A special committee chaired by Union minister of state Kapil Sibal to give teeth to the Free and Compulsory Education Bill 2004 has recommended that 25 percent of pre-primary and class I students in India’s globally respected private schools should be from disadvantaged groups. Dilip Thakore reports

Submitted to the Union ministry of human resource development on June 30 this year, the implications of the revolutionary recommendations of the Report of the CABE (Central Advisory Board of Education) on Free and Compulsory Education Bill and Other Issues Related to Elementary Education have obviously not yet impacted themselves upon the boards of management and teachers of India’s 75,000 private schools which have an estimated 8 million of the country’s best and brightest students on their muster rolls. When the under-debated recommendations of the special CABE committee chaired by Union minister of state for science and technology and ocean development Kapil Sibal to give teeth to the Free and Compulsory Education Bill 2004 are absorbed by private school managements and the nation’s powerful middle class for whom high quality private school education for their children is a God-given fundamental right, a violent round of protests and litigation are inevitable.

Constituted by Union minister of human resource development Arjun Singh to “suggest draft of legislation envisaged in a new Article 21A of the Constitution” ( viz, “the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law determine”) enacted following the 86th amendment to the Constitution in 2002, the Sibal Committee’s report makes several important recommendations which if approved by the HRD ministry and Parliament are likely to radically transform elementary education in India. “Right to education also implies that it is the State’s obligation to remove whatever obstacles — social, economic, academic, linguistic, cultural, physical etc — which prevent children from effectively participating in and comple-ting elementary education of satisfactory quality,” says the committee’s report while elaborating the principles which guided its deliberations.

Accordingly the committee has recommended that the Free and Compulsory Education Bill 2004 (FCEB 2004) which when enacted by Parliament will give effect to the proposed Article 21A, should confer the right to “full-time education of satisfactory and equitable quality in a formal school” upon every child (defined as a boy or girl between six-14 years of age in the Bill) who should be “enabled to complete elementary education”. Moreover taking cognizance of the reality that “one major reason why it has not been possible to universalise elementary education all these years is the dysfunctionality of the delivery system”, the committee has recommended several provisions for “greater decentralisation and accountability” of the elementary school system to be incorporated into the Bill (see box p.28)

However the recommendation of the Sibal Committee which is certain to generate storm within the inner councils of India’s private schools as well as within the drawing rooms of middle class India is one which endorses and expands s.35 of FCEB 2004. This section of the proposed Bill permits a state government appointed District Elementary Education Authority (DEEA), a Municipal Elementary Education Authority (MEEA) or Habitation Elementary Education Authority (HEEA) as applicable, to direct private schools to admit free of charge “children from families below the poverty line living in the district or, as the case may be, the metropolitan area” to upto 20 percent of strength in any class.

In its recommendations the Sibal Committee has expanded this obligation of private aided and unaided schools to “at least 25 percent of children admitted to class I after commencement of the Act, from among children belonging to the weaker sections randomly selected by the school in such manner as may be prescribed”. The effect of this recommendation is that at least 25 percent of children in class I of private schools will be from slums and deprived neighbourhoods. Ditto if private schools have a pre-primary section. Comments the committee’s report: “Provision of free and compulsory education of satisfactory quality to children from weaker sections is the responsibility not merely of schools run or supported by the state, but also of schools which are not dependent on state funds. Schools of the latter kind also need to provide education to such children to at least 25 percent of their intake. This is necessary not merely as part of the social responsibility of such schools, but equally so their ‘fee-paying’ students study in a socially more representative and diverse environment and develop into socially sensitive citizens.”

The full implications of the Sibal Committee’s report, which in effect creates a government quota in private secondary education which had hitherto maintained its independence from the ubiquitous licence-permit-control regime which has bedevilled the nation’s 315 universities, 15,600 colleges and 950,000 schools have yet to register with the managements of independent schools which typically, are islands into themselves. But more prescient educationists within India’s independent schools, the best of whom have acquired global reputations within foreign universities and academic communities for the high quality of secondary education they provide, are aghast.

