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Separation of Powers is one of the foremost principles of good governance, and states that the rule-maker, rule-executor and adjudicator should be distinct from each other. Such a separation installs checks against conflicts of interest and abuse of power by regulatory authorities and increases institutional accountability for outcomes.

We need to separate the functions exercised in governing the school education sector of India, particularly at the state level. A state government's Education Department is responsible for the construction of schools, teacher hiring and management, distribution of funds for school activities and formulation of state-level education policy.

The blueprint identifies three key-problems with the current governance structure:

  • Violation of natural justice;
  • Ineffective performance monitoring and rule compliance; and
  • Differential laws for government and private schools.

To address these three problems, the blueprint proposes separating the functions of service-delivery, assessment of learning outcomes, and adjudication of disputes (from the state departments of education) into three independent bodies.

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Prior to the passage of the Right to Education (RTE) Act 2009, government registration or recognition of private schools was not mandatory in most Indian states. The Act has drawn heavy criticism for its impact on recognised and unrecognised private schools across India. Its uniform input-oriented regulatory approach does not pay attention to the fact that children from all socioeconomic classes attend private schools. Application of uniform principles to all schools, irrespective of the fee charged, ignores the costs of compliance with the mandated input norms, and the implicit penalty imposed on low-income parents. Worst of all, the enforcement of the Act threatens to shut down well-performing schools who may not have the means to comply with input norms.

Nearly 10 years after the passage of the Act, we are yet to have credible estimates from the government on the regulatory impact of RTE, particularly on children attending low-fee private schools.

Against this backdrop, the report provides estimates on the extent of school closures as a result of enforcing private school recognition norms prescribed under RTE.

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The debate on low learning levels has spurred several actions by the state. India has enrolled to participate in the 2021 round of PISA. The NCERT has defined grade level learning outcomes for languages (Hindi, English, Urdu), mathematics, environmental studies, science and social science up to the elementary stage. NITI Aayog is developing an index to `institutionalise the focus on improving education outcomes' including learning, equity and access based on information generated by NAS, the largest national assessment survey in the country. NAS coverage has been expanded to include government-aided schools and the sampling unit is changed from state to district level. The moot question is: Are these reforms sufficient to bring improvement across schools or are we still just tinkering at the edges?

Taking note of the crisis and recent developments, this brief urges the government to use the power of information to strengthen its ability to hold individual schools accountable, parents' ability to choose, and schools' ability to improve.

For more information on the project, to share your feedback or to get involved, get in touch with us at research_feedback@ccs.in.

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The government has the power to write rules, apply standards, recognise schools, withdraw recognition, and resolve disputes. Our paper teases out the discretionary powers conferred to the state governments for the regulation of education. We study the use of discretionary powers at three touchpoints—the government as a licensor, fee regulator and inspector of private schools.

What did we find?

We find evidence of excesses in the exercise of discretionary powers by the executive—the state education department. Below, we have listed a few instances:

Rigid and intrusive rules that some would argue are ultra vires: There are three key regulatory requirements to open a school in Delhi (Figure 1). Rule 44 of Delhi School Education Rules 1973 authorises the state Administrator to decide if the new school is necessary for the area. This objective has taken the form of an Essentiality Certificate. The Essentiality Certificate, however, does not have a statutory basis in Delhi School Education Act 1973, nor in the Right to Free and Compulsory Education Act 2009.


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Figure 1: Three regulatory requirements needed for opening a school in Delhi

Proving that a school is essential in an area does not feature in DSEA 1973 or RTE 2009. It only finds a mention in DSER 1973, a glaring instance of quasi-legislative discretionary excess.

Ad-hoc and arbitrary rule-making: Rule 192 of DSER 1973 states that every inspection should 'be as objective as possible'. A close reading of the proforma that objectivity is a far fetched dream, especially when it comes to academic supervision.

Figure 2 highlights some of the constructs used to evaluate the academic quality of the school.

