What is Wrong with the "Right of Children to Free and Compulsory Education Act"

Education, especially universal primary education, is an important part of any civilized society. For us Indians, it is a matter of serious concern that even today, more than sixty years after independence, universal primary education remains a distant dream.
With the stated intention of addressing this sorry situation, and with some prodding from the Supreme Court (especially the judgment in the case Unnikrishnan vs. State of Andhra Pradesh), the parliament of India passed the 86th Constitutional Amendment in 2002, which inserted Article 21A into the Constitution of India, making education a fundamental right (it is numbered "21A" because this right is thought to flow from Article 21, the fundamental right to life and personal liberty). It is worded as follows.

Article 21A. The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine¹.

It is important to note that unlike other fundamental rights, the right to education granted by Article 21A is qualified by the phrase "in such manner as the State may, by law, determine".
So what is this law that is supposed to determine the manner in which the fundamental right to education will be provided? Enacted recently by the Indian parliament, this law is the Right of Children to Free and Compulsory Education Act, 2009^2.
Known more commonly, if informally, as the Right to Education Act or the RTE Act, this new law unfortunately leaves much to be desired.
What is in the Right to Education Act?
The basic objective of the RTE Act is stated as follows: "Every child of the age of six to fourteen years shall have a right to free and compulsory education in a neighbourhood school till completion of elementary education."
In order to meet this objective, the RTE Act requires state and local governments to establish a school in each prescribed neighbourhood within a period of three years of the commencement of this Act. Certain minimum standards of physical infrastructure (number of classrooms, a playground, a library, etc.), as well as the teacher-student ratio are specified in the Act. The delineation of neighbourhoods is left to the State Governments.
An "academic authority established by the Central Government" is to establish minimum qualifications required for teachers.
After the commencement of this Act, each privately run school, however small it may be, whether aided (i.e., receiving government aid or grants) or unaided, will be required to obtain a certificate of recognition from a certifying authority to be set up by each State Government. Privately run schools will be required to meet the minimum infrastructure and teacher-student ratio specified in the RTE Act, and the teacher qualification requirements laid down by the central academic authority, in order to be considered for recognition by the certifying authority.
The RTE Act requires each school (except privately run unaided schools) is to set up a School Management Committee (SMC) consisting of "elected representatives of the local authority, parents or guardians of children admitted in such school and teachers" to monitor the working of the school and prepare school development plans.
The Act mandates that all privately run schools as well as "specified category" government run schools (Kendriya Vidyalayas, Sainik Schools, etc.) must set aside at least 25% of their seats for children belonging to weaker sections and disadvanged groups in the neighbourhood, and must provide them free education, for which these schools will be reimbursed by the government.
Deeply Flawed
At first glance, the RTE Bill may appear to be promising. There are, however, very serious flaws in this Act.
Excessively Government Centric
In my opinion the biggest problem with the RTE Act is that it envisages a government centric system of primary education run directly by the state or local (Municipal Corporation, Zila Parishad, Panchayat, etc.) governments, with hardly any scope for private citizens' initiatives. Government bodies are made responsible for everything from selecting sites for schools, to constructing school buildings, to designating catchment areas for schools (by delineating 'neighbourhoods'), to appointing teachers and school administrators.
Now, I am not one of those who believe that all government intervention is necessarily bad. I feel that in many situations government action can useful, and is sometimes even essential. However, I feel that proper role of the government is to act as an enabler, expanding the scope of citizens' initiatives, rather than as an inhibitor stifling private initiative.
In primary education, it is important for the government provide funds, and also set up a basic regulatory mechanism, but excessive government involvement in day-to-day running of schools might actually hinder rather than help the cause of universal primary education.
Lack of Choice
Parents, whether rich or poor, educated or uneducated, will go to almost any lengths for the sake of their children's education. Making more educational choices available and affordable will automatically improve the quality of primary education, because, given a choice, parents are sure to choose the one that is best for their children. However, the RTE Act seeks to minimize educational choice. The power to take decisions on almost any issue related to primary education is taken away from parents and vested with the government bureaucracy. According to the RTE Act,

It shall be the duty of every parent or guardian to admit or cause to be admitted his or her child or ward, as the case may be, to an elementary education in the neighbourhood school.

