Questions

Right to Education

What is the Right to Education Act?

The Right to Education Act (RTE), passed in 2009, mandates free and compulsory elementary education for all the children between the ages of 6 to 14 years.

When did the Act come into effect and how will it be implemented in States?

The Act came into effect from 1st of April, 2010 across India except in the state of Jammu & Kashmir. All states and Union Territories have notified rules under the RTE Act.

How is a ‘child’ defined in the Act?

The term ‘child’ in the Act means a child in the age group of 6-14 years.

What is meant by ‘Free and Compulsory Elementary Education’?

The Act provides that all children between the age of 6-14 shall have the right to free and compulsory elementary education at a neighbourhood school.

It lays down that there must be no direct costs (e.g. school fees) or indirect costs (e.g: textbook, uniform etc.) that may hinder the child from obtaining elementary education. Free-of-cost schooling must be provided till the child attains the age of 14 years.

Is the RTE applicable to all schools?

The Right to Education (RTE) Act applies to schools as defined in Section 2(n) of the Act, which includes schools established by the government, those that are under government ownership or control, wholly or partly government aided schools, schools belonging to specified categories or completely unaided schools.

There are two exceptions to the above definition of a ‘school’ under the Act. First, the Act does not apply to ‘Madrasas, Vedic Pathshalas and education institutions primarily imparting religious instruction’. Second, the Supreme Court, in Society for Unaided Private Schools in Rajasthan v. Union of India, has clearly ruled that in addition to the above category of institutions, the RTE does not apply to unaided minority schools, which are protected by the fundamental right under the Constitution of India to establish and administer educational institution of their choice.

What is a minority educational institution for the purpose of the RTE?

The National Commission for Minority Educational Institutions (NCMEI) Act, 2004 defines ‘minority’, for the purposes of the Act, as a community notified as such by the Central Government and ‘minority educational institution’ as a college or educational institution established and administered by a minority or minorities. A minority educational institution may be granted such a status and a minority status certificate by an authority under either a state government or the Central Government, depending on the nature of the statute under which it was established or recognised or in which state’s jurisdiction it was set up.

Thus, a minority community is granted such a status by the Central Government, and a minority educational institution receives recognition as such by either the State or the Central government. The parameters for recognising minority educational institutions may vary. The Karnataka government, by Circular dated 24 July 2012, notified that for an educational institution to be recognised as a minority institution, the management and board of the institution is to be registered under the Societies Registration Act, and at least 75% students in the academic year are required to be from the same minority community.

What is a minority for the purpose of a minority educational institution under the RTE?

As understood from the above, the recognition of minority educational institutions is based on the understanding of a minority community. There is no clear legal definition of ‘minority’, though several Court decisions have interpreted the term and laid down parameters for determining if a community is a minority, entitled to the fundamental right to establish educational institutions.

The Supreme Court has held that to claim the right under Article 30 of the Constitution of India, a community must show that it is a religious or linguistic minority and that it had established the educational institution. The minority community must both establish and administer the institution. The legal interpretation on this issue largely emphasizes factors such as religion and language.

Undoubtedly, several schools in the country recognized as minority educational institutions, would fail the test for recognition set out by the government of Karnataka. However, some criteria are certainly necessary to check misuse and abuse of the rights accorded to unaided minority educational institutions.

What are the four types of schools that the RTE is applicable to?

The RTE is applicable to four types of schools, namely i) a government school that is established, owned or controlled by appropriate government or a local authority, ii) a school aided by the appropriate government or local authority to meet whole or part of its expenses, iii) a school belonging to a specified category and iv) a private unaided school that receives no aid whatsoever from the appropriate government or any local authority.

What is understood by a government school that is established, owned or controlled by appropriate government or a local authority?

A government school that is established, owned or controlled by appropriate government or a local authority is completely dependent on the State or the agencies of the state. An appropriate government is the Central government for a school established, owned or controlled by the same or the administrator of the Union territory having no legislature, the State Government for a school established within the territory of a State and the Government of the Union territory within whose territory the school is established. A local authority is an authority having administrative control over the school. The state government designates an appropriate body or authority as “local authority” through notifications.

What are the duties of an appropriate government?

