Indian Education Series - Right to Education Act and Its Impact on K-12 Schools

Education in India is treated as a service for public good and not as a commercial enterprise. In view of this object, the State Education Acts require only a non-profit entity to run a school with certain restrictions and regulations concerning its operations. Even if the schools are private un-aided schools, they are, to a certain extent, governed by the State Education Acts of the respective States where the schools are set up.

For purposes of providing free and compulsory education and equal opportunity to all children of the ages of six to fourteen years, Indian Parliament has enacted the Right of Children to Free and Compulsory Education Act, 2009 and Rules thereto ("RTE Act and Rules"). In terms of the RTE Act and Rules, every school, other than a school established, owned or controlled by the Central Government, appropriate government or the local authority, shall be established after obtaining a certificate of recognition from the Director of Education ("DEO"), by making an application/self declaration confirming compliance with the prescribed norms and standards and fulfillment of the following conditions:

(i) the school shall be run by a society, or a public charitable trust;

(ii) the school shall not be run for profit to any individual, group or association of any individuals or any other persons;

(iii) the school shall conform to the values enshrined in the Constitution of India;

(iv) the school buildings or other structures or the grounds shall be used only for the purposes of education and skill development;

(v) the school shall be open to inspection by any officer authorized by the appropriate Government or the local authority; and

(vi) the school shall furnish such reports and such information as may be required from time to time and shall comply with such instructions of the appropriate Government or the local authority, as may be issued to secure the continued fulfillment of the condition of recognition or the removal of deficiencies in working of the school.

Subject to compliance with the above norms and verification by onsite inspection of the school premises, a certificate of recognition is issued by the DEO which is valid for three years from the date of issue. Any school that does not conform to the norms, standards and conditions stated above within a period of three years of commencement of the RTE Act and Rules will cease to function. Any person that establishes or runs a school without obtaining certification of recognition or continues to run a school after withdrawal of recognition would be liable to fine which may extend to Rs. 1,00,000/- (Rupees One Lac) and in case of continuing contravention, to a fine of Rs. 10,000/- (Rupees Ten Thousand) for each day during which such contravention continues.

The RTE Act makes certain fundamental changes to the Indian education system and makes the recognition subject to fulfillment of the following conditions:

(i) Education for All: Reservation: It is mandatory for every unaided school to admit in Class I or such pre-school class, as the case may be, to the extent of at least 25% of the strength of that class, children belonging to weaker section and disadvantaged group in the neighborhood and provide free and compulsory elementary education till its completion. The unaided school providing free and compulsory elementary education, as aforesaid, will be reimbursed expenditure so incurred by the school, to the extent of per-child-expenditure incurred by the State, or the actual amount charged from the child, whichever is less.

(ii) Capitation Fee: While admitting a child, the trust/school is not permitted to collect any capitation fee and subject the child or his/her parents or guardian to any screening procedure. Any school or person receiving any capitation fee will be punishable with fine which may extend to ten times the capitation fee charged. Further, if any school or person subjects a child to screening procedure, it shall be punishable with fine which may extend to Rs. 25,000/- (Rupees Twenty Five Thousand) for the first contravention and Rs. 50,000/- (Rupees Fifty Thousand) each for subsequent contraventions.

(iii) Detention of Students: The school is obligated not to deny admission to any child for lack of proof of age and no child admitted will be held back in any class or expelled from school till the completion of elementary education. The child would not be required to pass any board examination till the completion of elementary education in a school and be subjected to physical punishment or mental harassment.

(iv) Pupil-Teacher Ratio: Every school would need to maintain the pupil-teacher ratio stipulated under the RTE Act and Rules. Additionally, the RTE Act and Rules also prescribe certain norms and standards pertaining to number of teachers; school building requirements; minimum number of working days/instructional hours in an academic year; minimum number of working hours per week for the teachers; teaching learning equipment library requirements; and play material, games and sports equipment, to be complied by the school for continued recognition of the school.

Failure to comply with the prescribed norms and standards can result in withdrawal of recognition granted to such school.

The primary focus of the Government of India for enacting RTE Act and Rules is to make good elementary education available to each and every child irrespective of his/her socio-economic background and private un-aided schools are being made to play an active role under the public-private participation in achieving this objective.

Seema Jhingan

Areas of Practice:

Infrastructure, Telecommunications, Power, Mergers/Acquisition, Software/Information Technology, Education, Business Process Outsourcing, Media & Entertainment, Private Equity and Venture Capital, General Corporate and Commercial, International Arbitration.

Professional Summary:

Seema Jhingan's practice spans over sixteen years during which she has acquired substantial expertise in representing developers, sponsors/lenders, education companies, service providers, venture capital investors, international corporations, financial institutions, and other strategic investors involved in the establishment, development and financing of major infrastructure and IT projects in India.

Seema is a Partner with a Delhi Based Law Firm LexCounsel Law Offices and regularly contributes to journals and publications and often takes up speaking engagements.