To Sri A.Mariyappa Secretary Karnataka Unaided Schools Managements Association A Registered Society No.9, Vani Vilas Road V.V.

Puram, Bangalore 560 004 Sub: Response to certain queries concerning registration under the RTE Act, 2009 Dear Sir You have raised certain queries in regard to compliance under the Right of Children To Free And Compulsory Education Act, 2009 (RTE Act for short). Further, in view of your desire to circulate this response amongst the members of KUSMA, you have also requested that this response should dispense with statement of the relevant provision of law and instead be expressed in plain and simple language. Accordingly, my response to your broader query is broken down into the following Q and A format: 1. Q: Should unaided private non-minority schools comply with the RTE Act? A: Yes. 2. Q: What is the consequence of non-compliance by a school to which the RTE Act is applicable? A: The answer depends on the extent of non-compliance. The most severe form of punishment consists in shutting down the very school itself. 3. Q: Schools are already registered under the Karnataka Education Act, 1983. Also, many schools are unrecognized or recognised once in say, 5 or 10 years. Why then should schools register or get separate recognition under the RTE Act? A: The Karnataka Education Act, 1983 under which KUSMA members schools are first registered and thereafter recognised is a law that is distinct and separate from the RTE Act, 2009. As such, recognition under the RTE Act is to be separately obtained. 4. Q: But we do not understand the need for two separate recognitions. A: The Karnataka Education Act, 1983 imposes its own set of requirements. When those requirements are met, the school concerned is duly recognised. The RTE Act imposes a completely different set of requirements upon a school to which it applies. For

instance, take the 25% reservation for the poor and the socially and economically backward class of people. Whether a school has provided such reservation and whether it has ensured that children admitted into the said reservation are not discriminated are issues that are specific to RTE Act. As such, separate recognition is required to be taken under the RTE Act. 5. Q: Is it not a conflict of law?

A: There is of course, some conflict between the Karnataka Education Act, 1983 and the RTE Act. But, even if all that conflict is somehow resolved, the two laws would still speak very different languages and impose very different requirements. As such, compliance with one law does not mean compliance also with the other law. 6. Q: The Government of Karnataka is asking for online registration. Is it legal? A: There is nothing illegal if the Government insists on an online registration instead of the traditional paper registration. 7. Q: The Government is asking too much information and in many cases, school managements are reluctant to part with such information? A: Well, several laws in force have progressively reduced the extent of privacy enjoyed by private schools. After the operation of the RTE Act, such privacy has drastically come down. As such, schools to which the RTE Act applies are required to part with all such information that would enable the Government to assess whether the provisions of the RTE Act have been complied with. 8. Q: So, schools should register online in respect of the RTE Act? A: Yes. 9. Q: Why cannot schools protest on one or more grounds such as non payment of proper compensation or vague rules and so on? A: Schools are fully free to take up whatever issues they have with the Government and completion of registration does not mean that schools cannot take up any issue with the Government. As such, schools are free to take up whatever issues they have even after registration. 10. Q: The Government has imposed a deadline of 31-Oct-2012 before which the registration is supposed to be completed. Is such a deadline valid?

A: The answer depends on whether the Government gave reasonable notice of this deadline. It appears to me that the Government has frequently extended the deadline and, cumulatively, not less than 2 months of opportunity has been granted. As such, a deadline is generally valid and under these circumstances, the deadline of 31-Oct-2012 appears to be reasonable. 11. Q: The Government says that schools should now obtain recognition for past periods. And that, without such recognition, there can be no question of registration under the RTE Act. Is this threat valid? A: No. The Government should be informed that its recognition requirements under the Karnataka Education Act, 1983 are extremely confusing and in many cases, not uniformly enforced. As such, there have been instances where the Government had informed some schools that they need not renew their recognition for every year and that a periodic recognition say, once in 5 years or so would suffice. To such schools, the Government cannot turn around and now direct to obtain recognition even for past periods. As such, schools should bring to the notice of the Government, the fact that it was the Governments own decision that the school concerned should not renew its recognition for every year. 12. Q: There is the requirement of bank account having to be opened in some name and in a certain manner only. Is this requirement valid? A: It simply depends on what is the real purpose of such a requirement. If the purpose is to ensure that the Government is made fully aware of the actual application of funds disbursed by the Government, then such a requirement would be reasonable. 13. Q: The extent of information being sought by the Government is so vast and we cannot part with certain information at all. What do we do in such a situation? A: If the information concerns the accounts of the school, there is absolutely zero privacy in regard to it. Each and every rupee that is collected by a school is to be transparently applied only for permitted and legitimate purposes only. As such, information in regard to the actual utilisation of funds could have been sought even under the Karnataka Education Act, 1983. To illustrate, say 1 lakh rupees is collected by a school from students in a given year and of this, Rs.20000 is spent by the Chairman for buying gifts for his family members. Such an expense is absolutely deemed to be illegal and the Government would be justified in questioning the Chairman and is wholly justified in directing him

