Writ[e] & Talk | Ep 1 |Dissecting K12 Education Laws

Host: Mrs. Sayantani Bagchi

Speakers: Mr. Prashant Narang & Ms. Jayana Bedi

Mrs. Sayantani Bagchi: So, the first question that I have is, in your article, you have talked about the ill effects of the unfettered discussion of the executive might have on the education system, in terms of introducing unreasonable criteria and such for schools. In a more practical sense, in your study, how and to what extent have you seen this misuse come to light in schools, especially those that do not have the means to challenge these wrongs?

Mr. Prashant Narang: Last year, we conducted a survey of 950 schools across five states in India, and some of the budget private school owners shared their struggles. One of them said that the procedure is draining and long drawn out. There are a lot of children who miss out on going to school at all because of the time it takes to set one up. Another said that they could not work without bribing. It happens every time without fail. One said, "I spent about 23 lakhs on just bribing this year". Another said, "I cannot explain the extent of corruption here" it feels like most of the officials do not have salaries and have to take bribes for survival". So, these are some of the examples of what school owners go through. We conducted another study on how difficult it is to open a school in Delhi, and as per the law, it should take four months to receive the essentiality certificate and the certificate of recognition. There was one application pending final approval even after 14 months. In another case, it was under review for five years. So, I mean these cases show that when we talk about ease of doing business for other sectors, we have completely ignored the ease of opening schools.

Mrs. Sayantani Bagchi: Thank you so much for your observation, and I think that's quite unfortunate, of course. So, from here again, we are to ask you, as far as we could make out through the reading of your paper, Karnataka has come the closest regarding the state rules, but it, too, has its flaws. How do you think the Karnataka legislature has actively worked for the betterment of the education system, and how can it undo its remaining and existing flaws as that becomes the objective ultimately?

Mr. Prashant Narang: You are right, there are some good features in Karnataka laws, but there are also flaws.

Ms. Jayana Bedi: Broadly speaking, we couldn't identify any state that we think is ideal. In most cases, the laws are a mixed bag, they get some things right, but in other aspects, they fair poorly. For instance, I can share some things that Karnataka has done well and exceptionally well. Some of the provisions it has are not seen in other laws at all. For instance, the Karnataka Education Act, 1983 is a very old law but one thing it does that most other laws, not just state school education laws but otherwise also, do not include is an important safeguard of a pre-decisional hearing or an opportunity to be heard before the application is rejected. So even before you can refuse to grant approval, you get an opportunity to be heard. That is something that is rare in most Indian Laws, but it's under section 96 of the Karnataka Education act 1983. This is a mandate that the executive has to give an opportunity to the party that has submitted an application for recognition, which in this case would be a school which has given an application to be recognised. So even before you pass an order to reject the application, you have to hear them out. And it also mandates a reasoned order in case of any kind of approval, including upgradation. I mean that most audiences for this podcast would be aware of the technical terms but just for the benefit of the listeners. Reasoned order would be not just a written order but a written order that records reasons for rejection. So, some states only mandate that the executive writes out its order, the other laws sort of mandate that the executive gives reason but does not also mandate that the reasons be written, so Karnataka is one of the few states that mandates both.

Then another important safeguard it introduces is an independent appeal mechanism, so Karnataka Education Act is again the same law. It requires that the state government forms an independent education appellate tribunal to adjudicate any kind of appeals, so if a school is disgruntled or disagrees with the order of the director, they can appeal that order and take their appeal to the tribunal. Then similarly, another interesting provision in the Karnataka Secondary Education Examination Board Act of 1966 is that it requires all the orders passed under that law to be laid before the parliament soon after it is notified. So, this is something that is there.

But having said that, Karnataka also has its own issues. For instance, a big one is that it allows the executive to give retrospective effect to rules which can really harm school owners because then you are not operating in a predictable regulated environment, which is a big issue. Similarly, it has some excessive prohibitions. For instance, school teachers cannot give private tuition to any individual. So, it's not just that you can't give private tuition to students in your school but basically any individual. So, in some way, it prevents the individual from having another source of livelihood. So, Mr. Prashant Narang, do you want to add to that?

