Right to education

Revisiting inclusion in education

By: Staff Reporter
The Right to Education Act, 2009 was implemented in the light that education is an entitlement and not an act of charity. The Act includes the provision of a quota for disadvantaged sections in private, unaided schools. However, a near-decade later no meaningful progress has been achieved.
Education Magazine Articles

Education as a right requires an inclusive framework covering all eligible children between the ages of six and fourteen. The introduction of a quota for economically and socially disadvantaged children in schools as a policy measure is a step towards attaining this goal. However, it is the implementation and the outcomes which are of interest.

Studying them presents an entirely different picture—almost a decade has passed since the central government made education a matter of right that has to be provided to every child, but not much has been achieved in terms of making education accessible. Given the mushrooming of private schools, it seems that the State has almost given up on public schools and the onus lies on private players to provide for education. Although a 25 per cent quota for children belonging to economically weaker sections (EWS) has been fixed in private schools that do not receive any aid from the government, ensuring compliance by private schools has proved  to be difficult. Out of the 3 lakh private schools in India, only 91 thousand have implemented the quota provided under the Act (CPR, 2015). The poor implementation of the provision, therefore, leaves one asking two questions—a. Is it possible to achieve equitable access to education without the government playing a proactive role and b. Can private players be entrusted to level the inequalities that are present in the Indian education sector?

Background – Right To Education

Education was made a fundamental right when the 86th Amendment Act of 2002 added Article 21A to the constitution, placing upon the government the responsibility to provide free and compulsory education to all children between the ages of six and fourteen. This Amendment was followed by the enactment of Right of Children to Free and Compulsory Education Act, 2009.  Section 12 (1)(c) of the Act imposes a legal obligation on schools that do not function on grants from the government to reserve 25 per cent of their seats for children belonging to the EWS. For the purposes of the Act, children belonging to the ‘disadvantaged’ category include children from SC/ST and other socially and educationally backward categories based on cultural, economic, linguistic or other categories that appropriate governments can separately notify. Schools which are owned or controlled by the centre, the appropriate government is the central government. In case of schools owned or controlled by states and union territories (UTs), the appropriate government is the government of the respective states or UTs. ‘Weaker sections’ also include children belonging to categories that the appropriate governments have to notify based on a minimum annual income of parents or guardians. For instance, the Karnataka defines children in the ‘weaker’ category as belonging to all castes and communities whose annual income is less than INR 3.5 lakh although preference is provided to those with income below INR 1 lakh per annum. This is in addition to ‘disadvantaged’ category belonging to SC, ST or backward class, orphans, migrant and street children, children with special needs and HIV affected/infected children. The Delhi Government, on the other hand, has notified ‘disadvantaged’ category to include children belonging to SC, ST, and OBC not falling in the creamy layer and other children with special needs and disabilities while ‘weaker’ section includes children whose parental income is less than INR 1 lakh from all other sources (Mehendale, Namala, and Mukhopadhyay, 2015).

Most state governments have similar definitions for the ‘weaker’ and ‘disadvantaged’ categories. These children are meant to be admitted via a ‘freeship’, which is randomly allocated through a lottery; private schools are to be reimbursed for each child enrolled through the quota at the level of state expenditure per child or the tuition fee charged at the school whichever is less (ibid).

Right to Education Act: The road to implementation

The introduction of the Act in 2009 and its enactment in April 2010 has been fraught with objections in the form of petitions and protests from private schools. In 2012, a number of petitions challenged the constitutional validity of the Act on the ground that it violated the right to practice any trade and profession under the Article 19(1)(g) of the Indian Constitution by bringing the State into the private education economy. The petitions were disposed by the Supreme Court. The Court held that the State shall provide for free education for children aged six to fourteen in any manner it may determine (SCI, 2012).

More recently, private schools have been in the news for protesting against state governments by denying admissions to deserving children under the EWS quota (Sahoo, 2018). The issue of schools being non-compliant with the provision mandating free education for EWS students is not new; the petitions addressed by the Supreme Court were but one culmination of resistance from private school lobbies. A study conducted in Delhi on initial responses from schools made note of objections being made by private schools even after the Supreme Court judgement. An anonymous private school lobbyist and school owner in Delhi, aware of private school practices, said that in many cases freeships were not provided to children with the eligibility criteria, but to the ones whose parents had personal connections or influence over school owners or those who were relatively more advantaged. The said school owner refused to implement the provision in his own school as backlash against the government, saying that he would ‘rather lock the school up…but won’t implement the EWS quota.’ (Srivastava and Noronha, 2016).

