Guest Post: Is RTE based regulation choking quality education?

The following is a guest post by Dolashree Mysoor, who is a Research Associate at the Azim Premji
University, and works with the University’s Hub for Education Law
and Policy (hELP). hELP is engaged in research and intervention in the
area of education law and policy in India. 



A recent article by Professor Geeta Kingdon makes a case for de-regulating
private schools under the RTE Act on the grounds that this law restricts
autonomy of private schools and that thousands of low cost private schools face
closure. This debate is not new in the Indian context. However, these arguments
come without a view on the consequences of de-regulating private school
education.
The RTE Act has come under severe
criticism for imposing excessive regulations and penalties on private schools
and that it does not guarantee educational outcomes. The reality is that India
houses more than 1.3 million schools (Source:
Statistics of School Education 2010-2011
), and many of them pose severe
risks to the health and safety of children enrolled in them. Given this picture,
we need to closely examine the consequences of deregulating schools.
I argue that the push for
deregulation of private schools is misplaced because it is necessary that the
law ensure equal access to safe and nurturing learning environments for all children. 
Regulation under the RTE Act
What are these highly contested RTE
norms? Briefly, they require schools to provide distinct classrooms, separate
toilets for boys and girls, drinking water facilities, a compound wall, a
library and a separate kitchen shed. Further, the RTE Act also requires schools
to employ trained teachers, regulates teachers, and follow prescribed curriculum.
Finally, they stipulate certain institutional mechanisms for school
development. These norms are aimed at ensuring a safe and nurturing learning
environment for school going children.
Schools are regulated through a
process of obtaining official recognition from local educational authorities.
This recognition is granted based on a school’s compliance with the law. Failure
to obtain a recognition certificate or functioning without a recognition
certificate attracts monetary penalties or closure of the school. This form of
regulation is not new in the Indian educational context – state laws that were
already in operation before the RTE Act had similar requirements.
The only difference is that RTE
norms and standards are now linked to a child’s right to education under
Article 21 A. They ensure access to education and prohibit harassment of all
kinds. The novelty lies in the expectation that private schools will now play a
part in providing free and compulsory education to children from
socio-economically weaker sections.  
Another criticism of the RTE Act is
that it suffers from severe implementation failures. This reason is often cited
to argue that the law must be repealed. It may be important to note that
failure to implement the law does not always involve a problem with the law. Repealing
a law on the grounds of implementation failure will also not resolve the
problem at hand. Let us consider an analogous situation, say traffic rules that
are constantly violated – should traffic rules be repealed because they are not
enforced?
Negating the need for regulating any type of school will allow schools
that are health and safety hazards to operate. Confusing regulation of schools with the achievement of learning
outcomes or implementation failure seems to obscure the need for safe and
nurturing environments in schools. 
Autonomy of Private Schools
Kingdon and others have argued that
the RTE Act violates the autonomy of private schools.  The reason provided is that the act places enormous
constraints on running low-income private schools. This argument often confuses
autonomy of schools with the power of the state to regulate them. It is based
on a misinterpretation of the Supreme Court’s judgment in T.M.A. Pai Foundation v State of Karnataka [(2002) 8 SCC 481].
First, it must be noted that this
case relates to institutions of higher education and therefore has limited
applicability to schools. The majority judgment in this case held that private
educational institutions are autonomous in matters relating to fees, admission
of students, day-to-day management and employment of staff.
Second, nowhere does the Court
negate the need for regulation of private institutions. Instead it seeks to
check excessive regulation while maintaining minimum standards in educational
institutions. The state has the power to regulate on infrastructure,
qualification of teachers, prevention of mal-administration, and maintenance of
proper academic standards in an institution [paragraph 54 of the majority
judgment].
The argument that regulations place enormous constraints on
private schools is legally untenable.
Do private hospitals loose their autonomy because they are
expected to comply with hygiene and safety regulations? Why, then, do
educationists want to make an exception for private schools?
 Closure of Schools
Recent educational debates unnecessarily
create a heightened sense of empathy for low cost private schools that may face closure or penalties on account
of non-compliance with RTE norms and standards. The source of this data is
unclear. The information appears to be sourced from newspaper reports that
describe state governments threatening to close schools, however little
conclusive evidence of actual closure of schools is available.
This claim about closure of schools
is also based on ongoing litigation before High Courts, one that needs careful
examination. So far, eighteen judgments have been delivered under Sections 18
and 19 of the RTE Act across all High Courts and the Supreme Court (Source: Manupatra). Of these, only 6
judgments relate to closure of schools for non-compliance with the law. Courts
have consistently held that the need for recognition from the state and
regulations that ensure safety in schools are not negotiable.
In the event private schools fear
harassment from the government, institutional mechanisms such as courts can
check overzealous and arbitrary governmental action. To illustrate, a case
before the Punjab & Haryana High Court challenged two government orders
that were aimed at closing down 1170 schools for non-compliance. The court quashed
the two orders for reasons of procedural impropriety and arbitrary action.
Further, the court directed the government to close down schools that were
proved to be non-compliant upon inspection. [A.V. Public School v State of Haryana and Others (CWP No. 21269 of
2013)].
In light of the above, the push for
exempting private schools from regulation is deeply problematic. We may want to
ask – should non-compliant private
schools that do not (or cannot) provide a safe and nurturing environment be
allowed to operate?
It is difficult for us to imagine a
space where any type of school operates without any regulation. The fact that
government, minority and residential schools are exempt from RTE regulations is
deeply problematic and requires immediate rectification. By expecting schools to
meet basic conditions, the RTE Act ensures safety, dignity and a nurturing
environment for all school going children. De-regulation of private schools is
not an answer to the problem of declining learning outcomes. Even if empirical
research shows little connection between school infrastructure and learning
outcomes, we may need to employ common sense to examine whether schools need to
be safe and nurturing spaces for children.

2 comments

  1. Sorry for being a little off topic, but I am associated with an NGO for enhancing science education. What legal requirements would there be if we wish to start an online group for science related discussions amongst class 9 and 10 students?

  2. The reason many private schools are not happy with the RTE is that they need to justify the fees they charge, and use the money to build infrastructure and employ good teachers.
    But one real problem could be that knowing the extent of corruption, they may be harassed even if they are fully compliant…..more regulatory bodies, more harassment.
    However, if a person cannot provide basic security and hygiene infrastructure, and a minimum quality of teaching, he should turn to other business and not run a school.

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