Breakthrough In Online Education Mayhem
Advocate Himanjali Gautam,
Supreme Court of India.
This article comprises a critical analysis of the facts presented, arguments raised and case laws cited, in the landmark case of Indian School, Jodhpur & Another. v. State of Rajasthan & Others (Civil Appeal No. 1724 of 2021). The Judgement in this case was delivered by the Honourable Supreme Court Bench of A.M. Khanwilkar, J. and Dinesh Maheshwari, J.
In the wake of the Covid-19 pandemic, schools and colleges have been closed and the teaching-learning process is virtual, taking place via online mediums. Despite the shift from offline classes, to virtual online teaching, Institutions have been charging students the same amount, or in some cases a subtly increased amount, even though majority of the facilities are not in use.
The education sector has been reeling under the impact of Covid-19 and the nationwide lockdown. These trying times have not only affected our physical wellbeing, but also our mental wellbeing. With the pandemic leading to huge economic crisis, increasing unemployment and job losses, coupled with salary cuts; arranging school fees has become highly challenging for many. Statistics show that, 55 percent parents, whose children are enrolled in in non-government aided institutions, have faced payment crunch and are unable to pay the fees of their children. Consequently, the mental wellbeing of students has vastly been affected, for they have been barred from attending online classes, over nonpayment of the fees. Parents are equally disturbed and their mental wellbeing has also taken a toll on their health. They have been running from pillar to post, so as to seek more time whereby they can arrange for the fees, so that their children are not deprived of education.
At this time, when the economy has taken a nosedive, that has led to financial problems and job crisis, stressed parents have been shifting their children to more affordable schools. All efforts have been taken by them, requesting institutions to provide some respite by waiving the fees. However, institutions counter their plea by stating they have salaries to pay to their staff too.
Having said that, let us dive into a little history and understand the situation since the start!
A Brief History:
Since, the beginning of the Covid-19 pandemic, children, parents and guardians have all been handling this crisis on one hand, whilst also being burdened by the payment of fees for their education. Therefore, in order to provide an effective solution to this ongoing tussle between educational institutions demanding complete fees, despite the fact that majority of their facilities aren’t in use; and economic crisis, whereby parents aren’t in a position to pay so much, the Judiciary has taken a stand and Courts have legally adjudged this matter. The following Judgements have been pronounced by various High Courts of different States within the country, in light of this issue.
In Rajat Vats v. Govt. of NCT of Delhi and Another, 2020 SCC OnLine Del 568, the Directorate of Education passed an Order, dated 17th April, 2020, stating, “No fee, except tuition fee, shall be charged from the parents, till further orders. The heads of the schools shall not demand and collect the Tuition fee from the parents / students on quarterly basis. The fee shall be collected on monthly basis only. Heads of the schools shall, in no case, deny ID and Password to those students / parents for getting online access of educational facilities / classes / materials, etc. to those students who are unable to pay the school fee due to financial crisis arising out of closure of business activities in the ongoing lockdown condition.”
Furthermore, in the case of Independent Schools’ Association Chandigarh (Regd.) and Others v. State of Punjab and Others, 2020 SCC OnLine P&H 847, the High Court of Punjab and Haryana held that, “The schools are permitted to collect their admission fee, henceforth. The school management of each schools shall work out their actual expenditure incurred under the annual charges for the period the school remained closed and recover only such genuine expenditure incurred by them including actual transport charges and actual building charges but shall not recover any charge for this period for any activity or facility towards which no expenditure was incurred.”
Likewise, the Uttaranchal High Court, in the case of Japinder Singh v. Union of India, 2020 SCC OnLine Utt 404 has held that, “Only private schools which are conducting online / virtual classes are permitted during the subsistence of this lockdown to charge only tuition fees. No other fees shall be charged from the parents for the students. That even after benefiting from the online / virtual modes of teaching, if a parent is unable to pay the tuition fees, then he shall inform in detail the reasons, for non-payment, to the principal / admin office and shall be granted additional time for due payment of the tuition fees.”
Similarly, in Arockia Madha Matriculation Higher Secondary School v. Chief secretary to government, 2020 SCC OnLine Mad 1442, the Madras High Court, taking into consideration the present situation and aiming to find an interim solution, so as to balance the interest of all the stakeholders, held that, “This interim order passed by this Court will apply to all unaided private institutions across the State of Tamil Nadu. The unaided private institutions shall collect 40% of the tuition fees as an advance fees based on the tuition fees collected during the academic year 2019-2020”.
