The story goes that some educators were in a car, driving through the hinterland of India. One of them asked for the car to stop. As the dust settled, they emerged from the car, walked to the local school of a little village in the middle of nowhere.

“Is this what you want every school to be like?" yelled one to the other. “Do you want students to sit on the floor, with walls that are cracking and roofs that have a direct view of the heavens?"

The other joined in the battle, and we are told that the scholars shouted at each other almost till sundown, when it was time to drive off again.

For those who came in late, this has been the story of the Right to Education (RTE) Act. Where each clause was hard fought, and even then it was never done. Maybe it is the fate of this Act to never be perfectly done. Maybe it will continually have to strive to keep up with reality. For now, it is far behind, and must catch up and reform.

It was a simple idea, that all children had a right to be educated in good schools. And that this right must be consecrated in law. Decades of debates over drafting led to a document that could be passed in 2009. The scars of the debates were clear even as the document made its way through Parliament, but the consensus was hard won, and the momentum could not be lost. And in doing so, the RTE Act was born, each patch-over carrying the seeds of the troubles it would create in implementation.

So much was left to chance, so much left for others to discover and negotiate, and so much left to inevitable confusion. The excuse offered up for this was the fact that education is a concurrent subject, both the realm of the central and the state governments. The RTE Act, of course, came from the centre, and mandated certain actions that were an imposition on state governments, and on the private sector. And in that too, it was selective.

It is not as if the RTE Act does not have its supporters. There is much to be applauded in the Act. But even within the good parts lie some practical pitfalls because of which protests against the RTE Act have simmered for years. The intent of the Act and its impact diverged, causing much upheaval in the school sector in India.

For example, the excellent push towards school management committees that were to support governance at the school level suffered on the ground since they had no powers, no funds and, worse still, no support to train their members in governance.

It was an excellent idea to include local parents to watch over the schools their children attended, but parents, especially if less educated than teachers, are often patronised or find it difficult to be heard. Without this support, the school management structures were doomed to oblivion. It then rests upon civil society to fill the gap left between legislation and execution. This type of gap, or indeed, chain of gaps makes for a rocky road for the RTE Act.

There are broadly three categories of problems with the RTE Act.

One, the act does not apply to all schools

The Act claims to stand for all children but does not actually apply to all. And this glitch comes into play because of something outside the RTE Act. The Constitution’s Articles 29 and 30, which give minorities rights to provide education for their own, have been amended to become a noose around the RTE Act. The intent of the Act may have been to acknowledge this principle by excluding madrasas, Vedic pathshalas and educational institutions providing primarily religious instruction. In practice, it has given a window of opportunity to all minority institutions to exempt themselves from the diktats of the act.

This led to an almost comical rush among schools to declare themselves minority under one pretext or another. Courts too discovered more work when asked to adjudicate on matters minority—they have just declared that linguistic minority schools are not exempt from the Act. These schools now look for other crevices in which to hide from the act. The implications are serious—the Act is now seen to shield minorities and put the entire burden on the majority religion. This is seen as anti-Hindu by many, and thus sectarian.

The subtle difference that the sectarian impetus comes from outside the Act and not within is often lost in the loud—and binary—calls to repeal the Act. It does not serve the majoritarians to dissolve a derivative of the problem and not solve their real problem. But the point remains. While about 5,000 schools were shut down (and another 8,000 closure notices served) for not being recognized under the Act, both minority and government schools got away without having to conform to the same rules for recognition. (See the data here.)

In fact, only 6.4% of government schools conform to the RTE norms according to a parliamentary reply. Had they been majoritarian-owned private schools, they would have spent the past few years running from pillar to post, trying not to be shut down by the upstart Act that spoke not of learning but only of infrastructure. Minority schools, in the meantime, could continue working on improving learning without having to worry about survival.

The worst hit were the budget private schools, small schools started in cramped areas, which had neither the land nor the funds to meet the new criteria for square footage, playgrounds and libraries. These, if minority, could survive. But if not, they were in trouble.

