With the Lok Sabha passing the Right to Education Bill on August 4, 2009, education is finally a fundamental right of children between ages six and 14. After receiving the president’s assent, the bill is soon going to be notified as an act. This will make the controversial 86th amendment to the Constitution, which inserted the right to education under Article 21A in 2002, operative. Since a Central Advisory Board of Education (CABE) committee was set up in 2004 to draft the bill, it has taken five years of struggle, during which the bill was abandoned as a central legislation in favour of respective states bringing in their own legislation based on a toothless model bill, to resurrect it and get it passed.

That should bring to rest the current phase of advocacy and campaigning for the bill. The task must now be to ensure its proper implementation. But because of some glaring shortcomings in the bill, like the definition of the child, campaigns for amending the act to bring in the 0-6 and 14-18 age groups must simultaneously continue since 0-18 is the internationally agreed definition of the child as per the United Nations Convention on the Rights of the Child to which India is a signatory, and 0-6 was constitutionally mandated by the original Article 45 of the Directive Principles of State Policy and reconfirmed by the Supreme Court through the Unnikrishnan judgement in 1993. Though the bill has some binding elements for private schools, the campaign to reinsert the clause on a complete regulation of private schools which was dropped from the final draft must also go on in order to stop the reckless and unregulated charging of fees and questionable notions of quality being practised by many of these schools.

A view however prevails that the bill is unacceptable since it should have completely done away with private schools. Some commentators even claim that the bill will ‘promote’ privatisation. As a recent example, in an opinion piece in The Hindu of August 11, 2009, the former vice-chairman of the National Knowledge Commission and a well-respected scientist, Prof PM Bhargava states that "the Right to Education Bill… passed by the Rajya Sabha and the Lok Sabha, if notified by the government, will only be a boon for those who make money in the school business while it will be a disaster for those who have no access to education today. Unfortunately, that is what the rich and the ruling classes want."

The statement suggests that there is nothing in the bill that would help improve the governmental school system and that it has no provisions that would curb certain undesirable practices of private schools. As will be discussed later, both assumptions are factually incorrect. It would appear that the sole concern of certain critics is that the bill should have, by taking away the right to charge fees, sounded the death knell for private schools; anything else, like the improvement of government schools, is too little, rendering the bill unacceptable. While agreeing with the sentiment that no one should be allowed to make profit from the education of children who have been provided a fundamental right to free education, it would be desirable to examine whether transforming such a sentiment into law is realistic, politically and constitutionally, in the present time or whether it was possible even in the past when privatisation of education was much less rampant, for example, when the landmark and progressive Kothari Commission report was prepared.

Ever since the CABE committee began its work in 2004 to draft the Right to Education (RTE) Bill, legitimate concerns have been expressed as to the extent to which the proposed law would foster education that would promote equality and social integration across class, caste and gender schisms. The concern stems from the ground reality that Indian education has diversified and differentiated along caste, class and religious lines in a manner that can only further exacerbate these faults rather than help narrow them.

The explosion of unaided and unregulated commercial schools, the further dilution of the already poor-quality run-of–the-mill government schools through the DPEP (District Primary Education Programme) and SSA (Sarva Shiksha Abhiyan) schemes which promote cheap Education Guarantee Scheme (EGS) centres, alternative schools and so on, along with unqualified temporary para-teachers, have seriously widened the class and caste fault lines in schooling, pushing them into a runaway spiral. It has been the hope and demand of many that the proposed law should check this runaway phenomenon.

Such hope and demand is almost invariably located in the Education Commission report of 1966, popularly called the Kothari Commission report (KCR), as is Prof Bhargava’s contention too in his Hindu piece: "To be truly independent as a nation, and to maintain national dignity, India needs a knowledge society in which every citizen has a minimum amount of knowledge. The country can do that only by de-commercialising and de-commodifying education and setting up a common school system (for which there has been a continuous demand since the days of the Kothari Commission in the early 1960s) in which the students of the rich and the poor in the same neighbourhood would be studying in the same school without paying any fees and with a new curricular framework." As we shall discuss later, the premise of this hope is actually unfounded since the Kothari Commission concluded that private schools would have to be excluded from the common school system.