The first principle of a good questionnaire is to avoid ambiguous/abstract and loaded terms. The question "Were the questions put to the students thought-provoking and well-distributed?" is an example of the former and "Is it (homework) regularly corrected and followed-up?" is an example of the latter.

The absence of objective measures and defined standards for compliance raise many questions: Is evaluation solely dependent on the interpretation of the inspecting officer? If a school gets positive notes on some aspects and negative on others, where does that leave a school? Are reports of different schools comparable?

Poor procedural fidelity and absent transparency on procedures followed: Higher courts in India have in many judgments pronounced an aversion to the commercialisation of education but allowed schools to retain a 'reasonable surplus'. By default, the determination of what would count as a reasonable surplus is left to the administrative machinery.

In 2018, the Directorate of Education in Delhi passed an order instructing all districts to form a Fee Anomaly Committee, as a forum to attend to the complaints of parents. Yet, Fee Anomaly Committees have either not been formed or are defunct.


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Figure 2: Inspection proforma — Constructs evaluated and ways of measurement

Parents report that officials often fail to register complaints or take punitive action against schools who do not comply with orders. Given the lack of any codified procedure for processing complaints and limited transparency, it is often difficult for parents to establish a clear complaint trail and follow up.

The Uttar Pradesh Self-Financed Independent Schools (Fee Regulation) Act 2018 regulates fee for schools that charge an annual fee of over Rs 20,000. We found that the fee regulation committees only make decision summaries of its decisions available rather than the full minutes.

Inconsistent and subjective exercise of punitive measures: Section 24(3) of DSEA 1973 authorises the Director to issue instructions to the school manager 'to rectify any defect or deficiency found at the time of inspection or otherwise in the working of the school'. If the 'manager fails to comply with any direction given', then the Director may take any action including— (a) stoppage of aid, (b) withdrawal of recognition, or (c) except in the case of a minority school, taking over of the school'. From this, two challenges emerge.

First, the Director has a free hand in taking any action as deems fit to her if a school fails to comply with any direction. Further, there is no escalation—one mistake and your recognition may be at risk. Second, implementation is skewed—although the Act gives the power to the Director to act as she wishes, measures higher up on the penalty ladder are rarely used.

Learnings for future

Part of these excesses is borne of the lack of documented guidance on how the department should exercise its functions. Others are violations of the letter of the law, sometimes for the understandable reason of limited state capacity. These necessitate the establishment of norms that constrain the actions of those in positions of authority and determining who should be accountable to whom and for what (Posani and Aiyar 2009).

The administrative architecture needs to distinguish and separate the government's role as regulator, service provider, financier, and assessor. Even if full functional separation is a long term endeavour, an independent grievance redressal mechanism is an immediate need to balance executive discretion (Centre for Civil Society 2019).

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Different state governments of India have notified through Government Orders (GOs) the amount they will pay out in reimbursement to private schoolsfor each RTE child the school admits. For example, Tamil Nadu has fixed the reimbursement amount at Rs. 2351 per pupil per month; Delhi at Rs 2225, Himachal at Rs. 1593, Uttarakhand at Rs 1380, Karnataka at Rs. 1333, Rajasthan at Rs 1252, Bihar at Rs. 465, and Uttar Pradesh at Rs 450 per month per child. These amounts are meant to represent the states’ per pupil expenditure in their respective government elementary (primary + upper primary) schools. However, there has been some doubt and dismay about the accuracy of these estimates, and also some research estimating per pupil expenditures in the different states of India in Dongre and Kapur (2016), World Bank (2016) and NIPFP (2017).

The NIPFP (2017) found that the Uttar Pradeshgovernment’s actual per pupil expenditure in 2014-15 on its government and aided schools was Rs. 1529 per month. If this Rs.1529 estimate were to be inflated up to 2018-19 by 10% per annum, the per pupil expenditure today would be equivalent to Rs. 2239 per month on account of the increase in expenditure alone. If the fall in enrolment from 2014-15 to projected enrolment in 2018-19 is taken into consideration, then the average per pupil expenditure as per NIPFP would be Rs.2652 per month in 2018-19. This can be compared with the Rs. 450 pm upper limit of reimbursement set by the Uttar Pradesh government in June 2013, which has remained at the same level until 2018-19.