Note how the language used in RTE Act indicates that parents must send their children to theneighbourhood school, i.e., a specific school designated by the government.
Antagonistic Towards Private Initiative
In the sixty-plus years since independence, the record of the government run primary education system in India has largely been dismal. In this scenario, private initiatives, though severely hampered by lack of resources, have played an important role in providing primary education in India. Witness the thousands of non-governmental organizations (NGOs) engaged in providing basic education to the poor and the underprivileged. Witness also the mushrooming of thousands of rudimentary private schools in poor localities charging fees of, at most, a few hundred rupees a month. Whenever parents have a real choice between government-run and privately-run schools, they usually prefer to send their children to privately run schools for the perceived superior quality of their education.
In spite of this reality, the RTE Act greatly discourages private initiatives in basic education. The Act requires each privately-run school, however small, to obtain a certificate of recognition from a certifying authority set up by the state government. In order to be even considered for recognition, the privately-run school must comply with rather stringent standards for infrastructure, teacher qualifications, and teacher-student ratios. What is more, failure of any privately run school to obtain recognition from the certifying authority will invite severe punishment. According to the RTE Act,

Any person who establishes or runs a school without obtaining certificate of recognition, or continues to run a school after withdrawal of recognition, shall be liable to fine which may extend to one lakh rupees and in case of continuing contraventions, to a fine of ten thousand rupees for each day during which such contravention continues.

Having been a volunteer with Asha for Education, a group that promotes basic education for underprivileged children in India, I know of many NGOs across India who run schools for poor children. Such schools are often run by a dedicated staff in difficult circumstances working on a shoestring budget. The practical realities are such that the standards set in the RTE Act may simply not be achievable in many of these schools. In a remote rural area, it may simply not be possible to find enough qualified teachers to have a student-teacher ration of 30:1. In an urban slum sufficient land to set up a playground may simply not be available. Under the RTE Act most such schools will become illegal, and if the Act is faithfully implemented, will face severe punitive fines.
Why does the RTE Act take such an antagonistic stance towards private initiatives in education? After all, the reason that parents send their children to schools with rudimentary facilities is because they have no other choice. If better alternatives become available, parents will automatically send their children there. Why use the force of law to shut down these schools that are providing a legitimate - perhaps even essential - service?
Universal primary education in India will never be achieved by shutting down existing privately-run schools, but rather, by enabling them to improve, and by making better alternatives available.
Lack of Accountability and Transparency
Under proper conditions, perhaps even a government-run school system can be made a success. But this can happen if and only if provisions are made for a high degree of accountability and transparency. So how does the RTE Act fare in this regard? Very poorly, I'm afraid.
The most obviously apparent problem in the RTE Act, one that has been pointed out by many observers, is that while the Act talks about educational inputs, i.e., buildings, teachers, etc., it is completely silent about educational outcomes. This is indeed a valid concern. But I feel that the larger problem is that even the educational inputs promised by the RTE Act may remain largely unfulfilled because of serious shortcomings in accountability and transparency.
The RTE Act provides for public monitoring of schools through the mechanism of the School Management Committee (SMC). According to the Act,

A school, other than a [privately-run unaided school] shall constitute a School Management Committee consisting of the elected representatives of the local authority, parents or guardians of children admitted in such school and teachers.

The RTE Act gives SMCs the responsibility of monitoring schools, including monitoring the utilization of funds.
In my view, most SMCs are likely to be toothless and are unlikely to adequately fulfil their mandate of monitoring the schools in an effective manner. The SMCs are given very little effective power. The only real power granted to the SMCs is the power to prepare "school development plans" that "shall be the basis for the grants to be made by the appropriate Government or local authority". In my view, this power is not enough to fulfil the responsibility of effectively monitoring the schools. The SMCs do not have any power to hire or fire teachers or administrators or even to issue directions to the school management. Most importantly, the RTE Act makes the school managements responsible for constituting the SMCs. What this means is that an SMC, which is charged with monitoring the performance of the school management, is to be appointed by the school management itself. A classic case of conflict of interest.
Outside of the SMCs, the RTE Act does not provide any mechanism for an interested member of the public to monitor a school or question its management (though presumably the Right to Information Act will cover government-run schools).
An interesting contrast is provided by the National Rural Employment Guarantee Act of 2005, an important and much debated piece of recent legislation. According to the NREGA,

All accounts and records relating to the Scheme shall be made available for public scrutiny and any person desirous of obtaining a copy or relevant extracts therefrom may be provided such copies or extracts on demand and after paying such fee as may be specified in the Scheme³.