to return that money into the school fund. There should be no doubt about the illegality of such an expense. The test of each and every expense or expenditure in a school is this is the expense incurred solely for the benefit of the school and its students? If the expenditure is in the nature of a personal expenditure of those who manage the institution, then such expenditure is squarely illegal and the Government is fully authorised in questioning and directing those responsible for such expenditure to return the monies back to the school. Please note that, in accounting parlance, a school is a distinct person from those who run or manage it. That is, a school is deemed to possess a legal life of its own. As such, all accounting entries of a school are made by assuming a life to the school and all such entries should revolve around the school and not around persons who manage the school. 14. Q: Should a school not register before the deadline and suffer derecognition, cannot it approach a Court? A: No, unless there is a good reason for a school to not register at all. The reasons that I have heard so far are not good enough reasons to not register. As such, an intentional and deliberate failure to register could be extremely problematic for the school concerned. If such a school were to be derecognized, it may not have valid grounds to tell a Court of law that the Government should not have derecognized it at all. 15. Q: There is a proposal to mass refuse registration. Will such mass refusal help schools in any manner? A: Absolutely not. Even if there should be a mass refusal and most schools do not register, the Government could very well act against the erring schools and should it derecognize an errant school, that errant school would have no valid recourse available to it. That is why, schools should desist from staging a massrefusal to register. It will not serve any purpose because the RTE Act
is required to be implemented from this very academic year. The State Government itself is helpless in saying no to the RTE Acts implementation.

16. Q: But, earlier schools had shut down in protest. Was that not illegal? A: First of all, schools did not close down for the period they had announced in the very initial days of this academic year. It was aborted. As to the justification for such closure, I think that the situation then was of a very unique and extraordinary nature and a planned closure as an act of forcing upon the Government to do certain things in connection with the implementation of the RTE Act was fully justified

simply because of the special circumstances that were prevalent then. After all, that closure was to ensure that the Government implements the RTE Act only by eliminating certain extremely vexing issues that could have troubled the schools in the coming months. The planned closure was not to prevent enforcement of the RTE Act. Rather, it was to force the Government to enforce the RTE Act only subject to certain safeguards. As such, the closure that was announced by KUSMA then was fully justified and the circumstances today have nothing in common with whatever was prevalent then. Further, a Public Interest Petition (Writ Petition No.24348 of 2012) was even filed at the High Court of Karnataka by a person demanding punishment for the management of KUSMA for having called for the strike. I had represented KUSMA in the said case. After hearing our arguments, the High Court was pleased to dismiss the case on 11-Oct12. 17. Q: Schools have the practice of making their admissions by adopting their own calendar. The new requirement says that schools will have to admit only subject to the Governments calendar. Is this change valid? A: Yes. As the RTE Act does away with interview of the child or parents screening, schools cannot even interview a child or its parents under the 75% management intake. You should note that massive financial penalties are prescribed for violation of this rule. It is the intention of the Parliament that private schools to which the RTE Act applies should admit their children under the 75% management reservation only by blind-fold or random procedures. That is, if you have 50 seats but receive 500 applications for Class I, how are you going to choose from the 500? The RTE Act says that you will have to make a random selection or blind-folded selection only. As such, if the Government were to say that you cannot admit students until a certain month, that regulation would be reasonable in view of the fact that your admissions are at any rate blind-folded only. Therefore, if schools have been asked not to admit any student for the next academic year until the next January, such schools should abide by the regulation. Violation may invite penalties as well refusal by the Government to permit you to admit children selected in the violative admission. 18. Q: There has been a talk that a few schools have approached the Supreme Court again on the ground that the RTE Act violates Article 15 of the Constitution. Is this not a good ground to refuse compliance with the RTE Act? A: No. Compliance with the RTE Act is required so long as the judgment of the Supreme Court delivered in April this year in Writ Petition No.95 of 2010 is not stayed. As such, without a real and actual stay from the Supreme Court itself in regard to its judgment on the RTE Act, schools should not refuse to comply with the RTE Act.

19. Q: A few schools are keen to join the aforesaid case in the Supreme Court. Will schools which join in the said new petition be able to refuse compliance with the RTE Act? A: No. A challenge to the constitutionality of any law generally does not involve facts specific to the petitioners. As such, it would be simply irrelevant whether a school is part of the new case at the Supreme Court so long as there is no stay by the Supreme Court itself upon its own RTE judgment. Should there arise any stay, it also matters nothing whether your school was before the Supreme Court as any such Order would have application to all similarly placed schools. 20. Q: I am a minority school but the Government is asking me to register. Is it valid? A: Well, if you say you are a minority school, you should be in a position to satisfy the Government that you are indeed a minority school. As such, it is not enough that you declare yourself as a minority school. You should do so to the satisfaction of the Government. If the Government does not accept your minority status, you will have to move a Court of law and seek a direction to the Government to accept your minority status provided your minority argument is acceptable according to the rules in force. As such, unless the Government accepts your minority status on its own or because of a specific Court Order, you will have to register under the RTE Act. You cannot remain outside the registration merely by assuming that the RTE Act would not apply to you. It is true that the RTE Act has been declared by the Supreme Court to be inapplicable to unaided minority schools. But then, whether your school is indeed an unaided minority school is a mixed question of fact and law. As such, the burden is squarely on you to prove your minority status to the satisfaction of the Government. However, the Government cannot arbitrarily decide upon your minority status. Its published guideline alone is relevant and if you meet its published criteria, the Government should have no further discretion to refuse minority status to your school. 21. Q: I have put up a board outside my school saying that I will not collect any money from the Government although I will be taking children under the 25% quota. Can I do so and prevent the Government from seeing my books? A: Absolutely not. The RTE Act says that certain schools are to be compensated in a certain manner. Even if a school were to say that it does not wish to be compensated at all, it cannot avoid its obligation under the RTE Act. Sincerely

K.V.DHANANJAY

Advocate