Pandemic, parents and private schools: Fundamental rights, executive instructions and the right to recover their fees [Part II]

In the preceding part of this two-part article, we had delved into the factual narrative of the whole issue and the right of the private unaided schools to recover fees as a facet of Article 19(1)(g). It was detailed how and to what extent the State can interfere into the exercise of discretion by the management when it comes to fee fixation by them. It also referred to multiple precedents on the issue, to restate the legal position as it exists and then left the remaining heads to be considered in the current part. Therefore, Part II of this article shall resume from Head C onwards to conclude with an epilogue. To make the reading interesting and engaging, the article has been divided into two parts to ensure that the reader does not lose his/her interest whilst reading.

 

  1. Executive instructions and the curtailment of the fundamental rights

Almost all the orders that were issued by the various State Governments across the country were in the form of “executive instructions”, as office memorandums, departmental orders, administrative orders, etc. “Executive instructions” cannot be treated as “law” under Article 13 of the Constitution of India, so as to restrict fundamental rights of any individual or entity guaranteed under Part III of the Constitution of India. Article 13(3)(a) defines “law” thus:

 

    1. Laws inconsistent with or in derogation of the fundamental rights.—(1) All laws in force in the territory of India immediately before the commencement of this Constitution, insofar as they are inconsistent with the provisions of this part, shall, to the extent of such inconsistency, be void.

              

(3) In this article, unless the context otherwise requires,— (a) “law” includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.

 

Thus “executive instructions” issued by the State Governments cannot impinge upon fundamental rights directly under Part III, till they are codified or notified as rules, regulations or as notifications published in the Official Gazette. Thus the orders issued by the State Government as “executive instructions” are clearly “void” being oppugnant to Article 13. None of the enactments viz. Epidemic Diseases (ED) Act, 1897, National Disaster Management Act, 2005, Private Schools Act (of the respective States) are able to provide any statutory legitimacy to the “executive instructions” issued constricting the rights of the private schools to realise various heads of the fees from their students enrolled with them. The  Supreme Court in State of M.P. v. Bharat Singh[1]  , clearly held vide paras 5-7 that every act 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  Supreme Court thus held that “executive instructions” issued in the form of order by the State were invalid in the absence of any backing by the appropriate competent legislation to support the same. Merely because the State Legislature has the power to legislate in regard to the subject on which the executive order is issued, cannot be a basis for the executive to issue departmental orders interfering with fundamental rights of its citizens. A somewhat similar view was resounded latest by the  Supreme Court in State of Bihar v. Project Uchcha Vidya, Sikshak Sangh[2] (see para 69), Union of India v. Naveen Jindal[3] (see paras 28 and 30-33). In Naveen Jindal[4], the Supreme Court was confronted with the issue as to whether “Flag Code” is a duly enacted “law within the meaning of Article 13(3)(a)” so as to regulate the rights of the Indian citizens to unfurl the national flag in a particular manner. The Court answering the question in negative held that “Flag Code” not been duly enacted as a binding rule or a regulation cannot operate to the prejudice of unfettered exercise of fundamental rights by any citizen. Following the trail of precedents above, the Bombay High Court in Assn. of International Schools and Principals Foundation v. State of  Maharashtra[5], went on to hold that government resolutions (GRs), even though referable to authority of the State under Article 162 of the Constitution do not assume the identity of binding “law” and at best remain on paper as “executive instructions”. Therefore they are “void and unforeseeable” for restricting the rights of the private unaided schools in charging fees from their beneficiaries. The High Court accordingly quashed and set aside the GRs in view of the lengthy reasoning adopted therein.

 

Therefore, since the regulation of fees during the pandemic was done by all the States invariably through the “executive instructions” issued in exercise of the powers under Article 162 of the Constitution of India, they are devoid of any legal sanctity and are unconstitutional.

 

Legitimising State orders within the four corners of ED Act, 1897 and NDMA Act, 2005

 

Another challenging facet of the orders issued by the various States was about their failure to draw any livelihood from ED Act, 1897 and the NDMA Act, 2005. In neither of the enactments is there any provision empowering either the Central or State Government to tamper with the managements of private unaided schools when it comes to fixation of fees or to take over or control their managements.