A rational response to such a situation would have been to create a fund to support upgrading such schools. But the Act clearly says that this must be done at the school’s expense. The cost was dear indeed: not only did school capacity suffer due to shutdowns, but also school choice since parents were now forced to send their children to schools they had rejected previously. We do not even begin to discuss the impact of the mid-cycle closure on the small philanthropists who started up some of these schools, for they are collectively placed with the "privateers" and "profiteers" in education. No wonder the minority pathway seemed to be an excellent escape route.

Another issue, one that lies outside the Act, but which the RTE Act bears the burden of being the messenger for, is the conflict of interest in the sector. The role of the government as a majority operator, an administrator and regulator in this sector represents a severe conflict of interest so huge, and so pervasive, that it should be shocking.

Yet, either because it is traditional, or because the powers are genuinely so skewed that they cannot be questioned, this conflict has rarely been raised as an issue in public discourse. The fact remains that the largest operator in education is the one that makes the rules.

Two, the costs of the RTE Act were neither articulated, nor allocated

The sheer chutzpah of the Act has never been fully appreciated. In one fell sweep, it nationalized a quarter of private-aided majoritarian schools, and simultaneously asked the state governments to pick up the bill. The last time something like this happened was in the 1960s when banks were nationalized, to great economic debate. This time, it was a silent takeover.

In education, it was rather remarkable for the public system to admit to its own failures in building quality capacity by simply laying claim to private provision. Of course, this had costs—firstly, compensation for fees, and then the other costs of building new admissions protocols and its subsequent legislation and legitimacy.

The text of the Act at that time spoke little about the fees, costs and expenses apart from saying "it" would be reimbursed. This was at a time when neither states nor the private sector publicized their per child cost of schooling. The methodologies for such calculations were not available publicly, nor was there a standard that marked out the differences between the costs incurred by the school (covered by the fees) and all the extra costs that parents incurred for stationery, trips, internet, uniforms, costumes for events and myriad other expenses.

The government sector had schools on prime, land but with indifferent or crumbling buildings. Some states included these in the total cost per child, others did not. To cost these into per child cost or not was a massive accounting exercise not considered essential to the education discourse for the past 70 years—and still was not directly relevant to any actual learning outcome.

Suddenly, these numbers became of prime importance, since the Act said that the state would compensate the school according to how much it spent. The compensation was to be the lesser of the state cost or fees charged by the school. The public and private school systems were so different that building equivalence was a tough challenge. It took almost three years for most states to submit their numbers, and these are none too certain.

Also, operationally, very few people in the states and schools believed that this reimbursement process would operate smoothly. Many state governments themselves were reported to have delayed implementing the RTE Act till the compensation issue was clarified. Schools, too, refused to join in till their fees were assured.

Many have suffered delays in receiving revenues due despite complying fully with the act. A recent Comptroller and Auditor General of India (CAG) report on Haryana noted that there was a “substantial delay in release of funds by the Government of India (27 to 307 days) and the state government (59 to 237 days) which hampered the implementation of the Act".

Schools that found themselves "enabled" under the Act have reportedly stopped plans for expansion, since they may not be able to cover the costs if a quarter of their revenues are uncertain and delayed. This is particularly harmful when the core issue that needs to be addressed is capacity—the quality provision of education.

These schools are clearly in demand as quality providers. The fact that the public education system is trying to grab a quarter of its capacity is a testament to the fact that these very private schools are a key part of the solution. But if they do not invest in new capacity, then that becomes an additional cost for the state.

Then, of course, comes the question of all those costs that were not included in school fees. For the 25% of seats reserved for EWS (economically weaker section), even if the state paid for the tuition, who would pay for the rest? The uniform, the socks from that one shop in town, the books, the extra reading material, the dress for the annual day dance, the tiffin box, the shoes, transport and so much more.

These are not included in the fee structure, but are costs shared by the parents. Without these, 25% of the students would not be able to join private school life and there was certainly no way for these costs to be covered. Even if schools tried to fund it, and cross-subsidize by raising fees for other students, they would fall foul of fee regulations and parent protests.