“The committee’s recommendation to induct children from neighbouring economically weaker communities into independent, fee-charging schools is completely impractical and will not be accepted by parents who make considerable financial sacrifices to send their children to us. The proposal is impractical because children from poor households are certain to be disoriented in independent schools which are admittedly for children from more well-to-do industry and professional backgrounds. Because of their deprived circumstances they are unlikely to be able to fit in, or keep up with fellow students and are likely to develop deep inferiority complexes. Moreover the provisions of FCEB 2004 which the Sibal Committee has not challenged, requires independent schools to provide education to poor children only up to class VIII. What happens to them after class VIII? Do they go back to poor quality government schools and readjust all over again? This is ill-conceived legislation which will traumatise deprived children and must be opposed for the sake of all children,” says Anu Monga, the experienced principal of the Bangalore International School and chairperson of a nascent Association of International Schools of India.

By a curious happenstance, the release of the Sibal Committee’s recommendation to introduce 25 percent reservations for economically weaker children in unaided schools has coincided with a judgement of the Supreme Court which has struck down the hitherto strongly entrenched practice of state governments reserving quotas in privately promoted unaided colleges of professional education such as medicine, engineering and business management. In its judgement delivered on August 12 in P.A. Inamdar vs. State of Maharashtra (Appeal (civil) 5041 of 2005), a seven-judge bench of the apex court unanimously re-affirmed the right of unaided minority and non-minority institutions to “establish and administer educational institutions of their choice” without government interference as mandated by Article 30 of the Constitution. In its judgement, the court outlawed the enactments of several state governments which have legislated complex seat-sharing matrixes under which they appropriated 50-70 percent of seats in private unaided colleges for state-sponsored students paying tuition fees determined by committees headed by retired judges appointed by state governments.

The Supreme Court’s unanimous judgement in Inamdar’s Case which has outraged all political parties committed to providing subsidised higher education to the nation’s influential middle class constituency, has reaffirmed the apex court’s judgement in T.M.A Pai Foundation vs. State of Karnataka & Ors (2002 8 SCC 481), a verdict delivered in 2002 which was muddied by a subsequent ‘clarification’ judgement of a five-judge bench of the court in the Islamic Academy Case (2003 6 SCC 697). In effect with its latest judgement in Inamdar’s Case the Supreme Court has overruled its judgement in the Islamic Academy Case which had mandated the setting up of special committees in every state to supervise admissions and determine tuition fees of professional colleges. Now colleges of professional education are free to determine their own admission procedures subject to their being merit-based and transparent, and to levy “reasonable” tuition fees.

However Sibal, a heavyweight Supreme Court counsel in his own right (minimum fee: Rs.100,000 per diem) is of the opinion that the anti-reservation and anti-interference judgement of the apex court in Inamdar’s Case is restricted to institutions of higher education and has no bearing upon the reservation mandated by FCEB 2004 and expanded by his committee. “Article 21A of the Constitution of India is now an integral part of the chapter on fundamental rights. This means that every child between the age of six-14 years has a fundamental right to education. It is to ensure that each child is provided such education that the proposed legislation and reservations for poor children in pre-primary and class I is contemplated. The logic of the T.M.A Pai Foundation Case cannot possibly apply since in that case the Supreme Court was not dealing with the content of the right and the manner of its enforcement in respect of children beween the ages of six-14,” says Sibal (see interview p.33).

Though with a typical lawyer’s finesse Sibal makes an arguable distinction between the T.M.A Pai Foundation/Inamdar’s Case and the proposed legislation, viewed from the institutional promoters’ perspective, there’s no denying that the country’s highest judicial authority has negatived the practice of governments appropriating quotas within privately-promoted, unaided or financially independent institutions. It could equally — and will — be argued that even if all children in the age group six-14 have a fundamental right to education following the 86th Amendment which has incorporated Article 21A into the Constitution, this does not vitiate or dilute the fundamental right of minority and non-minorities to “administer” or manage their education institutions inde-pendently as reaffirmed in Inamdar’s Case. As such it can be forcefully argued that private school managements rather than government constituted district and local committees should be free to decide what provision they need to make for children from economically weaker sections in their neighbourhoods. 

Box 1

Sibal Committee’s major recommendations

Terms of reference. In the light of the deliberations which took place in the first meeting of the reconstituted Central Advisory Board of Education (CABE) held on August 10–11, 2004 a committee of CABE was constituted vide order dated 8.9.04 of the Ministry of Human Resource Development with the following terms of reference:

• To suggest a draft of legislation envisaged in Art. 21A of the Constitution, and
• To examine other issues related to elementary education for achieving the objective of free and compulsory basic education.