However, the diehard proponents of the common school system recently went to the extent of rejecting the Right to Education Bill, demanding from the Lok Sabha speaker, Ms Meira Kumar, that it be withheld from being introduced in the Lok Sabha until it was brought into conformity with the common school system of public education as delineated in the Kothari Commission report. The kernel of their argument seems to be that the national system of education as envisaged in the KCR with its common schools imposes restrictions on the government’s establishment of "quality schools" of the Kendriya, Navodaya, Sarvodaya type. And more importantly, that it curbs the right of private unaided schools to charge fees since they will have to become part of the common neighbourhood schools to provide free education to all children in the 6-14 age group. It is however not clear from the forceful submissions by such opponents to the RTE legislation whether they are really aware of the full contents of the Kothari Commission report or whether they choose to be selective in their use of its contents.

While there can be no dispute about the need to move towards a more equal and egalitarian system of education, the limitations that even the much acclaimed Kothari Commission report imposes on such an objective needs some reflection. One must keep in mind that the market forces were at best subdued in 1966 when the report came out and yet the report accepted constitutional constraints while dealing with private schools. If this report, acclaimed for its stress on egalitarianism, could not undo the spectre of privatisation at a time when the nationalist ethos still prevailed, what are the political chances of doing so in 2009 when even the draft approach paper of the Planning Commission wanted the voucher system to be adopted for school education during the 11th plan period?

The concept of common schools finds mention in a number of places in the Kothari Commission report. The vision of the national system of education that incorporates common schools is eloquently elaborated in the well-known Section 1.36 of the report, too long to reproduce here in full. A summary can however be found in Section 1.38:

"If… the educational system is to become a powerful instrument of national development in general, and social and national integration in particular, we must move towards the goal of a common school system of public education

– which will be open to all children irrespective of caste, creed, community, religion, economic conditions or social status;

– where access to good education will depend not on wealth or class but on talent;

– which will maintain adequate standards in all schools and provide at least a reasonable proportion of quality institutions;

– in which no tuition fees will be charged; and

– which would meet the needs of the average parent so that he would not ordinarily feel the need to send his children to expensive schools outside the system."

The invocation of the term ‘talent’ instead of ‘right’ and the uninhibited reference to the provision of a ‘reasonable proportion of quality institutions’ demand particular attention. Such a provision of quality institutions is quantified further in Section 10.02:

"A nationwide programme of school improvement should be organised with three objectives: (a) to raise all schools to at least a minimum prescribed level; (b) to assist every school to rise to the highest level of which it is capable; and (c) during the next 10 years, to raise at least 10 per cent of the institutions to an optimum standard."

Clearly, the KCR foresees that only a small proportion of schools, 10 per cent, could be raised to ‘optimum standards’, implying that there would exist a difference in the quality of the bulk of the schools (to be raised to a minimum prescribed level) and a small proportion of quality schools, at least for a decade or more. In Section 10.31, the report clearly suggests a classification of schools into three categories, A, B and C, based on their quality, something that would seem to dilute, or even negate, the concept of a common school. The differentiation of schools is however made unambiguously explicit in Section 10.31 thus:

"It will not be possible for lack of resources to raise all schools to a high level within a short period. The strategy to be adopted for development should therefore be on the following lines:

"1. (H)ighest priority in the programme should be given to the creation of a minimum proportion of ‘quality’ schools at every stage which would serve as pacesetting institutions… It is necessary to concentrate available resources in a few centres for primary schools – 10 per cent quality schools for secondary – one in each block…

"4. (A)t the higher primary and secondary stages admissions to these (quality) schools should be regulated on the basis of merit to ensure that the brighter children from all strata of society receive the best education possible."

This is in fact one of the most problematic recommendations of the entire report. Contrary to popular notions, the KCR not only grants legitimacy to Kendriya, Navodaya, Sarvodaya and other ‘quality’ schools of the government – even anticipating Prime Minister Manmohan Singh’s announcement of 6,000 quality schools, one in each block – it further restricts admission to them on the basis of merit thus opening the Pandora’s box of admission tests and other screening procedures within the governmental school system.

