The Right to Education Act should by now have been on its way to becoming a pillar of social legislation in India. It is the first meaningful attempt by the Government of India to make good on a promise it made at the time of Independence itself - to provide all its children a decent start in life, through guaranteed schooling. And yet, to read today's papers one would get the sense that there is a big fight going on about the law.

Each day we find reports of delay in the implementation of the Act by the States. Routinely we hear private school managements complaining that the law is draconian and unfair. Chief Ministers like Sheila Dikshit have also had the unpleasant experience of being ticked off quite publicly by private school managements who would rather close their close schools than operate under the new rules of the RTE law. Everywhere in the country, private schools have filed cases against the law, challenging its constitutional validity. This doesn't read like the picture of a celebrated attempt to provide social justice to millions.

What happened?

The public debates themselves should give us a clue. Most of the disagreement is over the applicability of the law to private schools. The schools that charge more than the government’s average spend per child (around Rs.12000 a year) are disagreeing.

The moral obligation of the 'rich' towards the 'poor' cannot be a burden only on the rich who happen to run schools or rich parents who currently have children in such schools.

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How much control should a government have over the functioning of a private institution? Can it set the fees? Can it decide who should be admitted? Can it decide what the criteria for selecting students should be? Can it decide whether teaching motivated by a philosophy of learning can take place differently in unconventional schools? What about disabled children, in particular those with learning disabilities? And so on.

There is no uniform answer to all of these, but it is possible to develop principles by which the answers should be decided. And the failure of the law is in this respect. Many of its provisions are incomplete answers to these questions. And the opposition - in the press, on the ground, in the courts - is an attempt to force the government to explain the principles publicly, and to defend them if possible. Indeed, if the government had done this in the first place, we would have a much better Act.

Two useful principles

We have seen a vast number of arguments put forward contesting the Act, but in our judgment these can be reduced to two that matter, and if these can be resolved the rest will settle themselves.

First, the law need’s to recognise there is great diversity in the type of institutions in existence. There are government-run schools; government-aided schools that rely substantially on the public exchequer; there are private schools that have entered into agreements with governments to get specific benefits (such as cheap land) in exchange for some commitment to educate the poor as well; and schools with very little inputs from the government. There is also another important truth to be recognised - most private schools cost much less than what the government spends per child in its system, but there are private schools that cost considerably more too.

What is the implication of such diversity? Simple - one set of rules for all schools will not do. We need to recognise the differences between schools, and suggest different rules for each type of school to function under the RTE Act. Some things are common to all schools - quality of education, for example, and uniformity on those fronts may be easier to achieve through standardisation, as is done with testing. But elsewhere a uniform approach will not work.

Second, we need to decide whether private schools should be established and run for profit. So far, we have lived in Wonderland on this question - knowing fully well that the majority of private institutions do seek profit as one of their goals, but pretending in law and process that this is not the case. We even have stockmarket-listed companies that are deeply invested in education, but yet we regulate them with the pretense that learning is supposed to devoid of profit. The RTE law has brought some of this dodginess to a point of conflict, forcing a resolution.

In our judgment it would be better to separate the private schools into different categories, based on the extent to which they have received government aid. The recent Supreme Court hearings already appeared to be moving in this direction. Once such separate lists are in hand, we should apply different rules to each set of schools. Those who have received more support from the government should be required to meet higher obligations for educating the poor, and those who have received less support should be less obliged. This is only fair.

The present RTE law though is bland; it makes no distinctions between schools over the extent of support received by them. This is partly because such variation does not exist in Delhi schools, by and large, whereas it is common in other states. It is said by many that this is a Delhi law being blindly extended to the other states.

Getting the 'social obligation' right

Fundamentally, through the RTE law, the State, as the guarantor of the right to education, appears to be passing the burden of ensuring this right to all types of private schools. And they're asking why, especially if enrollment in many states is already near 100 per cent? The government's answer to this question has been vague, to say the least.

Rather than address the economics of the problem, the government is telling these institutions that they have a 'moral obligation' or a 'social obligation' to educate the poor too. After all, why can't they sponsor the education of some poor kids, while they're occupied with teaching the rich ones?

On the face of it, this sounds reasonable, but it can be done better. The moral obligation of the 'rich' towards the 'poor' cannot be a burden only on the 'rich who happen to run schools' or 'rich parents who currently have children in such schools, who will in effect pay higher fees'. Don't other 'rich' people in our society, for instance, those who are past the point of having their children in schools have any moral obligations to help the poor?

It would be much smarter, and more palatable as a proposition, to have a tax or cess (indeed we already have an education cess!) applicable across the board to all rich persons, and use this money to set up a funding program for poor children to attend any school. That will make it easier for fee payments to be directly settled with the schools by lesser-off parents themselves instead of an annual proxy settlement by the government as the guarantor.

Focus on quality, and get started

The real solution to all these contested spaces is to ensure evident improvements in the quality of education provided by government schools, and to promote competition among the schools, both private and public. It is difficult to understand why governments that are broadly committed to markets as disciplining forces on the price front in so many sectors don't see it that way in education too.

One other thing is noteworthy. The Act is not merely about access and enrollment, but addresses many other aspects - quality of education, parents' participation in school administration, standards for teachers, rules for protecting child rights, and much more. Many of these new provisions are also aimed at strengthening government schools and making them more accountable for outcomes. The ongoing litigation brought by private unaided schools has nothing to do with these aspects. Nonetheless, under the cover of those challenges, the States have delayed implementation of the Act itself.

Nothing prevents the States from applying the law to government schools right away. Delaying this is simply dereliction of duty by Education departments everywhere. Given the overwhelming number of students who attend government and aided schools, we simply need to get going on plans to improve these. Keeping the focus on these institutions will be critical to the success of the law in the long run.