The unexpected revival of Covid-19 in its worse form has brought with itself the rhetoric over private unaided schools charging tuition and allied heads of fees during the pandemic period from the parents or guardians of their students. This rhetoric had been intense around the same period last year, but in the current year, it is expected to reverberate even further than it was last year. It is because lower middle class and middle class families had the spine to survive the onslaught of the first year of the pandemic, but they have lost the strength in its second year. Arguments had been galore from both the sides viz. from the side of the management of private unaided schools, as also favouring the parents and guardians who have to sail through the crest of economic crisis for almost one year.
I feel that the arguments on behalf of the parents stand on a higher moral ground and are equally emotive, but it is difficult for the State authorities to have sustained various executive orders for the reasons explicated in the present article.
The article is compartmentalised into the following components:
- The factual narrative.
- Right of private unaided schools to recover fees as a facet of 19(1)(g) freedoms: State’s authority to regulate and determine the fees structure during the pandemic.
- Executive instructions and the curtailment of fundamental rights.
- Legitimising State orders within the four corners of Epidemic Diseases Act, 1897 and National Disaster Management Act, 2005.
- Orders being discriminatory, a classic case of “under classification”; consequentially hit by Article 14.
- Inherent vagueness and unreasonability of State orders.
In Part 1, first two categories have been discussed.
- The factual narrative
With the onset of Covid-19 pandemic in the country, the Central Government, Ministry of Home Affairs (hereinafter “MHA”) in exercise of powers under Sections 4 and 5 of the Epidemic Diseases Act, 1897 (hereinafter “ED Act”) and the National Disaster Management Act, 2005 (hereinafter “NDMA Act”) clamped down prohibitory orders, popularly known as the lockdown orders in the whole country. The orders started coming into effect from the 3rd week of March 2020 onwards and the heat of such orders, pertaining essentially to school education continued till 30-9-2020, when certain respite was extended to the school education sector permitting the schools to reopen in a phase-wise manner, starting from Higher Secondary and Secondary classes. However, under public pressure, the State Governments across the country treaded extremely cautiously whilst deciding to continue the moratorium orders on reopening of schools upto March-April 2021. Resultantly, for almost 1 full academic year, the schools especially the private unaided self-financing schools had to impart training and education to their students through an “online mode”. Social media in the beginning was rife with pictures and memes where both the generations i.e. of the teachers, as also of the school going kids were discovering their ways to impart and receive online education through scantly used modes of technology. We came across images where enterprising teachers adopted novel methods of recording videos, lectures, white board written instructions and transmitting them to students anyhow towards ensuring that the spirit of teaching remains alive even during the pandemic.
3 differently placed poles in the pandemic surfaced into prominence; the first, being the parents and guardians who had to face the sudden onslaught of the epidemic, second, being the teachers, who were employed in these institutions and the third, being the private unaided self-financing schools which do not take any aid or assistance from the State functionaries. After the prohibitory orders of lockdown were imposed by the State Governments, invariably all the States of the country came out with administrative orders in exercise of powers under Article 162 of the Constitution of India, through which the schools were either restrained from collecting tuition fees during the pandemic or were restrained from collecting anything other than and above the tuition fees from parents or guardians of their student. The striking similarities in these orders issued by various State Governments were that none of these orders were either notified in the Official Gazette or were introduced by amending the existing rules or the enactments pertaining to regulation of fees charged by the private unaided schools. Another common thread running through all these official orders issued as “executive instructions” was that none of them were preceded by any prior consultations or discussions with the stakeholders, which were to be directly affected viz. the management of the private unaided schools. Clearly the orders came to be issued mostly at the end of April or beginning of May 2020, when it appeared to one and all that the Covid-19 crisis is going to stay for long and has made deep roots for itself in the whole country. The action of the various State Governments in issuing all these orders was perhaps an impulsive response to the hue and cry raised by all the parents and guardians in unison, blended with such issues assuming political overtones for the Government of the day. Office orders issued by some of the States also mandated schools to pay full salary and other allowances to the teaching and non-teaching staff employed in their institutions, without cutting down their perks.
What ensued was expected. The managements of private schools challenged all these office orders/administrative orders/executive instructions issued by the respective State Governments before their High Courts on various counts. The Article therefore attempts to analyse the footings on which the parties to the lis stand, when it comes to the validity of such State orders and restrictions.
