Children's right to free education: Loopholes galore

Now that the parliament has enacted the much-debated Right of Children to Free and Compulsory Education Bill, 2008, into law, it is time for an objective stock-taking of the exercise: How much is on the debit side and at what cost?

Critics might wonder at the logic of such analysis after parliament has already passed the bill last week, but the fear is that the loopholes that remained despite lengthy deliberations in the Standing Committee, might jeopardise the implementation of this landmark legislation, which has promised to provide free and compulsory education to all children between 6-14 years of age.

The doubts were clearly expressed during the debate, though only 54 MPs out of 250 were present in the Rajya Sabha, where the bill was first introduced and subsequently passed. But not all those questions got proper clarifications.

In the first place, what is the logic behind restricting the provisions of the bill for children up to 14 years of age? The UN Convention on the Rights of the Child — to which India became a signatory in 1992 — clearly states that a child should be defined as someone below 18 years of age. Going by this international definition, the bill should have provided education for persons up to 18 years.

Even the National Council for Protection of Child Rights (NCPCR), a Central government body looking after child rights has said in its recommendations that any person below 18 years should be considered as a child and it is necessary to extend the provisions of the bill to those between 14-18 years as well to prevent them from being exploited as child labour.

Thus the government has completely ignored the recommendations of a national-level body, even though it has been made responsible for monitoring the implementation of the Act.

The bill has made elementary education a ‘fundamental right’ implying that one can move the court of law if such rights are violated. However, section 35 of the bill says that no prosecution for offences punishable under sub-section (2) of section 13, sub-section (5) of section 18 and section 19 shall be instituted “except with the previous sanction of an officer authorised in this behalf,” by the appropriate government authority, by notification.

And what are the offences mentioned in these sub-sections? While sub-section (2) mentions punishment for receiving capitation fee and subjecting the child to screening procedure at the time of admission, the other sub-sections are related to offences like running a school without proper recognition.

Banning of capitation fees and admission tests for children have been hyped as the greatest boon that the Act might bring in, but if prior permission from local government authorities are required to book the school or persons guilty of such offences, then nothing much can be expected of it.

The bill left the issue of sharing the financial burden for the implementation of the Act as an ‘open wound’ in spite of the fact that non resolution of this crucial issue had been one of the main reasons for the delay in bringing the bill to parliament.
Concurrent responsibility?

Without spelling out the exact sharing of responsibilities, the bill says, “the Central government and the state governments shall have concurrent responsibility for providing funds for carrying out the provisions of this Act.” What exactly does this ‘concurrent responsibility’ mean?

It also says, “the Central government shall prepare the estimates of capital and recurring expenditure for the implementation of the provisions of the Act.”
Even though providing finances for free elementary education would be a concurrent responsibility, the Centre would be the sole authority to develop curriculum, develop and enforce standards for training of teachers.

The states have already made it clear that they do not have enough resources to implement the law. Taking plan and non-plan expenditure together, the share of the Centre in elementary education has increased from 11 per cent in 2001-02 to 27 per cent in 2007-08 and correspondingly the share of the states declined from 89 to 73 per cent during the same period.

In so far as the flagship programme Sarva Shiksha Abhiyan is concerned, the Centre met 85 per cent and the states 15 per cent of the expenditure in the 9th five year plan. The respective shares changed to 75 and 25 per cent in the 10th and 65 and 35 per cent in the 11th plan. By the end of the 11th plan, it is expected to be shared equally between the Centre and the states — an issue on which state governments are quite unhappy.

In this context, the apprehension that the good intention of the law would get entangled in financial wrangles, cannot be ignored as baseless.
Last but not the least — the ever-thorny issue of reservation has plagued this piece of legislation as well.

The provision of keeping aside 25 per cent of the seats in private unaided schools for children from weaker sections in the neighbourhood has stirred a hornet’s nest.
Since the bill does not specify who should be considered as ‘weaker’ sections, speculation is rife that the private schools might just get away without implementing the provision.

The minority communities have already said that they would appeal against this provision as they have to accommodate children from their communities in their institutions.