Legislative Brief
The Right to Education Bill, 2005
Highlights of the Bill
The 86th Constitution Amendment Act added Article 21A affirming that every child between the age of 6 and 14 years has the right to free and compulsory education. The Right to Education Bill seeks to give effect to this Amendment. The State shall ensure a school in every childs neighbourhood. Every school shall conform to certain minimum standards defined in the Bill. Government schools shall provide free education to all admitted children. Private schools shall admit at least 25% of children from weaker sections; no fee shall be charged to these children. Screening tests at the time of admission and capitation fees are prohibited for all children. Government schools will be managed by School Management Committees (SMC), mostly composed of parents. Teachers will be assigned to a particular school; there will be no transfers. The National Commission for Elementary Education shall be constituted to monitor all aspects of elementary education including quality.
Key Issues and Analysis
Some experts criticize the Bill for not implementing the common school system whereas others believe that even the 25% free seats required of private schools is not justifiable. There is a concern that assigning teachers to a specific school will affect their chances of promotions and job security. The Bill appears to be ambiguous on its applicability to schools administered by minorities. The Bill needs to provide greater clarity regarding the rights of children with disabilities and how these will be implemented. There is mixed evidence on the ability of SMCs in improving quality of schools and learning outcomes of children. This Bill will cost the exchequer between Rs 3,21,000 crore to Rs 4,36,000 crore over six years in addition to the current expenditure on education. This is estimated to be an increase of between 1.1% and 1.5% of GDP.
November 21, 2005
Parliamentary Research Service
C/o Centre for Policy Research Dharma Marg Tel: (011) 2611 5273-76, Fax: 2687 2746
Chanakyapuri
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The Right to Education Bill, 2005
Parliamentary Research Service
PART A: HIGHLIGHTS OF THE BILL1
Context
The Supreme Court in the case Unnikrishnan vs. State of Andhra Pradesh (1993) ruled that the right to education is a fundamental right that flows from the right to life in Article 21 of the Constitution. Following this ruling, the 86th Constitution Amendment Act, 2002 added Article 21A, stating, 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, determine. The 86th Amendment also modified Article 45, which now reads as The State shall endeavour to provide early childhood care and education for all children until they complete the age of 6 years. The Right to Education Bill, 2005 seeks to give effect to the 86th Constitution Amendment.
Key Features
Right of Every Child
Every child between the age of 6 and 14 years has the right to full-time free and compulsory education in a neighbourhood school. Non-enrolled children of age group 7-9 years have the right to be admitted in an age-appropriate grade within one year of the commencement of the Act, and of age group 9-14 years have the right to be provided special programmes that will enable them to attend such grade within three years. Children with severe or profound disability, who are unable to attend a neighbourhood school, have the right to be provided education in an appropriate environment. A child cannot be held back in any grade or expelled from a school till Class VIII. Any expulsion requires an order of the School Management Committee (SMC), which will be given only after all other corrective measures have been exhausted, and parents/guardians have been heard. The local authority will take steps to enroll such a child in another neighbourhood school.
Responsibility of the State
The State shall ensure availability of a neighbourhood school for every child within three years. In case of non-availability, free transport or free residential facilities shall be provided. The state/UT government shall determine every year the requirement of schools, facilities, and their locations; establish additional schools as required; deploy teachers and create facilities for their training. The State shall develop a mechanism to monitor enrolment, participation and attainment status of every child, and take corrective steps wherever required. Information in this regard will be made available in the public domain, including on an on-line basis.
School Admissions
State2 schools and fully aided schools shall provide free education to all admitted children. Partly aided schools shall provide free education to at least such proportion of admitted children to the extent that government funds its annual expenses, subject to a minimum of 25%. Unaided3 schools and special category4 schools shall provide free education to at least 25% students; the government shall reimburse the school to the extent of the per child expenditure in government schools or the school fee, whichever is lower. No school can conduct any screening procedure of any child or parents at the time of admission. Children will be selected for admission in a random manner. Capitation fees are prohibited.
School Management
All non-government schools have to be recognized by a Competent Authority or shut down. The Bill specifies certain norms (such as teacher-student ratio, physical infrastructure etc) to be fulfilled by all schools as a pre-requisite for being recognized. All State and aided schools are required to form School Management Committees (SMCs) with at least 75% of the members being parents/guardians, and the other members representing teachers, the community and the local authority. SMCs will manage the school, including the sanction of leave
1 2 3
This Briefing has been developed on the basis of the Draft of the Right to Education Bill, 2005 dated, November 14, 2005 Also referred to as government schools in this Brief Also referred to as private schools in this Brief 4 Special category schools include Kendriya Vidyalayas, Navodaya Vidyalayas, Sainik Schools, etc.