The Act prescribes the following duties for the Appropriate Government:

To provide free and compulsory elementary education to all children in the age group of 6-14 years;

To ensure availability of a neighborhood school with the necessary infrastructure, teachers, and learning equipment as specified in the Act;

To ensure admission, attendance and completion of elementary education for every child;

To ensure that children belonging to disadvantaged or weaker section are not discriminated against and prevented from pursuing or completing elementary education on any ground;

To provide special training facilities to out-of-school children admitted to age appropriate class;

To provide training facility for teachers;

To ensure timely prescribing of curriculum and course of studies;

To ensure quality education conforming to standards specified in the Schedule of the Act

What is a specified category school?

A specified category school refers to schools that are Kendriya Vidyalayas, Navodaya Vidyalayas, Sainik Schools or any other school having a distinct character which may be specified, by a notification, by the appropriate Government.

How does the RTE mandate free and compulsory elementary education for all children between the age of 6-14 years of age in a completely aided government school?

The RTE provides that all completely aided government schools are to provide free and compulsory education to all children between the ages of 6-14 years of age.

How does the RTE mandate free and compulsory elementary education for all children between the age of 6-14 years of age in a partially aided government school?

The RTE provides that all partially aided government schools are responsible for providing free and compulsory education to the proportion of students admitted that is equivalent to the proportion of the annual aid or grants forming a part of its annual expenses with a minimum of 25%.

How does the RTE mandate for free and compulsory elementary education for all children between the age of 6-14 years of age in a specified category school and in a private unaided school?

The RTE provides that all specified category schools and all private unaided schools are to provide free and compulsory elementary education to a minimum of 25% of students belonging to the weaker section or the disadvantaged group in the neighborhood who are admitted at the entry level.

Which children are eligible to apply for the 25% reservation seats?

A student belonging to a weaker section or a disadvantaged group can apply for the 25% reservation in seats. A child belonging to disadvantaged group refers to a child belonging to the Scheduled caste, the Scheduled Tribe, the socially and educationally backward class or such other group having disadvantage owing to social, cultural, economic, and geographical, linguistic, gender or such other factor, as may be specified by the appropriate Government, by notification. However, a child belonging to a weaker section refers to a child whose parents or guardian earn an annual income that is lower than the minimum limit specified by the appropriate Government, by notification.

Does the Act cover children without parents if the definition refers to their income?

While Section 2(k) defines the income of the parents, Section 8 places a compulsory duty on the State and not the parents to ensure that all children receive education. It therefore covers children without parents.

What is meant by a neighbourhood school?

A ‘neighbourhood school’ refers to the nearest primary/upper primary school within walking distance from the child’s residence.

The Act provides that all children between the ages of 6-14 years should receive free and compulsory elementary education at a neighbourhood school. The Model Right to Education Act Rules 2010, define the limits of neighbourhood schools as a 1 km walking distance from the habitation of a child at the primary level (class 1 to 5) and within a 3km walking distance for the upper primary level (class 6 to 8). It is the duty of the Government to ensure availability of a neighbourhood school for all children within 3 years of the implementation of the Act.

Would special schools that are run by NGOs qualify as legal schools under the Act?

Yes, provided that they attain the norms and standards as defined in the Act, within three years of notification of the Act.

How will the 25% quota for EWS/Disadvantaged be administered? How will the private schools be paid by the Governments?

All the states have to determine the per-child cost and notify the same to the government. All the private schools will be reimbursed the fees by the state government on a per-child basis. However, the schools will not receive any reimbursement if they are already obliged by a separate Memorandum of Understanding to give admission to a predetermined number of children. No reimbursement will be provided for the percentage of children covered under that MoU.

Can a private school admit more than 25% children from disadvantaged groups?

Yes, section 12 of the Act states “at least twenty-five percent” which implies that a school could offer to take more than 25%.

Does the Act imply that private schools cannot charge fees?

No. Private schools and schools in the specified category can continue to charge fees as before. However, they are required to admit in their incoming class, at least 25% children from disadvantaged and weaker sections of the society, without charging any fees.

Who prescribes and supervises the curriculum and evaluation systems at the state level?

The state governments shall have to specify academic authorities responsible for laying down the curriculum and evaluation procedures at the State level. These could be SCERTs or other academic institutions of the state. The state curriculums must however be prepared according to certain common principles of content and process described in Section 29(2) of the Act and should encompass the all-round development of the child, conform with values enshrined in the Constitution and build up the child’s physical and mental abilities as well as talent, knowledge and potentiality.

Does the Act mandate a national curriculum framework?

Yes, under Section 7(6)(a) of the Act, the Central government has to develop a framework of national curriculum with the help of academic authorities of state governments. Moreover, the Central Government also has to develop and enforce standards for training of teachers and provide technical support and resources to the State Governments.

