It’s been eight years since the Right to Education Act, 2009, came into force. The RTE Act has been touted to be a landmark legislation that seeks to realise the fundamental right to education for all children in the age group of 6-14 years. Still, many think of it as an ill-drafted and poorly implemented legislation.

Many schools in the country continue to lack adequate drinking water facilities, playgrounds or the necessary infrastructure prescribed by the Act. Cases of corporal punishment (banned under the RTE Act) are still being reported, and learning outcomes, indicative of the quality of classroom instruction, have been found to be abysmally low.

Bureaucratic apathy and weak institutional mechanisms are some factors that have contributed to this. While recent data highlightsluggish trends in RTE implementation, another relatively unexamined indicator of how the law has worked is its contestation in courts.

Trends in litigation

We recently studied cases in the High Courts and the Supreme Court from 2010 to 2015, which directly affected rights of a child under the RTE Act. Our observations suggest that some provisions of the Act are more litigated than the others. As much as 49 per cent of the cases on the RTE Act have dealt with questions of access to education. This may be because issues such as denial of admission, fixing age-limits for admission to a particular class, transfer of students from one school to another, and conducting screening tests at the time of admission, are urgent in nature. Accordingly, they feature prominently in the priorities of litigants.

Further, out of the total disputes settled, almost 24 per cent exclusively refer to Section 12(1)(c) of the Act, which mandates all non-minority, unaided private schools to reserve 25 per cent seats for children belonging to economically weaker sections and disadvantaged groups. The denial of admission by private schools, delayed reimbursement by State governments to private schools, ambiguity over definitions of ‘economically weaker sections’ and ‘disadvantaged groups’ are some of the most prominent issues that have arisen in relation to this provision. Several cases involved unaided private schools locking horns with State governments over their perceived autonomy vis-à-vis obligations outlined in the RTE Act.

Other issues included the applicability of the RTE Act to minority schools, applicability of the no-detention policy to private schools, and the definition of ‘neighbourhood’ for admission into ‘neighbourhood schools’. While some of these issues are yet to be resolved by the court, others are yet to be enforced by schools themselves. For instance, it is unclear if all unaided private schools and some specified government schools are prohibited from conducting admission tests/interviews, as a recent MHRD order significantly weakens this ban. Further, many private schools continue to charge donations from children, despite it being illegal under the RTE Act.

The provisions which are relatively less litigated are facilities for disabled students prescribed under the Act, which account for merely 5 per cent of the total litigation. Further, provisions mandating basic facilities and adequate infrastructure in schools constitute 11 per cent of the total disputes settled under the RTE Act.

While fewer litigants seem to have approached courts for relief over infrastructural norms and availability of qualified teachers as required under the RTE Act, this does not necessarily imply that these norms are better implemented than the ones which litigated upon more. These provisions impose positive obligations on States for implementing the RTE Act and, therefore, must be progressively realised. They may also not be a high priority for litigants who are generally individual parents.

Provisions on banning corporal punishment and prescription of pupil-teacher ratio in classrooms have not been contested at all, even though anecdotal evidence and news reports suggest clear violations of these.

Limitations of the judiciary

By and large, it appears that the RTE Act remains under-enforced. This is not surprising since courts are usually demand-driven and give priority to issues that are brought forward by litigants. Owing to the smaller number of disputes relating to district/State-wise implementation of the Act, courts have also not had the opportunity to go beyond injunctions and focus on long-term reliefs involving systemic reform.

In very few cases have the courts formulated monitoring mechanisms to ensure timely implementation of their orders. However, in some instances, the court’s interventions were instrumental in the implementation of the Act. For instance, courts directed the Gujarat and Telangana governments to implement key provisions of the Act, including section 12(1)(c). These orders were passed as late as 2015.

A proposal for reform

Going forward, it is hoped that the judiciary continues to play a significant role in enforcing the RTE Act. Courts have frequently had to act as the first port of call, in the absence of proper statutory bodies and grievance redressal mechanisms. However, it is imperative that judicial efforts be supplemented by building awareness and strengthening grievance redressal mechanisms under the RTE Act. This can save litigation costs and diminish barriers to securing rights for parents and their children.

Strategic litigation across High Courts should also be explored, for pushing implementation of the RTE Act by state governments. In 2014, a PIL was filed before the Supreme Court by the National Coalition for Education which pointed out that at least 3.77 crore children between the age of 6 to14 years were not in schools.

The petition highlighted the sluggish implementation of the RTE Act, leading the Supreme Court to direct all states and union territories to respond to these issues. More such efforts by civil society organisations will be useful in getting targeted judicial orders for the effective implementation of the Act.

While a lot has been said about the failures of the RTE Act, the unavoidable truth is that this legislation, with its focus on educating all under-age children in India, is here to stay. It is for the executive to strengthen education delivery mechanisms and summon necessary political will to implement Act. In the meantime, the judicial route can be useful in holding governments accountable and ensuring the Act’s enforcement.

The writer is a lawyer and research fellow, education initiative at the Vidhi Centre for Legal Policy, Delhi