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and disbursal of salary to teachers. The SMC/local authority shall also have the power to assess teachers performance and impose minor punishment. Teachers of state schools will be appointed to a specific school, and teachers already serving will be assigned to a specific school within two years. They will not be transferred from the school so assigned. The teacher has the duty to transact and complete the curriculum, regularly assess the learning level of each child, provide supplementary instruction if required, and apprise every parent/guardian about the progress of learning and development of the child. Teachers are prohibited from giving private tuitions. Teachers shall not be deployed for any noneducational purpose other than census, election and disaster relief duties.
Content and Process
Schools and academic authorities formulating curriculum shall conform to the values enshrined in the Constitution. Schools should operate in a child friendly and child centred manner. No child shall be required to appear at a public examination before completing Grade VIII. No child shall be awarded physical punishment in any form in school.
National Commission for Elementary Education (NCEE)
NCEE shall be appointed by the President on the recommendation of a committee comprising the Prime Minister, Speaker of Lok Sabha, Minister for Human Resources Development and Leaders of Opposition in the two Houses of Parliament. NCEE shall monitor all aspects, including quality of education. It will act as Ombudsman5 for this Act.
Other Major Provisions
No person shall prevent a child from participating in elementary education. No person shall employ or engage a child in a manner that renders her a working child. It is the responsibility of every parent/guardian to enroll his child/ward who has attained the age of 6 years and above in a school and facilitate her completion of elementary education (till Grade VIII). If a parent/guardian persistently defaults in discharging this responsibility, the SMC may direct him to perform compulsory community service by way of child care in the school. Any person who has a grievance about the establishment, provisioning and management of a school may submit a written representation to the SMC/ local authority, which shall take appropriate action and inform the applicant within 90 days. If the applicant is unsatisfied with such action, she may submit a representation to such authority as prescribed (by the state/UT/central government), which shall take appropriate action and inform the applicant within 90 days. The state/UT government may form a State-level Regulatory Authority for inquiring into grievances which remain unredressed even after the steps mentioned above. A child shall be admitted in Grade I only after attaining the age of five years and ten months before the beginning of the academic year. The Bill specifies penalties for persons and schools contravening the provisions regarding capitation fees, screening tests, recognition and preventing children from participating in elementary education.
Finances
The central government shall provide financial assistance to state governments in accordance with such formula regarding sharing of costs as determined in consultation with state governments. The state government shall provide financial assistance to local authorities. Though the draft Bill does not specify cost implications, a paper by the Central Advisory Board of Education (CABE) committee indicates a tentative estimation of total additional costs between Rs 3,21,000 crore and Rs 4,36,000 crore over six years.
An Ombudsman is an official who investigates citizens' complaints against the government or its functionaries.
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PART B: KEY ISSUES AND ANALYSIS
Objectives of the Bill
The Bill has a clear objective that every child between the age of 6 and 14 years has the right to elementary education that is (a) free, (b) compulsory, (c) of equitable quality, and (d) available in her neighbourhood. This education will be available between Grade I and VIII, and provided at a recognized school satisfying specified norms. The Bill implies that there will be no non-formal schools and teachers will have to possess qualifications as defined in the National Council for Teacher Education Act, 1993.
Implementation
Delivery of Education
The Bill seeks to provide education through a combination of government schools, aided schools and unaided (private) schools. Some educationists believe that the common school system should have been adopted instead of the 25% quota in private schools. That is, all children from all strata of society in a locality should go to the same set of schools in that locality and receive free education. They believe that this will (a) improve the overall standards in government schools as the influential upper strata of society pushes for higher standards, (b) reduce the disparity of opportunity among children, and (c) lead to a better society as children from different sections mingle from an early age.6 Another school of thought says that private schools have contributed significantly to the current educational apparatus in the country. These include not only the elite private schools but also the non-elite private schools including unrecognized schools. Some micro-studies indicate that private schools constitute a significant proportion of schools in some poorer urban areas, and dismantling this infrastructure may be undesirable and impractical. Indeed, a number of non-elite private schools may be more cost efficient than government schools7.