Definitions. Child. Means a person who is not less than six years and not more than 14 years of age.

Disadvantaged Group. Means scheduled castes, scheduled tribes, and such other groups disadvantaged due to economic, social, cultural, linguistic, gender, administrative, locational, disability or other factors, and notified as a disadvantaged group in relation to an area, in such manner as may be prescribed.

Child’s right to free and compulsory education of equitable quality. Every child who has attained the age of six years shall have the right to participate in full time elementary education and to complete it, and towards that end shall have the right to:

• Be admitted to a neighbourhood school, and
• Be provided free and compulsory education in such school, in the manner provided in this Act.

Right of transition till completion of elementary education. For every child studying in a school which provides education up to a level less than class VIII, the Local Authority shall specify a school subject to the provisions of s.14, where such child shall have the right of admission for free education till she completes elementary education.

General responsibility of the state.

• To ensure the availability of a neighbourhood school for every child within a period of three years from commencement of this Act.
• To ensure that every child is provided free education in such schools.
  

Responsibility of local authorities. Subject to the responsibility of the appropriate government as laid down in s.10, the local authority shall, if empowered by law, perform the following function:

To ensure that every child in the age group of six-14 years residing within its jurisdiction is enrolled in an elementary school, participates in it, and is enabled to complete elementary education.

Responsibility of schools. All schools shall provide free and compulsory elementary education to children entitled under s.3 in the following manner:

• State, schools, except schools of specified categories, to all admitted children.
• Aided schools to at least such proportion of their admitted children as its annual recurring aid bears to its annual expenses subject to a minimum of 25 percent.
• State schools of specified categories, and unaided schools, to at least 25 percent children admitted to class I after the commencement of this Act, from among children belonging to weaker sections randomly selected by the school in such manner as may be prescribed.

National Commission for Elementary Education. Central government shall by notification, constitute a body to be known as the National Commission for Elementary Education, to continuously monitor implementation of this Act, recommend corrective measures wherever necessary, and to exercise powers and perform other functions assigned to it under this Act.

 “If the primary and secondary education that India’s private schools dispense is respected around the world, it’s because we have thus far enjoyed considerable independence of government. Private school managements are not against the spirit in which FCEB 2004 has been drafted. However we entertain legitimate fears of bureaucratic interference in our operations and whether the proposed habitation, district and local elementary education authorities will comprise men and women of integrity and achieve-ment in their professions and vocations. We require some assurance that the government mandated committees which will choose poor students for admission in our schools will not impose bureaucratic shackles upon our member schools but will be effective facilitators and regulators of the scheme. Moreover we are against the across-the-board mandatory 25 percent quota which is based upon the erroneous assumption that all private schools are rich. Many of our students are from middle and lower middle class households which will experience difficulty in paying higher tuition fees which will have to be raised to provide free education to children from economically weaker households. Therefore a more realistic quota would be 10 percent,” says T. R. Gupta president of the Delhi-based Private Recognised Unaided Schools Comm-ittee (estb.1997) which is an umbrella organisation of several private school associations including the National Progressive Schools Conference, Forum of Public Schools and Federation of Public Schools among others.

Though in public, private school managements accept the infusion of children from “disadvantaged groups” including girls, scheduled tribes and castes, families below the poverty line, first generation learners and children in conflict with law etc into pre-primary and class I on grounds of political correctness, in private they entertain deep fears of creeping backdoor nationalisation and/or intensifying inspector raj as members or inspectors of HEEA (habitation elementary education authorities), DEEA (district elementary education authorities) and LEEA (local elementary education authorities) monitor the progress of children from disadvantaged groups in private schools.

n this connection it is pertinent to note that under s.15 (3) of the proposed Bill, state or municipal governments may designate existent village panchayats, ward committees of municipal corporations or “grassroots level education committees constituted under any other law” as HEEAs. In effect it will mean the monitoring of private schools by heavily politicised panchayats and municipal corporations. Significantly, s.15 (5) (viii) vests HEEAs with the power of “exercising control over every approved and transitional school within the habitation with a view to ensuring that such school(s) function regularly and properly”. The LEEAs, DEEAs and MEEAs are similarly structured and are obliged to support HEEAs. In short the compulsory induction of children from disadvantaged groups into private schools is certain to erode their autonomy and subject them to greater local government control.