Unfortunately, there is no provision whatsoever in the RTE Act for this sort of public scrutiny.
We have already seen how harshly the RTE Act treats privately run schools that fail to meet the rather stringent standards set in the Act. A fine of one lakh rupees and a further fine of ten thousand rupees for each day that the privately run school continues to function without meeting the specified standards. But what about a government-run school that fails to meet the same standards? What punishment does the RTE Act specify? Nothing. Absolutely nothing. While a privately-run school failing to meet certain standards faces severe punishment, a government-run school failing to meet the very same standards faces absolutely no sanction whatsoever.
So what is an aggrieved parent to do if her child's government-run school fails to meet the standards specified in the RTE Act? There is no punishment specified, but can she at least take the government to court for violating the RTE Act? Unfortunately, no. Here is what the RTE Act says about lawsuits,

No suit or other legal proceeding shall lie against the Central Government, the State Government, the National Commission for Protection of Child Rights, the State Commission for Protection of Child Rights, the local authority, the School Management Committee or any person, in respect of anything which is in good faith done or intended to be done, in pursuance of this Act, or any rules or order made thereunder.

What this effectively means is that the aggrieved parent does not really have any legal recourse if the government run school violates any of the provisions of RTE Act unless she can actually prove a breach of good faith by the government (a rather heavy burden of proof).
But, you will say, surely it is necessary to have a provision of this sort to protect government officials who act in good faith. True. But equally surely, this protection should apply only to individual officials, and should not be a blanket immunity shielding all branches and agencies of the government.
Let us once again compare with the NREGA. According to the NREGA,

No suit, prosecution or other legal proceedings shall lie against the District Programme Coordinator, Programme Officer or any other person who is, or who is deemed to be, a public s ervant within the meaning of section 21 of the Indian Penal Code in respect of anything which is in good faith done or intended to be done under this Act or the rule or Schemes made thereunder.

In short, under the NREGA, a citizen can sue the government for violations of the Act, but cannot sue individual government officials acting in good faith. But under the RTE Act, the situation is very different. A citizen can sue neither any government agency nor any individual official unless he can prove a breach of good faith.
Lack of Clarity in Financing
Who will pay for building thousands of new neighbourhood schools and for upgrading existing ones as is envisaged in the RTE Act? The Act states that the Central government and the State Governments will have concurrent responsibility to provide the funds.
Ultimately, however, the RTE Act places much of the financial burden on the States rather than on the Center.
The entire extent of the Central Government’s financial responsibility is spelled out in a single sentence in the RTE Act.

The Central Government may make a request to the President to make a reference to the Finance Commission under sub-clause (d) of clause (3) of article 280 to examine the need for additional resources to be provided to any State Government so that the said State Government may provide its share of funds for carrying out the provisions of the Act.

And here is what the RTE Act says is the role of the State Governments.

The State Government shall, taking into consideration the sums provided by the Central Government … and its other resources, be responsible to provide funds for implementation of the provisions of the Act.

