Friday’s Supreme Court judgment upholding the applicability of the Right to Education Act (RTE) even to unaided schools is a strong statement on inclusiveness and desegregation. Over time, this will do much to remove caste and other forms of bigotry and discrimination while strengthening the foundations for a strong modern democracy where no child is left behind. From next year, all private schools will have to reserve 25 percent of their intakes to the poor.
The majority judgment, written by Chief Justice SH Kapadia and Justice Swatanter Kumar, rejected the contention of unaided private schools (essentially schools for the well-off) that the RTE was an “unreasonable restriction” on their constitutional right to run and administer educational institutions under article 19(1)(G) of the constitution.
The Chief Justice said the RTE Act was not meant to be institution-specific and held that their right to “establish and administer an educational institution is a fundamental right, as long as the activity remains charitable.” If it was not a charitable institution, it would not be entitled to this right under article 19(1)(G). The court held that children have an “absolute” right to get education under the new Article 21A, and this right cannot be exercised if it were to exclude the poor.
The court said: “Right to live covers access to education. But unaffordability defeats that access. It defeats the state’s endeavour to provide free and compulsory education for all children of the specified age.”
So far, so good. However, the majority judgment then went on to contradict itself by doing the opposite with unaided minority institutions and excluding them from the ambit of the RTE.
If a non-charitable institution – usually high-charging schools for the elite - cannot escape coverage under the RTE on the ground that they have no right to exclude the poor, why is this logic not applicable to rich schools run by minority institutions?
The Chief Justice surely cannot have been unaware of this contradiction, and cannot escape the charge of treating minorities as a separate category when it comes to meeting national goals like the right to education.
To his credit, the dissenting judge, KS Radhakrishnan, was at least consistent in his approach. He said that the RTE Act should not be applied to non-state actors who received no funding from the government. He said the RTE cannot transfer the obligations of the state to provide free and compulsory education to children in the 6-14 age group to both unaided non-minority and minority educational institutions. Justice Radhakrishnan essentially says that if you don’t receive state funds, you have a right to your own academic and inclusion or exclusion practices.
This writer would normally agree with him, but given the scale of the problem on illiteracy and the lack of inclusiveness due to growing educational disparities in India, we have to abandon such niceties and get everyone – state schools, private institutions, aided or unaided – to treat this as a national mission till we achieve universal literacy.
This is why the Chief Justice’s view that minority unaided institutions can do their own thing is plain wrong. There is no scope for minorityism in the business of universalisation of education. Minority institutions should not be given a pass on national priorities – even while they are allowed to maintain their minority characters. Given the fact that Muslims are the most backward in education, one fails to see why unaided minority institutions should be exempt from this national cause.
Moreover, the RTE is no silver bullet. Illiteracy is not going to vanish just because an Act decrees so, as we are finding out with many other things which have been legislated but not implemented properly.Between the ideal and the reality of universal literacy and child rights is a huge hiatus. Rights do not become rights just by writing them into law. For example, it is fine to talk of child-centric education and 30:1 child-teacher ratios, but the infrastructure for this simply does not exist. We don’t have either the classrooms or the teachers for even existing students, leave alone the poor who will now be joining the class.
Inclusiveness, in fact, calls for an even higher quality of teachers who are both well-trained and sensitive to the emotional needs of the poor who will now be thronging schools. Even in existing schools, the vast majority of teachers are not there because they want to be good teachers, but because they can’t find better jobs.
Quite clearly, we need to mount a major effort to educate, train and develop reasonably good teachers on a war-footing – maybe by creating three- to six-month compressed courses for teachers of all ages. Educated retired people could be one obvious resource to tap. Part-time teachers are another possibility.
Since the judgment will be effective only in the next academic year, the next one year should be packed with purpose action both at centre and states.
It is a huge social, emotional and logistical challenge and we haven’t even got our arms around the problem so far.
But the bottomline is simple: it is time we got cracking on this. The Supreme Court judgment is in the right direction, even if it wrong on some details.