Photo: Sneha Srivastava/Mint
Photo: Sneha Srivastava/Mint

The malaise of post-facto design

The RTE law is a beauteous example of a law that evolved after its promulgation and continues to do so even today

Policy and lawmaking is about state, about sustainability, about social engineering and certainly about stakeholder negotiations. In India, it is also about—see what happens.

This is not a bad thing in itself. A process that listens and adapts according to representations made by the people cannot be wrong, but to adjust and patch through changes on the go is quite an adventure.

Often the see-what-happens school of policymaking sees it evolve live after it has been enacted. Dependence upon this school is an adequate explanation for the half-baked nature of many decisions. This includes a range, from the bus rapid transit (BRT) traffic corridors to the Right to Education (RTE) Act when it was first announced.

The RTE law is a beauteous example of a law that evolved after its promulgation and continues to do so even today. The law has, predictably, not done well on contact with reality and its first reform is quite overdue.

Much is due to a system that is trained in post-facto design and iteration, aka adjust. Witness the annual budgeting exercise for the nation. Admittedly it had much more significance in the licence raj, but even today the industry lobbies thrum with activity in January and February as they pitch for lower taxes or other concessions in the budgets.

It is when the budget is revealed to the supplicants and Parliament that the real adjustments and negotiations start. The rates and concessions change according to the ability of the lobbies to persuade the finance ministry of the merits of their argument. Each year we see this, each year the system trains itself in post-facto policy design. If we watch carefully, the design aspect is precisely what is abandoned at the altar of negotiation.

Take the education law as an example. The Act blithely carved out a quarter of the capacity of private aided non-minority schools and arrogated it to the state with no mention at that stage of either funding or process.

By all accounts, the discussions that preceded the drafting of the law were fiery and extended—hopefully to craft a well-tested document that would abide. Then how did it forget to provide for its own processes? How did it forget to identify its own resources, even at a strategic level? How did it forget to notice that the Act, which was meant to universalize education, would not even apply to minority schools? Why were these gaps left in the Act? Was it designed to fail? It certainly funded itself so.

The gaps could have been reduced with effective consultations and process. Surely there must have been a process of consultation while the law was being drafted, even if nominal. The fault is not only on one side; often open consultations have not received adequate responses with protests and pushback coming in only after the policy has been announced. Rarely have consultations been taken seriously till the draft is actionable. It is as if the stakeholders do not believe in the government’s intent till the force of law is behind it.

As with the budgets, the actual negotiation and consultation for the RTE Act took place after the law was passed. Schools that were in danger of being shut down were able to negotiate with the state rule-makers to adjust regulations according to local needs. Indeed, only when it was fully implemented three years later, did the action really begin. Schools often did not even know how much they would be reimbursed in lieu of a quarter of their revenues lost as the centre and the states had not decided between them who would pay and how much.

Much negotiation later, states began to announce the amounts that would be paid, and it took even longer for payment mechanisms to be identified. This could very well have been done before the law was passed, but of course the conversation at that stage was about expertise and access to committee, not about the schools and students it impacted.

The gaps in the Act were all too obvious, but the real discussions on these started only after the Act became ‘real’.

The consequences of such interactive and iterative policy design are severe. They end up with decisions that are patchy, often ridiculous, and contradictory. Witness both the BRT fiasco and the RTE Act. Policies must ring true both for the general case and individual needs—and unless the policy has been through deep-dive exercises in scenario testing, pilot schemes and stakeholder consultation, it is clearly not ready to be unleashed upon people.

Lawmaking and policymaking must have a process that allows them to align. See-what-happens-then-adjust post-facto patchwork can only cause chaos along the way.

One goes aback to the RTE Act as an illustration. Years into its ostensible implementation, now they (Karnataka leads) figure out that private school fees do not include books, uniforms, stationery and project incidentals.

The schools have been ordered to pay, pushing up their costs. Often the state government compensation does not even match their cost per student and this is cross-subsidised by a raise in fees for other students.

This cost-dump comes at a time when private schools and parents are already in a tussle over fee rises. Indian parents pay a significant portion of their incomes towards education, to burden them further and cross-subsidize another child is to put unconscionable pressure on them. They pay their taxes, they say—why should the thoughtlessness of the RTE makers force them to pay more fees to their school?

The RTE is not a bad Act; it has many merits. Yet, it stands testament to a wider malaise, a heavy reliance on post-enactment adjustment, which can neither be fair nor successful. Such callousness towards planning and design marks decisions out for mockery at best and failure at worst.

Meeta Sengupta is a writer, speaker and advisor on education and policy. She dabbles in social media and has been known to lend her voice to leading conversations on successful narratives for individuals and brands.

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