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ARTICLE : Nursery, elementary education inseparable components
Wednesday, 20 March 2013 05:14


Nursery, elementary education inseparable components

Upholding the HRD Ministry’s stand, a recent verdict of the Delhi High Court that the RTE Act is not applicable to children below six years of age has jeopardised children’s right to education, especially in private schools

THE Delhi High Court delivered a critical judgment on February 19, 2013, holding that the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) is not applicable to pre-school (nursery) admissions, inasmuch as children below the age of six years are outside the purview of this Act. The rounded reasoning of the court is that the RTE Act is focused only on the children of the age six to 14, who are destined to receive elementary education; that is, primary education from class I to class VIII.

Realising its far-reaching implications affecting the whole gamut of a child’s education, on the following day the wary media brought this judgment to the attention of the public (‘RTE Act doesn’t apply to nursery admission: HC’; The Tribune, Feb 20). Immediately thereafter, we read the disturbing news that several private schools in Chandigarh put their admission on hold, citing the Delhi High Court judgment upholding the Union Human Resource Development (HRD) Ministry’s stand that children below six years of age are not covered under the RTE Act.

The verdict requires serious attention and deliberation since it seems to dilute the guaranteed fundamental right of children to free and compulsory education, and that too at the instance of the HRD Ministry, which is otherwise expected, rather obligated, to provide education to all children up to the age of 14 years in pursuance of the directive contained in Article 45 read with fundamental right under Article 21-A of the Constitution.

Start in confusion

As the legislation stands today, provisions of the RTE Act are equally applicable to admissions in nursery wings of recognised schools as elementary.
As the legislation stands today, provisions of the RTE Act are equally applicable to admissions in nursery wings of recognised schools as elementary.

Soon after the RTE Act came into operation with effect from April 1, 2010, many queries of procedural import were raised about its implementation. Several recognised unaided private schools specifically sought some clear and categorical guidelines from the government on the procedure to be adopted in the matter of admissions to nursery classes (termed as pre-school education), which prepared children for elementary education.

With a view to formulating guidelines for admission, the HRD Ministry, Department of School Education and Literacy, Government of India, invited various stakeholders to elicit their views. Seemingly, such stakeholders were essentially no others but those who were running nursery wing or pre-school classes along with those for imparting elementary education.

After eliciting the views of all interested persons, schools and institutions, and bearing in mind the relevant provisions of the Act, the HRD Ministry issued under Section 35(1) of the said Act guidelines on two counts for admission to class I or nursery. On both counts, the guidelines principally revolve around the provisions of Section 12(1)(c) read with those of Section 13(1) of the Act, which spell out the extent of recognised unaided private and ‘specified category’ schools’ responsibility for providing free and compulsory education to children belonging to weaker sections and disadvantaged groups.

The guidelines

The guidelines said schools “shall follow a system of random selection out of the applications received from children belonging to disadvantaged groups and weaker sections for filling the pre-determined number of seats in that class, which should not be less than 25 per cent of the strength of the class (for admission to class I or nursery, as the case may be).” Also, for admission to the remaining 75 per cent of the seats, the said schools are free to formulate policy which “should include criteria for categorisation of applicants in terms of the objectives of the school on a rational and reasonable just basis”. However, “[t]here shall be no testing and interviews for any child or parent falling within or outside the categories, and selection would be on a random basis”.

Similar are the guidelines issued by the Director, Department of Education, Government of National Capital Territory of Delhi (GNCT), with a slight elaboration of policy contents on the second count. “Keeping in view the unique background, ethos and objectives of the schools in Delhi,” the private schools are permitted to categorise applicants for admission falling in the 75 per cent slot on the basis of a criteria developed in terms of the objectives of the school that may also include sibling, transfer case, single parent and alumni.

Legality of guidelines

The guidelines permitting the categorisation of applicants were challenged before the Delhi High Court in two separate writ petitions in public interest, one by Social Jurist, a civil rights group, and another by the Delhi Commission for Protection of Children Rights. The common ground of challenge in both was that the guidelines violated the provisions of Section 13 read with those of Section 2(o) of the RTE Act, which prohibit any method of selection other than random method for admitting a child to nursery or elementary classes.

