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.