Del HC | Private unaided schools should bear cost to remedy digital divide amongst students with a right to reimbursement under RTE Act

“Education is the passport to the future.”

Delhi High Court: A Division Bench of Manmohan and Sanjeev Narula, JJ., while addressing the issue with regard to digital education observed that

“…tuition fee was payable towards imparting education and “not for a lien on a seat”

Schools imparting Synchronous Face-to-face Real-Time Online Education, not as a voluntary service but as a part of their responsibility under the RTE Act, 2009.

DIGITAL DIVIDE

Inequality in education has been around long before Covid-19, but the pandemic has exacerbated the same by adding another strand/element to it, namely, the digital divide.

Reopening of physical classroom

Unparalleled education disruption from the Covid-19 pandemic is far from over, as, despite lapse of nearly six months, the Union of India and the Government of NCT of Delhi are yet to announce a date for reopening of the physical classroom for elementary schools.

Concern in the present petition

The instant Public Interest Litigation was filed seeking a direction to respondents to supply free laptops/android mobile phones/electronic tablets with high-speed internet to children belonging to the Economically Weaker Section (EWS) so that they could attend their classes by way of video conferencing just like fee-paying students in their classes.

During the pendency of the present petition, some other schools also started online classes, the petitioner sought modification in the prayer clause to include children studying in these schools, so that comprehensive orders could be passed under Article 21A of the Constitution of India for all the children other than fee-paying students.

Analysis and Decision

Article 21A of the Constitution imposes an enforceable/justiciable obligation upon the State to provide free and compulsory elementary education to each and every child between the age of six and fourteen in a manner as determined by law.

In pursuance of the above stated constitutional obligation, the Centre enacted the RTE Act, 2009.

Court cited the Supreme Court decision in Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, wherein it was held that,

Universal elementary education as a constitutional goal and obligation is a salutary principle and while interpreting the provisions of the RTE Act, 2009, Article 21A has to be the guiding principle.

Supreme Court in Jindal Stainless Ltd. v. State of Haryana, (2017) 12 SCC 1 held that,

“…the Constitution being a living and dynamic document ought to receive a dynamic and pragmatic interpretation that harmonizes and balances competing aims and objectives and promotes attainment of natural goods and objections.”

RTE Act, 2009 is not a historical Act but an ‘always speaking statute’ which intends to achieve social, economic and political equity and human progress over a period of time.

Court observed that,

RTE Act, 2009 is not a static but a living and a dynamic document and it ought to receive a pragmatic interpretation.

Consistent with the legislative intent, an updating construction has to be applied to RTE Act, 2009 and the Court of law can deal with a drastically changed situation, like Covid-19 pandemic, even if it was not known or visualized by Parliament when the Act was enacted.

Adding to its’ analysis, Court stated that the new National Education Policy, 2020 prepared by the Government of India states that education is fundamental for achieving full human potential, developing an equitable and just society, and promoting national development.

Why the RTE Act, 2009 does not define the word ‘Education’?

Bench in the present matter was of the view that the RTE Act, 2009 intentionally does not define the word Education as it needs to deal with changes in society as well as technological advances, outbreak of diseases, natural calamities and a broad range of circumstances that are not possible to anticipate in advance.

Concept of synchronous face-to-face real-time online education

The concept of Synchronous Face-to-Face Real Time Online Education like any other alternate means/methods of dissemination of education, in that sense, is covered under the RTE Act, 2009.

The teaching through online means is in accordance with the RTE Act, 2009 requirements.

Adding to the above, the Court stated that at the present, the neighborhood schools are still open but the physical classrooms are closed and the mode of providing education has changed.

Court is of the view that tuition fees are payable towards imparting education and not for a lien on a seat. Accordingly, the word Education includes Synchronous Face-to-Face Real Time Online Education and respondent schools are estopped from contending to the contrary.

Differential Fee Structure

Section 12(2) of the RTE Act, 2009 unequivocally proves the existence of a differential fee structure amongst private unaided schools and consequently, differential methods/means of dissemination of instructions amongst the private schools.

Further, the Court added that just as private schools are free to adopt the mode of the method of imparting education they feel the most appropriate, the government schools also have similar freedom and flexibility.

There is neither any statutory obligation under the RTE Act, 2009 nor any recommendation by any statutory authority like State Academic Authority that the Synchronous Face-to-Face Real Time Online Education is the only suitable option during a pandemic.