This short paper seeks to estimate the per pupil expenditure in government elementary schools in Uttar Pradesh using the government’s own expenditure data and enrolment data.

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Called “Faces of Budget Private Schools,” the BPS report 2018 is an attempt to explore both the data on the current education challenges and needs and also bring to light individual stories from the stakeholders in the system to set the data in perspective.

The Report consists of 3 main sections, which looks at 'Reach and diversity', 'Solving the problem of quality' and 'Educating children for an uncertain future'.

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The report brings together research and perspectives from relevant stakeholders with the aim of updating and pushing forward the discourse on BPS in India, by providing a platform for informed and inclusive interactions on the sector.

The Report consists of 17 chapters and is categorised into four themes which represent the different aspects of the BPS sector: demand, supply, ecosystem, and regulation.

The chapters of the Report are authored by experts representing a variety of backgrounds and organisations with a deep understanding and expertise of the BPS sector, representing research, policy and practice.

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In India, reforms in regulation of private schools have been argued on the basis of universalizing access to education while recognizing the increasing role of private in enabling that access, particularly for the poor. However, the experience so far has been that the regulations create entry and exit barriers in the provision of education by entrepreneurs thereby reducing competition and keeping the cost of education high. It is in this context that regulation of private education is observed in the case studies to better understand how governments in other parts of the world have managed to harness private investment in education for the benefits of the society in general. The study examines three cases of best practices from around the world:

  1. Regulation of Hagwon/supplemental education centres in South Korea,
  2. Per-child funding model in the Netherlands, and
  3. Punjab Education Foundation in Pakistan.

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A recent study by Azim Premji Foundation (APF) titled “Right to Education Act (RTE), 2009 and Private School Closure in India” has received wide media coverage and ignited debate over the impact of RTE on private schools. The study claims that only five private schools have closed down in seven states and one union territory that it studied—four in Karnataka and one in Uttarakhand. Anurag Behar, CEO of APF, declared that any research reporting otherwise is “false or ludicrously exaggerated.”[1]

The possible impact of RTE on the closure of private schools is a critical policy issue, especially when the parents have deliberately chosen the fee-charging schools over the free government schools. Therefore, the study deserves closer review and analysis, which is the objective of this detailed assessment. Instead of doing a newspaper column, we decided to do a full review of their research processes, methodology and overall soundness of research. The basic purpose is not so much to challenge their conclusions but to assess the research that serves as a basis for arriving at those conclusions.

We embarked on our mission: We read the study once, twice, thrice. We thought we must be missing something—this is a study produced by India’s largest education foundation. After all those readings and discussions, we came to the inescapable conclusion: the quality of the APF study is alarmingly poor. It is hard to believe that the most well-endowed education foundation in the country, which also runs an education university, would consider this study worthy of publication. Moreover, the CEO of the Foundation, who presumably has read the study, would consider it appropriate to ridicule all other research and experiences, and even declare them as almost lies, on the basis of this study. It is really a sad day for research, for the quality of public debate and for the quality standards of APF.


[1]Anurag Behar, ‘Reality of School Closures,’ Mint, 18 February 2016, http://www.livemint.com/Opinion/nd3HbSousJ84BbJtlomlHN/The-reality-of-school-closures.html. See also Rohit Dhankar, ‘A Lesson in Hidden Agendas,’Hindu, 26 March 2016, http://www.thehindu.com/opinion/lead/a-lesson-in-hidden-agendas/article8397088.ece A reply to Dhankar by one of the authors is ‘Ideology Masquerading as Research, 'http://spontaneousorder.in/ideology-masquerading-as-research/


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