 

In fact the orders that were issued, were issued in a knee-jerk manner, with the States succumbing to political pressure. There was never actually any assessment or a scrutiny exercise under the provisions of the NDMA Act by the competent authorities preceding their issuance. Under the NDMA Act, a 3-tier system is established; at the bottom is the District Authority, placed below the State Disaster Management Authority, which in turn is positioned below the National Disaster Management Authority in the hierarchy. In the majority of the States, none of the three authorities were ever consulted or taken into confidence, when such orders came to be issued. It is not a matter of dispute that the Covid-19 pandemic was notified as a “disaster’” and therefore the provisions of NDMA Act were attracted, in light of which only the lockdown orders were clamped down from time to time by the Central and the State Governments. Having said so, orders restricting realisation of fees by the private unaided schools ought to follow the same route and traffic, instead of being short circuited as executive orders under Article 162 of the Constitution of India. Therefore on this ground as well, the departmental orders became legally suspect and vulnerable, for being completely outside the skeleton of the disaster management enactments or the authorities therein.

 

This all also reflects administrative haste on the part of the State Authorities in rushing to the crime scene without full preparedness, simply to demonstrate a cover-up.  Maybe, charting the route and traffic of the NDMA Act would have stunted the State Authorities from issuing such ad hoc orders of fee fixation or fee determination for the private unaided schools.

 

Orders being discriminatory, a classic case of“under classification” ; consequentially hit by Article 14

 

The orders issued by the State Governments were clearly omnibus in nature treating apples with oranges and treating oranges with apples at par and putting them both in the same basket where the eggs were kept.  It exempts all the classes/categories of parents from payment of fees and charges to the school, irrespective of their annual income, earning capacity, financial situation, etc. in a blanket manner. Almost 80-85% of parents, when they get their children admitted in any private schools, they so get them admitted only after ascertaining their financial capacity in the long run.  Therefore, exempting 80-85% of parents, having the requisite financial capacity to pay the school fees, which they would otherwise have been capable of, becomes inherently discriminatory in nature.

 

Pertinently under the lockdown, all the categories of educational institutions have been closed viz. private unaided schools, colleges, higher education institutions and coaching centres in view of the lockdown orders issued by the Ministry of Home Affairs (MHA), Government of India. All alike, they shifted to an “online mode” of imparting training and teaching. That the State Government chose to target only the private unaided schools and not the colleges or the higher institutions is a perplexing question, not been answered by anyone till date. The paying capacity is not determined by the level of education being received by the children of a family, but a family’s overall gross annual income. Therefore exempting private schools only, when they were closed at par with all other categories of educational institutions, amounts to differential treatment of identically situated groups of educational institutions, which itself plays foul with the equality doctrine enshrined under Article 14. Other than this, another facet of gross under-classification palpable in the government order was the similar treatment extended to three distinct categories of private unaided schools:

 

(a) Schools catering to the upper-middle class and the rich families of the society.

(b) Schools catering to the lower-middle class.

(c) Schools catering to the LIG families and the poor classes with incomes less than 4 lakhs per annum.

 

All the 3 categories of school, aforementioned were compartmentalised in the same bogie and subjected to the same treatment of not demanding fees from their students. The first two categories of schools are schools which provide their amenities, structure their facilities, recreational activities, infrastructure, informational facilities, faculty in such a way that they are able to provide the best of services on a premium fees and exorbitant charges. Some schools may be having faculties employed at high-pay scales; national and international exposures; huge infrastructure in terms of library, transportation facilities, instruction and infrastructural facilities like classroom, playrooms, etc. These schools clearly cannot be compelled to realise the fees from their target clients for the reason that they survive on the revenue generated from the fees itself for maintaining such high-end facilities and infrastructure, a prerequisite for attracting the best and elite strata of the society in their schools. Failing this, they would not be able to maintain the requisite standards and cater to the clientele they intend to and have been established to serve. Therefore, the orders were clearly bad in law by coercing such private unaided schools for not realising fees from their wards. Therefore categorisation of all the layers of private unaided schools in the same compartment clearly introduced the vice of “underclassification” in the orders of the State by “treating unequals as equals” and extending same treatment to them, abhorred and despised under Article 14.

 

In this context, reference can be made to the judgment of the Supreme Court in  Subramanian Swamy v. CBI[6] wherein the Court meticulously pointed out the applicability of Article 14 and the necessity of a rational and reasonable classification, which meets the standard of principles of equality enshrined under the Constitution of India. Vide paras 38-48, the Court emphasised that classification is an essential attribute of Article 14 and if any action of the executive fails to undertake an appropriate classification, then it is liable to be struck down as unconstitutional.