There was a whole other layer of hidden costs too—the cost of administering the admissions process for the EWS category. It has taken years of stampedes, fights and even court cases to establish that this would be a separate lottery from the regular admissions procedure for schools. Even so, cases of fraud eligibility certificates being presented to schools and protests of malpractice continue. All for the lack of quality capacity and the jugaad of misusing the RTE Act to create a notion of some action. The rush of schools to somehow declare themselves a minority in order to escape being "RTE Enabled" seems perfectly rational in the face of both uncertain revenues and certain costs.

Three, the provisions of the Act intervene in schools in ways that are not necessarily beneficial to learning

Now, finally, we come to the problems within the Act. There was very little about learning, pedagogy, quality or even the process of education in the law. The term education has never been explained, without using the very same term in the definition—so at its very core it breeds confusion.

For example, the purpose of the act. Are we speaking of bringing all children to school? If yes, then it is a right to schooling act, not education. Here, too, where is the right to home schooling, or the freedom to opt for alternatives? The Act is silent on so many things that one wonders if the omissions were deliberate.

There is much about inclusion for the disabled, but nothing for those whose schedules and abilities do not match with a traditional school timing regime—schools for children of construction workers that were run on-site were made illegal by this legislation. As were many slum schools for the poor. A joke doing the rounds was that this was not meant to be a Right to Education Act, it was a Right to Infrastructure Act with so much attention paid to input criteria and almost none to outcomes such as learning.

Then, with every good intention, the Act insisted that all children must progress with their age cohort, and implied two things. One, that testing was not of value, and two, that learning mattered less than age. Neither of which made sense to schools, for without the consequences of testing, they found it difficult to manage learning cycles. Many schools stopped examinations, others carried on. Many knew that the learning gap between students’ actual abilities and those expected was increasing, but they had no way of addressing the increased gaps.

The whole pretence of progress would come crashing down after age 14, when the protections of the Act ended and students actually had to deliver performance in Class IX (or age 15) but would be unable to do so. This has been debated for eight years and now the "detention" decision has been delegated to state governments.

The internal economics of the Act, too, was rather troublesome. All teachers were expected to be paid at the Sixth Pay Commission rates, at par with government teachers. This was a significant multiple of the market rates and completely unaffordable for budget private schools whose total revenues per class barely would meet the new mandated pay. This was unimplementable—either schools would subvert the law or have to shut down just because the law did not understand markets.

There were other costs built into the Act as mandated input requirements, but we had no clear evidence within India that greater floor space leads to better education, or higher teacher pay leads to higher learning outputs. In fact, to the contrary, K. Muralitharan’s six-year randomized control trial in Andhra schools proved that private schools were able to deliver slightly higher learning outcomes at one-third the cost of government schools. The RTE Act had no reason to push up costs for schools or threaten them with closure for non-delivery of inputs.

We have much to be grateful for too. The RTE Act was the first major piece of legislation in education in India. The Act, with all its flaws, has the dubious distinction of furthering the education conversation by creating a series of pain points for students, teachers, heads and analysts. It is only because of the Act does one discover that successive national education policies and curriculum frameworks have never yet been parsed into simple learning outcomes for students at different levels.

For decades, teaching and assessment have progressed without any formal discourse or even proper data on basics such as the difference between educational achievement and attainment, between outputs and outcomes and more. The conversation on education costs would never have reached current levels without the provocation of this Act, and without it the conversation on education financing had been lying unattended for decades.

The Act itself is not all bad—it does practically do away with redundancies such as the TC, or transfer certificate, which is a document required to allow a student to shift schools. This was often misused in the past to hold on to and harass students. The birth certificate too is not mandatory to enter into education, thus easing access. Student welfare has been put first in the Act with the duties of the state, school, teachers and parents laid out. Of course the Act often goes overboard in asking for things that cannot be enforced—such as barring teachers from private tuition—which is a serious issue that is often stated as the reason for teachers not teaching at school.

Almost all of the problems of the Act are fixable. The case for reform has been built substantially by schools, by legislative history and by civil society discourse. The third set of problems identified above all lie within the Act are the easiest to fix, and some of these reforms are already under way.

