It is estimated 142 million Indian children are denied access to primary and secondary education due to inadequate schools or social and family conditions. That number is bigger than the entire population of Japan. If 'out of school' Indian children had a country of their own, it would be among the 10 most populated in the world.

These children are tomorrow's workers part of India's 'demographic dividend' for the early 21st century. Yet, if they are left uneducated (or undereducated), India will not achieve many of the social and economic goals it has set itself. As such, getting them into the classroom has to be a national priority.

In theory, the Right of Children to Free and Compulsory Education Act known more conveniently as the Right to Education or RTE Act seeks to achieve this. Its aspiration is noble, but progress since the law came into effect on April 1, 2010, has been decidedly slow and confusing. It has recommended that 25 per cent of all seats in every school be set aside for free education to children from economically and socially weaker sections.

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Astonishingly, almost the entire RTE-related debate has been confined to how to enforce the 25 per cent quota in private schools. That aside, the education bureaucracies in the state governments are using the excuse of RTE to introduce clauses that have nothing to do with providing access to 'out of school' children but are simply control mechanisms meant to constrict the autonomy of private schools.

For instance, the director of education, government of Delhi, already has wide-ranging powers under the Delhi School Education Act, 1973. The RTE draft rules harden the director's authority still more and give him unrestrained miscellaneous powers. The draft rules in Karnataka allow the state government to "fix the scale of fee...that can be collected by a private unaided institution". Since poor students admitted under the RTE Act won't be paying fees at all, why is this sentence needed?

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Further, there is the question of what happens to a child admitted to a private school under an RTE free-ship when he turns 15 or enters class IX. At this point, the subsidy offered by the state government to the school will cease. The school will be free to tell the pupil to pay full fees or leave. This will be legally correct but morally abominable. It will drive home India's essential inequality and non-egalitarianism to a young teenaged person and leave him to raw social conditions while three-fourths of the class moves up to the next opportunity. Neither the RTE law nor state-specific rules have any answer to this almighty conundrum.

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The tragedy is even if all private schools in India became optimally RTE-compliant, it will not mean much. Across the country, 93 per cent of school-going children go to government or government-aided institutions.

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If the RTE mission is to succeed, this is where the focus must lie: on augmenting the public school system. If all of those 142 million children currently out of school enrol for admission, India simply doesn't have the school buildings, the classrooms, the trained teachers and as one principal said only half-facetiously the sticks of chalk to cope. A massive supply-side problem is not being seriously addressed. Instead bureaucrats are manufacturing phantoms and pushing private schools, RTE activists and state governments towards inevitable litigation. In the process, one of the UPA government's flagship social sector initiatives is being derailed.