THE RTE JUDGMENT OF THE SC - TIME FOR BLAMEGAME

by Kv Dhananjay on Thursday, April 12, 2012 at 1:38pm 12-Apr-2012 Dear Friends I represent Karnataka Unaided Schools Managaments Association, (KUSMA) an association of more than 1700 private unaided schools in the State of Karnataka. KUSMA did not participate in the Supreme Court case on RTE. I had advised it that the RTE law is best challenged after it is implemented and it is seen in its practical version. So, based on my advice, KUSMA had stayed away from the RTE case at the Supreme Court. Still, because school associations from most States were closely coordinating with each other on that case, I had felt that schools needed to evolve a strategy whereby they could ask the Supreme Court to not rule right away but to keep the schools challenge in abeyance and direct the Central Government to implement the law in any one select State. So that the practical version of the law could be seen and thereafter, the Supreme Court could decide on what to do with the RTE. You see, the RTE seems to be well intentioned. But, in human history, we have seen some of the best intentions produce the worst of results. What happened next? Well, school associations across India rejected my suggestion. I was ridiculed for 'suggesting that schools could lose in the RTE case in the Supreme Court'. Today, the Supreme Court has delivered its judgment. I thought that it would be a bit interesting to talk about some past backstage events here: The following mail went out from me to all the leading school associations that were talking to me and to each other and coordinating with each other on those days: 31-JUL-2011 EMERGENCY! TIME FOR PLAN B IN THE SUPREME COURT HEARING ON RTE. Dear Friends What is PLAN B? PLAN B is a term used by defence lawyers to denote distress that they might be losing and they need to do something to minimize damage.

Are private schools losing in the RTE matter at the Supreme Court? Certainly not. In fact, private schools are doing exceptionally well at the Supreme Court. Some of the finest lawyers in India are arguing for private schools Sri Parasaran, Sri Ashok Desai, Sri Harish Salve, Sri Rajeev Dhawan, Sri Datar, Sri Naphade and many more. However, several people are talking to their closest groups that the Supreme Court Bench hearing this case does not seem to be too impressed with anything said on behalf of private schools. And that the Bench seems inclined to accept the RTE Act and is likely to dismiss all the Writ Petitions.

Now, what do I think is likely to happen in this case? Honestly, I do not know what will happen in this case.

OK. What is all of this talk for? Well. It is never wrong or bad to think of failure in Courts. In the Indian tradition, to think of failure is frowned upon. I respect that tradition. However, I should say that in a Court of law, that tradition has no place. Rather, what should govern ones attitude in a Court of law is this practical consideration. Now, I strongly hope and wish that schools prevail in this ongoing battle. However, just in case, you should also consider the consequences should this Bench proceed to dismiss all Writ Petitions.

What will be the fate of schools in such a scenario? There are no prizes for guessing what it will be. Bad.

Now, how bad can it get? This is where we need to brainstorm a bit.

How bad can it get? Are schools going to shut down in droves? I hear it said often.

In fact, nobody really knows how bad this law is going to be. Simply because, nobody can fairly predict what lies in store in the months ahead. Still, lets make some attempt to lay it down here:

The Supreme Court proceeds to dismiss all Writ Petitions. And, blame game begins everywhere on who did what wrong. Everyone will begin to blame everyone else. And I will be blamed for talking a lot in meetings and on mail and for doing little or nothing in Courts.

And your State Government will then begin its task:

Five days ago, a leading school in Mysore, a city about 160 kms from Bangalore, got in touch with me for this problem that school has a capacity of 150 students for its Lower Kindergarten. It had interviewed 450 students and had rejected 300 and had enrolled 150 at its discretion. One parent who also runs a local newspaper and whose rejected child was one of 300 children moved the authorities by claiming that the school had admitted 150 students by exercising its discretion. And that the school should have favoured children primarily on the basis of the distance between the childs residence and the school. Further, the argument went that between children shortlisted solely on the basis of distance, no discretion was vested in management and that no interviews should have been held and that all admission was to be based on a lottery system.