High Court also opined that in view of the geographical location of a school or non-availability of technologically savvy teachers or poor availability of electricity or lack of internet penetration in the neighbourhood, it may also not be appropriate for a school to opt for Synchronous Face-to-Face Real Time Online Education.

There has to be one common minimum level/standard of impartation of education for all schools. Further, the said school has to then ensure that the same is uniformly adopted and followed sans any discrimination.

Bench opined that

Synchronous Face-to- Face Real Time Online Education is neither a core nor a non-derogable facet of either Article 21A of the Constitution or the RTE Act, 2009.

High Court was of the view that it cannot be said that the education being provided by GNCTD schools does not satisfy the basic minimum required level of impartation of education in the present extraordinary scenario.

Private Unaided Schools

The tuition fee charged by the private unaided schools is governed and regulated by the DSE Act and the same does not include expenses on devices such as laptops, phones, high-speed internet at children‟s homes, etc.

Even though the cost of such gadget/digital equipment which enables access to online learning facilities is not a part of tuition fee, yet it has to be provided free of cost to the EWS / DG students in terms of Section 12(1)(c) read with Section 3(2) of the Act, 2009 as cost of such equipment would be covered under Rule 11 of the Central RTE Rules, 2010 as well as Rule 10 of the Delhi RTE Rules, 2011 and Section 3(2) of the RTE Act, 2009 inasmuch as absence of such equipment ‘will prevent the child from pursuing his or her elementary education‘ at par with other students in the same class in the present scenario.

DIGITAL DIVIDE

To ensure a level playing field and to remedy this digital divide or digital gap or ̳digital apartheid‟ in addition to segregation, if the private unaided school has to bear any additional cost, it must bear it in the first instance with a right to claim reimbursement from the State in accordance with Section 12(2) of the RTE Act, 2009.

GNCTD must consider rewarding the schools that innovate.

Intra-class discrimination, especially inter-se 75% fee paying students viz-a-viz 25% EWS/DG students‟ upsets the ̳level playing field‘ and amounts to discrimination as well as creates a vertical division, digital divide or digital gap or „digital apartheid‘ in addition to segregation in a classroom which is violative of RTE Act, 2009 and Articles 14, 20 and 21 of the Constitution.

High Court directs constitution of a three-member committee within a week comprising Secretary, Education, Ministry of Education, Central Government or his nominee, Secretary Education, GNCTD or his nominee and a representative of respondent No.18 to frame a Standard Operating Procedure (SOP) for identification of standard gadget(s)/equipment(s) as well as the manufacturer/supplier and internet package so that EWS/DG students can access elementary education through digital online means.

Further, the private unaided schools shall file their claims for reimbursement under Section 12(2) to the GNCTD within eight weeks from the date of supply of such gadget(s)/equipment(s).

“To achieve education for all, Digital Education is a major component of the solution, though not a replacement for formal classroom schooling, provided digital- divide is erased from Indian Society.”

Creating a better and resilient elementary education system is increasingly important as a child’s starting point in life determines his/her future.

Concurring with the above view, Sanjeev Narula, J. stated that,

In the present pandemic situation, the shift towards online education has taken place literally overnight, and without much deliberation. One could argue that the unprecedented situation warranted such a drastic switch over. Therefore, I do not find any fault with the approach of the schools that have adopted digital technology for imparting education. However, it is necessary to issue a note of caution here so that the modes and methods adapted during this extraordinary time are not seen as the quintessential purpose of the Act.

The scheme of Article 21A and the RTE Act rests on a twofold premise: to prevent financial and psychological barriers from hindering access to primary education of children, and, non-discrimination in the imparting of education.

Reservation for EWS
Children of the socially and economically weaker sections are normally unable to secure an admission in private schools due to their unaffordable fees. The RTE Act seeks to address this gap via section 12(1)(c) which mandates all private schools to reserve 25 per cent of their seats for children belonging to economically weaker sections and disadvantaged group.

DIGITAL ENABLEMENT

Imbalance in the imparting of education due to the non- availability of gadgets, internet connectivity and modes of access, has the potential of pushing the less-fortunate children outside the education system altogether. The digital enablement of EWS students, is thus, in my opinion, absolutely necessary.

The precious right guaranteed by the Constitution of India and the RTE Act has to be replicated in the online environment.

It is the responsibility of the schools and obligation of the State to assist EWS students to overcome all constraints that deprive them of meaningful education.

[Justice for All v. GNCTD, 2020 SCC OnLine Del 1217, decided on 18-09-2020]

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