The HRD Ministry and the GNCT, however, defended the guidelines on the plea that the provisions of the RTE Act, including Section 13, do not apply to admissions to the pre-elementary classes by private unaided schools, except as provided by virtue of the proviso appended to Section 12(1)(c) to a limited extent. The Division Bench of the Delhi High Court upheld its contention mainly on the ground that Article 21-A of the Constitution and the RTE Act enacted thereunder specifically “refer the age of the children between six years and 14 years”. This, in the court’s view, implies that the whole scheme of the Act is to essentially provide only full-time elementary education for children between six and 14 years and not pre-school education at nursery level.

So far as the provisions of Section 11 of the Act are concerned that require the appropriate government to provide free pre-school education to children, the Bench dispensed the observance of these provisions by holding: “The Section speaks only of necessary arrangements to be made by the appropriate government and it does not speak of free and compulsory education in elementary schools.”

Resultantly, the Delhi High Court upheld the guidelines inasmuch as these apply only in respect of 25 per cent of the admissions made to nursery (pre-elementary) classes by the private unaided schools in view of the proviso to Section 12(1) of the RTE Act, and do not apply to the remaining 75 per cent of the admissions made by such schools to such classes.

Getting it wrong

The stand taken by the Central government and the Delhi Government in their respective guidelines as well as approval of the same by the High Court is based on misreading of the design and provisions of RTE Act in two critical respects. Firstly, the RTE Act has been enacted under the cumulative effect of Article 21-A and Article 45 along with other cognate articles contained in Part IV of the Constitution.

It needs to be noticed that the fundamental right to free and compulsory education of all children of the age of six to 14 years under Article 21-A is a continuum of the obligation of the state “to provide childhood care and education for all children until they complete the age of six years” under Article 45 of the Constitution. Accordingly, Parliament specifically enacted and included the provision of Section 11 in the RTE Act with a view “to prepare children of the age of three years for elementary education and to provide earlier childhood care and education for all children until they complete the age of six years,” and through the provision of this Section the legislature has clearly desired the appropriate government to “make necessary arrangement for providing free pre-school education for such children”.

In this respect, the notion of free and compulsory elementary education under the Act is inseparably connected with pre-school admissions, and it is this fact of inseparability that prompted the High Court Bench to opine and affirm (notwithstanding their holding on the contrary): “There cannot be any difference [sic] yardstick to be adopted for education to children up to the age of 14 years irrespective of the fact that it applies to only elementary education” else “the provisions of Section 13 would be rendered meaningless insofar as it prohibits screening procedure at the time of selection.

Secondly, Section 13(1) of the Act, unlike the special provision of reservation of certain per cent of seats for children belonging to weaker section and disadvantaged group under Section 12(1)(c) read with its proviso, is of all round application. It mandates: “No school or person shall, while admitting a child, collect any capitation fee and subject the child or his or her parents or guardian to any screening procedure.”

The avowed objective of Section 13 is, thus, to make access to a child’s education absolutely non-commercial and non-discriminatory. Its scope cannot be curtailed either by reading the limitation of Section 12(1(c) into the provision of Section 13(1) of the Act, or by resorting to categorisation of children on the basis of discriminatory criteria developed in terms of the objectives of the school, sibling, transfer case, single parent, alumni, etc., as the government’s guidelines seek to do.

RTE objective

In view of this reasoning, it is averred that the provisions of the RTE Act are equally applicable to admissions in nursery wing of the recognised elementary schools without any further legislative intervention. What is essentially required is the enlightened understanding of the underlying objective of the RTE Act on the part of the Central Government that enables them to issue appropriate guidelines under its Section 35(1) “for the purpose of implementation of the provisions of this Act”.

Moreover, under Section 18 of the RTE Act, with effect from April 1, 2010, no school shall be allowed to function without obtaining a certificate of recognition from the prescribed authority of the state. And the Supreme Court has recently laid down by majority in the case of Society for Un-aided Private Schools (2012) that “the fundamental right to establish an educational institution cannot be confused with the right to ask for recognition or affiliation,” and that “the state can regulate by law the activities of the private institutions by imposing reasonable restrictions under Article 19(6).”

This implies that if a recognised private school either receives capitation fee or subjects a child to any screening procedure, it shall be liable not only to fine under Section 13, but also to the sanction of de-recognition under Section 19 of the Act.