I will be forwarding that email should the school concerned consent to it.

Next, after having admitted 75% of the Management seats in Standard I and 100% of the Management seats for Standards I to VIII (for the first year of implementation of RTE) on a lottery basis, the Government should be satisfied that you did conduct a random method for selection and that you did not cheat on that lottery.

Further, the Government should determine the cost of educating a child in a Government school first. Now, what is the accounting method that is acceptable for this purpose? In India, the Institute of Chartered Accountants of India hasnt issued suitable guidelines to determine what is the most appropriate accounting standard that should be adopted when drawing the books of accounts of a Government run educational institution? So, considerable accounting freedom exists in this regard. What if, the Government determines that rather than adopting one of five or eight different options to arrive at the cost of educating a child at a Government school, it could simply pass a law to say that the cost shall be determined by it at its sole discretion and that any such cost so determined by it shall be deemed to constitute the fair cost of educating a child enrolled in a Government school. In fact, Governments routinely decide upon an arbitrary rate amongst several rates and pass a law to deem such rate as its official rate. And Courts do not generally intervene in such issues.

So, should you be hopeful that the Government will decide Rs.10000 as the cost of educating a child in a Government school and while you extend your arms to receive this much from each child, the Government issues a new law to say this much:

IN LIGHT OF PRACTICAL DIFFICULTIES EXPERIENCED IN THE MATTER OF DETERMINING THE FAIR COST OF EDUCATING A CHILD FOR THE PURPOSE OF AWARDING COMPENSATION TO AN EDUCATIONAL INSTITUTION THAT ADMITS A CHILD UNDER THE 25% GOVERNMENT QUOTA IN TERMS OF THE RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT, 2009, THE GOVERNMENT OF YOUR STATE HAS DETERMINED, AFTER TAKING INTO CONSIDERATION, ALL APPLICABLE ASPECTS, THAT SUCH COST SHALL BE DEEMED TO APPROXIMATE RS.500 PER CHILD PER ACADEMIC YEAR. ACCORDINGLY, YOUR STATE GOVERNMENT DETERMINES THAT A SUM OF RS.500 SHALL BE AWARDED TO AN EDUCATIONAL INSTITUTION FOR AN ACADEMIC YEAR IN RESPECT OF EACH CHILD ADMITTED BY IT UNDER THE 25% GOVERNMENT QUOTA.

And, we all know what will happen then. Schools will rush in droves to their nearest High Court. And High Courts will simply stay the aforesaid Notification.

Oh! Wait. If the aforesaid Notification is stayed, how do schools benefit? So, schools will insist on a Court determined rate. And, adopting the scheme of Government fee fixation for schools in Tamil Nadu now, committees will then be appointed by various High Courts to go into the fees for each private educational institution. Lots of heartbreak for you when you appear before that committee. That committee would want to know if your toilets were cleaned well on that morning and if you personally did inspect those toilets that morning. How dare you demand a bigger fee when your toilet is not all that sanitized?

And then, after each school understands the quantum of fee it is entitled to expected, this might happen

Your State Government is in a cash crunch. After all, cant you see its budget statements and its Revenue Statements and Statement of Assets And Liabilities? Is it overflowing with cash? Interests are due on its bloated loan portfolio. Promised free electricity to farmers and colour televisions and bicycles havent been delivered yet to all those hapless voters and how dare you ask it for cash now? So, how dare you ask it to reimburse you for your money so quickly? You should wait for some time. That is, for a few months. Or, may be, for a few years. After all, can your Government run away without paying you? And, as if all those people who wait for years for their refund arent human beings? And you are the only person affected by all that delay? So, simply wait like everyone else.