2. Right to recover fees as a facet of Article 19(1)(g) freedoms: State’s authority to regulate and determine the fees structure during the pandemic
The administrative/executive orders tantamount to an unjustified intrusion into the guaranteed fundamental rights under Article 19(1)(g) of the private unaided schools by the State Governments as also violative of a host of landmark precedents of the Supreme Court on the subject.
It is the matter between two different entities viz. (i) the self-financing schools and (ii) the parents, who in a way, enter into a contract with each other, the interference by the State Government in which might jeopardise interests of either of the two. The Supreme Court in the Constitution Bench judgment of T.M.A. Pai Foundation v. State of Karanataka1, as also in the long line of judgments subsequently held that private unaided schools have much larger autonomy in their administration, management, fixation and realisation of the fees from the students studying in their institutions. The State cannot interfere, till it perceives undue profiteering or charging of capitation fee by the concerned school management.
The Supreme Court in Modern School v. Union of India2, vide paras 15-17 recognised and qualified the running of private unaided schools as a fundamental right under Article 19 (1)(g) of the Constitution of India. It was held that at the level of school education the scope of interference by the State has to be minimal. The management must have unfettered discretion and lee weigh to decide on how to manage and run their institution. The State must step in only as an exception, when allegations of commercialisation fly thick and high, otherwise not at all.
The action of the States amounts (as stated infra) to virtual takeover/management and control of the private unaided schools by passing such orders in a series/sequel which has been abhorred and shunned by the Supreme Court from time to time. Almost every State today has a private legislation in place governing the fixation of fees by the private unaided schools in their respective States. Such enactments provide a clear cut mechanism (as a complete code in themselves) for regulation of fees being charged by educational institutions. Under the said enactments, the regulatory authorities are incorporated viz. District Authority, State Authority, who all are authorised to step in for regulating the fee structure only when the same appears to be excessive or beyond the 10% ceiling of the annual hike made permissible for any institution. Such authorities can nowhere proscribe the institutions from charging the enhanced fees, but only to verify whether the increase in the tuition fees or other heads of charges is commensurate with the accounts, audits and balance sheets of the institutions owing to expenditures incurred by them in the expansion/upgradation/improvisations in their existing infrastructure. All in all, even the State Legislations innately respect that bureaucratic meddling has to be kept at minimal to allow the private enterprise to bloom and shine and serve the consumer sector it has been established to serve for.
The Delhi High Court recently in Ramjas School v. Directorate of Education3 relying upon the judgment of the Supreme Court in Modern School4 and T.M.A Pai Foundation5 held vide paras 14 and 15 that Delhi School Education Act, 1973 was not to be used as a means for governing and dictating fee structure to private unaided schools by the State Government in exercise of its statutory powers. The High Court held, to the contrary, the Act, 1973 was aimed at curbing profiteering, commercialisation of education. In no uncertain words did the High Court echo the sentiment that private enterprise must always be allowed to have surplus in their earnings towards planning for their prospective expansion and growth. In a way, the Delhi High Court went a step ahead and held that fees of a private institution cannot at all be fixed, regulated or determined by the Statutory Authorities under the Statute, till and until it is disproportionate to the expenditures, futuristic planning and prospective investments including reasonable profits as well.
Therefore, in light of the above judgments, the “executive instructions” issued by the respective State Governments thus fell foul of Article 19(1)(g) of the Constitution of India. The State had never ascertained, determined or analysed as to in what way and manner the schools were indulging in profiteering or realisation of excess fees during the epidemic, which necessitated imposition of passing of these orders. Clearly the jurisdiction of the State Government would have surfaced when there was ample material or complaints from the parents that private schools were extorting money unreasonably during the pandemic. The knee-jerk response of the State Government to the clamour by the parents of restraining schools from charging tuition fees from their wards, without any premeditation thus makes these orders suspect of being violative of Article 19(1)(g) of the Constitution of India.
The Supreme Court recently in a batch of matters arising from the State of Rajasthan, titled as Gandhi Sewa Sadan Rajsmand v. State of Rajasthan had an occasion to deal with a somewhat similar issue of the right of the private unaided schools to realise fees from their students. Slew of directions have been passed by the Supreme Court, wherein the private schools have been permitted to collect the notified fees in installments. The managements however have been restrained from discontinuing the studies or debarring any student from attending the classes for non-payment of the fees or its arrears/outstandings.
† Siddharth R Gupta Practising at Madhya Pradesh High Court and Supreme Court of India. He is representing the State unaided schools association before the High Court.
†† Ritika Rajawat, 4th year law student at MNLU, Nagpur.
3 W.P. (C) 9688 of 2018, order dated 14-3-2019.