“Government schools built from tax revenues are obliged to provide quality education to children from disadvantaged households. By devolving this responsibility upon fee-charging unaided schools, the Sibal Committee has opened up a real possibility of incremental interference in the management of India’s world-class, widely admired private schools by the country’s notoriously venal politicians and school inspectors. There’s no doubt in my mind that HEEA members will demand bribes for nominating poor children to private schools and government inspectors will shake down private school manage-ments for imaginary violations of equal education for children enrolled under HEEA quotas. Thus far the private schools sector has been largely insulated from government interference in operational management. The Sibal Committee’s report is the thin end of the wedge for incremental local government control of private schools which will be dumbed down as have been India’s universities and colleges,” predicts the principal of a highly rated independent school in Bangalore speaking on condition of anonymity.

The prospect of incremental interference by venal and loutish local government officials if the Sibal Committee’s recommendation of carving out a 25 percent quota for poor children — chosen by politicised HEEAs — is implemented, prompts Mrs. Y.G. Parthasarathy the venerated dean and director of Chennai’s CBSE-affiliated Padma Seshadri Bal Bhavan Schools to suggest that FCEB 2004 should be amended to leave the selection modalities and intake quotas of children from disadvantaged groups to private school managements. “The Sibal Committee’s recommendation of reserving a fixed 25 percent quota for children from disadvantaged groups in pre-primary and class I will dilute education standards. Instead FCEB 2004 should be amended to leave it to school managements to provide free education to poor children who qualify for admission. In PSBB schools we have many children from disadvantaged families who receive free or subsidised education. But the criterion for admission is household income rather than caste and community background as suggested by the draft FCEB. But in all cases admission into private schools should be based on passing the school’s admission test. This is important to maintain education standards,” says Parthasarathy. Quite clearly her fear is that first generation learners without any home learning support will depress the PSBB schools’ carefully built reputation for scholastic excellence.

Pervasive fear of depression of scholastic standards apart, the prospect of enrolling upto 25 percent non-fee paying pre-primary and primary students is dismaying for some private unaided school managements. Comments Sharissa A. Azim, correspondent (spokesperson) of the Crescent Higher Secondary Girls School, Chennai, an independent school affiliated to the Tamil Nadu state board which has an enrollment of 1,100 girl students: “This school is run solely by the tuition fees collected from students. If we are asked to admit 25 percent of our primary students from disadvantaged groups every year and to continue to provide them free education for eight years, government should compensate us by paying their fees. Moreover this should be done without any interference with our administration or management.”

Quite clearly this is an unlikely prospect because government grants to education institutions are invariably followed by teams of inspectors, auditors and government officials who demand respect, admissions, teacher appointments and bribes for alleged violations of the myriad rules and regulations which private — but not government — education institutions are heir to. Against this backdrop the most efficacious option of enabling children from disadvantaged groups to access private schools would have been through a voucher scheme which is being implemented in several states of USA. Under this scheme children from disadvantaged groups are issued cash vouchers equivalent or near-equivalent to the tuition fees levied by fee-charging schools. These are submitted by students to schools of their choice in exchange for tuition. Surprisingly neither FCEB 2004 nor the Sibal Committee seems to have examined this option which is becoming increasingly popular in the US.

This is perhaps because the Sibal Committee was subjected to considerable pressure from Left academics to recommend an even larger non-fee paying pre-primary and primary annual intake of children from disadvantaged groups into private schools. In this connection it is pertinent to note that while FCEB 2004 has mooted an annual intake of 20 percent, the Sibal Committee’s recommendation is 25 percent. Indeed, notwithstanding the deplorable extent to which government control and funding has dumbed down post-independence India’s 315 universities and 15,600 colleges, some influential left wing academics make no bones about the need to abolish the private school system in toto.

