To Date:-Honorable Chief JusticeSupreme Court of IndiaNew Delhi

Subject: Provisioning of 25% reservation of seats in private schools under Right to Education Act.

Dear -----

We would like to submit that the Right to Education Act is a first step towards ensuring equitable quality education for all. It is a clause that furthers the vision of Articles 38 and 39th of the Constitution, seeking to ensure a society that offers equal opportunities and does not discriminate based on area of residence or vocation and mandates a policy that monopolies of wealth and resources are not created. It is our submission that fulfilling this vision would require strengthening the regulation of private schools. Furthermore, private schools often receive subsidies from the government in return of the expectation that they would support the poor (but rarely play that function), are disproportionately likely to exclude the poor and marginalized and actually in possession of excess resources. Consequently, it is our submission that:

a. The implementation of earmarking of 25% seats for children from marginalized groups furthers the vision of India’s Constitution. Article 38 mandates the State must “strive to minimize the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations” This vision of equality cannot be realized without ensuring equal access to educational opportunities to both rich and poor. Furthermore, Article 39 further specifies that government policy must ensure “that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment”. Creation of multiple strands of schooling for the fees paying rich and the poor, would amount to allowing a certain class of society monopolizing opportunities. This vision of equal opportunity is a universal right recognized by multiple international treaties that India is signatory to, and cannot be seen as limited by the right of adults, political or business groups.

b. Bridging gap between Bharat and India has to start from the schools- Inequality in India can only be removed, if the spaces are created for rich and poor, dalits and elites to learn and grow together. This can only be realistically done through making space for the children from the marginalized groups in the private schools along with the children of the rich in the fees paying schools. Segregated schooling cannot hope to ensure quality education for the poor- something that the west recognized decades back (eg. The verdict in the US Supreme Court that ended separate education for blacks in that country under Brown vs Board of Education). The Law Commission of India (1998) recommended 50% reservation in private schools, unlike the RTE provision of 25%. Consequently, the present number of seats earmarked, falls short of the vision of an equal mixing of rich and poor.

c. Private Schools are not fully private, but enjoy subsidies from the government in lieu of an expectation to play a social function. Most private schools currently receive benefits from the State that include tax benefits under the income tax act, wealth tax and lower property taxes, direct subsidy towards the cost of land allotted, concessional electricity charges etc. In addition, some State Governments also provide direct grant-in-aid to the schools towards meeting recurring expenses e.g. West Bengal provides the Dearness Allowance component of teacher’s salaries of Anglo-Indian Schools which are all in the private domain. These benefits are extended to these societies for helping them in their charitable activities and for eventually making education available to all strata of society. Consequently, the reservations imposed on these schools are in line with the original objectives behind which subsidies were given.

d. Large number of private schools is cheating the government by failing to play this function. Accordingly a study on the “Public Utility of Private Schools: A study of 80 Elite Private Schools of India” by Bhatnagar & Omer (2005) of Rs 100 of concessions/incentives given by the government, only Rs.27 are spent by private schools towards socially useful activities. Both the 2005 Comptroller and Auditor Report and the subsequent Directorate of Education inquiries on the subsidy extended in lieu of allotment of land to schools in Delhi found several gross malpractices. Thus, the private schools have until now failed to provide return on the existing government investments and should, therefore, now be bound to social role that they are obliged to play in return of the subsidies that they enjoy.

e. Private Schools have until now taken advantage of a weak regulatory framework. The mechanisms for regulation of private schools are extremely weak- with minimum teacher qualification norms, teacher standards and a whole host of issues until now remaining by and large un-enforced. Thus, the 2010 CAG report shows that 44% schools failed to do something as basic as submitting audited accounts of their finances and a large number of schools failed to adhere to accounting standards. With the private education sector growing, it has by and large remained unregulated. There is ample case law of private schools being taken to court for arbitrary and unjustified hike in fees during the preceding year. What the RTE Act for the first time seeks to lay down a uniform set of standards for government and private schools, which is being resisted by the latter, claiming that doing so would impair their provision of “quality” education.

f. Private Schools do not have a monopoly over quality and cannot be used as an excuse for lack of regulation. It is unclear how quality can be ensured when even rock bottom minimum quality standards as laid down in the law (a trained teacher, a classroom, a school library, a toilet for girls, access for children with disability, some drinking water, at least a minimum number of instructional hours in a year) are not to be adhered to by the private schools. Several private schools currently fail to do so. At the same time, while on average, the learning outcomes in fees charging recognized private schools may be higher, this can also be explained by fact they cater to the financially better off and better educated families who can afford to pay fees. Thus, Goyal & Pandey (2009) study shows that there is no difference in learning outcomes between an average government and private schools in Madhya Pradesh, when other factors are accounted for. The value addition made by the average private school is yet to be firmly established. Furthermore, the learning levels in government run Kendriya Vidyalayas are second to none. Government schools that have the same per child investments as the elite private schools indeed produce a fairly good learning outcomes. Consequently, all private schools cannot be said to be offering quality education, which is being presented as an argument for their deregulation.

