"I want every Indian child, girl and boy, to be so touched by the light of education. I want every Indian to dream of a better future and live that dream.” Those were the words of then prime minister Manmohan Singh in his address to the nation on 1 April 2010, the day the Right of Children to Free and Compulsory Education Act became operational.

Seven years later, there is widespread acknowledgement that the Right to Education (RTE) Act (as it is popularly known), far from helping realise a dream, is actually a nightmare. A law that was supposed to be the solution to all of India’s problems in primary education has now itself become the problem. Far from increasing access of children from low-income backgrounds to education, it has imperilled it; far from improving the quality of education, it has led to deterioration in standards. And as if this were not enough, it has opened up more avenues for corruption.

Staunch defenders of the Act, though their numbers are dwindling, insist that the Act is not the problem; poor implementation is. The sceptics, whose ranks are swelling, concede that the RTE Act may have helped in a couple of areas, but point out that they stand vindicated in their initial assessment – that it is a fundamentally and conceptually flawed piece of legislation. It has focussed on infrastructure and inputs – teacher-pupil ratio, teacher qualifications and salaries, uniforms – rather than quality of education. At a time when the licence-quota raj in education needed to be dismantled and the market allowed to grow to meet rising demand, its provisions are designed to reinforce the licence raj and kill the market.

The near-universal school enrolment is often tomtommed as the biggest gain from the RTE Act. But the gross enrolment ratio (GER) in elementary education (Class I to VIII) had touched 100 in 2007-08, before the Act was passed. In fact, it appears to have fallen since then; Education Statistics at a Glance 2016 shows that the GER in elementary education stood at 96.9 in 2014-15. Besides, as Jayaprakash Narayan, founder of the LokSatta movement, points out in an interview elsewhere in this magazine, the increase in overall enrolment in the past decade is not entirely because of the Act. He attributes it to growing prosperity as well as awareness about the importance of education. Programmes like the Mid-Day Meal dating back to the mid-1990s (some states had started it even earlier) and the Sarva Shiksha Abhiyan, launched in the early 2000s, also helped.

The Annual Status of Education Report 2016 (ASER 2016) published by non-governmental organisation (NGO) Pratham shows that the percentage of children in the 6-14 age group not enrolled in school halved from a notch above 6 per cent in 2006 to around 3 per cent in 2016. But the sharpest drop – from around 6 per cent to 4 per cent – came between 2006 and 2008. So the significant achievement on this score predates the RTE Act.

Even if one magnanimously concedes that the RTE Act has been responsible for increased enrolment, the story on attendance is not so positive. According to data from ASER 2016, attendance has declined. Attendance in primary schools in 2009 was 74.3 per cent and in upper primary it was 77 per cent. In 2016, it was 71.4 per cent and 73.2 per cent respectively.

More importantly, learning – the reason children go to school – has been the biggest casualty following the enactment of the RTE Act.

ASER 2016 data shows that the percentage of children in Class V who can read a Class II level text dropped from 53.7 per cent in 2010 to 47.8 in 2016; percentage of children in Class VIII who can read the same text dropped from 83.5 per cent to 73.1 per cent over the same period. The dismal picture is repeated in the case of arithmetic. In 2010, only 36.2 per cent children in Class V could do simple division; this fell to 26 per cent in 2016.

So much for the dream of a better future that Singh so eloquently spoke about.

The main reason for these abysmal learning outcomes is the notorious no-detention policy in Section 16. This section mandated that no student could be detained in a class between Class I and VIII. Instead of an annual examination determining promotion to the next class, there was to be continuous and comprehensive evaluation (CCE), which meant students were to be assessed through the year.

Quite common in advanced economies, the no-detention policy is supposed to put an end to the very real trauma of a child repeating a class. “This is a student-centric policy revolving around monthly assessment and with increased teacher accountability,” says Amit Chandra, associate director at the Centre for Civil Society. But no detention and CCE go hand in hand. Unfortunately, this is not what happened in India. CCE was something that remained only on paper, with teachers not being adequately trained in CCE methodology. In effect, according to Chandra, “the provision became an excuse to promote students regardless of performance.” And teacher accountability worsened.

The folly of the no-detention policy was realised within two years of the RTE Act coming into effect. In 2012, a sub-committee of the Central Advisory Board of Education (CABE) looked into this provision and two years later, it recommended a mix of no detention, provisional promotion and detention. In 2015, a full meeting of the CABE saw all state education ministers saying this provision needed to go. But when Rajasthan amended the no-detention provisions in its state-level Act in 2015, the union Human Resource Development Ministry did not clear it (since education is a subject on the Concurrent List, any state law in conflict with a central law has to be cleared by the central government). An amendment of the RTE Act now gives state governments the power to decide till which class the no-detention policy will apply. Apart from Rajasthan, only Delhi and Madhya Pradesh have amended their state-level acts.