The lack of urgency in implementing the common school system and the tentativeness of the proposal asking for a pilot phase contingent on the approval of the concerned people can be found in Section 10.19:

"We are of the view that the neighbourhood school concept should be adopted as a long-term goal, to be reached in a well-planned programme spread over 20 years. The strategy for its adoption should be as follows:

– During the next 10 years two programmes should be pursued side by side. The first is to improve all primary schools to a minimum level prescribed and to raise about 10 per cent of them to a higher standard of quality.

– Simultaneously, the neighbourhood school system should be introduced at the lower primary stage, as a pilot project, in a few areas where public opinion is favourable to the acceptance of the proposal."

While these are a sample of provisions for the government school system, what about the private unaided schools, which are termed as ‘independent’ schools in the report? Again, contrary to the popular notion that the report recommends that they be part of the common school system, the KCR in fact first recognises their constitutional validity (in Section 10.77) and then goes on to exclude them from the national system of public education (common schools) in the following manner:

"The right to establish private schools for any purpose whatsoever has also been given to all citizens under clauses (c) and (g) of Article 19 which provide that all citizens shall have the right ‘to form associations’ and to ‘practise any profession, or to carry on any occupation, trade or business’ and which obviously covers the right of individuals and groups to establish and conduct educational institutions of their choice. Private schools may therefore be established under the provisions of the Constitution and if they do not seek aid or recognition from the state, they will have to be treated as being outside the national system of public education."

The exclusion of private schools from common schooling and the national system of public education is further reiterated in the following explicit insertion in the Summary of Chapter 10 of the report:

"The common school system of public education would include all government schools, all local authority schools and all aided private schools. Only two types of schools will remain outside it – independent (private) schools and unrecognised schools."

No wonder that the Government of India accepted the recommendations with the following summary of this portion of the report:

"To promote social cohesion and national integration, the common school system as recommended by the Education Commission should be adopted. Efforts should be made to improve the standard of education in general schools. All special schools like public schools should be required to admit students on the basis of merit and also to provide a prescribed proportion of free studentships to prevent segregation of social classes. This will not however affect the rights of minorities under Article 30 of the Constitution" (4b, ‘The Resolution issued by the Government of India on the Report of the Education Commission’).

Notice the use of the term ‘special schools’ and ‘public schools’ (a term inherited from the British for private schools) as special category schools where the common school system would not apply but which would be obliged to admit students in a prescribed proportion of free studentships. Elsewhere in the report it has been suggested that the government should spend on these freeships, in the form of scholarships to students who are picked up on merit for these special category schools (Section 10.31). Notice also that minority institutions have also been made exempt from the common school system whereas the right to education legislation does not exempt them from any of its provisions, including the 25 per cent neighbourhood quota.

The report even goes to the extent of eulogising private schools (Section 10.12) and sees their role as ‘seed farms’ in quality improvement:

"The good private schools which maintain high standards and which have been able to attract the services of dedicated and competent teachers will have to be identified and given more freedom and adequate financial assistance. These institutions even today are the quality schools in the system and set the pace for others. They can quickly and effectively be developed as the ‘seed farms’ in the common school system of public education."

We may now compare some of the key provisions of the Right to Education Bill with the recommendations of the Kothari Commission report in order to arrive at somewhat rational conclusions regarding the bill’s supposed deviations from the report.

Like the KCR, the draft bill recognises four categories of schools – governmental (either under departments of education or local authorities); private but aided by the government; private unaided; and special category schools of the government, the Kendriya, Navodaya, etc (called ‘quality’ schools in the KCR).

The bill asks for the establishment of a neighbourhood government school within three years from the time of enactment of the act, to provide free education to every six to 14-year-old in the entire country. The Kothari Commission report had only recommended experimenting with it in a few places, with the consent of the local people. The bill obliges aided private schools to admit children for free admission proportional to the aid they receive, the minimum being 25 per cent. This means that if a school receives 70 per cent of its funds from the government, it will have to admit 70 per cent of its children from its neighbourhood for free education and will receive no further grants for these children from the state. As for private schools, minority schools and special category schools, instead of scholarships and freeships from government funds to meritorious students, the bill obliges the schools to admit 25 per cent of their children from disadvantaged sections in the neighbourhood without assessing their merit or submitting them to admission tests and with the provision that the schools shall be reimbursed for this proportion of children by the state at the state’s per child cost or the schools’ cost, whichever is less.

