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Research

2019

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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2018

India, one of the largest democracies in the world with an ever-rising population, has had, several statutes that with the advent of time have become obsolete, redundant or repetitive. In addition to this, there is the matter of inconsistent language and dissemination- making it difficult for an ordinary citizen to access and comprehend the plethora of legal information with ease. This increased transaction cost coupled with glaring redundancy further breeds fertile grounds for corruption, discouraging engagement of individuals and firms with the society/ economy at large.

 

Centre of Civil Society (CCS) initiated the 'Repeal of 100 Laws' Project in 2014 with the aim to identify laws that could be repealed on account of three reasons

 

  • Redundancy
  • Obsolescence in the face of new laws
  • Hindrance to development, governance and freedom.

 

For the 2018 edition of the Repeal of Laws initiative the following state compendiums have been prepared:

 

 

APPEAL FOR REPEAL LAW DAY

 

Centre for Civil Society, in an effort to institutionalize the repealing of laws as a constitutional practice for the Republic of India, brought together like-minded organizations, scholars, academicians and lawyers to acknowledge 26 November as the Appeal for Repeal Law Day. Its objectives were:

  • To celebrate the diversity of our legal system and have a constructive dialogue around the process of repealing of laws
  • To launch the compendiums constituting the recommended laws for repeal in the aforementioned 6 States

To mark this day, we launched the Repeal Law Compendiums constituting the recommended laws for repeal in the aforementioned 6 States. The launch was followed by a panel discussion on ‘Exploring Alternatives: Institutionalization of Repeal of Laws’. Our esteemed speakers for the panel consisted of India’s prominent legal and industry experts such as PK Malhotra, Former Law Secretary, Ministry of Law & Justice, Maneesh Chhibber, Editor (Investigations and Special Projects), The Print, Satya Prakash, Legal Editor, The Tribune, Tariq Anwar, Former Union Minister, Hemant Batra, Founder and Chairman, Kaden Boriss Global and Neeti Shikha, National Coordinator, Repeal of Laws initiative, Centre for Civil Society.

2018

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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2018

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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2018

In 2014, Government of India (GoI) made it a policy priority to improve the business environment in the country. This prioritisation derived from India's lacklustre performance on the World Bank's Ease of Doing Business Index that ranks 190 countries on their business regulatory environment. Since 2003, the World Bank has measured the time, cost and regulation of entry, operation and exit for firms, and ranked countries based on these measurements and government reporting. In addition, in 2017 the IDFC Institute conducted an enterprise survey of over 3,000 manufacturing firms across India, to assess the business regulatory environment 'from the viewpoint of manufacturing firms'. However, these studies have significant gaps.

First, we do not have a deep understanding of the substantive and qualitative changes undertaken by different states. Second, ubiquitous urban services provided by micro, small and medium enterprises have found short shrift in the reporting on business climate reforms. Third, none of the studies give us a sense of the next granular steps in the reform process. Our Doing Business in Delhi addresses some of these questions. It studies the regulatory barriers to operate restaurants, meat shops and e-waste recycling plants in Delhi, and evaluates the business reforms conducted between 2016 to 2018.

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2017

CCS has consistently campaigned for governmental action to repeal redundant and inconsistent laws that promote red tapism and encumber personal, social and economic freedoms. This year, we reinforced our call for the recognition of 26 November - the Constitution Day of India, as the National Repeal Law Day.

To mark this day, we launched the Repeal Law Compendium, a rigorously researched repository of obsolete laws across five states - Maharashtra, Karnataka, Chattisgarh, Telangana, and Uttar Pradesh. The launch of the Compendium was followed by a panel discussion on the Need for Institutionalisation of Repeal of Laws. Our esteemed speakers for the panel included Hemant Batra, Founder and Chairman, Kaden Boriss Global; Maneesh Chhibber, Executive Editor, DNA; Justice A P Shah, Former Chief Justice, Delhi High Court; Parth J Shah, Founder President, Centre for Civil Society; KTS Tulsi, Member of Rajya Sabha and Senior Advocate at the Supreme Court of India.

2017

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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2016

The essence of good governance is good laws. For rule of law to operate, laws must be well-written and well-coded. Laws must be precise, principles-based, and should stand the test of time. Statues that are obsolete, redundant, repetitive, or inconsistent only create chaos for the masses and provide unnecessary powers in the hands of implementing agencies, weakening the social fabric and incentivising corruption.

During the campaigns for the 2014 General Election, BJP candidate Shri Narendra Modi promised the electorate that on being elected, he would make a sincere attempt at statutory legal clean up. The commitment was that for every new law passed, 10 redundant ones would be repealed, and that in his first 100 days in office he would undertake to repeal 100 old, burdensome laws. The Bhartiya Janata Party led National Democratic Alliance Government tabled the Repealing and Amending Bill (Third) Bill, 2015 in the Lok Sabha, recommending revision of about 180 obsolete laws. It was also the commitment of Shri Ravi Shankar Prasad, that this exercise of weeding out antiquated laws would be a continuous process.

After the success of Centre of Civil Society’s Repeal of 100 laws Project (in partnership with NIPFP Macro/Finance Group and Vidhi Legal Policy Centre), wherein 100 Central laws were suggested for repeal, of which 23 were formally included in the Repealing and Amending Bill, Centre for Civil Society has launched its Repeal of laws Project- Phase II, via its report that includes laws that warrant immediate repeal in Delhi, on the grounds of them being redundant, subsumed by newer legislations, or because they pose an impediment to growth, development, good governance and individual freedom.

We believe that while statutory reform is only the beginning of a wider process of legal overhaul, it is perhaps the most important. Without sound laws, India will not provide an enabling environment, neither for citizens, nor for entrepreneurs. Repealing pointless legislation is the first step in this direction.

For the year 2015, a similar report was prepared by us for the state of Maharashtra, wherein  on meeting with them, the State Government acknowledged and agreed to repeal 19 of the 25 laws that were presented to them for repeal.

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2016

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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