This Article is written by Madhvi student of UILS, Panjab University. CHANDIGARH.
With the beginning of Covid-19 pandemic in the country, the Central Government, Ministry of Home Affairs in exercise of powers secured down prohibitory orders, popularly known as the lockdown orders in the whole country. The orders included the schools to be closed. The government decided to reopen in March 2021. For almost 1 full academic year schools had to impart the education online.
After the lockdown was imposed, 3 subjects that were affected are the parents who suffered sudden blitz of the pandemic, then comes the teachers employed in the educating institution and thirdly the private unaided schools which do not take any assistance from state functionaries.
Several State Governments allowed relaxation in fees. Despite these orders the parents were getting fee notification. This persuaded parents from Rajasthan, Orissa, Punjab, Gujarat, Haryana, Uttarakhand, Delhi and Maharashtra to move to the Supreme Court for deferment of fees until the lockdown. The Apex Court declined the plea stating this matter is to be dealt with the respective High Courts as each state has different issues.
The decision of the government to collect the school fees was just impulsive. In response the management of private schools challenged these orders before the High Courts.
STUDENTS’ RIGHT TO EDUCATION VIS–A-VIS SCHOOLS’ RIGHT TO COLLECT FEES: FINDING EQUILIBRIUM
At this moment, it is relevant to ponder the contradictory yet equally intertwined interests of students and school managements in order to ensure balance. More than ever at a time like this, it is vital to find a middle view between students having to pay excessive fees and school administrations being able to function efficiently without disturbing payments to staff and maintenance of premises throughout the lockdown. While schools continue to acquire costs in the form of staff salaries, etc even as they remain actually shut, there is also a significant expense incurred by parents. This includes ensuring their kids have the necessary electronic devices and internet connections to allow them to attend classes. There is a familiar plea in the petitions filed by most petitioners before the Courts: that schools should not charge fees for the facilities that are not being used during lockdown by students.
CONCEPTUAL INTRODUCTION TO RIGHT TO EDUCATION
Education is not a privilege but a Human Right. Education is provided by the public and private sector in India. Elementary education is made compulsory by the government. The education of children aging from 6 to 14 years old has been made compulsory under the Right of Children to Free and Compulsory Education (RTE) Act, 2009. This legislation enacted by the parliament describes the importance of education. It is enshrined under Article 21-A as a Fundamental Right in the Constitution of India and was inserted by The Constitution (Eighty-sixth Amendment) Act, 2002 . The Act also requires the private schools to reserve 25% of the seats to children.
The issue has surfaced this time due to fee hike and the strict rules that school administration were following. It is not only about the rights of underprivileged students here but at this point of time it’s for every single child receiving education from the private unaided institution. Whether the schools are right while exercising their power to expel any student for arrears in payment of fee ?
WHETHER OR NOT SCHOOL’S ARE WELL WITHIN THEIR RIGHT TO COLLECT FEES ?
The orders were nothing more than unjustified interference into the assured fundamental right of the private unaided school under Article 19 (1)(g) of the constitution by the State . The Supreme Courts has provided the precedents in relation to the administration of private schools following long lines of judgement.
The Supreme Court in the judgment of T.M.A. Pai Foundation v. State of Karnataka, have held that a private unaided school has much larger autonomy about their administration, management, fixation and realizing fees from students studying in their institutions. The only instance where the State can interfere is when there is undue profiteering or charging of capitation fee by the school management.
The Supreme Court in Modern School v. Union of India, qualified under Article 19(1)(g) the running of private unaided schools as fundamental right. It held that the interference by the State in school level education has to be minimal. The discretion of management is free and it has leeway to decide how to run its institution. The exception where states can meddle has to be against commercialization only.
Recently, the Delhi High Court in Ramjas School v. Directorate of Education, held “Delhi School Education Act, 1973 cannot be used for governing the fee structure of the private unaided schools by State Governments while exercising their statutory powers. The Court held, on contrary the Act aims at curbing the profiteering or commercialization of education. Court in a way said, the fees of private institution cannot be fixed or regulated by statutory authority under statute, until it is disproportionate to the expenditures, future investments as well as reasonable profits”, while relying upon the judgments of Modern School and T.M.A Pai Foundation.
In the light of the above judgment it could be said that the executive orders by the Government violate the fundamental right of schools to function smoothly. The schools have absolute power to deal in matters relating to management of fees, operation and running of private unaided institutions. It is well within the right of the school to determine and collect the fees.
A bunch of matters occurring from the State of Rajasthan dealt with a similar issue of the right of an unaided private school to collect fees from students. The Supreme Court in Gandhi Sewa Sadan Rajsmand v. State of Rajasthan passed a series of directions, where it permitted the private schools to collect the fee in the installments. Also, the management of schools have been restrained from disbarring any students from attending school for non-payment of the fees or outstanding amount.