Unlike the KCR, the bill does not exclude the independent, minority and special category schools but brings them into the ambit of neighbourhood schools at a proportionate responsibility, completely doing away with the mention of ‘merit’, ‘talent’ scholarships, freeships and the consequent screening procedures. Is this an improvement on or dilution of the KCR?

It is odd however that the same advocates of common schools criticise this provision of mixing advantaged and disadvantaged children and see it as the promotion of privatisation. The idea behind this provision is not to pass on the state’s responsibility to private schools to the extent of 25 per cent. It is to legally prescribe the mixing together of different sections of children, which might actually be pedagogically advantageous to the ‘elite’ children since the long interaction with children of India who are normally invisible to them can sensitise them to the India that is Bharat (as is the experience with one such experiment at Loreto, Sealdah, pioneered by Sister Cyril).

As for payment for these children, Article 21A binds the state to provide free education, not private or community education. If these 25 per cent of children were not going to the neighbourhood private schools, the state would in any case have to provide schooling for them at its own per learner cost which is what it will, under the bill, reimburse the private schools for. How can this be viewed as promoting privatisation? The Kothari Commission said that children of merit should be sent to these schools on scholarships and freeships paid by the state – does that also imply that the Kothari Commission was promoting privatisation? And if it was a measure aimed at promoting privatisation, why on earth would the private school lobbies, their advocates like the Confederation of Indian Industry (CII) and their moles in the government be fighting so hard to have this clause in the bill removed, as they have been ever since it was leaked to the press during the drafting stage in 2005? One of the toughest fights for the bill has been to retain this clause in the face of concerted opposition from the private lobbies. Do the critics understand the private lobbies’ interests better than the private lobbies themselves?

Regarding the overall improvement of quality, the KCR says that the goal must be "to improve all primary schools to a minimum level prescribed". The bill through a mandatory infrastructural and pupil-teacher ratio (PTR) schedule prescribes the minimum standards without which no school, governmental, aided or private, shall be allowed to operate. This includes a specified number of classrooms, teaching hours, a library, teaching materials, separate toilets for girls and boys, drinking water, a playground and a PTR ratio that will be maintained in each school and not as an average over a block or district. It prescribes that the qualifications of teachers shall be determined by an academic authority at the centre. This ensures uniformity in the quality of teachers throughout the country. It also delineates their academic responsibilities in both state and private schools and prescribes that their emoluments be commensurate with their qualifications. These provisions should completely outlaw the EGS centres, para-teachers and other similar distortions brought about by the DPEP and continued through the SSA. Unregulated private schools (shops) that lack such norms and standards and qualified teachers will either have to invest heavily to attain these norms and seek recognition or will have to close down.

The bill prescribes principles that will determine the quality of the content and process, which include activity-based and child-centred pedagogies, a no-detention policy accompanied by continuous and comprehensive evaluation that does away with the stigma of failure imposed on children. It bans private tuitions by teachers as well as physical punishment and mental harassment of children, calling for a system of education where children will be free from fear, trauma and anxiety. It does not prescribe any punishment for parents, squarely defining ‘compulsory’ as compulsion on the state to provide. It defines ‘free’ to mean freedom from all financial barriers that prevent a child from participating in school and not merely non-payment of fees (which is what the KCR says). It bars schools from refusing admission for the lack of a transfer or birth certificate, a crucial provision in the case of poor and migrant children.

Are these elements of inclusiveness and quality deviations from or improvements on the Kothari Commission recommendations? The basis for the viewpoint that the legislation "will only be a boon for those who make money in the school business while it will be a disaster for those who have no access to education today" is therefore completely unclear considering that access to a neighbourhood school of a defined quality within three years is now the right of every child under this legislation.