The High Court of West Bengal in the case of Vineet Ruia v. Principal Secretary, Department of School Education, Government of West Bengal and Others, 2020 SCC OnLine Cal 1841, has also held that, “In the light of the foregoing discussion and purely as a one-time measure necessitated by the present unprecedented situation, there will be no increase in fees during financial year 2020-21. From the month beginning April, 2020, till the month following the one in which the schools reopen in the physical mode, all 145 schools will offer a minimum of 20 per cent reduction of fees across the board. Non-essential charges for use of facilities not availed of will not be permissible. For instance, additional charges for laboratory, craft, sporting facilities or extracurricular activities or the like, will not be permissible during the months that the schools have not functioned in the physical mode. When an application for further reduction or waiver or exemption or delayed payment of fees has been disposed of by the relevant school but the parents or guardians are aggrieved by the decision, an application may be filed, upon deposit of Rs. 1000/, to a committee for further adjudication of the request and to assess the decision communicated by the relevant school. Such application has to be filed within 10 days of the rejection, in full or part, of the request being communicated to the relevant parents or guardians. By November 30, 2020, the committee should indicate a dedicated e-mail account whereat the appeals against the decisions of the schools may be filed. The e-mail ID should be communicated to Advocate-on-record for the petitioner in the lead matter for it to be disseminated to all parents and guardians. Till a dispute between the parents or guardians of a particular student and the relevant school is finally decided, no coercive action against the student may be taken by the school, whether to disallow the student from attending class in any form or taking any examination or for the candidature of such student being forwarded for any board examination (subject to the board’s fees being tendered). For the purpose of clarity, it is reiterated that fees payable by students to boards for examinations or otherwise shall have to be paid in addition to the monthly fees and other charges in terms of this order and no waiver or reduction of the fees or charges payable to the boards may be sought or granted. There will be no refund of the fees already paid. However, to the extent fees have already been paid which are in excess of the directions contained herein, suitable adjustments will be made over the remaining months of the financial year, unless the parents agree in writing otherwise. These directions will continue till such time that physical functioning of the schools resumes in the normal course.”
In light of these judgements, pronounced by various High Courts across the Union of India, let us now understand the ruling of the Apex Court, concerning this subject at hand.
Analysis And Order Of The Judgement – Indian School, Jodhpur & Another V. State Of Rajasthan & Others:
While our country continues to tear apart by scoring milestones with the increasing number of Covid cases, the Supreme Court of India has pronounced a landmark ruling, to assist the country in its fight against Covid-19.
While hearing a batch of appeals filed by the management of private unaided schools, the Supreme Court has allowed collection of annual school fees, subject to a deduction of 15% under the impugned Act of 2016, for the relevant academic year 2020-2021. The deductions would compensate for the unutilized facilities by the students during the said period owing to the reliance on online lectures.
The said appeals challenged the orders passed by the State of Rajasthan regarding deferment of collection of school fees including reduction of fees limited to 70 percent of tuition fees for CBSE Board and the orders of the respective High Courts upholding their validity.
The following issue were raised before the Court: Whether the provisions of the Act of 2016 and the Rules of 2017 that empowered the State to pass the impugned order were violative of Article 19 (1)(g)?
The appellants contended the validity of the impugned Act on the ground that the said provisions are violative of Article 19 since they bereft the appellants of their autonomy to carry on their employment. The restrictions imposed by the said order were hence, alleged to be arbitrary since they directed the appellants to follow the prescribed fees structure.
The Court herein relied on the judgement T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors., (2002) 8 SCC 481, that expounded that the private unaided school management must have absolute autonomy to determine the school fees. However, reliance was also made on the judgement pronounced in the case of Modern Dental College and Research Centre & Ors. v. State of Madhya Pradesh & Ors., (2016) 7 SCC 353, wherein the autonomy of institutions regarding the fees hike was restricted by commercialization. The Court upheld the exposition in Modern Dental College and Research Centre judgement by quoting, “It is felt that in any welfare economy, even for private industries, there is a need for regulatory body and such a regulatory framework for education sector becomes all the more necessary.”
Hence, in order to ensure that the educational institutions are not indulging in commercialization and exploitation, the Government is equipped with necessary powers to take regulatory measures and ensure that the role of imparting education is being fulfilled by private unaided institutions and making money is not their objective.
The Court further noted that in disguise of autonomy, schools cannot be allowed to receive capitation fee or indulge in profiteering business by fixing the fees themselves. Hence, the fees hike should coincide with the general public’s interest in order to prevent profiteering and charging of capitation fee.
The Author, Adv. Ms. Himanjali Gautam is an Advocate at the Supreme Court of India, Founding-Partner at Chambers of Himanjali Gautam, Ex-President- Law Centre 2, Faculty of Law DU, Columnist, Public Speaker and TV Personality.
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