 

Further it was necessary for the States to have issued such orders having serious economic ramifications only after undertaking a proper study, field analysis, survey backed by an empirical material. Such “economically austere measures” which have the effect of depriving a particular occupation or a calling of its business or source of earning or revenue must be premised always upon some empirical study or material, absence of which makes it legally untenable. Admittedly the States were never able to produce/provide any material or study or report that constituted the background of issuance of such prohibitory orders gagging them from realising fees. I had personally seen the cases filed before almost around five different High Courts, where the State Government failed to produce any cogent material or statistical survey justifying why such omnibus overinclusive orders were passed including all the categories of private schools and exempting all the categories of parents from payment of fees for their students. The Supreme Court in Kailash Chand Sharma v. State of Rajasthan[7] held that classification to be reasonable and justified must be based on empirical data, survey or scientific study and not on mere assumptions as to the existence of a particular state of affairs. The Court held that absence of empirical data, survey or scientific study, vitiates the executive action when assailed on the grounds of discrimination in a court of law. This principle laid down by the Supreme Court applies with much more rigour in case of State action having economical outcomes.

 

In Cellular Operators Assn. of India v. Telecom Regulatory Authority of India[8] the Supreme Court vide para 49 held that it is necessary for the State and administration to undertake meticulous consultation and exercise with all the stakeholders for enlightening itself adequately of the problem involved, relevant material, before it proceeds to finalise the delegated legislation or any administrative decision. The consultative process acts as a statutory safeguard on its proper use of power of delegated legislation by the executive if it is being timely and properly undertaken. This dictum of the Supreme Court was never followed by the majority of the States before issuing gag orders on the managements of the private schools restraining them from realising fees from their wards.

 

Inherent vagueness and unreasonability of State orders

 

The orders issued by the State were further completely vague, uncertain and indefinite in terms of their applicability for the reason that they failed to specify the precise period till when the schools are restrained from charging various heads or monetary dues from their students. Where on one hand, the schools were mandated to continue paying the full salary of the teaching and non- teaching staff employed with them; on the other, they failed to specify the protective and other compensatory measures, through which the schools were to generate their revenue and meet the outstanding financial liabilities of various heads. The orders of States, ergo, became perverse and arbitrary attracting the wrath of Article 14 of the Constitution of India.

 

Further, they were non-descript in their nature, as they failed to provide a “substitutive compensatory mechanism” to the schools for providing education to their students for the whole academic session and the serious consequences of not being able to garner the financial resources for doing so. In other words, there was complete absence of any mechanism or arrangement for any private school to sustain itself, its resources, its faculty, its staff, its employees, its financial obligations for a whole period of 12 months (academic year) to enable the school administration to continue imparting education to its children/students. Brakes were put on the realisation of fees and charges, without ensuring the economic rehabilitation for the schools which may allow them to survive, sustain through this economic crisis of the worst order.

 

Epilogue

For all the aforesaid reasons, analysed in this article, the action of the States in restricting the private schools from charging fees from their wards had no legs to stand upon; it was feeble and fragile from day one. The Supreme Court is in session of the matter and the final judgment in the appeals preferred by the Association of Private Schools from the State of Rajasthan is awaited. For reasons more than one, the State is most likely to fail in defending its executive orders before the Court. I also had a similar experience, whilst arguing for the Association of Private Unaided Schools, Madhya Pradesh before Madhya Pradesh High Court, where also the State was not able to repel most of the grounds of challenge. Whatever may be the outcome, since the pandemic has revived and likely to stay with us for a while, the State Governments must take a lesson and should not come up with orders which reflect an exercise which was largely popular during the regime of Henry VIII. The conduct of the State Governments strikes similarity with King Henry VIII, who was popularly regarded as the “impersonation of executive autocracy”. The manner in which Henry VIII used to enlarge his powers to make proclamations under the infamous “Statute of Proclamations 1539” is remembered as one of the darkest phases in the history of England. Our Constitution, fortunately is abhorrent to the assumption of uncannelised whimsical powers of the executive, powers which can be exercised only by the legislature or the executive under the umbrella of a duly enacted legislation. Therefore in a country like India, which has crystallised principles governing delegation of legislations and their limits, such orders of State Governments are unlikely to survive.

 

† Siddharth R. Gupta, Advocate 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,  MNLU, Nagpur.

 

[1] AIR 1967 SC 1170.

[2] (2006) 2 SCC 545.

[3] (2004) 2 SCC 510.

[4] Ibid.

[5] 2010 SCC OnLine Bom 1291

[6] (2014) 8  SCC 682.

[7] (2002) 6 SCC 562.

[8] (2016) 7 SCC 703.

One comment

  • This is such serious matter in this pandemic , parents are really worried about their children’s future. how can we come over this Pandemic , every where are problem of Oxygen cylinder and Oxygen concentrator we should focus on our children’s future and GDP.

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