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Tribunals function as a parallel mechanism to the traditional court system. Tribunals were established for two main reasons - allowing for specialised subject knowledge in disputes on technical matters and reducing the burden on the court system. In India, some tribunals are at the level of subordinate courts with appeals lying with the High Court, while some others are at the level of High Courts with appeals lying with the Supreme Court. In 1986, the Supreme Court ruled that Parliament may create an alternative to High Courts provided that they have the same efficacy as the High Courts. For an overview of the tribunal system in India, see our note here.
In April 2021, the central government promulgated an Ordinance, which specified provisions related to the composition of the search-cum-selection committees for the selection of members of 15 Tribunals, and the term of office for members. Further, it empowered the central government to notify qualifications and other terms and conditions of service (such as salaries) for the Chairperson and members of these tribunals. In July 2021, the Supreme Court struck down certain provisions of the Ordinance (such as the provision specifying a four-year term for members) stating that these impinged on the independence of the judiciary from the government. In several earlier judgements, the Supreme Court has laid out guidelines for the composition of Tribunals and service conditions to ensure that these Tribunals have the same level of independence from the Executive as the High Courts they replace.
However, Parliament passed the Tribunals Reforms Bill, 2021 in August 2021, which is almost identical to the April Ordinance and includes the provisions which had been struck down. This Act has been challenged in the Supreme Court. For a PRS analysis of the Bill, please see here.
On 16th September 2021, the central government notified The Tribunal (Conditions of Service) Rules, 2021 under the Tribunals Reforms Act, 2021. A couple of the provisions under these Rules may contravene principles laid out by the Supreme Court:
Appointment of the Administrative Member of the Central Administrative Tribunal as the Chairman
In case of the Central Administrative Tribunal (CAT), the Rules specify that a person with at least three years of experience as the Judicial Member or Administrative Member may be appointed as the Chairman. This may violate the principles laid down by the past Supreme Court judgements.
The CAT supplants High Courts. In 1986, the Supreme Court stated that if an administrative tribunal supplants the High Courts, the office of the Chairman of the tribunal should be equated with that of the Chief Justice of the High Court. Therefore, the Chairman of the tribunal must be a current or former High Court Judge. Further, in 2019, the Supreme Court stated – “the knowledge, training, and experience of members or presiding officers of a tribunal must mirror, as far as possible, that of the Court it seeks to substitute”.
The Administrative Member of the CAT may be a person who has been an Additional Secretary to the central government or a central government officer with pay at least that of the Additional Secretary. Hence, the Administrative Member may not have the required judicial experience for appointment as the Chairman of CAT.
Leave Sanctioning Authority
The Rules specify that the central government will be the leave sanctioning authority for the Chairperson of tribunals, and Members (in case of absence of the Chairperson). In 2014, the Supreme Court specified that the central government (Executive) should not have any administrative involvement with the members of the tribunal as it may influence the independence and fairness of the tribunal members. In addition, it had observed that the Executive may be a litigant party and its involvement in administrative matters of tribunals may influence the fairness of the adjudication process. In judgements in 1997 and 2014, the Supreme Court recommended that the administration of all Tribunals should be under a nodal ministry such as the Law Ministry, and not the respective administrative ministry. In 2020, it recommended setting up of a National Tribunals Commission to supervise appointments and administration of Tribunals. The Rules are not in consonance with these recommendations.
In India, children in the age group of 6-14 years have the right to free and compulsory elementary education in a neighbourhood school under the Right of Children to Free and Compulsory Education (RTE) Act, 2009. This covers primary (classes 1-5) and upper primary (classes 6-8) levels, which collectively constitute elementary education.
Amongst several provisions focused on elementary education, the Act provides for the No Detention Policy. Under this, no child will be detained till the completion of elementary education in class 8. The RTE (Second Amendment) Bill, 2017, introduced recently, revisits the No Detention Policy. In light of this, we discuss the No Detention Policy and issues affecting the implementation of RTE.
What is the No Detention Policy?
The rationale for the No Detention Policy or automatic promotion to the next class is minimising dropouts, making learning joyful, and removing the fear of failure in exams.[1] The evaluation mechanism under the Policy is the Continuous and Comprehensive Evaluation (CCE) for holistic assessments (e.g., paper-pencil test, drawing and reading pictures, and expressing orally) as opposed to the traditional system of examinations. CCE does not mean no evaluation, but it means an evaluation of a different kind from the traditional system of examinations.
What does the RTE (Second Amendment) Bill, 2017 propose to do?
The Bill proposes a ‘regular examination’ which will be held in class 5 and class 8 at the end of every academic year.[2] In the event that a child fails these examinations, he will be given remedial instruction and the opportunity for a re-examination.
If he fails in the re-examination, the central or state governments may choose: (i) to not detain the child at all, or (ii) to detain the child in class 5, class 8, or in both classes. This is in contrast to the current Policy where a child cannot be detained until the completion of class 8.