In effect, the extent of the Central Government's responsibility to pay for implementing the RTE Act is left unclear. Though the RTE Act is a piece of Central government legislation passed by the national parliament, it makes the State Governments, with their already precarious finances, ultimately responsible for covering the financial needs of the RTE Act.
Alternative Educational Models
Why the powers-that-be in India have decided upon a system of primary education that is government-run and is marked by lack of choice, weak accountability and uncertain financing is difficult to understand. Especially when we realize that there are so many alternative models that could have been adopted.
The American Model
In the United States the primary education system is run almost entirely by the government, and school choice is almost non-existent, with parents having to send their children to the designated neighbourhood school.
While schools in the U.S. are government run, they are run not by the Federal (Central) government, or by the state governments, or by what we think of as local governments (municipal governments, county governments, etc.), but primarily by school boards. The school boards constitute an entire system of parallel local government in the U.S., and are charged with the responsibility of providing education from the primary all the way to the high school level.
Accountability in this system is achieved by the very high level of local control. School board members are directly elected by universal adult franchise, which makes them directly accountable to the residents of the school district. Moreover, their responsibilities are accompanied by wide-ranging powers. Not only do school boards have broad powers to decide on academic matters, such as the hiring and firing of teachers, construction of school buildings, setting of school curriculums, etc., but their powers occasionally extend even to seemingly non-academic matters. For example, some school boards have raised their own police forces to ensure school safety, while some others levy local income taxes to pay for schools.
The Kendriya Vidyalaya Model
In India the Kendriya Vidyalaya system, which is meant for children of central government employees, is an example of a government run education system that produces good educational outcomes. The success of the Kendriya Vidyalaya model can be attributed to two factors: (i) funding and (ii) accountability. Adequate funding is assured by the Central Government, while accountability is achieved through a top-down professional chain of command, similar to other professional government services such as the Army, the Railways, etc.
While the Kendriya Vidyalaya model does indeed function effectively it is doubtful whether such a model can be scaled up to the level necessary for universal primary education, nor whether such a highly centralized model can work at the nation-wide level.
The Kerala Model
It is widely lnown that in terms of achieving universal primary education, the state of Kerala is far ahead of the rest of India.
How does Kerala do this this? What kind of educational model does it follow?
It may come as a surprise to many that the vast majority of primary schools in Kerala are privately run. Only 36% of primary schools in Kerala are run by the government, 3% fall into the category of "private unaided", and as much as 61% of all primary schools are "private aided", i.e., schools that are financially supported by the government but are managed by private parties^4.
What is more, rather than the government determining which school each child should attend (as the RTE Act seeks to do), in Kerala, the choice is left to parents. In fact, the government in Kerala goes out of its way to promote school choice by disbursing a large number of individual scholarships, and even providing a transport subsidy to enable parents to choose more distant schools for their children.
The Kerala model of education is not perfect. Still, in my view, given the practical realities in India today, an education system based on the Kerala model probably has the greatest chance achieving anything close universal primary education across the country.
A Silver Lining: A Blessing in Disguise?
In spite of all the failings of the RTE Act, it does offer one tiny sliver of hope - not in the government run neighbourhood schools that are so favored by the Act, but in an alternate paradigm of publicly funded privately run schools, which the RTE Act may unintentionally spawn. A result of unintended consequences, the RTE Act leaves open a small window of opportunity for privately run schools.
According to the Act,

[Private schools] shall admit in class I, to the extent of at least twenty-five per cent. of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion.

[Private schools] providing free and compulsory elementary education ... shall be reimbursed expenditure so incurred by it to the extent of per-child-expenditure incurred by the State, or the actual amount charged from the child, whichever is less, in such manner as may be prescribed.

