Something About The Law

(Continued from the preceding analysis of the Act’s salient provisions)

• Whereas the Act guarantees a right to seek transfer to any other school where the child is required to move from the one in his/her neighbourhood, there are no measures to ensure that such a transfer will be a smooth transition for the child. In this regard, the Act seems blissfully unaware of the major phenomenon of labour migration between rural and urban areas; consequent to the transfer of their migrant labourer-parents, children would need specially adapted curricula that would serve to their linguistic and cultural requirements. It is also desired that adequate residential facilities be provided to children if they so require upon migration to an urban area.[1] However, the Act does not mention any special measure that would be concomitant to this right of seeking a transfer and integral to the objective of completing education.

• With reference to its treatment of differently abled children, the Act does a complete U-turn in terms of its policy objectives: in brushing differently-abled children under the carpet of the Persons with Disabilities Act, 1995, the Act has not only institutionalized a separate, ‘non-inclusive’ treatment, but has failed to commit the Government to facilities that are simply unavailable beyond the four corners of this legislation. While the Persons with Disabilities Act provides for infrastructural resources to be made available to differently abled persons to complete their education, it is clearly diluted in comparison to the Act of 2009. The reticence of the Government in mobilizing its resources to bring in education for differently abled children into the mainstream is evident. In addition, the definition of ‘disability’ in the PWD Act does not include other disabilities as mentioned in the National Trust Act, 1999 such as cerebral palsy and autism, which affect a significant percentage of the target group.[2]

• One of the most glaring deficiencies in the Act is the complete absence of any qualitative enforcement mechanisms during the period of completing elementary education. While the Act espouses a no-detention policy[3], such a provision is not backed by any steps to measure the quality and standard of education (such as child learning levels, competencies etc). A passing reference to ensuring ‘good quality’ education is enlisted as one of the duties of a school under the Act; nonetheless, the only standards and norms under the Schedule to the Act are measured by the number of instruction hours in a year.

• Even the duties of a teacher are assessed in terms of punctuality and attendance, and there is no attempt to secure qualitative learning outcomes from elementary education. In the absence of any student or faculty assessment, it is not difficult to conclude that the system of elementary education would produce students who are below par, as has been substantiated by a recent NCERT study.[4] Further, the Act also takes away the option of parents/guardians to hold back their children in school, until core competencies are acquired.

• In multi-tracking education where a parallel State-sponsored education system exists, with its bare essentials, alongside privatized and sophisticated institutions, the Act only perpetuates inequities in society. The last-ditch measure by the Government to impose 25% reservation in private, unaided schools was perhaps one method to rectify such disparities. However, such a mode of reservation, apart from facing financial challenges, would also have to operate in a scenario where the Constitution (through the 93^rd Amendment) mandates reservation for the SCs, STs, and socially and educationally backward classes.[5] The question of economic competency, which drives children to State-sponsored education in the first place, is completely ignored.

• The Act makes recognition of schools mandatory: it stipulates that recognition would be granted in pursuance of the norms and standards mentioned in its Schedule, and in the instance of violation of the same, such recognition may be withdrawn.[6] However, such recognition is based solely on infrastructural capabilities, pupil-teacher ratio and instruction hours, and hence is no benchmark of quality. In addition, the penalties on operating a de-recognized school fall squarely on the shoulders of private operators. Whereas non-government entities face fine and punishment, there is no obligation for the State to enforce such standards in Government schools. Perhaps a State school may lose its recognition, but there is no penal consequence that would ensue as a result of failure on the part of the appropriate authority. Considering the surprisingly favourable impact that unrecognized, private schools that offer cheap education have had on the education system, the Act must enforce stop-gap measures to maintain the level of enrollment and quality in elementary education.

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[1] Azim Premji Foundation’s Position [Paper] on the Right of Children to Free and Compulsory Education Bill, 2008 (November 2008).
[2] Supra n. 45.
[3] See §16 of the Act.
[4] The NCERT Study has been used by the Sarva Shiksha Abhiyan to document quality interventions in the primary education system.
[5]Art. 15(5), introduced through the 93^rd Amendment states: Nothing in this article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions,  whether aided or unaided by the State, other than the minority  educational institutions referred to in clause (1) of Article 30.
[6] §19(3) of the Act.

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