The right to education is taking a beating in the states, some of which are yet to ratify the model guidelines (rules of the act) proposed by the union government. The human resource development ministry had come up with the Model Rules, 2009, of the right to education Act aiming to have a near-uniform universal education law. These rules provided a broad framework which teh states could use to tailor the RTE provisions accroding to the local contexts. But the national commission for protection of child rights (NCPCR) says that the states are violating this framework in their implementation of RTE.

A circular issued by the Gujarat secondary and higher secondary education board on May 14, 2012, sent to all school principals in the state, talks about a retest for the students who have failed in the Standard 8 examinations. It reads “to save one year of those students who have failed in class 8, it has been decided that every school should retest students in the first week of July”. Those who clear the retest will be promoted to the next class and if a student fails the retest he/she will have to repeat the class. The circular states that this instruction will have to be implemented strictly. This is in clear violation of the provision for unihibited elevation of students from standard 1 to 8 without any detention resulting from the failure to clear a test. The NCPCR cited a case in which a child had to sit for retest despite the clear instructions on promotion to a higher class.

The RTE Act is lists what each stakeholder is supposed to do but many schools follow state government ciculars with instructions that are in violation of the provisions of the Act instead of following the Act itself.

The NCPCR also highlighted a case where a school in the national capital conducted an entrance test for children from unrecognised private schools. When the commission intervened the school said that the rules laid down by the Delhi Schools Education Act, 1973, support its actions. One of the rules of this Act says that if a seat is available in a class to which an admission is sought, teh head of the school, in consultation with the zonal education officer, shall arrange for a test to determine the suitability of the students seeking the admission and the admission will be granted if the student(s) passes the test.

“It is really difficult to make some schools understand that the RTE act over-rules any other education act and that they must follow it,” says Ajay Kmar, project coordinator-complaints, RTE division, NCPCR.

He says unaided public schools find out ways to not to implement the right to the fullest.

“There was this case in Maharashtra where a woman sought admission for her child under the EWS category in many public schools, but they refused to give admission on grounds that they do not have vacant seats. There is no way to ascertain this, neither  can we file an RTI query to find out the truth,” he says.

Kumar says that earlier, whenever the division received a complaint, it used to write a letter to the concerned principal and gave them 30 days time to answer it. But, even after two-three reminders, the principals never acted on the complaint. It has now started calling the principals immediately after it receives any complaint, before formally registering it with the commission.

“The public schools are not keen to implement the act. Very few schools actually comply with the rules of the RTE act,” he says.

He recalls case of violation from West Bengal. The government there has dispensed with tuition fees in all government-run and non-government, aided schools from class one to XII well before the enactment of the RTE Act 2009. But the government schools are collecting Rs 20 every month (Rs 240 annually) from each student in the name of the development charges though parents unable to bear the expense are "exempted".

Kumar says it is difficult to access the circulars from the states or there education boards unless a complaint is filed.

“There is a possibility that many other states too are violating the law,” he adds.
The right to free and compulsory education (RTE) came into effect on April 1, 2010. This Act makes free education a fundamental right of every child between the ages of 6 and 14 in the country. But it is yet to be implemented fully in any state in India.

Ashok Agarwal, a senior high court lawyer and civil rights activists who has been visiting many states to create awareness about the act, says in most states RTE rules are contrary to the model rules. In Maharashtra, he says, reimbursement for the children, seeking admission under the provision of section 12 of the RTE act with respect to the 25% reservation of seats for economically poor children in unaided non-minority public schools, admitted in the pre-school shall be admissible when such child is admitted in class 1. “They will not reimburse if the child is admitted in a pre-school. So, even when the schools have vacancy they are not admitting children at the entry level. It is the violation of the central act,” he says.

He adds that the Andhra Pradesh state rules say that children can approach unaided non-minority public schools for admission under 25% reservations only when a government school rejects the application of the child. “This way they have completely change the definition given by the centre act,” says Ashok Agarwal.

Also, many states like Rajasthan, Andhra Pradesh, Kerala have divided the 25 percent seats among the children belonging to SC, ST, OBC, Disabled and EWS category. “Every child has equal right to get the seat, it should not be divided. Delhi has a lottery system where every child gets equal chance.”

Agarwal says many state rules have flaws which can be changed only when someone challenges it. “The authorities have still not understood the RTE act. People will have to fight for it. We conduct workshops to create awareness among people. Only Kerala’s rules are close to the perfect,” he added.