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Either ways, I am bewildered by the legal argument before the Supreme Court that to foist poor children on a rich man's school violates the fundamental right of every Indian "to practice any profession or to carry on any occupation, trade or business" under Section 19(1)(g) of the Constitution of India. To understand what got us to this bizarre point, let's first understand the facts. The Right of Children to Free and Compulsory Education Act, 2009 provides that every school, even if it is unaided, is obliged to reserve 25 per cent of its class I admissions for disadvantaged social groups. It also provides that if a school has not received aid - not even subsidized land – the Government will reimburse the school the amount "not exceeding" what it was spending per child in government schools. The Society for Unaided Private Schools of Rajasthan challenged the legality of this law.The majority of the judges rejected the challenge.
This could not have been a surprise. Article 21A of the Constitution expressly obliges the state to "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." Since this is something the government has to do, the Society for Unaided Private School was compelled to claim a breach of their right to carry on a profession. In a country where you need a dozen licenses to sneeze, leave alone carry on a profession, this wasn't much of an argument. The judges also said that since this law obliges the state to provide such education, and the state is but its people, "the right to education envisages a reciprocal agreement between the State and the parents and it places an affirmative burden on all stakeholders in our civil society."
In fairness, the dissenting judgment of Justice Radhakrishnan provided a thought provoking counter intuitive view. Since Section 21A of the constitution places an obligation on the Government, to extend the constitutional obligation to private schools is to inflict indefensible violence on the language of the law. He states that it makes no sense to ask strangers to pay for the education of poor children when the parents of these same poor children have no such obligation. It surely is absurd to say that this is my kid but it's your problem.
The Court has of course pronounced on the law but the debates go far beyond the law. Many wonder if this law will ultimately culminate in the state abdicating its responsibility to poor children entirely. Many others cannot understand why the state will neither provide free education nor allow ‘for profit' schools. A great many also don't buy into the ‘we will compensate the unaided private schools' storyline. Everyone knows what it costs to get money out of a Government department. Here is a state obligation that has been instantly transformed into the stuff of scam screaming TV news headlines in the years to come.
There is too the argument that this law reeks of the psychology of poverty. We need better education and that includes more schools. To start a hundred new schools is very different from claiming a share of existing schools and forgetting about starting new ones. In behaving like a school yard bully grabbing another child's tiffin, the state is betraying exactly the same mindless lack of imagination that has brought state aided education to this sorry pass in India. There is something quintessentially India about this. We are happy to vote for reservations, but we don't want to vote for a government that creates jobs by stimulating the economy. Thus, claiming a share in someone else's education pie scores better with voters than a government that opens a thousand new schools. From this perspective, one can be forgiven for being cynical about the judiciary promoting quotas in schools while also simultaneously preventing private schools from raising fees to help pay for this free education.
In a sense, none of this matters. What matters is that 29% of government schools have no permanent building, 23 per cent teachers are untrained, 56 per cent schools have no toilets for girls, 27 per cent don't offer any drinking water and, please hold your horses, 9 per cent of all government schools have only one teacher for all classes. I think the last statistic is tosh. School teachers in several schools around my hill home in Jammu and Kashmir run taxis and patisa shops and rarely show up for work. The odd teacher who does show up can't possible teach children between the ages of 6 and 14 at the same time so she organizes PT for half the day and games for the rest. In comparison, the private schools in the same village of 3,000 people are overflowing and spilling onto the road. We need to change a few things.
We also need to be pragmatic. Sixty years of post-independence experience has established beyond doubt that the government is simply incapable of running schools. We have to recognize that talent is born in all kinds of economic environments and that affirmative action works. You may be offended by Government apathy about education, but that is not the same as resisting the little that the Government is doing. If we want our Government to do more, we should support this little initiative and then ask for more.
At the end of the day, this really is about what we urban elites want to do with the idea of India. We are quick to sit around bitching and bleeding about the all-round deterioration of values and pontificate about the lack of this or that. Perhaps we should instead look beyond the smelly classroom and the pain of paying more school fees to the big picture. I am not too sure it's about the money. Would I rather pay some faceless bureaucrat another educational cessor trust my children's school to educate a few more kids? I am none too sure its charity either. Labor costs are rising exponentially in India. We are not producing enough employable skilled people at a speed we should. My law firm already has people from wherethehellisthat places like Ballia in UP and a village four hours out of Hardwar. Talent is everywhere. If we want to take India forward and ourselves in the bargain, it's in our interest to support any initiative that will allow the country to reach down and pick the crowd up.
(The author is managing partner of the Gurgaon-based corporate law firm N South and author of the pioneering business book Winning Legal Wars. He can be contacted at [email protected])