Inclusion and segregation in schools

Under Section 3(b) of the Delhi Free Seats Order, 2011, schools are prohibited from differentiating between students who have been granted admissions under the open category and those belonging to the ‘disadvantaged and weaker’ groups. No separate or exclusive class or shift is to be arranged for students admitted under free seats. Furthermore, under the Delhi Right of Children to Free and Compulsory Education Rules, 2011, the local authorities have to ensure that children belonging to the weaker or disadvantaged sections are not segregated or discriminated against.  However, apart from non-compliance at the fundamental level of evasion of granting admissions to such children, issues such as segregation of students belonging to the open category and EWS category have arisen. For instance, the study on initial responses from schools to the Right to Education Act mentioned above identified that while some schools were providing seats to children under the EWS quota, they had at the same time adopted measures wherein these children were taught free of cost in the same facilities, provided free meals, books, and uniforms, but in a separate shift in the evening with separate staff (ibid).

There were other reported cases where children were made to sit at the back of the class (McInerney, 2013). Segregation was recently also reported in Haryana, when parents of EWS children raised the complaint that a private school had been discriminating against their children by making them sit in a separate room. Like Delhi, the practice of segregation between EWS and open category children is prohibited in Haryana, but instances of segregation are quite recent (Saini, 2018).

Not only is segregation a practice that contravenes the rules, but it also dilutes the purpose and objectives they have sought to achieve—the practice of instruction in separate facilities sends the message that schools deem children belonging to weaker and disadvantaged category as not fit to be integrated with those belonging to the open category and coming from stronger social and economic backgrounds.  The problem of inclusion of children from disadvantaged sections is caused not only through the decisions made by schools, but also through the actions of parents of other children, who ‘fear that these (disadvantaged group and EWS) children bring inferior upbringing, cultural disadvantage and poor academic contribution to the classroom’ (Jayaram, 2017).

Recent resistance from schools

The month of April 2018 witnessed a string of protests from private schools, which took the form of outright denial of admissions under the EWS quota because of non-payments of pending dues. This despite the fact that Section 12(2) of the Right to Education Act provides for reimbursement of costs incurred to private unaided schools. A case in point is from schools in Mumbai. The Brihanmumbai Municipal Corporation (BMC) in turn sent notices to protesting schools, warning them of cancellation of licenses if they were found to be denying admissions to students under the EWS quota (Sahoo, 2018). A similar situation arose in Uttar Pradesh in March 2018, where schools took the decision not to admit children under the provision of the RTE Act on the grounds that the State government had failed to reimburse them for the costs incurred over the past two years. These schools were also protesting over the State Government’s decision to ‘arbitrarily’ set the reimbursement rate of INR 450 per child per month as opposed to Section 12(2) of the RTE Act, which requires schools to be compensated at the level of state expenditure per child or the tuition fee charged at the school, whichever is less (Jain, 2018).

EWS and other expenditure

Even following admittance of their children into private unaided schools, parents have raised complaints over schools charging them for uniforms, transport, books and mid-day meals. The RTE Act provides for the appropriate governments to set rules in order to carry out the objectives of the Act. The rules implemented by the Delhi, Maharashtra and Karnataka State Governments—clearly state that besides providing free tuition, private schools are also supposed to provide children, admitted under the EWS quota, with free textbooks,  writing materials and uniforms (Mehendale, Namala, and Mukhopadhyay, 2015). But these states have been repeatedly in the news for charging unaffordable fees from parents for providing the children with books, uniforms and other paraphernalia.

Schools in Maharashtra first started protesting against the State by denying admissions, following which they have been denying free books and uniforms to the EWS students who have acquired admissions (Vibhute, 2018). In Bangalore, reports show a clear misuse of the RTE Act since its existence in 2009 where private and unaided schools have been collecting a fee of up to INR 30,000 for books, school uniforms and other facilities (DC, 2018). Meanwhile, in Delhi, many schools have been charging parents as much as INR 15,600 for mid-day meals. However, mid-day meals are not included in the Delhi RTE Rules or the Delhi Free Seats Order (Jain, 2018).

Role of the state

The fact that private schools have managed to evade the obligations under Section 12 of the RTE Act brings a contentious issue for critics to raise doubts about the effectiveness of the policy. That the policy has so far not been successfully implemented and has therefore largely failed to bring about inclusion and mobility raising the question whether the provision for reserving seats in private schools is a flawed policy in itself.

Right to education India

Providing quotas to the disadvantaged has been criticised as the State neglecting its responsibilities in ensuring equitable development and welfare of the citizens. In doing so, the State has been acting as an agent of neoliberal capital where private actors and the ‘market’ will provide for education. This sends the message that private schools were, at the time of enactment, better than government schools and are bound to remain so in the future (Sadgopal, 2011).