Mr. Prashant Narang: No, we can move on.

Mrs. Sayantani Bagchi: Thank you so much, Ms. Bedi, for this clarification because Karnataka, as you have pointed out, has served as a model, and of course, it has come the closest regarding the state rules. You have also talked about the principles of natural Justice. So, in continuation, we generally see that under several state rules, there is no provision for an appeal when a school has been denied recognition, and several states, however, form their own mechanism by having an internal mechanism where senior officers of the education department against whom the appeal is filed hear the appeal. Now how does this go against the principle of Natural Justice set out in the administrative law, and how has this been questioned in the past?

Mr. Prashant Narang: So Ms. Bagchi, another thing that we find important to mention is that across all states, the one thing in common is that the department which runs Government schools also regulates private schools, and so there is a structural flaw that goes against the principles of natural Justice that there is a conflict of interest. And, definitely, what you mentioned about the appeal mechanism, is that the appeal goes to the senior officers in the same department, and then they hear the appeal. So around 17 laws allow for appeal against all approval-related decisions of the government, and 12 laws allow individuals to appeal against all kinds of enforcement action law measures.

Now, the question about the independence appeal mechanism, we know that the Key principle of Natural Justice is that no one must be a Judge in their own case to avoid bias, and there should not be any conflict, but only a few state laws mandate education tribunals, for instance, Gujarat, Jharkhand, Karnataka, the tribunals have Judicial officers who are not below the rank of district Judge, but in other cases, the appeal may go from a lower level official to a higher level official in the same department so, for instance, under Maharashtra Law, the director needs to appoint one or more administrators to manage the educational institutions taken over and appeal against these administrators goes to the director. Now, the Maharashtra Law also mentions that the appeals against some decisions of the director of education and state government are explicitly denied, so as far as the independent appeal mechanism is concerned, it's very few laws that have it.

Ms. Jayana Bedi: And what's worse is this last part that in some cases even after you know, one level of appeal is allowed, laws sort of outright disallow further appeal of that decision, so you know in some cases like Prashant mentions the Maharashtra Law, the decision of the director or the state government is supposed to be considered the final decision, one cannot appeal against it into the Court.

Ms. Sayantani Bagchi: Okay, so that's pretty astonishing because these principles of natural Justice probably are an all-pervasive and blatant violation of these is more unfortunate specifically given the concern before us. So, this brings me to another important area like I was particularly surprised to read the incarceration provisions under the education rules in several states, and while it brings to notice the futility of such a provision since it would only result in penalising an authority that has the resources to pay and remains unbothered by the penalty, it also questions the necessary recourse that needs to be introduced for punishing or penalising those who breach the standard of the school, I mean standard of education in schools so what are your views on this particular issue?

Mr. Prashant Narang: I think the entire mindset or the philosophy of regulation behind these provisions is quite outdated. When we talk about corporate laws, we are moving from criminal statutes to penalties such as civil penalties or fines, so there's a shift towards decriminalisation, or at least doing away with imprisonment and Jail terms. And we advocate for the same thing for the schools, that's one thing, and something which is different but also similar to this is, the idea of incentives so instead of having a carrot and stick approach, instead of saying that if you don't do this, you will be penalised. Now penalty either in terms of Jail or in terms of fines but rather than this, you know penalty based approach, why not incentivise good standards so how not, why not create a system where schools strive towards excellence on their own rather than you know moving in that direction based on penalties and imprisonment so all the laws across all states have this outdated philosophy or outdated regulatory architecture and we envisage that the school education laws should rather be based on good incentives where there is a win-win situation for all stakeholders and one way to do that is to encourage more and more competition among schools, and not just among private schools, it could also be among private schools and government schools. One more thing that I would like to mention here, which was recently mentioned in the National Education Policy, 2020, National Educational Policy has specifically talked about the regulatory asymmetry between private schools and government schools. If you look at the Right to Education Act, Section 18 and 19 of the Right to Education Act talks about closing down private schools, there are heavy penalties on private schools if they don't adhere to norms and standards given in Right to Education school, but there is no provision to apply recognition, the concept of recognition to Government schools, Government schools are deemed recognised so there is no possibility of shutting down a Government school or penalising a government school if it doesn't adhere to same norms and standards so I don't mean that the Government schools should be shut down, but my question is why should even private schools be shut down and then, of course, the other question which NEP also raises is about the emphasis on norms and standards, I mean a school is about education, it's not so much about building and other facilities, but that's a separate story. Jayana, do you want to add something?

