Amendment scrapping no detention policy will weaken the entire Right to Education Act, say experts

On Wednesday, the Lok Sabha passed a bill to amend India’s most important law on school education. The Right of Children to Free and Compulsory Education (Second Amendment) Bill, 2017 removes a foundational provision of the Right to Education Act of 2009: that schools cannot make any child repeat a class until Class 8.

The amendment, to Section 16 of the Act, does away with this restriction – enforced from 2010 and also known as the “no detention policy” – and allows states to decide whether to detain children in Class 5 or Class 8, or both.

Activists and educationists contend that the change will inevitably lead to the dilution of other elements of the Right to Education Act, which is meant to back a fundamental right. Elementary education became a fundamental right in 2002.

As the lawyer and activist Khagesh Jha noted, scrapping the no detention policy will undermine the provision of admitting children in age-appropriate classes.

Another provision of the bill prescribing “a regular examination in the fifth class and in the eighth class at the end of every academic year” similarly undermines Section 30 of the Right to Education Act, which prohibits board exams for Classes 1 to 8.

“It is like tugging on a yarn until the entire sweater unravels,” said Ambarish Rai, convenor of the Right to Education Forum, a coalition of non-profit organisations, academics, educationists and child rights experts.

Disha Nawani, who is with the School of Education, Tata Institute of Social Sciences, and Niranjanaradhya, from the Centre for Child and the Law at the National Law School of India University, both said the no detention policy is foundational to the Right to Education Act. The policy, Nawani explained, is meant to “hold the child in school, undisturbed, for eight years”. “It was not to ensure children were learning because for that...the Act has [other] provisions,” she said.

Worryingly, the activists said, making children repeat classes could force the most marginalised and economically deprived among them to drop out. If they do, they will fall beyond the reach of other provisions of the Act and any intervention the central or state governments may devise.

Because the “whole thing works around the idea of fear”, as Nawani put it, the new amendment contradicts another fundamental promise of the Right to Education Act: to provide a system that makes “the child free of fear, trauma and anxiety”.

But the potential weakening of the Act is just one problem. Jha foresees children’s access to schooling further curtailed by the circulars and directions that education departments are certain to issue to operationalise the amendment. “The amendment has created the scope for dismantling the Act,” he said, “the bureaucracy will do the rest.

Here are some of the main provisions of the Right to Education Act that activists and educationists believe will be jeopardised by the amendment:

Section 29(2): Curriculum and evaluation

Niranjanaradhya described this section as the Right to Education Act’s main direction on the quality and the nature of education children must have. It directs the “academic authority” of the Centre and states to devise curriculum and evaluation procedures that advance the “all-round development of the child”, ensure a child is “free of fear, trauma and anxiety”, and introduce “comprehensive and continuous evaluation of child’s understanding of knowledge and his or her ability to apply the same”.

A reset to the old system of a year-end examination that could result in detention contradicts each of these objectives, Niranjanaradhya argued. “The idea is to create enabling conditions for learning and it is the responsibility of the state to provide them,” he said. “The state has not performed its duty – less than 10% schools are fully RTE Act-compliant – and is now replacing progressive reforms with a gurukul system.”

The policy of “comprehensive continuous evaluation” is especially at risk. It had replaced the annual exam with a system of tracking a child’s progress through the year. “It meant assessments were used for learning, to know where the child is struggling and taking remedial measures,” Nawani said.

Flawed implementation of this reform has been largely responsible for the hostility to the no detention policy. Activists fear that after today’s amendment, comprehensive, continuous evaluation will be abandoned in practice as schools reorient themselves to ready children for tests.

Section 30(1): Board exams

The amendment leaves the decision to detain children to states but insists on “a regular examination in the fifth class and in the eighth class at the end of every academic year”.

The bill does not elaborate on the nature of the “regular examination” – whether it will be conducted by the school or examination bodies – but Nawani believes that it “means a formal system of examination whatever the pattern of the question paper”.

This contradicts Section 30 of the Right to Education Act which explicitly states that “no child shall be required to pass any Board examination till completion of elementary education”. Board examinations are conducted by an external agency – an education board – that sets questions and evaluates answers.

In 2009, the Central Board of Secondary Education, the only public board directly under the Union Ministry of Human Resource Development, had made the board exam at the end of Class 10 optional for schools affiliated to it. It was reinstated this year.

The Act’s ban on board exams in elementary school and insistence on continuous evaluation, Nawani said, were born of the “recognition of the ill-effects of the public examination”. “Public exams cause stress but test only a certain kind of ability,” he added. “This was the first time there was a concerted effort to address that problem.”

Rajasthan has already introduced public exams in elementary school – for Class 8 in 2015 and Class 5 in 2017. The main difference is that in the Class 5 exam, candidates are awarded an overall grade, not marks.

Section 4: Age-appropriate admission

The Right to Education Act and the fundamental right it supports guarantee free education for children aged 6 to 14.

Jha, who routinely represents children denied admission in the Delhi High Court, said the amendment will complicate the implementation of Section 4 of the Act. It contains directions for admitting children who are out of school or whose education has been interrupted.

Section 4 states:

“Where a child above six years of age has not been admitted in any school or though admitted, could not complete his or her elementary education, then, he or she shall be admitted in a class appropriate to his or her age.”  

“What this means is, a struggling fifth grader can be made to repeat a class but a 13-year-old who has never been to school can join Class 8 directly,” said Jha. “How can you have these two policies together?”

Section 4 also guarantees that children admitted directly into a higher class will have access to “special training” to close the learning gap. “This was already not being implemented properly and now there will be no incentive to,” said Ambarish Rai.

Any confusion regarding admissions will also undermine Section 9(d), which requires the local authority to “maintain records of children up to the age of 14 years residing within its jurisdiction”, Rai added.

Jha pointed out that some states have already started enforcing upper-age limits for admission or writing exams. So, children repeating classes will likely find it difficult to secure admission if they move schools, particularly migrant children even though Section 9(k) enjoins local authorities to “ensure admission of children of migrant families”.

Section 12(1)(c): Economically weak children in private schools

This provision requires private schools not aided by state governments to “admit in Class I, to the extent of at least 25% of the strength of that class, children belonging to the weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion”. For this, they are compensated by the state.

Both Niranjanaradhya and Jha believe that this set of children, belonging to poor families and marginalised groups such as Dalits and Adivasis, will suffer as a result of the amendment. “Many private schools make these kids repeat classes as soon as they graduate Class 8 because they want them to leave,” said Jha. “Now they can keep the child in Class 5 till they turn 14 and compel parents to withdraw the child. This will make it very easy for private schools to push the children under EWS [Economically Weaker Sections] quota out.”