Conversation around the No Detention Policy
Following the implementation of the No Detention Policy, experts have recommended rolling it back partially or fully. The reasons for this reconsideration include: (i) the lack of preparedness of the education system to support the Policy, (ii) automatic promotion disincentivising children from working hard, (iii) low accountability of teachers, (iv) low learning outcomes, and (iii) the lack of proper implementation of CCE and its integration with teacher training.1,[3],[4]
In 2015, all the states were asked to share their views on the No Detention Policy. Most of the states suggested modifications to the Policy in its current form.
What do the numbers say?
Consequent to the enactment of RTE, enrolment has been 100% at the primary level (see Figure 1). While enrolment has been universal (100%) at the primary level, low transition of students from one class to another at progressively higher levels has been noted. This has resulted in high dropouts at the secondary education level, with the highest dropout rate being 17% at the class 10 level (see Figure 2).
Figure 1: Enrolment in elementary education (2005-2014)
One of the reasons for low dropouts at the elementary level may be the obligation to automatically promote and not detain children under the No Detention Policy. However, there is no such obligation on the government to provide for the same post class 9 i.e., in secondary education. The reasons which explain the rise in dropouts at the secondary level include domestic activities for girls and economic activities for boys, reasons common to both include financial constraints and lack of interest in education.[5]
Figure 2: Dropout rates in school education (2014-15)
How does RTE ensure quality education?
Based on the high enrolment and low dropout rates in elementary education, it can be inferred that children are being retained in schools for longer. However, there have been some adverse observations regarding the learning outcomes of such children. For example, the Economic Survey 2015-16 pointed out that only about 42% of students in class 5 (in government schools) are able to read a class 2 text. This number has in fact declined from 57% in 2007.[6] The National Achievement Survey (2015) for class 5 has also revealed that performance of students, on an average, had gone down from the previous round of the survey conducted in 2014.[7]
Key reasons attributed to low learning levels are with regard to teacher training and high vacancies.7,[8],[9] Against a total of 19 lakh teacher positions sanctioned under Sarva Shiksha Abhiyan in 2011-12, only 12 lakh were filled. Further, approximately 4.5 lakh untrained teachers were operating in 19 states. Teacher training institutes such as District Institutes of Education and Training are also experiencing high vacancies with regard to trainers who train teachers.[10]
It has also been noted that the presence of contract/temporary teachers, instead of permanent teachers, contributes to the deterioration of quality of education. In fact, experts have recommended that to ensure quality secondary education, the reliance on contract/temporary teachers must be done away with. Instead, fully qualified teachers with salary and benefits must be hired.[11] It has also been recommended that teachers should not be burdened with ancillary tasks of supervising cooking and serving of mid-day meals.10
The RTE Act, 2009 sought to ensure that teachers acquire minimum qualifications for their appointment, within five years of its enactment (i.e. till March 31, 2015). Earlier this year, another Bill was introduced in Parliament to amend this provision under the Act. The Bill seeks to extend this deadline until 2019.
In sum, currently there are two Bills seeking to amend the RTE Act, which are pending in Parliament. It remains to be seen, how they impact the implementation of the Act going forward.
[1] “Report of CABE Sub Committee on Assessment on implementation of CCE and no detention provision”, 2015, Ministry of Human Resource Development, http://mhrd.gov.in/sites/upload_files/mhrd/files/document-reports/AssmntCCE.pdf
[2] The RTE (Second Amendment) Bill, 2017.
[3] Change in No-Detention Policy, Ministry of Human Resource Development, March 9, 2017, Press Information Bureau.
[4] Unstarred question no. 1789, Ministry of Human Resource Development, Rajya Sabha, December 1, 2016.
[5] “Key Indicators of Social Consumption in India: Education”, NSS 71st Round, 2014, http://mail.mospi.gov.in/index.php/catalog/160/related_materials
[6] Economic Survey 2015-16, Ministry of Finance, http://indiabudget.nic.in/budget2016-2017/es2014-15/echapter-vol2.pdf
[7] National Achievement Survey, Class V (Cycle 3) Subject Wise Reports, 2014, http://www.ncert.nic.in/departments/nie/esd/pdf/NationalReport_subjectwise.pdf
[8] “253rd Report: Demands for Grants 2013-14, Demand No. 57”, Department of School Education and Literacy, Standing Committee on Human Resource Development, April 26, 2013, http://164.100.47.5/newcommittee/reports/EnglishCommittees/Committee%20on%20HRD/253.pdf
[9] “285th Report: Action Taken Report on 250th Report on Demands for Grants 2016-17”, Department of School Education and Literacy, Standing Committee on Human Resource Development, December 16, 2016, http://164.100.47.5/newcommittee/reports/EnglishCommittees/Committee%20on%20HRD/285.pdf
[10] “283rd Report: The Implementation of Sarva Shiksha Abhiyan and Mid-Day-Meal Scheme’, Department of School Education and Literacy, Standing Committee on Human Resource Development, December 15, 2016, http://164.100.47.5/newcommittee/reports/EnglishCommittees/Committee%20on%20HRD/283.pdf
[11] “Report of the CABE Committee on Girls’ education and common school system”, Ministry of Human Resource Development, 2005, http://mhrd.gov.in/sites/upload_files/mhrd/files/document-reports/Girls%20Education.pdf