The question of the values that school education should promote has been a serious issue, evident from the saffronisation debates. Progressive elements have constantly voiced the need for some form of legal regulation of curriculum and syllabus prescription and textbook writing to curb such distortions. There has been a general consensus that the values of democracy and debate, secularism, cooperation and so on, enshrined in our Constitution, must be the guiding values in educational transaction. The bill explicitly prescribes that the curriculum, content and process must be in conformity with the constitutional values of India.

Another point of contention is the non-academic tasks of teachers. The draft retains elections, decennial census and disaster management as tasks to which teachers could be assigned (not shall be assigned), banning everything else. Naturally, there is disquiet about it. Unfortunately, it flows from constitutional provisions which prescribe that any government servant can be called on to undertake these tasks (as IAS officers too have to be released for election duties). The following extract from a note from the Election Commission should make this clear:

"Article 324(6) of the Constitution of India read with Section 159 of the Representation of the People Act 1951 makes it obligatory that the president (the Government of India) or the governor (the government of any state) as well as every local authority shall, when so requested by the Election Commission, make available to the Election Commission or to a regional commissioner or to the chief electoral officer or the returning officer, as the case may be, such staff as may be necessary for the performance of any duties in connection with an election.

"In Election Commission of India vs State Bank of India, the Supreme Court has made it abundantly clear that the services of those government servants who are appointed to public services and posts under the central or state governments as well as those who are employees of the local authorities will have to be made available for the purpose of election and any such government servant or employee of the local authority who shall defy the requisition may receive suitable punishment."

An act cannot be in violation of any of the existing provisions of the Constitution. If the bill explicitly said that schoolteachers cannot be assigned to elections, this would violate the existing Article 324(6) of the Constitution. Freeing teachers from such duties would therefore require an amendment to Article 324(6) just as banning private schools would require amending Article 19(1)(c) and (g) of the Constitution.

These few comparisons should suffice for now. The fact is that many people have not read the report at all or carefully and carry hearsay impressions. The problem of internal inconsistency is not unique to the Kothari Commission report – ambivalence and tentativeness in progressive formulations is the hallmark of most educational reports and worse, different sections tend to contradict each other (that is why one needs to go beyond the oft referred to Section 1.36 on common schooling of the KCR).

Why is this so? That is the big political question. The bourgeois Indian nation state was carved out and is structured as a sum of contested vested interests, needs, aspirations and political clout which are reflected in its body politic. Public policy in any sphere therefore ends up as a ‘please-all’ effort, unable to escape ambivalence, tentativeness and contradiction. A bill or a parliamentary report is ultimately a political rather than an educational (domain) document and will more often reflect the contested politics rather than progressive logic. So however logical an argument of public policy might seem, if it lacks political backing, it is unlikely to go forward. As many political commentators have pointed out, the problem is not an inability to draft sensible formulations in the area of public policy; it is in the structure of the Indian nation state where democracy more often than not gets defined as accommodating contradictory viewpoints rather than arriving at a coherent and logical structure. The Kothari Commission report and the RTE Bill are equally under stress from such political contradictions.

It is not as if social movements are immune from such contestations. Take language, for example. Global educational research supports the view, inherent also in the national system of education of the KCR, that the mother tongue as a medium of instruction in formative years is not only essential for a learning mind but also greatly aids the acquisition of proficiency in a second language later on. It must therefore be reflected in any policy. However, one cannot summarily dismiss a counterview coming out of Dalit politics. Beginning with Ambedkar, various Dalit thinkers and movements have opposed such stress on the mother tongue or Hindi, maintaining that Dalit emancipation is linked to freedom from the caste-dominated local languages and insisting therefore on English language learning from the very beginning as part of children’s education.

It is not a question of who is right or wrong. It is a contestation that will have to be negotiated with patience and democratic debate. That a certain ‘global’ elite in India might also think English is important, for entirely different reasons, is an added complication that needs to be factored in. These intricate debates cannot be resolved by taking isolationist radical sounding positions which might contribute to individualised radical image-making but are unlikely to help improve the education of children, which must remain the primary objective.