Present Human Resources Development Minister Prakash Javdekar has assured that the RTE Act will be amended to incorporate provisions relating to learning outcomes and making teachers accountable for student performance. When this will be done and when it will begin to yield results remains to be seen.

But can this happen without adequately qualified teachers? Though the Act specifies qualifications and salaries of teachers, even government schools are lagging in this. Chandra points out that a large number of teachers in government schools are not qualified under the RTE Act norms. They were initially given five years – till 2015 – to conform to these norms. However, many state governments pointed out that they lacked in-service training facilities and now an amendment passed in April gives them another four years to comply.

Given this, the improvement in pupil-teacher ratio doesn’t mean very much. The Act stipulates a pupil-teacher ratio of 30 for primary school and 35 for upper primary. According to a statement in Parliament by the Minister of State for Human Resource Development, the ratio in primary schools is now 24 and that in upper primary, 27 (though the ratio is still above 30 in 26 per cent primary schools and above 35 in 13 per cent upper primary schools). But how beneficial is an improved ratio with underqualified teachers?

An area where the RTE Act has brought about improvement is in school infrastructure. ASER 2016 shows a sharp drop in schools without toilets, without separate toilets for girls and drinking water facilities between 2010 and 2016.

This improvement had to happen because recognition to schools is conditional on meeting the various infrastructure and input norms. Recognition is mandatory; unrecognised schools are shut down. This is where the RTE Act is deeply problematic. Because these norms are highly discriminatory.

They apply only to private schools – government schools are deemed to be recognised under Section 18(1) of the Act. Besides, private schools run by minority educational institutions are exempt from the provisions of the Act (as another article in this magazine details). Worst hit are the budget private schools, which operate with huge financial constraints.

Though the Act is supposed to increase access of the poorer sections of society to education, it is all but killing the budget private schools which cater to precisely that section. Data collated by the National Independent Schools Alliance (NISA) shows that in the January-October 2016 period, 3,332 schools were declared shut as per official government documents. This is in addition to 4,327 schools shut down in 2015. Another 7,898 schools got closure notices in 2016.

Budget private schools are hard put to meet some of the stipulations related to area and playground size, operating as they do in congested low-income areas, where land is not available. Even where it is, land prices make it unaffordable for them. Rajesh Malhotra runs Sainath Public School from a 1,200 square yard plot in the Tigri area of south Delhi. His father had started the school in the late 1990s and at that time they could afford this. But the school is only up to Class VIII and if Malhotra wants to expand it to Class X, the school will need to have an area of 2,000 square yards. Land prices in Delhi make it impossible for him to do this and remain a budget private school. This is a problem all budget schools face. “At NISA, we keep insisting to our members that their schools must provide basic facilities, we are aware there are some black sheep among us, but why should all of us be dubbed as rogues?” he asks.

It is not as if government schools meet all the stipulated norms. There are government schools in Delhi where classes are held in corridors, which do not provide basic amenities like clean drinking water. In 2015, the National Human Rights Commission issued a notice to the Delhi government on the state of basic facilities. Take also the pupil-teacher ratio. District Information System for Education (DISE) data shows that there are still 27.35 per cent government schools with a pupil-teacher ratio above 30 in primary and 15.12 per cent with pupil-teacher ratio above 35 in upper primary.

The data also shows that the percentage distribution of contractual teachers in government schools across the country is 60 per cent. Contractual teachers are not paid the same rates that regular teachers get. Private schools, however, have to pay even their regular teachers rates set by government pay commissions; the budget private schools just cannot afford this. “The mindset is, if government schools don’t conform to norms, they should be given time but if private schools are unable to, they are rogues, close them down,” laments Chandra. Kulbhushan Sharma, president NISA, puts it pithily: “The law maker is itself insulting the law.”

But budget private schools perform better than government schools. The dropout rate in Brihanmumbai Municipal Corporation (BMC) schools, for example, has gone up to 15 per 100 students from 13 per 100 last year. Enrolments in Class I have fallen 11.9 per cent compared to the previous year. “This is why budget private schools have mushroomed, especially in the slums where there are few government schools,” says Farida Lambay, co-founder of Pratham. She also points out that in the Narmada dam area, several NGOs have set up schools which will never be able to conform to the infrastructure norms. “Norms should be relaxed for them.” Unfortunately no one is listening.