If a 13 year old child wants to join a school, will she be asked to leave in one year when she attains 14 years of age?

No, the aim of the Act is to guarantee the completion of elementary education. Therefore, even if the child has attained 14 years of age but has still not completed class 8, she can study till she completes class 8, irrespective of her age.

How will a child, who was previously out of school, but now enrolled in one, cope up with the studies?

It is the responsibility of the school to provide the child with special remedial classes after enrolling her in an age-appropriate class. The remedial classes could continue from 3 months to 2 years.

Is it true that no child can be expelled or failed?

No school, governmental or private, can detain (fail) or expel any child at the elementary stage till the completion of elementary education (class 8).

If there are no Board examinations, how will children be certified when they complete elementary education?

The procedure for certification is described in Model Rule 23. The certificate will include the Pupil Cumulative Record of a child which will contain the talents and abilities of the child beyond school subjects. The implication is that such a cumulative record, spanning eight years of elementary stage shall be kept for each child, and teachers shall be facilitated through trainings and other means to fulfill this task.

If the village school goes only upto the primary level, what happens to education beyond that?

According to the Act, a child has the right to seek transfer to any school (apart from private unaided schools and the special category schools mentioned in the Act) for completing elementary education. It is the responsibility of the local authority to ensure that the child (and in fact all children of the primary school) is seamlessly transferred to the nearest upper primary school promptly. Alternatively, the primary school can upgrade its facilities to the upper primary level.

What is the remedy available if the teacher remains absent or does not teach properly?

Section 24(2) provides for disciplinary action that can be taken against the teacher. Before taking any such action the opportunity to a hearing must be provided to the teacher. Moreover, section 18(2) of the Model Rules provides for the accountability of teachers to the School Management Committees.

Is private tuition banned for all teachers?

Yes, the Act bans private tuition for teachers working in government or private elementary schools. However, the ban under the Act doesn’t apply to teachers in secondary school. Nevertheless, there are generally laws and service conditions at the state level which disallow private tuitions for secondary school teachers that will continue to be valid.

How are School Management Committees formed?

The detailed procedure for the formation of SMCs is outlined in the respective State RTE Rules. Broadly, 75% members of the SMC shall be parents of children studying in the school, 50% of the total members women and that the Chair and Vice Chairpersons should be from amongst the parents. Also, it should meet at least once a month and the minutes of its meetings should be made public.

Are all schools required to have a School Management Committee?

Yes, all schools-government, government-aided and special category, must constitute a School Management Committee, according to Section 21 of the Act. However, private schools are excluded from Section 21 as it is already compulsory for them to have a management committee on the basis of trust/society registrations.

Who is a teacher under the Act?

The definition of a teacher is given in Section 23(1).

An academic institution of the central government shall prescribe teacher qualifications that all teachers of the country must have within five years. This will include both the academic and professional qualifications. The central government has already notified that the National Council for Teacher Education shall prescribe teacher qualifications. A broader committee under MHRD has already sent its suggestions to the NCTE regarding the new teacher qualifications.

Is it permissible for the teachers to engage in non-academic work, according to the Act?

The Act has banned all non-academic work by teachers, except those related to elections, decennial census and disaster related tasks as per the notification by the Central Government.

Is the ‘screening’ procedure banned by the Act?

Screening process is the name given to any test/interview/interaction of either the children or parents to determine the admission of one child over another. It is prohibited by Section 2(o) along with Section 13(2)

(b) of the Act, even at the elementary level. It provides for using only random procedures to admit a child. This applies to all schools, private or special category schools like Navodaya schools too. A random procedure implies the use of open lottery.

Are schools allowed to collect any capitation fee?

No school or person shall, while admitting a child, can collect any capitation fee and subject the child or his or her parents or guardian to any screening procedure.

What is the redressal mechanism available if RTE is violated?

The National Commission for the Protection of Child Rights has the authority to evaluate the safeguards for rights that have been provided by the Act. It is also vested with the power to investigate complaints and act like a civil court to try cases.

The States were required to constitute a State Commission for the Protection of Child Rights (SCPCR) or the Right to Education Protection Authority (REPA) within six months of 1 April, 2010. Any grievances have to be submitted to these local authorities. The SCPR/REPA has the power to decide on appeals. However, the sanction or permission of an authorized officer of the Government is required before such a proceeding may start.

Is the state government exempted from reimbursing private unaided schools that provide for a reservation quota at the pre-primary stage as well?