But, if somebody mischievous is sitting at the helm of affairs, he need not even ask you to wait. Wondering? Simple. Do you know that schools in most States pay a slightly concessional tariff for their electricity consumption? So, a new Notification will be issued to increase the applicable electricity tariff and schools will be asked to set off what is owed to them to the extent of the increased tariff. Practical? Has happened often. Just a year ago, the Supreme Court had directed an agency in the State of Uttar Pradesh to provide certain promised benefits to a group of industries in a backward region of that State (as, relying upon the said promise, those industries were established there). Interestingly, the Government had promised that it will issue a discount on electricity tariff without specifying how much discount it will provide. So, while those industries had factored in a 75% discount, after the Court Order, the Government hiked its electricity tariff so as to offer a discount of a mere 20%. And, those industries were told that they had an option to not pay 80% price and could instead pay 25% only for their

electricity provided they agree to set-off what was owed by the Government to them. Are you thinking this will not happen to you? You are at liberty to dream.

Next, did you fuel your car today? If you bought, say, 10 litres of petrol or diesel, do you know that the crude oil that acts as the raw material for all of that was largely imported by India? India imports close to 73% of her crude oil. And, guess the currency of purchase. US Dollars. One barrel of crude oil is now trading around 100 US Dollars. All of that price is set on the floors of the New York Mercantile Exchange building in New York. Crude has, in the recent past, reached a high of 147 US Dollars. And, should crude oil stay above 120 USD for more than 45 days, Indian importers will begin to shed tears and blood. It has happened before and when crude stays above 100 USD, Indian importers begin to lose sleep. And, the finances of the Government of India will go for a full toss when crude crosses 100 USD. When such is the case, where will the GOI give States money from? Out of thin air? In case you dont know the basic fact of our Government, State Governments cannot print money. Only the Central Government can. And, thanks to various international treaties in place, India cannot print her currency notes to her hearts content.

And, notwithstanding that I find little time these days to read financial papers, I must thank the toilet keepers at the IGI Airport at Delhi. On Thursday morning, HT Financial Times front page, posted in the IGI toilet, said that Foreign Direct Investment in India fell a record 33% from previous year. What does it mean to you and me? First of all, this is the steepest decline since the liberalized regime of 1991 and the Government of India will receive fewer forex deposits because of this decline. So, State Governments will not be sitting on piles of cash to pay schools under the RTE because the Government of India will have less money on its hand.

And, are you sitting on land provided by the Government. Wait. What about your discounted water rates? Are you assessed to Municipal taxes? Do you honestly expect to be paid by your State Government for taking upon that obligation under the RTE?

Now. What is to be done? This is what I would wish. Associations from various States are active now in the Supreme Court. They need to form a consensus and instruct their lawyers to collectively tell the Supreme Court on Tuesday, 2Aug, the last day of arguments that:

WE ARE VERY HOPEFUL THAT WE WILL PREVAIL IN THIS CASE. HOWEVER, WE MUST POINT OUT THAT THE EDUCATIONAL JURISPRUDENCE OF OUR COUNTRY CONTINUES TO EVOLVE OVER A PERIOD OF TIME. IN MOHINI JAIN CASE, THIS HONBLE COURT FELT STRONGLY THAT PROFESSIONAL MEDICAL EDUCATION COULD BE ADMINISTERED WITH A FEE OF A MERE RS.2000. NEARLY 10 YEARS LATER, AFTER NUMEROUS REFERENCES, THIS COURT FELT VERY DIFFERENTLY AND REVERSED COURSE IN TMA PAI. IN THOSE 10 YEARS, MEDICAL COLLEGES IN THIS COUNTRY HAD HAD A SEVERE HEARTBREAK.

AS IT ALWAYS HAPPENS, PRACTICAL DIFFICULTIES CAN NEVER BE KNOWN IN ADVANCE. THE RTE IS A LAW OF A DRASTIC NATURE AND WHAT LIES IN STORE FOR SCHOOLS CAN NEVER BE SATISFACTORILY FORECAST.

ALSO, WE ARE HERE DEBATING ON PRINCIPLES AND CONCEPTS. IF THIS COURT WERE INCLINED TO DISMISS THESE WRIT PETITIONS, WE REQUEST YOU TO NOT DO SO.