Chart 1: Proportion of schools by management Private schools form about a sixth of all schools
100% 80% 60% 40% 20% 0% Primary Government Upper Primary Private
Source: Selected educational statistics 2001-02, MHRD. Note: Private school data do not include unrecognised schools. Unrecognised schools form a significant part of the system; e.g., 26% of students in Punjab attended unrecognized schools (study by AC Mehta, NIEPA 2005)
The Bill states that private schools have to provide 25% seats for weaker sections until Grade VIII. There is no obligation for continuation of education of such children in higher grades. There are implementation issues with respect to the requirements of no capitation fee and no screening. The Bill states that private schools can be set up only after certification from a Competent Authority. Critics argue that these may be laudable objectives but could offer scope for corruption by officials who will oversee these aspects. These rules could lead to interference in school management and an inspector raj by the local authority.
Quality of Education
Every child has a right to education of equitable quality. The term equitable quality is not adequately defined. The Bill specifies norms for physical infrastructure (number of rooms, teachers, toilets etc) but
6 Kothari Commission (1966) recommended the common school system. Sadgopal (presentation to CABE, 2005) also discusses this system. 7 Tooley and Dixon, Private Schools Serving the Poor, September 2005 find 66% of schools in Shahdara, Delhi are managed privately. They estimate the average fee in private schools in Shahdara at Rs 125 per month and state that these schools provide about 10% seats at zero or concessionary fees. This fee structure is lower than the average estimated cost per child at Rs 2000 p.a. in government schools (estimate by Eduardo Faliero Union Budget 2003-04: The gross neglect of education, Mainstream, March 29, 2003).
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does not outline expectations on learning outcomes. Given the no detention policy, there is a risk that the child progresses through to Grade VIII without acquiring necessary competencies. Some studies indicate that the current system has not ensured learning outcomes8.
Schools Established by Minorities
This Bill will be subject to Articles 29 and 30 of the Constitution which provide the right to minorities to establish and administer educational institutions of their choice. The Bill needs to clarify whether the right of minorities to establish and administer schools is subject to the requirements of this Bill, including recognition norms, no-screening policy, 25% quota for weaker sections, etc.
Child Labour
Though the Bill prohibits any person from preventing a child from participating in elementary education, it does not adequately address the issue of child labour. A child who both works at home and attends school faces the problem of double burden. For example, the Bill ignores the issue of sibling care which deters elder siblings (typically girls) from attending school.
Children with Disabilities
The Bill says that children with severe or profound disability, [who] cannot be provided elementary education in a neighbourhood school, shall have the right to be provided education in an appropriate alternative environment as may be prescribed. Whereas the Bill has detailed the norms required of a school (teacher-pupil ratio, buildings etc), it is silent on the facilities needed to enable children with disabilities to attend school (such as ramps, Braille readers, etc). In this Bill, disability has the meaning assigned by the Persons with Disabilities Act, 1995, which does not include such other disabilities as defined by the National Trust Act, 1999 (autism and cerebral palsy). Also, this definition does not include children with learning disabilities such as dyslexia who require special attention and teaching methods. The CABE committee note assumes 2.7% of children to be disabled, and 0.3% to be severely disabled. An amount of Rs 2,000 per child per year in the former case and Rs 50,000 in the latter case is assumed to be required to meet the educational costs of these disabled children9.
Monitoring and Evaluation
School Management Committees
SMCs will monitor and oversee the working of the school, manage its assets, utilise grants to disburse teacher salary and for the upkeep and development of the school, and monitor teacher performance (including granting leave, providing regular assessment reports, and imposing minor punishment). The evidence in Karnataka for the performance of School Development and Monitoring Committees is mixed. International experience with SMCs does not present conclusive evidence of improvement in quality of schools10. It is arguable whether all SMCs would have the capability to manage the assets of the school and carry out administrative functions such as disbursement of salary etc. Also, the constitution of SMCs does not mention women members or term of office for members.
Parents
The Bill states that if a parent/guardian fails to enroll his child in school, the SMC may impose a penalty by way of compulsory child care. Since the responsibility for ensuring schooling for all children lies with
(a) According to the MHRD Annual Report 2004-05, a Terminal Assessment Survey conducted during 2001 and 2003 in 132 districts where DPEP was implemented indicated the percentage of districts with average marks exceeding 60% was 43.2% (in language) and 28.8% (in Mathematics) in Class III/IV. (b) A study by Pratham Resource Centre (available at www.pratham.org) undertaken in JuneAugust 2004 across 17 states indicates that 45% of children of age 7-11 in government schools could not read; the figure was 24% for private schools. 9 The assumption that 3% of all children are disabled is higher than the NSS (2002) estimate of 1.2%-1.5% for the age group 5-14 (NSS Report No. 485: Disabled Persons in India, July-December 2002). 10 (a) Government of Karnataka, DSERT study, May 2005. (b) Gunnarson et al, Does school decentralization raise student outcomes? February 2004 study 10 countries in Latin America. (c) Lewis and Naidoo, Whose theory of participation? Harvard Graduate School of Education, May 2004, study school governance in South Africa.