The ministry of human resource development has already worked on learning outcomes and they will probably be a part of the Act soon. But learning outcomes in education are troublesome indicators in themselves—they assume uniform inputs and cannot account for the longer term. Which leads us in a circular argument right back to where the RTE protests started—against standardized input criteria.

At this stage, the best we can measure is student test achievement as a proxy for output and attainment for outcomes. It is a welcome intermediary reform, and must lead on to either a balanced scorecard approach to education, or to a value-add approach. This is substantial work and will entail improvements in assessment. The reform in the RTE Act has the ability to transform teaching and learning in the classroom.

Other parts of the RTE Act are already being modified. Student detention has been passed on to the states. Many of the input criteria have been negotiated in the rules set by the states to be much more reasonable—such as allowing slum schools to use nearby public parks for play. Teacher quality is a work in progress and will need more direct attention than the flexible approach used so far.

Fixing the second set of issues, those of costs, has become paramount now. This is the one leg that can bring the entire edifice down. Unless payment mechanisms are smooth and reliable, schools and states will be unwilling to participate. The very complex payment processes are the result of a single clause in the Act (12 (1) c), the very same one that nationalized 25% of select private school capacity.

At the very least, the first solution should be to allow schools to admit students if there are no applicants in the 25% EWS category. As it stands, schools are forced to keep the place vacant and lose both fee revenues and compensation if they cannot find a poor student in their area. The costs of the RTE Act just keep mounting.

With such a laudable piece of social engineering, it feels politically incorrect to ask for it to be re-evaluated. But this cause comes at a very heavy cost—and there have to be smarter ways to deliver better learning outcomes and social mobility to all.

Even improving public provision might be easier than this lumbering behemoth, or alternatively a simple school voucher that does not need a whole extra bureaucracy to manage the 25% category. This one section that has generated a whole range of costs and traumas must be revisited to ask the simple questions: Does it even come close to meeting its goals? Has the disruption been constructive? Can these goals be achieved with lower costs?

Resolving the first set of issues is probably the most complex—and it does not even lie within the Act. Yet it has deep implications both for the Act and for the future of education in India. To give minorities the right to teach their own way to their own is undeniably the responsibility of a state that serves diversity. At the same time, because the right to education is a fundamental right, the state has the responsibility to deliver education equally to each child that meets certain quality standards.

Both of these responsibilities are currently seen as conflicting, but this is not necessarily true. This is a knotty problem, but this is where Indians need to apply themselves—we are masters of the middle path. If Narasimha could kill the demon Hiranyakashipu while meeting seemingly impossible conditions, there surely is a path out of this tangle too.

One option, for example, is for us to understand and mark out the clear line between content and administration within education. The government has a responsibility to govern the administration of all schools to ensure quality education is being delivered to all. This does not need to impinge upon the content of teaching, while it does call to account the process of teaching and learning and its outcomes.

The line of separation between content and process is important, because this line defines the zones of autonomy and accountability for all schools, while sticking to the provisions made for minorities.

For example, schools need to have a standard process for collection and reimbursements of fees. This has nothing to do with any faith—all money matters must be transparent and audit-ready regardless of the type of school. Similarly, all schools need to ensure basic safety, access to clean water, teacher support systems and feedback to parents—regardless of "status". These processes are the business of running an education institution and are completely agnostic.

In all of these, the RTE Act, and indeed any educational Act, can be uniformly applied. The issues of content, such as the curriculum, the pedagogy and the content of the assessments remain autonomous. This too can be uniformly applied and still remain within the laws. It does need careful crafting and design by legal experts, but there is a clear path that serves all the stakeholders.

The RTE Act is a mixed bag, but it is the only thing that puts the child student at the centre. In just that it demonstrates its value. It does need fixing as much now, as in 2009, when its design was doomed to create confusion and trouble. Now that we have evidence of the kind of problems it can create, and of the good it can do, it is time to reform it in line with the key goal of a quality education for each and every child.

Meeta Sengupta writes on education, policy and strategy, and designs interventions to improve outcomes.

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