g. In contrast, what private schools offer is the claim of exclusivity that sets the private school going child apart from the poor, marginalized and often dalit child in the government school. The existence of an unregulated, separate and unequal stream of education for the rich has created a new caste system that channels the children of the rich and poor into different destinies at an age as young as four or five. What the law seeks to do is to break that monopoly.

h. Private Schools currently have considerable reserves of profits-The private schools claim that the implementation of the 25% quota will inflict damage to their right to pursue business. In contrast, the 2010 CAG Report on the private schools in Delhi, shows that 80% schools had fees surpluses during 2008-2009. 95% of the schools investigated had a margin of over 17.67% between the fees collected and the expenditure. Together with any reimbursement that they may receive from the government, this should be sufficient to tide over the extra costs that some may be forced to bear through admission of 25% students from marginalized background.

i. Many governments prohibit private schools charging school fees at all (eg Sweden) and mandate that all private schools receive a 100% grant in aid equivalent to that of its own schools. The Act does so for only 25% of the seats. In so doing, it fails to ensure a completely equitable education system and falls short of the long standing government commitment to a Common School System.

j. In contrast, reservations in private schools have been shown to work for inclusion- Reservations of seats for the poor and marginalized students in schools can indeed create spaces for the rich and poor coming together and overcoming differences (based on the experience of the half a decade of implementation of the quota system in Delhi). There are other examples of schools (eg Loreto Day School, Sealdah- Juneja, 2005) that have admitted fees paying and non fees paying children together without any of the harmful consequences voiced by the private school managements. Private schools currently exclude the most poor and marginalized. Large scale studies (like Mehrotra & Panchmukhi, 2006) show that private schools have so far had a disproportionately low percentage of enrollment from SC, ST, Muslim, children with disability- the groups whose children are anticipated to be enrolled under the 25% quota.

We feel that the retention of the RTE Act is in the national interest and should be retained to make a peaceful society as many countries are facing challenges to resolve issues of conflict and civil war which started due to socio-economic division among the groups. It would also be in pursuance of the Constitutional vision of transitioning towards an egalitarian society. The earmarking of 25% seats for the children of Bharat in the elite, exclusionary private schools would protect the Constitutional mandate of ensuring equal opportunities for its children. Indeed, the previous track record of the private sector in terms of poor inclusion, poor financial transparency systems (especially on the issues of fees) and poor track record regarding teacher working conditions, calls for a stronger regulation of the private schools. We call on the Supreme Court to take cognizance of these facts before it and rule not just the Constitutional right to equality, but also legislate for stronger regulation of this hitherto unregulated sector.

Further Evidence:

1. Government of India (2005). Chapter, IV: Ministry of Urban Development. Report No. 4 of 2005 (Civil) of the Comptroller and Auditor General of India. Available on http://www.agaudelhi.cag.gov.in/PAC/report_on_DDA/PAC_LOKSABHA.PDF

2. Government of India (2010) Regulation of Unaided Recognized Schools in Delhi for the year ended in March 2010. Comptroller and Auditor General of India. Available on http://saiindia.gov.in/cag/sites/default/files/study_reports/Final_Books_agcr.pdf

3. Bhatnagar & Omer (2005) Public Utility of Private Schools: A study of 80 Elite Private Schools of India. Report submitted to Department of Secondary and Higher Education. Available on: http://www.vivekbharadwaj.in/public%20utility%20final%20report.pdf

4. Law Commission of India (1998) 165th Report on Free and Compulsory Education of Children. Available on http://lawcommissionofindia.nic.in/101-169/Report165.pdf

5. Goyal and Pandey (2009) How do government and private schools differ? Findings from two large Indian states. World Bank. Available on: http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2010/01/11/000333038_20100111004939/Rendered/PDF/526340NWP0publ10box345574B01PUBLIC1.pdf

6. Brown vs Board of Education. BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954) http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=347&invol=483

7. Mehrotra, S. & R.P. Panchamukhi. (2006). “Private Provision of Elementary Education in India: Findings of a Survey in Eight States” in Compare, 36(4), pp.421-442. http://www.informaworld.com/smpp/content~db=all~content=a767853702~frm=titlelink

8. Juneja, N (2005) Exclusive Schools in Delhi: Their Land and the Law, EPW. Available on : http://www.right-to-education.org/sites/r2e.gn.apc.org/files/Exclusive%20schools%20India.pdf