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the local authority, it may be appropriate for the local authority (rather than the SMC) to be given the responsibility of penalizing such parents.
Teachers
Teachers will belong to a school-based cadre. They will not be transferred to another school. The system of school based cadre has implications for the career progression of teachers, as well as on job security (for example, in a scenario where a school closes down on account of a reduction in the number of children in a habitation). The teacher is expected to approach the SMC/local authority for redressal of grievances. The teacher does not have a redressal mechanism if he has a complaint against the SMC or the local authority.
Finances
The CABE report suggests that the implementation of the Bill will require an additional amount between Rs 3,21,000 crore and Rs 4,26,000 crore over six years -- an annual average of Rs 53,500 crore to Rs 72,700 crore in addition to the Rs 47,100 crore that is being spent on elementary education currently (2003-04)11. The amount budgeted to be raised by the Education Cess in 2005-06 is Rs 6,875 crore, and assuming this grows at the nominal GDP growth (assumed at 12.2% by the CABE Committee for its calculations), it would cover just 15-20% of the additional requirement. The report also points out that state governments may be fiscally constrained from funding incremental expenditure as required to implement the provisions of this Bill, and the entire burden may have to be borne by the central government. This would imply an estimated increase of 6.4%-8.5% to the central governments annual budget.
Table 1. Estimates of Additional Funding Requirements
(Rs crore)
Committee Draft 83rd Amendment Bill, 1997 Tapas Majumdar Committee, 1999 93rd Amendment Bill, 2001 CABE Committee Report, 2005 Sources: Committee Reports, PRS Amount Required 40,000 over 5 years 1,36,922 over 10 years 98,000 over 10 years 3,21,000 to 4,36,000 over 6 years
Table 2. Additional Requirement of Finances (CABE estimates)
Amount Required (Rs crore) As % of GDP As % of government expenditure 3,21,000 to 4,36,000 over 6 years 1.1% to 1.5% 6.4% to 8.5%
Sources: CABE Committee, union budget, PRS Assumptions: (a) Nominal GDP growth at 12.2% per annum (same assumption as CABE committee); (b) Government budget (except additional spending) to grow at GDP growth rate.
Acknowledgements: PRS has drawn upon, and gratefully acknowledges, a number of experts and stakeholders who generously shared their opinions on this draft Bill. Written comments on the Bill from Manju Bharat Ram (The Shri Ram School), Archana Mehendale (Member of the CABE Committee on Free and Compulsory Education Bill) and Karan Tyagi (National Alliance for the Fundamental Right to Education) are available with PRS.
11
Source: CABE Committee report, June 2005
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List of Government Bills Pending in Parliament
Rajya Sabha Title of the Bill The Indian Medical Council (Amendment) Bill, 1987. The Constitution (Sixty-first Amendment) Bill, 1988. The Participation of Workers in Management Bill, 1990. The Cinematograph (Amendment) Bill, 1992. The Atomic Energy (Amendment) Bill, 1992. The Constitution (Seventy-ninth Amendment) Bill, 1992. The Indian Boilers (Amendment) Bill, 1994. The University Grants Commission (Amendment) Bill, 1995. The Private Universities (Establishment and Regulation) Bill, 1995. The Delhi Rent (Amendment) Bill, 1997. The Constitution (Eighty-seventh Amendment) Bill, 1999. The Lotteries (Prohibition) Bill, 1999. The Coal Mines (Nationalisation) Amendment Bill, 2000. The Foreign Trade (Development and Regulation) Amendment Bill, 2001. The Provisions of the Municipalities (Extension to the Scheduled Areas) Bill, 2001. The Constitution (Scheduled Tribes) (Union Territories) Order (Amendment) Bill, 2003. The Companies (Amendment) Bill, 2003. Ministry Health and Family Welfare Human Resource Development Labour and Employment Information and Broadcasting Atomic Energy Health and Family Welfare Commerce and Industry Human Resource Development Human Resource Development Urban Development Rural Development Home Affairs Coal Lok Sabha Title of the Bill The Contempt of Courts (Amendment) Bill, 2004 The National Tax Tribunal Bill, 2004 The State Emblem of India (Prohibition of Improper Use) Bill, 2004 The Andhra Pradesh Legislative Council Bill, 2004 The Government Securities Bill, 2004 The Constitution (One Hundred and Third Amendment) Bill, 2004 The National Commission for Minorities (Repeal) Bill, 2004 The Merchant Shipping (Amendment) Bill, 2004 The Actuaries Bill, 2005 The Pension Fund Regulatory and Development Authority Bill, 2005 The Commission for Protection of Child Rights Bill, 2005 The Admiralty Bill, 2005 The Small and Medium Enterprises Development Bill, 2005 The Taxation Laws (Amendment) Bill, 2005 The Banking Regulation (Amendment) Bill, 2005 The Reserve Bank of India (Amendment) Bill, 2005 The Banking Companies (Acquisition and Transfer of Undertakings) and Financial Institution Laws (Amendment) Bill, 2005 The Cess Laws (Repealing and Amending) Bill, 2005 The Factories (Amendment) Bill, 2005 The Khadi and Village Industries Commission (Amendment) Bill, 2005 The Prevention of Insults to National Honour (Amendment) Bill, 2005 The Punjab General Sales Tax (As in force in the Union Territory of Chandigarh) Repeal Bill, 2005 The Food Safety and Standards Bill, 2005 The Juvenile Justice (Care and Protection of Children) Bill, 2005 Ministry Law and Justice Law and Justice Home Affairs Law and Justice Finance Social Justice and Empowerment Social Justice and Empowerment Shipping Finance Finance Human Resource Development Shipping Small Scale Industries and Agro and Rural Industries Finance Finance
Commerce and Industry Urban Dev. and Poverty Alleviation Tribal Affairs
Finance
Company Affairs
Finance
The Criminal Law (Amendment) Bill, 2003. The Cantonments Bill, 2003. The Arbitration and Conciliation (Amendment) Bill, 2003. The Chartered Accountants (Amendment) Bill, 2003. The Cost and Works Accountants (Amendment) Bill, 2003. The Company Secretaries (Amendment) Bill, 2003. The Seeds Bill, 2004.
Home Affairs Defence Law and Justice
Finance Finance
Commerce and Industry Labour and Employment Small Scale Industries and Agro and Rural Industries Home Affairs Home Affairs
Finance Agriculture, Food and Civil Supplies, Consumer Affairs and Public Distribution Law and Justice Law and Justice
Food Processing Industries Social Justice and Empowerment
The Prevention of Child Marriage Bill, 2004. The Scheduled Castes, Schedules Tribes and Other Backward Classes (Reservation in Posts and Services) Bill, 2004. The Standards of Weights and Measures (Enforcement) Amendment Bill, 2005.
The Standards of Weights and Measures (Amendment) Bill, 2005.
Agriculture, Food and Civil Supplies, Consumer Affairs and Public Distribution Agriculture, Food and Civil Supplies, Consumer Affairs and Public Distribution
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The Homoeopathy Central Council (Amendment) Bill, 2005. The Indian Medicine Central Council (Amendment) Bill, 2005. The Manipur University Bill, 2005. The Drugs and Cosmetics (Amendment) Bill, 2005. The Disaster Management Bill, 2005.
Health and Family Welfare Health and Family Welfare Human Resource Development Health and Family Welfare Home Affairs
The Indian Medicine and Homoeopathy Health and Family Pharmacy Bill, 2005 Welfare The Labour Laws (Exemption from Labour and Furnishing Returns and Maintaining Employment Registers by Certain Establishments) Amendment and Miscellaneous Provisions Bill, 2005 The National Commission for Minority Human Resource Educational Institutions (Amendment) Development Bill, 2005. The Indian Medical Council Health and Family (Amendment) Bill, 2005. Welfare The Central Silk Board (Amendment) Labour and Bill, 2005. Employment Sources: Lok Sabha Bulletin Part II (Nos. 1637-1639) dated September 9, 2005; Rajya Sabha Bulletin Part II (No. 42550) dated November 9, 2005
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About Parliamentary Research Service
Parliamentary Research Service (PRS) is an independent, not-for-profit initiative that seeks to promote wider debate on upcoming legislative issues in Parliament. PRS seeks to promote good governance in India through supporting a transparent, better informed, and participatory legislative process. The work of PRS is collaborative and seeks to complement existing expertise in government, research institutions, business and citizen sector. PRS aims to Provide timely, easy-to-use and balanced analysis on upcoming legislative issues. Facilitate interaction of experts with those who seek a deeper understanding of legislative issues. Inform the larger public of the legislative issues being debated in Parliament and develop platforms for their opinions to be expressed. PRS is being incubated as a unit of Centre for Policy Research, New Delhi, which is an autonomous institution with the objective of studying major policy issues before the nation and suggesting alternative policy options.
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