Ms. Jayana Bedi: Just briefly, the way we have looked at the imprisonment story in our paper is we have spoken about how the proportionality test has four elements which is legitimacy, suitability, necessity and proportionality stick to senses, so some of the provisions introduced in our school education laws are clearly disproportionate meaning the penalties not proportionate with the breach, with the violation or the breach that is being penalised, so for instance, I mean Just to give an example, it's the Madhya Pradesh 1975 Education Law, it mentions that the breach of any rule which is formulated under this act could attract imprisonment of up to six months which is vast, right, because there are a number of things that a rule could speak about and this basically gives the government power to imprison a school owner or someone who school manage for breach of any such rule and this is same true for Andhra Pradesh Education Act and so such disproportionate cost they not Just impinge on the life and liberty of individuals which itself is crucial but I mean something that you also mentioned in your question which is that it imposes lots of costs.

Richard Epstein has a book called "Simple rules for a complex world", and he actually gives this nice framework to look at cost. He talks about three kinds of cost – one is the cost that the regulated entity has to incur, so, in this case, the school management and trying to fight such a claim. The second is the enforcement cost – The Cost that government has to incur in the running in identifying this breach and also then penalising the breach. The third is the error cost, the cost you have to incur when you penalise someone wrongly.

Mr. Prashant Narang: This means that there would be huge deterrence. I mean, why would somebody then enter into the school education market if the deterrence is so high and there is so much risk? Last week, when I went to Guwahati and met some private school owners, they told me how they feel anxious right from 6'o clock in the morning to 3 PM in the afternoon when the kids are picked up by the bus and finally dropped home by bus. And because there are so many stringent penalties associated with even bus transport, there are so many rules associated with now with bus transport that it becomes very difficult to comply with all of those, and it is making school owners anxious.

Ms. Jayana Bedi: Just as a funny anecdote, this budget private school owner said that you could do a health checkup study, and I guarantee that most budget private school owners will have Heart issues, Insomnia, Hypertension, High Blood Pressure, etc.

Mrs. Sayantani Bagchi: Okay, thank you Mr. Narang and & Ms. Bedi. I think all that you have talked about. I think that's an outcome of very, very detailed and elaborate research work, of course. There is a lot of brainstorming and hard work that has gone into the process of writing this and, most importantly, the empirical work that you have undertaken to actually even write this paper, to even conceptualise it. So, keeping in mind the article is based on empirical data collected by the Centre for Civil society, I am just curious to know what role you think civil society organisations working towards accessibility of education would play in ameliorating the situation on the grounds in terms of the absence of the four safeguards that you just about and the problems which stem from it, particularly the abuse of power in the forms of corruption and rent control.

Mr. Prashant Narang: I think there is a need to link what is happening on the ground to the absence of these safeguards and for the benefit of listeners, let me again reiterate those four safeguards. Number one is procedural safeguards, including due process and principles of natural Justice, number two is guidance provided by law for the quasi-judicial functions of the executive, number three is proportionality, and number four is the checks that the law places on the rule-making power of the executive. So, why government agencies such as NITI Aayog have come up with an index which is called as School Education Quality Index? FICCI came up with a Model School Code, Centre for Civil Society, in association with other NGOs, came up with another draft School Code. But we need to be very, very clear. I mean, people look at these laws from different aspects. Somebody might look at it from an economic analysis point of view. Somebody may look at it, let's say, from a consultation point of view, and NEP was a good example by way of, a good example of participatory policy making because the government, indeed, put it in the public domain and did stakeholder consultation on a large scale.