The extent to which such politics can be influenced by academicians and social activists has obvious limitations. Individualised rhetoric is particularly less effective compared to the organised resistance of large masses and organisations. This is not to imply that we keep away from such actions; it is just that we need to be modest in assessing our interventionist strengths. In this context, the demand that the bill be stopped till the 86th amendment is re-amended is especially politically unrealistic. It is true that the 86th amendment is retrograde, that it is two steps backward compared to the Unnikrishnan judgement, that the age of the child should be from 0-18 rather than 6-14. However, what do we expect from a government which relegated the bill to a model bill for the states to bring in, whose high-level group concluded that it was too expensive to legislate, whose Planning Commission attempted to remove from the bill anything to do with private schools and sought to introduce the voucher scheme and whose law department tried to remove all sections dealing with quality? The government is not acting in a neo-liberal manner, it is neo-liberal. That such attempts were actually thwarted is quite unbelievable and indicates the considerable success of public pressure but one has to be equally realistic about the limits of such pressure on the existing political system.

The issue of common schooling and inclusive education is important not only because of what the Kothari Commission report says or does not say – it is important by itself. Locating within the KCR has an advantage since it provides a legitimate policy framework but this comes with contradictory baggage too, which cannot be hidden. If the Indian political system and particularly the liberal, Left, democratic and socialist parties are not willing to come together for such inclusiveness, a bill espousing such causes has little chance of going through Parliament now or, as the opponents to the introduction of the bill seem to suggest, later. That the parties did not press for these changes in the parliamentary standing committee or on the floor of the House defines their real position; public speeches by party members at non-parliamentary forums ought not to be confused with party positions. That the speaker of the Lok Sabha decided to ignore a petition by some groups attempting to stop the bill from being debated in the House provides enough evidence of how the political system views the objections raised in the petition.

One can, of course, end up in a situation such as the one the Bihar government is in. Armed with good intentions and some publicity, it formulated a policy on common schooling which reads as fairly progressive. The sad sequel is the Bihar government’s quiet decision to shelve the policy as inexecutable (conversation with the Bihar chief minister and principal secretary, education, at the Education Convention in Patna on January 26, 2008). The writers may use it as good reference material but have children benefited from it? Do we want to be crusaders for the ‘perfect’, accepting nothing else – and if that crusade takes another 50 to 100 years, having already taken 62 years since independence, does it demonstrate our concern for the 20 crore children in the 6-14 age group today?

Even the much acclaimed National Rural Employment Guarantee Act (NREGA) is anything but perfect. One could criticise it for providing work for just 100 days rather than 200 as was the demand of social movements, excluding the urban poor, providing at best some temporary ‘relief’ from poverty without tackling the basic issue of rural poverty which is inextricably linked to the most serious forms of privatisation – of capital and land. Should we oppose it too and demand that it be kept in abeyance till land reforms are complete? Or does it make sense to welcome it while trying to improve its provisions even as the larger fight for land reforms continues? Up to Class VIII, around 80 per cent of the children are in government schools; the rest are in private schools – aided and unaided. Should we postpone the provisions of the present legislation for the 80 per cent and certain regulations for the 20 per cent – if read and interpreted properly, they are anything but insubstantial or crumbs, as some critics tend to dismiss them – till we resolve the constitutional validity of private schools, something the Kothari Commission could not resolve?

We could either try to outlaw private schools or we could try and make every neighbourhood government school of such a quality (as the government-run Kendriya Vidyalayas are to some extent) that parents choose to send their children there rather than to a private school. That is how educationally advanced countries have ensured that children go to neighbourhood state schools, not by outlawing private schools but by making the state schools as good or better, and free.

After campaigning relentlessly, as part of the People’s Science Movement, from numerous public forums all over the country at state, district and even subdistrict levels, involving teacher organisations, student and youth groups, social movements and the general public, with almost every political party and the bureaucratic system, if this sounds like a viewpoint emanating from political pragmatism, well, it is. It is time now to ensure wholeheartedly the proper implementation of the legislation so that around 20 crore children in the 6-14 age group benefit while continuing the fight to bring relevant amendments to the legislation so that various improvements can be made: so that, for example, the benefits accrue to all children, from birth to 18 years of age; private schools are properly regulated; the mandatory schedule of norms and standards of a school is improved every few years; there is no multigrade teaching and so on.