The Indian Parliament in 2009 passed the Right of Children to Free and Compulsory Education Act, as a landmark legislation. Section 12 (1) (c) of the ACT mandated reservation of a minimum of 25% of the seats at the entry level class for children belonging to economically weaker sections (EWS) and disadvantaged groups in all private unaided schools; excluding minority institutions. The cost of education of these children is to be reimbursed by the government to the extent of per child expenditure incurred by the state or the actual school fees, whichever is less. The provision was initially challenged in the Supreme Court and after April 2012, when the Supreme Court upheld the constitutional validity of the Act through its judgement, section 12 (1) (c) became applicable. Given the salience of such a provision and its potential to put millions of children in private schooling, deeper scrutiny is required on the nuances and the manner in which it is being implemented.

To begin with the provisions of the scheme, it is useful to know how the terms “disadvantaged groups” and “weaker section” have been defined. Owing to the ambiguous nature of the guidelines issued by the central government, each state has modified the model guidelines and framed its own set of implementation processes. Delhi defines EWS as the families from economically weaker section having household income less than 1 lakh per annum while the disadvantaged groups include SC, ST, and non-creamy layer of OBC, orphans and physically and mentally challenged children. On the other hand, Rajasthan has set this income limit to 2.5 lakhs per annum.

A lot of states including Haryana, Kerala, Karnataka, Tamil Nadu etc. have specifically included HIV affected children in this quota in addition to other categories.  Uttar Pradesh has further conditioned admission under this section. A government order issued in UP in 2012 stipulated that children from EWS sections could be admitted to private schools only after all seats in government or government-aided schools had been filled.

Moreover, the state government is responsible for deciding on the neighbourhood and age criteria to be followed under this section. There are again some inter-state variations. For instance, in Rajasthan, they follow a ward criteria while in Maharashtra, neighbourhood is defined in terms of aerial distance. In Himachal Pradesh and Haryana, the admission is further conditioned on the enrolment of a minimum number of children to be enrolled in the neighbourhood of 1 km. This measure was aimed at providing equal access to education for children from socio-econ­omically backward sections and was primarily formulated to foster inclusion of marginalised children.  While it has the potential to improve both equity and efficiency in school education in India, the implementation so far has been highly haphazard across states.

Four years down the line, the Right to free and Compulsory Education Act has made education neither free nor compulsory in most parts of the country. In the light of the RTE Act, the model rules framed by the Central Government state that children admitted under Section 12 (1) (c) shall not be segregated from the other children in the classroom, nor shall their classes be held at places and timings different from the classes held for other children. It further provides that these children shall not be discriminated from the rest of the children in any manner pertaining to entitlements and facilities such as textbooks, uniforms, library and ICT facilities, extracurricular activities and sports.

But the opaque and unclear process of implementation of this provision has received representations from various stakeholders as the private schools have brazenly violated the above mentioned principles in some of the states. Since there is unambiguity as to what amount has to be reimbursed to these schools, there are several heads other than “tuition fees” for which the parents are being charged. In case they deny to pay this fee, the school conveniently keeps such children admitted under this quota out of any activity that takes place outside the four walls of a classroom. There have been sporadic instances of blatant discrimination and denial of admission in some of the elite private schools.

The problem lies with the view several schools take towards EWS admissions. Since the 25% number amounts to a critical lot, what remains a thorn in the flesh, is the lack of clarity in the reimbursement to be made to private schools, which has further hampered the compliance in many states.  In response to RTIs filed regarding the reimbursement procedure, some states like Rajasthan, Uttarakhand, Maharashtra, and Karnataka seem to have extensively detailed the process of reimbursement while several others like Goa, Himachal Pradesh, and Punjab have no clarity on the per-child reimbursement amounts even after 3 years of implementation. Moreover, this provision has opened the private schools for greater governmental interference and owing to inertia among these schools in declaring their fees publically has also led to delays in the entire process. Such unformulated provisions further tend to obstruct the effective implementation on the ground.

Further, building monitoring structures for this Act and putting in place grievance redressal mechanisms is needed to bridge some of the above mentioned implementation gaps. Given that there is a growing trend of privatization in majority of states and the lack of quality confronting the education in government schools, it requires concerted efforts from government, schools and civil society organizations to actually translate the intent of this provision into practice.