Now interestingly, while the Centre of Civil Society has been working in the field of education for the past 25 years, for the last couple of years, we have also been working on the idea of the quality of laws or quality of regulations, and so what we realised, and by the way, we are not the only one in the world that has been thinking about the quality of laws, there are other institutions as well such as a centre in the US that had talked about the quality of laws for an empirical or a quantitative methodology, and you know we partnered with them to also look at Indian laws from a quantitative side but again that's a separate story, I'll come back to that, maybe later. So, looking at the quality of laws, we realised that there are three components when we talk about the quality of laws. One is the representation safeguards meaning that to what extent participation or, let's say consultation has been done and there can be some questions framed around the consultation aspect and the other aspect is the resource allocation safeguards, and you know there are many agencies and many institutions such as the World Bank, OECD, I have talked about impact assessment. Jayana just now talked about Richard Epstein. You know how we think about costs and incentives when we talk about economic analysis. So, there are also some variants on how you can think about the economic analysis of law. So, these are usually these two buckets, you know, consultation and participation, and the other one is economic analysis. So, while we have talked about resource allocation and representation safeguards, our addition to this body of work was also the discretion analysis of rights safeguards and this we borrowed from the administrative law. And so, what we did was basically we applied this discretion analysis to these education laws and our nudge or our message to other NGOs working in the field of education is that while cost-benefit analysis is important, while participation and consultation are important, right safeguards are also equally important. Because the absence of these safeguards indeed leads to a lot of corruption leading to a lot of harassment. And there can be better models of regulation without taking away or without infringing on school owners' rights. Jayana, do you want to add something?

Ms. Jayana Bedi: No, I think Prashant has broadly covered. Just closing the loop on this question, I think, as Prashant mentions, CCS has been working closely with FICCI and Niti Aayog or has worked rather in the past to build a School Code, and our attempt has been there to build a Code, in a manner, you know, checks against the abuse of power, so it incorporates these four safeguards, and because it is a code, and it is a state's school code, it is basically a document that can be used then pretty much by any state across India. Apart from that, there are not many think tanks that work on educational governance really, so I guess one role that civil organisations can play is to talk more frequently about these issues of misuse of executive power and the burden it imposes on private schools, for some reason, the discourse in India is that private schools tend to be villainised. It is important that civil society organisations recognise the important role they play in educating the children of this country and the burdens that they, unfortunately, have to face.

Mrs. Sayantani Bagchi: Okay, going from a very important thing that Mr. Narang has highlighted, and that is the presence of economic analysis. So, I just have a question here, do you believe this kind of economic analysis is missing from the body of public policy literature currently available and if you think so, how important do you think that it is, I mean, in the current context, given, in India and further if you have faced any material limitations in conducting such research if you could further illuminate on this?

Mr. Prashant Narang: So, if you look at, let's say, Law Commission reports, you know there have been close to three hundred Law Commission reports, around two seventy-seven Law Commission reports and particularly the Law Commission reports, in let's say 50's, 60's 70's and 80's, so in the first forty-fifty years, most of those reports were based on opinions, if I may so, and it feels like we are reading some opinion editorials and so, and then gradually we see that they would refer to some literature, articles and journal papers. But they don't talk about numbers as much and economic analysis. I think very few Law Commission reports would talk about economic analysis, and you know an important function, the important role that these Commission reports play, and this is just an example, I am not kind of criticising the Law Commission or its reports, but I'm just giving an example of how the policy-making has been done in the country. And, by the way, the recent reports, especially the ones that were done in 2015 by Justice AP Shah in partnership with NLU Delhi, were some of the best Law Commission reports because they talk about how to define a particular term and then how to measure it.

Mrs. Sayantani Bagchi: Thank you so much Mr. Narang, for this wonderful explanation of the work, the fantastic work you've come up with. So, I would have this last question of mine, and that is, your collaborative effort at developing good governance indicators, in your opinion, presents a growing concern for good administrative practice in India. So, do you think that there is a need to concretise this shift towards legal polity management in the form of a standardised law maybe? Or should the development of such good governance indicators be left to the private sector?