The biggest injustice for budget private schools comes from Section 25 of the RTE Act, which mandates that 25 per cent of seats in private schools be reserved for students from economically weaker sections (EWS) from within a 1-3 km radius of the school. The government is to reimburse the expenditure on the student, but the amount is not what individual schools charge. Instead the per child expenditure in government and private schools is estimated and the school is reimbursed the lower amount. In calculating the per child expenditure, fixed costs on land, buildings and infrastructure – the cost of which are much higher in private schools – are not taken into account. In addition, schools are expected to provide uniforms and books for free to EWS students, something they do not do for their fee-paying students.

In Delhi, the reimbursement is set at Rs 1,690 per child per month, when private schools actually spend close to Rs 3,000. Haryana initially refused to reimburse but was forced to after a strike by budget private schools in 2016. But the amount has been set at Rs 500 a month, when the per child expenditure in these schools ranges between Rs 400 and Rs 1,500-2,000.

Ramakant Pandey, principal of Bansidhar Agarwal School, Wadala, Mumbai, points out that BMC schools charge Rs 15 to Rs 20 per student up to Class IV. “How fair can it be then to impose RTE on private schools? If students choose private schools over municipal schools, the government should at least compensate private schools far more so that quality can be maintained.”

According to Chandra, the reimbursement amount was to be revised annually, but only Rajasthan does that. The Delhi government revised its reimbursement amount after two years. Across states, private schools and education departments are at loggerheads over reimbursement norms.

Applying this quota provision to budget schools which cater to the lower income sections defies logic. “The children who come to us are those who normally would go to government schools but don’t want to because of poor quality there,” points out Sharma. If this were not bad enough, the implementation of this provision has resulted in untold harassment of all private schools.

It starts with admissions under the EWS quota, which has been mired in controversy and scandal across states. The most common of these is fake income certificates. In Delhi, an organised racket in fake income certificates in which some high-end schools were also involved was busted two years ago. In Bengaluru, a district education officer stumbled upon a racket in ghost EWS students – schools were gaming the system to claim the reimbursement.

Finding a solution to this has not been easy. When some schools in Mumbai raised the issue of fake income certificates, the education department issued a notification prohibiting schools from inquiring into such frauds. Now they cannot reject students even if they suspect fraud but have to first admit them and then report the matter to the department.

And then there are cases where EWS students are not interested in the schools they have been allotted but want to go to higher-end schools. The EWS norm, Sharma explains, was meant to help out-of-school students to get admission, but instead is being used by students in government schools or budget schools to shift to more expensive schools.

And if schools are not able to fill up the 25 per cent quota because there are no takers, they are not allowed to fill them up, depriving other needy students.

“If there are 20 schools in a locality and only seven of them impart quality education, then only those schools are in demand. The remaining 13 lose out on seats they can’t fill for the next five years,” says Rajendra Singh, president, Pune zone, Maharashtra English School Trustees Association.

Not only is the reimbursement insufficient, payments are also delayed. Though schools bear expenditure every month, the reimbursements come only at the end of the academic session, though it is done twice a year in some states. There is enormous paperwork involved and education department officials are known to raise irrelevant questions and arbitrarily reduce payments. Many schools, says Sharma, have not received their payments for two years.

And this brings up the elephant in the room – the increased scope for corruption, thanks to RTE. From EWS admissions to conforming to infrastructure and other input norms, schools are at the mercy of education departments. “Paperwork has increased enormously,” complains Alok Goswami, who runs a budget private school, Navjivan Senior Secondary School, in Delhi. Across states, every document has a price, especially the ones relating to recognition. Schools that pay up get recognition even if they fall short on the input and infrastructure norms; those that don’t pay even if they comply with all the norms are denied recognition.

In Haryana, the price varies from Rs 1-2 lakh for a small school in a small town to Rs 5-10 lakh for a school in Gurgaon and Faridabad. In Tamil Nadu, the going rate for a no objection certificate from the state education department – needed to get recognition from the Central Board for Secondary Education – is around Rs 40 lakh.

The evidence against the RTE Act has been damning almost from the time it started to be implemented. But seven years after it came into force, and three years after the Narendra Modi government came to power, it continues to play havoc with the education system. An otherwise decisive government is dithering on even a complete overhaul, let alone a total scrapping. And India’s children are paying the price.

Antara Sengupta is a Mumbai based freelance writer and a member of 101Reporters.com, a pan-India network of grassroots reporters. She is also a research fellow at Observer Research Foundation, Mumbai .