A 2013 judgment of the Delhi High Court, Social Jurist & Anr. v. Government of NCT, Delhi & Anr., has pronounced that the provisions of the Act are not applicable to education imparted at the pre-primary level by private unaided institutions as under Sec. 2(n)(iv) except for the proviso to Sec. 12(1)(4). The Court held that the Act was only applicable to elementary education for children only between the ages of 6 and 14 years of age. The proviso to Sec. 12(1)(4) stipulates that the aforementioned arrangement has to be implemented for pre-primary education where the school ordinarily provides the same. Further, states such as Maharashtra had at certain times made the Act applicable to pre-primary schools as well by issuing notifications to that effect.

Is it permissible for a private unaided institution to ask a student enrolled under the RTE as part of the 25% under the weaker section category, to leave or to pay the required fee in the event that the annual income of the parents/guardian has gone beyond the prescribed minimum limit?

Under Sec. 12(1)(c), all private unaided institutions must enroll students at the entry level from the weaker section category or the disadvantaged category as laid out in Sec. 2(e) and Sec. 2(d) of the Act where such students must necessarily constitute 25 % of the strength of the class. The weaker section category under Sec. 2(e) of the Act requires the parent or the guardian to have a minimum prescribed income limit as notified by the state government and example of which would be 1 lakh rupees as notified by the State of UP. However, there is no mechanism post admissions that directs such schools to carry out annual audits of the annual income of the parents of such children enrolled under the RTE. The Act does not specify so anywhere and neither do the model rules. Therefore, one can safely say that it is not permissible for schools under Sec. 2(n)(iv) to ask a student enrolled under the RTE as a part of the 25% under the weaker section category to leave the school or to pay the required fee in the event that the annual income of the parents/guardian goes beyond the prescribed minimum limit.

Can parents or guardians admit their children in any school, as provided under the RTE, of their choice?

The Right to education act has provided for Sec. 12 to allow underprivileged children, the access to education imparted in private unaided schools. The Act is oriented towards the fulfillment of the larger goal of social justice. The purpose is to bring about social justice through such private unaided schools where in fact the requirement is more so. The purpose is to ensure that economically weaker and disadvantaged groups are not denied quality education if they wish to attend private unaided schools. The scheme under the RTE provides for four kinds of schools under Sec. 2(n) in order to allow access to free and compulsory education. However, in questions where the Court has been asked to adjudicate upon whether the parents’ plea to seek admission in a particular school even though there exist several others in the neighbourhood as prescribed by the Act and the Rules, the court has not decided upon such matters suspending them in great ambiguity. They have held that under the RTE Act, it is highly unclear as to whether parents of children belonging to weaker sections will have any right to admit their children in a school of their choice which they believe can impart quality education to their children.

What kind of a school has to be provided to children and when?

The Act lays down minimum norms and standards for all schools, government and private, through a mandatory schedule. This includes number of teaching days per year, number of teaching hours per day, number of rooms, availability of teaching learning materials, library, toilets, safe drinking water, playground, kitchen for mid-day meals, Pupil Teacher Ratio, subject teachers in classes 6 to 8, part time art, work and physical instructors and so on. Governments and private managements have three years to upgrade their existing schools to these minimum norms, barring which they will not be allowed to operate. Governments have to provide such a neighbourhood school to all children within three years, i.e. by March 31, 2013. The prescribed norms are minimum, which implies that nothing stops state governments/managements to have higher norms than those listed in the schedule. In particular, if some schools already have higher norms, it does not imply that they reduce those norms to match the schedule.

What about schools that do not provide facilities in accordance with the Act?

The schools have been given 3 years to upgrade their standards and bring them at par with the norms specified in the Act. After that action can be taken against them for not meeting the standards.

By when does the pupil-teacher ratio have to come into place?

The pupil-teacher ratio has to be in place within 6 months of the Act coming into force. The other norms have to be in place within 3 years.

What if there are not enough teachers to meet the norms of the pupil-teacher ratio?

The number of vacancies in a school cannot exceed 10% of the sanctioned strength following the pupil teacher norms. If the requisite number of qualified teachers cannot be found in a particular area, the qualification norms may be modified to suit the purpose, but only for a period not exceeding 5 years.

Are norms and standards of a school only applicable to private schools?

No, these norms and standards are applicable to all schools. As per section 19 (1), no school shall be established or recognized, if it does not fulfil the norms and standards prescribed by the Act.

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