It is fairly obvious that the intent of this provision in the RTE Act is to set aside a quota for poor and underprivileged children in elite private institutions. In my opinion this is certainly a step in the right direction. But the real significance of this provision lies elsewhere.
Far more numerous than elite private schools, there exists in India thousands of low-cost private schools that cater to the poor. There also exists thousands of schools run by various NGOs that too cater to the poor. Not just twenty-five percent but one-hundred percent of the enrollment in such schools are children belonging to weaker sections and disadvantaged groups. It appears that under the RTE Act all these schools will now be able to claim reimbursement from the government for most of their students. Generally run on shoestring budgets, government reimbursements can put such schools on a firm financial footing, and also enable many more such schools to open. What is more, with these schools utilizing money much more efficiently than government run schools, it could also mean much better utilization of public funds meant for education.
It is far from clear that something like this can actually happen. The entire thrust of the RTE Act is in the opposite direction, emphasizing government run neighbourhood schools and mostly disparaging private initiatives in education. The government beaureaucracy could place many hurdles in the way of low-cost privately-run schools getting government reimbursements. The new certification requirements apear rather onerous, and if enforced strictly, could make it difficult for privately run schools to even operate legally, let alone get government reimbursements. It is also unclear whether there will be any real school choice, without which no system of privately run schools can function effectively.
Still, the provision for government reimbursements for children studying in privately run schools offers the one bright spot in an otherwise dismal piece of legislation.
Lack of Public Debate
What I find even more distressing than the various flaws in the RTE Act is the fact that the passage of this Act has been accompanied by a near-complete lack of public debate. The RTE Act is something that supposedly operationalizes a new Fundamental Right. It may affect how millions of children in India are (or are not) educated. Good or bad, surely it is worth a serious discussion. But sadly this has not happened. Newspapers and TV news shows, academics and public intellectuals, the educated newpaper-reading "middle class", all seem to have abdicated their responsibility to understand, question and critique this new law.
In stark contrast to the RTE Act, consider the public reaction when the government decided a few years ago to reserve some seats in certain elite colleges for Other Backward Class (OBC) students. There were noisy protest marches and demonstrations, and around-the-clock media coverage. All for a few thousand seats at a handful of elite institutions. But when it comes to basic education for millions, the Indian chattering classes and their media organs remain deafeningly silent.
Without a vigorous public debate, how do we even begin to understand the intent and the implications of this new law. Sure, one can read the actual law that has been passed. But that leaves so many questions unanswered. For me, reading the RTE Act was like reading a technical paper that does not have any citations. What is the logic behind this or that provision in the Act? Is it based on an educational model that has proven itself in practice? If so, where, and under what conditions?
I have had the good fortune to actually meet a member of the Central Advisory Board of Education (CABE), the body that drafted the initial version of the RTE Act. While this person patiently answered many of my questions, he also informed me that the deliberations of the CABE were confidential and cannot be shared with the public.
Disconnect Between Society and the Law
I fear that a decade from now the RTE Act might join a whole host of laws in India that have not even come close to achieving their intended goals. Whenever this happens, the authors of such laws have a ready excuse: the laws themselves are not to blame, the lacunae lie in the implementation. But can such laws ever be implemented in India? It is well known that the Indian judiciary is ponderous at best, and the police not quite super efficient. Surely laws must be designed so that they can be implemented in the environment in which they operate. A law that cannot be implemented is no more useful than a book that cannot be read or a car that cannot be manufactured. What is more, some aspects of these laws are so badly designed that we should actually be thankful that they are not faithfully implemented. Consider, for example, the stipulation in the RTE Act that all privately-run schools must be shut down unless they are staffed by teachers possessing certain government-specified qualifications, have teacher-student ratios of no more than 1:30, and have proper playgrounds and libraries. If this provision were to be actually implemented today, millions of children in India would be thrown out of school. The best we can hope for is that common sense (or bribes) will prevail, and this part of RTE Act will not be strictly enforced.
The broader problem is that many laws in India, including the RTE Act, are so completely divorced from the actual realities of Indian society, that they are neither implementable nor even worthy of implementation. With laws like these, it is no wonder that the business of legislation has come to be seen as irrelevant by the Indian public. It has rightly been said that in India, voters elect only executives, not legislators. Even legislators themselves see their power to influence executive decisions as far more important than their legislative roles. Come election time, no legislator is likely to talk about his contribution to the RTE Act. Instead, they are likely to flaunt even relatively minor executive achievements, such as getting a road widened, getting a new train connection, etc.
The people of India deserve better laws. Mere good intentions and theoretical abstractions are not enough. In order to be relevant, laws must be designed with actual practical ground realities in mind.

References 
1. The Constitution of India. Website http://lawmin.nic.in/coi/coiason29july08.pdf
2. The Right of Children to Free and Compulsory Education Act, 2009. The Gazette of India Extraordinary, Part II, Section I, August 27, 2009.
Website http://education.nic.in/Elementary/free%20and%20compulsory.pdf
3. National Rural Employment Guarantee Act, 2005. The Gazette of India Extraordinary, Part II, Section I, September 7, 2005. Website http://rural.nic.in/rajaswa.pdf
4. The Government of Kerala, School Education.
Website http://www.kerala.gov.in/education/school.htm