Mr. Prashant Narang: So, I do think that to have an institution in a place that can oversee the quality or that can audit the quality of policies or laws and law commission can be one such institution. But it needs a complete overhaul.

Ms. Jayana Bedi: I agree with Prashant. There are different approaches to See. The first thing that needs to be done is- I mean the term that you've used, good governance indicators. The first thing that we need to do is come up with these indicators and understand what principles guide these indicators. Once that's done, there are 2-3 approaches different approaches that a country could adopt. So, for instance, in the United States of America, there is the Administrative Procedures Act, which codifies a lot of these safeguards. On how the executive is supposed to act, so, it's not that every law must have it, but there is a law on the administrative procedure that governs how the executive must operate, so it introduces due process checks and principles of natural Justice in that law itself. The other approach that we've been pushing for, which is- which Prashant spoke about in detail in response to another question, so I won't spend too much time there, which is the 'Quality of Laws' Toolkit that we've developed. So, the idea is that all the key principles, after you've identified them – take a checklist approach. Wherein you make them translate those principles into a checklist. And then you basically apply that checklist to every law, to see whether it meets the benchmark or not – benchmarks in terms of representation, you know? Is the law publicly accessible? Is the law made after due public consultation? Similarly, checks on legal safeguards, as Prashant mentioned, does it check against the arbitrary use of power or not. And third, would be safeguards – economic safeguards. For instance, resources safeguard and check if it imposes too much burden on the regulated entities or not. Does it impose too harsh a penalty that, in turn, would impose too much burden on the regulated entities or not? Does it align interests – does it align incentives in a manner that's – the least cost? Things like that. So basically, once you identify these principles, our Quality of Laws project actually advocates for then building a checklist and then running every law through this checklist to see how it fares. So, as Prashant mentioned, that one potential approach that we could adopt is for the Law Commission to do this check, ex-ante, for every law. Which is, I mean, an ex-ante review is non-existent in India.

Mr. Prashant Narang: Sure, that's at one level. But you know, the other thing is also when we say- when we talk about administrative law – Administrative law is very departmental level practices. And so, in that sense, then we also need to have a decentralised level of legal or regulatory hygiene in place. And, if we want to ensure that all departments and all public authorities adhere to those basic minimum levels of, you know, that regulatory hygiene and practices. So, something similar- for example, the US has APA. India might have something similar or otherwise, at least have those public service guarantee laws, you know? In place. So, I agree that India – 22 states have some sort of right-to-service guarantee laws, but those laws are rudimentary, and I would say they are failures. So, we need to get those laws right. We need to have some of those basic practices, or you know, for example – let me give you this example of – in Administrative Law, we often talk about due process and principles of natural Justice. But what is due process, and what are principles of natural Justice if there is no deadline? You know, you apply for a license, and you wait forever. You never get to hear back on your application from the government department, right? So, we also need to talk about promptness. I mean, I at least didn't study promptness in law school, you know, while studying administrative law. Legitimate Expectation is another thing, but it is taught, maybe not in as much detail. And if you look at judgements etc. I mean, requirements such as promptness are not as much emphasised, in our literature, in our body of administrative law. So, I would say, Ms. Bagchi, that NLUs should take the initiative as far as administrative law is concerned at both levels, you know? Be it at the level of Quality of Law – institutionalising that, reintegrating, overhauling law commission, but also at the level of each government department and each law. And looking at the right-to-service guarantee laws and overhauling those. And because, you know, a common man may not understand the intricacies, this is a technical field, it is very difficult to make other people – a common person understand what is – you know, what is, for example, 'proportionality' or what is 'legitimate expectation.' But law students have the academia - understands this very, very well.

So, it is, I think, high time that we connect the ground reality with these technicalities and push for reforms. And NLUs, as I said, can play a huge role in pushing for these reforms. And the first step in that direction would be to at least include some of this in the NLU curriculum. Organise maybe symposia – conferences around this. And nudge law students to apply, you know? Some of these, for example, the Quality of Laws Tool Kit for various laws. It is a practical application; law students are competent to do this. It would also give them a good idea of where our laws stand, right? And, you know, there would be a eureka moment; law students will see for themselves the quality of law in the country is disappointing. And yeah, why there is a need for reform?