In a scenario where the government has shirked off its responsibilities and schools have not met theirs, critics have raised the question whether we can depend on the private sector to be held legally responsible for realising the objective of free and compulsory education, let alone assuming responsibility for it (Jayaram, 2017). Further, the private-unaided school sector is heterogeneous, ranging from modest one-room schools operating in rural areas to schools whose infrastructure can rival those in developed countries. In this scenario, it would be unrealistic to assume that the 25 per cent scheme will be able to level the playing field homogenously at a large, nationwide scale. Even if all elite schools were to comply with the provisions of the Act, given their small number, it would not be possible to rectify the inequalities in the education sector. Private schools funnel a small number of disadvantaged children, which in turn diverts funds from the State sector without having any recuperative effect. This will leave majority of the children behind (Noronha and Srivastava, 2014).

There are serious doubts as to the effectiveness of the policy, seeing the wide gaps between intentions and outcomes. In 2015, five years after the implementation of the Act, none of the states or union territories was reported to have filled even 50 per cent of the seats reserved under the EWS quota (Fig. 1).

The targets that the central government had sought to achieve are far from being realised. Speaking with Ambarish Rai, National Convenor of the Right to Education forum, G’nY learnt that while it was estimated that about 20 lakh children would benefit from the 25 per cent provision, hardly one-third of the number have received the benefits. There are no mechanisms under the RTE Act to monitor and penalise violations. “Only 8 per cent of schools have so far been compliant, even after the passing of nearly a decade since enactment” he says.

Also pertinent to note is that education in England, France, and the USA has been universalised not through private or philanthropic initiatives, but publicly funded state run schools (Green, 1990).


The RTE Act has opened up various avenues for the State to meet the responsibilities Article 21A puts on it. The Act has explicitly stated that state provided education is no longer an act of charity or welfare, but is an entitlement. By means of section 12 of the Act, private schools have been brought into the ambit of free and compulsory education for disadvantaged children. The outcomes of the Act, if brought in consonance with its intentions, can provide for a large number of disadvantaged children to access quality education—what was earlier the prerogative of a select few owing to the privilege of birth in influential backgrounds. However, in the absence of compliance from schools and with the State not being active participant in improving the quality of education in government schools, the potential of the entire Act to level the field is severely compromised.


Centre for Policy Research (CPR), 2015. State of the Nation: RTE Section: RTE Section 12 (1) (c), available at: https://bit.ly/2IpcHCW

Deccan Chronicle, 2018. Bengaluru: Many pvt schools violating RTE norms, says activist, The Deccan Chronicle, March 29.

Delhi Free Seats Order, 2011, Available at:  https://bit.ly/2rDt6d0

Delhi Right to Education Rules, 2011, Available at: https://bit.ly/2G9LcrK

Green, Andy, 1990. Education and State Formation: The Rise of Education Systems in England, France and the USA. London: Palgrave, The Macmillan Press.

Jain I., 2018. In UP, 2000 private unaided schools to boycott RTE admissions, Times of India, March 3.

Jain S., 2018, Steep Charges for Uniform, Books, Meals Make ‘Free Education’ For Delhi’s Poor a Farce, TheWire.in, April 12.

Jayaram N., 2017. Compulsory Primary Education as a Human Right: Prospects and Challenges, Journal of the National Human Rights Commission, India 16: 1-21.

Karnataka Right to Education Rules, 2012, Available at: https://bit.ly/2jRJ0wd

Maharashtra Right to Education Rules, 2011, Available at: https://bit.ly/2KlkSxt

McInerney L., 2013. Selective schools may help poor, bright children; what about the rest?, The Guardian, August 19 2013.

Mehendale A., Mukhopadhyay R., Namala A., 2015. ‘Right to Education and Inclusion in Private Unaided Schools:  An Exploratory Study in Bengaluru and Delhi’, Economic and Political Weekly, 50 (7): 43-51.

Sadgopal A., 2011, Neoliberal Act, Frontline, 28 (14).

Sahoo P., 2018. Mumbai: 60 private schools refuse admission under RTE, get notice, The Indian Express, April 12.

Saini. 2018. EWS students made to sit in separate room: Parents, The Tribune, May 2.

Society for Un-aided Private Schools of Rajasthan vs Union of India, Writ Petition (C) No. 95 of 2010. Available at: https://bit.ly/2HHW31M

Srivastava P. and Noronha C., 2014. ‘Early Private-School Responses to India’s Right to Education Act: implications for equity’, in Ian MacPherson, Susan L. Robertson, Geoffrey Walford (eds.), Education, Privatisation and Social Justice: Case Studies from Africa, South Asia and South East Asia, Didcot: Symposium Books,  179-196.

, 2016. ‘The myth of free barrier free access: India’s Right to Education Act—private schooling costs and household experiences’, Oxford Review of Education,  42 (5): Non-State Actors in Education in the Global South 561-578.

Supreme Court of India (SCI), 2012. Society for Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1, SCI, Available at: https://bit.ly/2ruvmDo

Vibhute K., 2018, RTE blot: No free books, uniforms, Daily News and Analysis, April 9

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