Indian School, Jodhpur & Another vs State of Rajasthan & Ors.
Ever since the lockdown started there has been continuous discussion regarding fees hike in private unaided schools also, the salary reduction and unemployment was massive during this pandemic. It affected both the school as well as parents. The Supreme Court finally issued directions where all the questions like, Whether Rajasthan Schools (Regulation of Fee) Act, 2016 is ultra vires ? Whether the order passed by the State authorities for reducing the school fees for private unaided schools is a valid order? Whether schools can charge the students for the unused facilities, was answered by the Supreme Court in this case again.
Though this judgment was basically for schools of Rajasthan but it was kind of aid to schools throughout the country as the issues involved were more or less similar.
While rejecting the challenge to the vires of 2016 Act, the Apex Court held that “It is well settled that the State Government cannot go against the provisions of the Constitution or any law”. The determination of whether increment or reduction is the special privilege of management of the private unaided school. The State can regulate to the extent that it does not result in profiteering. The State cannot issue directions for economic matters between private parties to which the state has no direct or causal connection in the guise of management of pandemic.
The Court was of the opinion that classes were held online hence, schools must have saved a scrupulous amount on operating expenses and directed the schools to collect reduced fees by 15% in six equal installments. The Court had cited the precedents like TMA Pai, PA Inamdar,etc where it was held that the fee charged by educational institutions must be proportional to the services offered.
They further stated, It is the duty of the administration to reschedule school fee payments so as no student is overlooked or declined the opportunity to practice his or her education and allowed private schools in Rajasthan to collect 85% of the fees for 2020-21. The 15% deduction was granted in view of the unused facilities by students in 2020-21.
The Court had also ordered that no student should be expelled from attending classes thanks to non-payment of fees, arrears/outstanding fees, or installments, which no student’s exam results be withheld thereon basis.
ANALYSIS OF EXECUTIVE ORDER
The executive orders issued by the State Government were not directly affecting the fundamental rights. The Supreme Court in State of M.P. v. Bharat Singh , every action done by the Government or by its officers must, if it is to operate to the prejudice of any person, must be supported by some legislative authority.
The Court thus held that when “executive instructions” issued in the form of an order by the State are considered invalid in absence of any competent legislation supporting it. Simply because the State has power to issue executive orders to legislate subject matter does not mean it can interfere with the fundamental right of others.
In view of the fact that the regulation of fees during the pandemic was done by all the States perpetually through the “executive instructions” issued in use of the powers under Article 162 of the Constitution of India, they are devoid of any legal sanctity and are unconstitutional.
Before the Supreme Court’s order, in different States the schools and parents did agree to middle ground. The schools agreed to extend time periods or installments upon the High court’s order in respective states. The waiver of fees as decided by schools.
The Supreme Court while putting forth its view clearly upheld the right of private unaided schools to charge the fair amount of fee from parents and also, asking the administration to provide relaxation to the parties affected during pandemic. The State acting under political pressure acted poorly, issuing orders creating chaos among the schools and parents. Keeping in mind the education of children, the Court issued guidelines not to disbar children on account of non payment of fees .
Another point while studying the balance between schools’ right to collect fees and students’ right to education is that the orders issued were vague as the students belong to different economic classes and treating them equally would become discriminatory under Article 14. The capacity of spending money is different for everybody. The classification had no place for it in these executive orders.
From this viewpoint, the school’s right to collect fees cannot surpass the right to education. Education is a prominent subject matter, it has to be balanced. Schools can exercise the relaxations depending upon the annual income or expenses of exceptional students or students in need. Basically the government needs to come up with better policies not only in private aided or non aided but in government owned schools too. It is well known that India in literacy stands at a lower stage when compared in world, there need to impart education at different age groups.
1. T.M.A. Pai Foundation v. State of Karanataka (2002) 8 SCC 481.
2. Modern School v. Union of India, (2004) 5 SCC 583.
3. Ramjas School v. Directorate of Education, W.P. (C) 9688 of 2018, order dated 14-3-2019.
4. Supra note 1, (2004) 5 SCC 583.
5. Supra note 2, (2002) 8 SCC 481.
6. Gandhi Sewa Sadan Rajsmand v. State of Rajasthan 2021 SCC OnLine SC 70.
7. Indian School, Jodhpur & Another Vs State of Rajasthan & Ors [( Civil Appeal No. 1724 of 2021 , SC) (3rd May 2021)]
8. State of M.P. v. Bharat Singh , AIR 1967 SC 1170.
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