Mrs. Sayantani Bagchi: Thank you so much Mr. Narang. I will definitely keep that in mind and of course, bridging this gap between how the law should be and how the laws are effectively functioning in society remains a major concern for all of us. I thank you on behalf of the Centre for sparing your time and leaving us with so many thoughts at the end of this conversation, and I'm sure the listeners have greatly benefitted from this entire exercise. So, just to conclude, I would request you to leave with certain concluding comments and also, a specific thing that I think you should definitely answer because we are looking forward to it. What has been your approach towards writing this particular paper, specifically, because thinking and contextualising and then reducing it to a written document itself is a herculean task? How did you go about doing this and what are your suggestions, and what would be your advice to our listeners?

Mr. Prashant Narang: So, you mean advice to the listeners on how to go about research and writing?

Mrs. Sayantani Bagchi: Absolutely.

Ms. Jayana Bedi: We can share a little bit about our story because you have mentioned what is it that prompted us to write. I think one, and this may be valuable for other researchers, we connect to the ground. The fact that we've been working very closely with budget private schools and private schools, in general. We were very intimately familiar with their vows and challenges and realised that partly some of this has to do with how the state is as a machinery, but there is merit in also studying whether some of this is rooted in the law itself if laws itself grant unlimited discretion and opportunities of abuse of power to the executive. So, the prompt or trigger for this was our interaction and work with stakeholders in the field, school owners in this case and also some parents, which led us to then finally look at the law and see if the cause lies there. That, plus, generally our interest in education governance and as we mentioned before in an earlier response- not many think working on education governance, really. For instance, assessment of learning outcomes, there are other institutes that look at or work with parents or directly set up smaller school-like environments to train and educate children. Very few think tanks actually work on education governance and adopt the lens that we've adopted, which is discretion analysis. It also coincided with our work on the quality of the law's tool kit, which we again thought that many people have not been thinking about. And so, the two coincided and which is why we thought, why not use this toolkit, this framework that we have developed for laws, in general to state school education laws, that are of special interest to us? Anything else you want to add, Prashant?

Mr. Prashant Narang: I think for law students, I understand that they, at times, may not be able to, let's say, talk to school owners, but just looking around and observing the ground realities and then questioning what they see and going beyond the obvious, to find out how it connects to the law, or if the phenomena they observe grooms in the public policy or in the law and then, connecting the two. We can come up with interesting topics. As far as research and writing are concerned, it's basically about choosing the right methodologies, as I spoke earlier and then putting them in writing. One thing I would like to add and emphasise is that if they can make their writing simpler and easier to understand if the writing can be accessible to people who may not be familiar with technicalities of law, there is a way to make it simpler and accessible to even other people, that would be great service because your research and thought may reach to many more people if it is simpler to read. Although we sometimes think that complexity makes it more valuable, that's not true. Simplicity makes research more valuable and accessible.

Ms. Jayana Bedi: Just a small addition to that, something that Prashant only has prompted. Sometimes it helps to look at the same hypothesis or research question through different methodological approaches. So, that has worked in the past for us. For instance, even while responding to your questions, we had some insights from the law but others, from our interactions with budget private school owners, through our surveys or some economic or quantitative analysis on state school education laws. Sometimes, looking at the same research question through different methodological approaches can be useful.

Mrs. Sayantani Bagchi: Again, I would like to extend my heartful gratitude to Mr. Narang and Ms. Bedi for this fantastic session because, specifically, I believe that simplifying a certain complex set of ideas and, of course, writing a paper or thinking about something and reducing it to an understandable piece of literature, itself is pretty challenging and you have given us best of the insights. We've learnt a lot from this entire session, and once again, thank you so much for the entire session. It was amazing.

Special thanks to:

Sourabh Manhar for the introduction.

Akshay Tiwari, Himanshi Yadav, Rachana Rammohan, Tasneem for research and transcribing