“The new article 21A of the Constitution which guarantees education to all children in the age group six-14 must be read in conjunction with Article 14 which guarantees all citizens, including children, equality before the law. Therefore if all children are equal they are entitled to be enrolled in their neighbourhood schools whether public or private. In this connection it is also pertinent to note that all school promoters register them under the Societies or the Charitable Trusts Act. As such they have to be charitable rather than profit making institutions. Moreover it is implicit in Article 21A that every school should provide free of charge education to at least 50 percent — as per the formula laid down by the Supreme Court in Unnikrishnan’s Case (1993) — poor children from the neighbourhood, so their wealthier peers do not dominate them. If not, how will the goals of equality or social justice be attained? I argued this before the Sibal Committee but it was overly influenced by the Delhi private schools lobby and made only a token provision for poor neighbourhood children into private schools,” says Anil Sadgopal, professor of education at Delhi University and a dissenting member of the Sibal Committee.

Most liberals and right-thinking people would find it hard to accept — and more so after the August 12 judgement of the Supreme Court in Inamdar’s Case — Sadgopal’s argument which in effect advocates the backdoor nationalisation of private schools. The mess created in professional education by application of the quotas prescribed by the apex court in Unnikrishnan’s Caseprovide an object lesson of the danger of permitting excessive govern-ment interference and intervention in unaided institutions of education. And these quotas have quite rightly been abolished by theT.M.A Pai Foundation and Inamdar’s Case judgements of the Supreme Court leaving institutional managements free to transparently manage the institutions promoted by them and to charge reasonable fees related to their investment. 

Box 2

“Applicable to all schools…”

Autar Nehru interviewed Kapil Sibal Union minister of science and technology and ocean development and chairman of the CABE committee on the Free and Compulsory Education Bill 2004 aka Right to Education Bill 2005 in Delhi. Excerpts:

From the perspective of a legal luminary, what is the significance and distinguishing characteristic of the new Article 21A of the Constitution of India?

A number of basic entitlements of the individual such as employment, a living wage, nutrition, health, education, etc. have been part of the ‘Directive Principles’ enshrined in the Constitution rather than as fundamental rights. Article 21A is the first instance of an entitlement — viz to free and compulsory education — being moved from the directive principles part to the fundamental rights part of the Constitution. It is also the first fundamental right which is not in the nature of restriction on the State, but one which, so to speak, commands the State to proactively provide an entitlement, viz. free and compulsory education to all children of six-14 years of age, and “in such manner as the State may, by law, determine”.

One of the radical suggestions made by your committee is that at least 25 percent of the intake of unaided privately promoted pre-primary and primary schools will have to be of “children belonging to weaker sections randomly selected by the school… How comprehensive is this recommendation? Will it apply to exclusive private schools such as Doon, Mayo and the new ‘international’ schools?

The recommendation that all unaided schools will have to provide at least 25 percent seats to children belonging to weaker sections, will be applicable to all schools, except those to which the proposed law will not apply. Clause 1 of the Bill suggested by our committee says that the Act will not apply to Jammu & Kashmir, and that its provisions will be subject to those of Article 29 and 30 of the Constitution.

Some school managements argue that this proposed provision flies in the face of the Supreme Court’s judgement in the TMA Pai Foundation Case which upheld the right of all citizens to “establish and administer educational institutions of their choice”. What’s your comment?

To protect weaker sections of society does not fly in the face of the judgement in the TMA Pai Foundation Case. Private unaided institutions do have a social responsibility to discharge. This can be done without negatively impacting on their right to establish and administer educational institutes of their choice. This specific issue was never the subject matter of decision in the TMA Pai Foundation Case.

The induction of poor slum children into elite private schools is likely to cause acute psychological problems for the latter. To what extent has your committee taken this into consideration?

The so-called elite schools will have to provide education to children from weaker sections in an inclusive and stress-free manner. This will have to be ensured at the implementation stage in various ways, including by way of regulation exercised through the power of recognition/ de-recognition.

The Free and Compulsory Education Bill, 2004 provides free education for weaker sections only upto class VIII. What are these students expected to do thereafter? Revert to government schools?

It must be borne in mind that the CABE Committee has suggested “essential provisions” of the Right to Education Bill, 2005 which is to be enacted in pursuance of Article 21A. Since Article 21A is for children of six-14 years, the Bill has to confine itself, in the main, to education upto class VIII. The question about continued education of such children beyond class VIII, will arise eight years after the legislation comes into effect, and can be addressed at an appropriate stage, later.