PLEASE KEEP THESE WRIT PETITIONS PENDING AND KINDLY ALLOW THE IMPLEMENTATION OF THE RTE IN ONE STATE ONLY. LET THE IMPLEMENTATION BE OBSERVED FOR A PERIOD OF ONE YEAR OR MORE. IN THAT TIME, WE WILL KNOW ON HOW OUR RIGHTS AND GOVERNMENTS OBLIGATIONS ARE

HONOURED. RIGHT NOW, WE ARE ALL MAKING ASSUMPTIONS. WE ARE MAKING OURS. THE GOVERNMENT IS MAKING THEIRS. AND BETWEEN THE TWO, THIS COURT IS CHOOSING SOME AND DISCARDING THE REST.

AS WE SEE IT, FOR REASONS X,Y AND Z (DISCUSSED ABOVE), WE ARE OF THE BONAFIDE VIEW THAT THIS LAW CAN ONLY BE JUDGED BY ITS OPERATION AND TO ALLOW IT TO BE IMPLEMENTED ON A NATIONAL SCALE EVEN WITHOUT TESTING IT IS LIKELY TO GRAVELY INJURE THE INTERESTS OF PRIVATE UNAIDED SCHOOLS ACROSS THE COUNTRY.

AS SUCH, WHILE WE ARE FULLY HOPEFUL THAT WE DESERVE TO PREVAIL IN THIS PETITION, WE ALSO WANT TO PROVIDE THIS COURT WITH THIS OPTION SHOULD THIS COURT WANT TO DISMISS OUR PETITIONS.

WHEN THE GOVERNMENT OF INDIA IMPLEMENTS A DRASTIC LEGISLAITON, IT CANNOT COMPLAIN IF IT IS TOLD TO PUT IT TO A TEST FIRST. ONCE IT IS TESTED, THE PRACTICAL DIFFICULTIES WILL BE KNOWN AND WITH THOSE DIFFICULTIES, THIS COURT WILL BE IN AN APPROPRIATE POSITION TO APPRECIATE THE TRUE SCOPE OF THE RIGHTS OF PRIVATE UNAIDED SCHOOLS IN THIS COUNTRY.

WHICH SHOULD THAT STATE BE? LET THIS COURT DECIDE. WE WILL SAY NOTHING.

You must be wondering why one or two parties alone cannot say this. There is a good reason. There should be consensus between schools from various States and only then will this work.

And, I am only saying this much if you are bound to lose, it is important for you to protect your interests in such a manner as to be able to show that this law is truly injurious. Once you lose big here, all later victories in courts will still hurt you.

And, rather than spending more time in your schools improving the quality of the education, you will be spending more time with lawyers and courts. And I will be getting richer.

I have not heard any person tell me with confidence that the Supreme Court Bench hearing this case will allow the Writ Petitions and that the RTE Act will be quashed. And if somebody wants to say so now, ask that person this question:

ARE YOU SO SURE ABOUT VICTORY AT THE SUPREME COURT THAT YOU WILL BET YOUR HOUSE AND SAY THAT YOU WILL GIVE AWAY YOUR HOUSE IF THE COURT DISMISSES THOSE WRIT PETITIONS?

If your friend is not quite sure, then you should think of Plan B. I leave it here. And remember this much. I do not benefit monetarily if all of you take Plan B. How will I? I say this out of a concern for your long term wellbeing and in the interest of quality private education.

And my heartfelt gratitude to all the people who have been bravely fighting this battle in the Supreme Court. So many of them have sacrificed so much for the benefit of all affected.

If you agree with this Plan B, then instruct your lawyer or Advocate-on-Record to talk to other lawyers and to collectively submit so to the Supreme Court. Remember, time is ticking.

Thank You. And, again, I will not be disappointed if you reject this Plan B. Who would be disappointed with prospects for making more money? K.V.DHANANJAY Advocate Supreme Court of India