law relating to the controversial subject of government interference with private unaided education institutions, there’s no gainsaying that the majority judgement is the law of the land. And unsurprisingly, the reaction of promoters, principals and managements of private independent schools to the majority judgement is of indignation about the government’s “offloading” and “outsourcing” its obligation to provide free and compulsory education to underprivileged children upon private unaided primaries and upper primaries.
With the apex court’s exclusion of top-ranked private unaided minority missionary and convent day schools (Bishop Cotton and St. Joseph’s, Bangalore; La Martiniere, Kolkata; Cathedral & John Connon and St. Mary’s, Mumbai etc) from the ambit of s.12 (1) (c) and exempting all boarding schools, the law of unintended consequences is likely to become fully operational in private schools country-wide. For instance in Tamil Nadu the tuition fees of the state’s 5,934 private, unaided non-minority schools affiliated with the Matriculation board are determined by a Private School Fees Determination Committee headed by a retired high court judge and are already being disputed as fixed too low. “We fail to understand why the government should force us to subsidise the education of poor neighbourhood children instead of making efforts to improve standards in government schools in which teachers are paid 200 percent more than private school teachers,” queries Alfred Devaprasad, the chief executive of Tamil Nadu’s Alpha group of education institutions which include two Matriculation schools.
There is undoubtedly some merit in Gen. Ray’s contention that the additional financial burden imposed upon independent private schools by s.12(1) (c) of the RTE Act and its qualified validation by the Supreme Court is manageable, even if inconvenient. However the greatest danger posed by the Act (and the apex court’s substantial validation of it) is not in its financial implications but in the cavalier manner in which Parliament and the majority judgement of the Supreme Court have given the green signal for imposition of post-independence India’s discredited licence-permit-quota and inspector raj in private school education. As indicated earlier in this narrative, the RTE Act deals a heavy blow to the estimated 400,000 privately-run slum habitation and village ‘unrecognised’ budget primaries countrywide, which a multiplying number of poor households prefer to dysfunctional even if free-of-charge, state and local government schools. Moreover even within the hitherto insulated community of private unaided non-minority schools, officials and inspectors of the education ministries of state and local governments notorious for corruption, blackmail and extortion are likely to run amok.
For instance, education bureaucrats and inspectors are invested with wide powers to certify whether budget and private schools fulfill the norms and standards stipulated by s.19 and Schedule of the RTE Act. Moreover they will determine the limits of the neighbourhood of every upscale private non-minority school and select the tiny number of poor neighbourhood children eligible for admission into them.
Manish Sabharwal, the promoter-chairman of Teamlease Services Pvt. Ltd, among India’s largest employers of skilled personnel, believes that the RTE Act “declares war on education entreprenuership and will raise the cost of schooling all round”. “RTE will lead to higher corruption because Corruption= Discretion +Monopoly–Account-ability. If the Central government can’t make up its mind if 24 or 42 percent of India is poor, how will a BEO (block education officer) decide which child is poor? In reality, they will auction their poverty certification to the highest bidder,” writes Sabharwal in a stinging op-ed essay in the Economic Times (April 23).
Quite patently the majority judgement which is prefaced by the remark “to say that a thing is constitutional is not to say it is desirable” is based on a technical and strained interpretation of constitutional law, and indicates minimal awareness of the grassroots reality of the government school system which is in a state of rigour mortis because of numerous sins of omission and commission of the education bureaucracy at the Centre and in the states. Regretably it has recklessly given a green light to these very educrats to introduce their discredited licence-permit-quota and inspector regime into private K-12 education. They will surely torpedo the country’s budget schools and spread the contagion of corruption within the country’s hitherto insulated private unaided non-minority schools.
In the circumstances, it is in the public interest for this three-judge bench to suo motu refer its judgement to a larger 11 or 13 judge constitutional law bench for review and adjudication. It is no exaggeration to state that the future of India and its transformation into a developed country commanding respect within the global comity of nations is dependent upon reversal or modification of the wafer thin majority judgement in this case of grave national importance.
With Hemalatha Raghupathi (Chennai)