Surely it makes more sense to upgrade teaching-learning stand-ards in government schools? Why is your committee soft on non-performing government schools?

It is completely wrong to say that our committee has not addressed the issue of standards in government schools. On the contrary, it has laid down detailed norms regarding physical facilities, teaching staff, etc. in elementary schools which will have to be fulfilled by all schools — government as well as non-government. Once this Bill is enacted, governments and local authorities will, in fact, have to make massive investments in their schools so as to bring them up to the stipulated norms.

To what extent if any does the Supreme Court’s judgement of August 12, abolishing government quotas in private unaided professional colleges affect your recommendation of a 25 percent reservation for poor children in private unaided schools?

The Supreme Court judgement does not apply to abolition of government quotas in private unaided schools or the issues of reservation of 25 percent for poor children. Article 21A is now an integral part of the chapter on fundamental rights. This means that any child between the age of six-14 has a fundamental right to education. To ensure that each child is provided such education, and quality education, the proposed legislation is contemplated. The logic of the TMA Pai Foundation Case cannot possibly apply since the Supreme Court was not dealing with the content of the right and the manner of its enforcement in respect of children between the age of six-14.

Though most educationists and teachers are unlikely to entertain Prof. Sadgopal’s contention that the quota of children from disadvantaged groups in private schools should be at least 50 percent, (“so that their wealthier peers do not dominate them”) because it would totally change the character of India’s private schools which have established a reputation for delivering globally acceptable secondary education, not a few liberals welcome the reasoning behind the 25 percent quota recommended by the Sibal Committee.

“I totally agree with the committee’s reservations recommendation,” says Vandana Lulla an alumna of Mumbai University and John F. Kennedy School, Washington and incumbent principal of Mumbai’s Podar World School which recently became the first school worldwide to adopt the newly minted, web-delivered primary school curriculum of the Cambridge International Examinations board (see p.46). “Schools have to cater to the needs of children from all classes of society, just as they need to provide holistic education to children of varying abilities and IQ levels.”

Nor is Lulla impressed by the usual argument that the admission of children from severely deprived backgrounds into internationally benchmarked private schools will result in a dilution of scholastic standards. “It’s upto the managements of private schools to devise systems and methodologies to absorb under-privileged children into their schools. If we want to do it, we can. After all we could have slum children with first rate intelligence as we have children with not-so-high intelligence from the most elite families. I don’t believe that accepting a 25 percent quota of slum children will have a negative effect on any school,” says Lulla.

But though refreshingly liberal and inclusive, this argument tends to simplify legal and constitutional issues of far-reaching import which have been raised by the Sibal Committee’s quota recommendation. There are numerous provisions within the Constitution of India — indeed its very character provides — for government as well as private initiatives in education and all fields of socio-economic endeavour. Therefore the focus of government attention should be upon improving and upgrading government schools so that they voluntarily attract children from all strata of society. Though Sibal denies it (see interview), implicit in his recommendation of quotas in private schools is an admission of despair about reforming lackadaisical, non-performing government schools which are widely regarded as beyond redemption.

Moreover with the Supreme Court in Inamdar’s Case having reaffirmed its ruling in T.M.A Pai Foundation vs. State of Karnataka & Ors abolishing government quotas in privately promoted unaided higher education institutions, it is unlikely to countenance government quotas in unaided schools either. A vital issue of the right of citizens — minority or non-minority — to establish educational institutions in accordance with their philosophies and ideologies is involved in the Sibal Committee’s path-breaking private schools quota recommendation.

While for reasons of sentiment, equity and social justice instinctive acceptance of the Sibal Committee’s recommendation mandating a provision of 25 percent reservation in the pre-primary and primary sections of private schools is a natural temptation, it is a proposal with grave implications for the future direction of Indian education. It needs to be thoroughly debated by the best minds within the legal fraternity and in Indian academia, a community which thus far has not particularly distinguished itself in designing and shaping the nation’s rapidly obsolescing education system. 

With Autar Nehru (Delhi), Hemalatha Raghupathi (Chennai) & Gaver Chatterjee (Mumbai)

Also read: Reservation Shadow Over Campus India