With the end of another admission season, the practice of schools conducting tests and interviews for selecting students for elementary classes remains a persistent roadblock to fair and transparent admissions. The Right of Children to Free and Compulsory Education (RTE) Act, 2009, in its quest to ensure equitable access, prohibits schools from conducting screening procedures for children or parents at the time of admissions through a categorical mandate in Section 13. Admissions to pre-primary classes are excluded from the provision. The Act defines screening procedures as methods used for preferring one child over the other, apart from random selection. Interviews with children and parents, admission tests, and selection on the basis of marks obtained in the previous class would consequently be in violation of the law.
However, in the six years of the working of this law, there is a shocking gulf between the law on paper and the reality on the ground.
The ban on screening procedures aims to promote heterogeneity in learning spaces and ensure that discrimination in access to education is eliminated. Private schools justify screening as it helps them identify students in accordance with their objectives. The law grants autonomy to unaided private schools in day-to-day administration, which includes admission of students. Additionally, due to issues of capacity, schools need a mechanism to short-list students for admission.
In this scenario, categorisation of students appears to be a rational step. It is argued that when schools begin to select students on the basis of arbitrary factors such as family background, language and learning abilities, etc, they defeat the purpose of schools being inclusive spaces for holistic development of the child. It is tough to ascertain how these procedures would aid in assessing a six-year-old child’s worthiness for a particular school.
Despite this, the executive has persistently exceeded its mandate in granting ad hoc exemptions from this pedagogically well-founded principle. Equally, judgments from the courts have been muddled, inadequate to enforce the law in its letter and spirit. Consequently, all aided and unaided private schools, as well as some government schools, are practically exempted from the strict application of this provision.
The ministry of human resource development, in 2010, issued guidelines stating that unaided private schools and specified category schools are required to comply with Section 13 only to the extent of the admissions made for economically-weaker sections (25%). For the remaining admissions (75%), they can categorise applicants as per their objectives on a ‘rational, reasonable and just basis’ and subsequently make random selections. Categorisation itself violates Section 13. In the absence of a clear definition, schools create filters based on factors which may or may not be practical for children and parents. In particular, commonly used points-based criteria such as distance of the child’s residence from the school, presence of a sibling or parent from the same school, and performance of parents and children in a basic interview entrenches institutionalised discrimination as they, wittingly or unwittingly, are geared towards admitting particular kinds of children.
Although the law empowers the executive to issue guidelines facilitating its implementation, the executive appears to have exceeded its mandate. Such a significant departure from the law would be suspect as executive policy formulation is not subjected to the rigour of discussion, debate and voting as in the case of enacting a legislation. It cannot amend the legislation in the garb of guidelines.
The MHRD guidelines, to the extent that they detract from Section 13 of the RTE Act, do precisely that.
One might have expected the courts to redress this wrongdoing. However, when faced with a situation when students from Rajkiya Pratibha Vikas Vidyalayas (a system of schools run by the Directorate of Education, government of Delhi) were being tested on numerical ability, language, mental agility, general knowledge, etc, for class VI admissions, the Court held otherwise. In Social Jurist, A Civil Rights Group vs Govt of NCT of Delhi & Anr (2012), it accepted the government’s contention that, in the absence of good quality government schools, the Vidyalayas provide access to quality education for meritorious students belonging to economically-weaker sections. Screening was helpful in selecting ‘good’ students. The utilitarian approach followed in this decision completely ignores the underlying objective of RTE, i.e. ensuring equitable and non-discriminatory access to education.
Furthermore, executive exemptions and judicial interpretations are inconsistent with the views of the Supreme Court. In Society for Unaided Private Schools of Rajasthan vs Union of India (2012) and Pramati Education and Cultural Trust vs Union of India (2014), the Court upheld the validity of the Act vis-a-vis unaided private schools. Regarding Section 13, the Court in the Society case observed that the provision does not contradict any rights of private schools to carry on their business, as it furthers access to education, which is a crucial objective of the Act. Subsequent decisions and executive action are clearly contrary to the letter of the Supreme Court judgment and the spirit of the RTE Act.
Ensuring effective implementation of a progressive law is not possible unless the legislature, executive and judiciary are aligned. However, it is precisely the lack of such alignment that has resulted in a clear prohibition on screening procedures under Section 13 being squarely bypassed. This is an alarming trend which derogates from the goals of equitable access as envisaged in the RTE and our international commitments to universal elementary education. That the state, instead of putting a stop to such illegalities, is itself complicit in it is a severe violation of the rule of law. This is not merely an abstract theoretical concern, but one that has real consequences on children, especially the disadvantaged, for whom the RTE Act, like many other state initiatives, is teetering on the brink of being a false promise.
The author is a junior research fellow, Education Initiative at the Vidhi Centre for Legal Policy, New Delhi