Case BriefsCOVID 19High Courts

“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]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Sanjib Banerjee and Moushumi Bhattacharya, JJ., while addressing the matter wherein private unaided schools have debarred students from taking online course and examinations due to shortfall in payment of fees directed the schools to not to discontinue the same for the said students unconditionally till 15th August, 2020.

Petitioner represents the parents of over 15,000 students enrolled in more than 110 private unaided schools in and around the city.

Principal Grievance

Private unaided schools in Calcutta and elsewhere in the State continue to demand regular fees though the schools have not functioned for the last four months.

Students barred from participating in online course

Petitioner claimed that online courses and examinations have been started by some of the 112 schools that are involved and students whose fees have not been cleared are barred from participating in the online course or taking online examination only on such ground.

State Government

Advocate General on behalf of the State Government submitted that time to time through several notifications State Government has called upon the private, unaided schools to refrain from increasing the fees and asked them to give concessions to students or parents.

High Court

“…in the absence of the boards or councils to which the 112 schools are affiliated, to ascertain whether such authorities wield any power to regulate the fees of their affiliated schools.”

Councils or Board to which the said 112 schools are affiliated have been asked to file their response before second Monday of August, 2020.

Schools shall also indicate as to whether all the employees of the schools have been paid during the period of lockdown and the extent of discount that such schools are able to afford to the students for the schools not functioning during the relevant period.

Further, State Government was also permitted to use an affidavit to disclose the several notifications that it has issued by way of advisories to the private, unaided schools. 

Bench asked the 112 schools involved not to discontinue making online courses available to any of its students, unconditionally till August 15, 2020.

None of the 112 schools will prohibit any of the students from participating in online examinations if any till August 15, 2020.

Adding the conclusion, Court also stated that by August 15, 2020, the outstanding dues of each student, as at July 31, 2020, have to be cleared to the extent of 80 per cent.

Students who have already been debarred from online courses or online examinations will be restored to their previous status.

Bench hoped that if substantial payments are made on behalf of the students who are in default, the relevant schools will not discontinue the online courses for any meagre shortfall in payment.  [Vineet Ruia v. State of W.B., 2020 SCC OnLine Cal 1230, decided on 21-07-2020]

Case BriefsCOVID 19High Courts

Punjab and Haryana High Court: Ritu Bahri, J., while addressing a petition with regard to the charging of school fees in times of COVID-19, passed an interim that admission fee shall be paid in 2 equal installments by parents in 6 moths and 70% of total school fee will be charged and 70% salary to be paid to the teachers.

Counsel for the petitioners contended that Punjab School Education Board had given instructions that schools can only charge tuition fee and not building charges, transportation charges, and charges for meals etc. At the same time the schools have been directed to not reduce the salary of teachers.

To the above, it was contended that the stated conditions are contradictory.

Adding to the above he stated that, all the private un-aided schools, deposit funds under the head ‘Reserved Fund’ with the Punjab School Education Board which amounts to Rs 77 Crores at present and even with regard to running of the schools with minimum staff, sanitization is being done by the private schools and Government of Punjab has not come to help them on this side as well.

Advocate General Punjab, Anu Pal stated that schools charge fee under the different heads and transportation charges are always separate and the same cannot be made a ground to alter letter dated 14th May, 2020.

Bench on perusal of the above, passed an interim direction that admission fee which is paid one time by parents, shall be paid in 2 equal installments in 6 months and 70% of total school fee will be charged from the parents of the students and 70% salary will be paid to teachers during pendency of the present petition.

Further the Court directed that, State to file detailed reply and Counsel for State to get instructions as to how respondents can help private schools with regard to amount deposited in ‘Reserve Fund’ for sanitizing school buildings.

Matter to be listed on 12th June, 2020.[Independent Schools’ Association Chandigarh (Regd.) v. State of Punjab, 2020 SCC OnLine P&H 626 , decided on 22-05-2020]

Case BriefsCOVID 19High Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, CJ and R.C. Khulbe, J., directed slew of directions to be followed in pursuance to the State Government Order passed on 2nd May, 2020 with regard to the collection of tuition fees by private unaided schools.

State Government vide its Order dated 2nd May, 2020 had permitted to private unaided schools to conduct online classes. In terms of the said order, these schools were also prohibited from collecting any fees other than tuition fees.

The said clause of collecting tuition fees was not extended to the private unaided schools who were unable to provide online classes.

Complaint

It has been alleged that parents were being coerced to pay tuition fees. Some of the schools are conducting classes for even Upper Kindergarten students only to collect fees from gullible parents.

Schools had started to send WhatsApp messages and e-mails with regard to payment of tuition fees, though the Government Order required payment of fees to be voluntary and since several of the State’s inhabitants lacked internet facility due to which children could not attend the online classes, still they were being asked to pay tuition fees.

Object of the Government Order dated 2nd May, 2020 is to ease the burden on parents, who do not even have the means to earn their livelihood in this period of crisis, in being required to pay the huge fees which these private institutions charge.

While the difficulties of these institutions, in having to incur expenditure without collecting fees from its students, is understandable, times of crisis like these would require the haves to extend a helping hand to the have-nots.

Court issued following directions for effective implementation of the above-stated Government Order:

  • District Education Officer and Block Development Officer to be appointed in each district to whom complaints can be addressed by parents who are being coerced to pay the tuition fees by private schools.
  • Wide publicity shall be given in the media informing the public at large, in the State, that they can address their grievance in this regard to the Nodal Officers.
  • Nodal Officer to take prompt actions against the complaints.
  • Children, who do not have access to online course, cannot be asked to pay tuition fees.
  • Since payment of tuition fee by students is voluntary, none of the private schools shall send e-mails or WhatsApp messages or any form of communication to parents calling upon them to pay tuition fees.

Court further asked the Secretary, School Education to furnish report on the following:

  • call for information from all the District Education Officers regarding the number of private schools, which offer online courses, and the number of students who have access to such online courses. Information shall be obtained from each of these private schools as to whether tuition fees is being collected even from those students who have no access to the online course offered by the schools. This information shall not only be collected from students of Class 1 to Class 10, but also with regards children who are undergoing their Upper Kindergarten.
  • Information regarding online classes being conducted by private schools for Upper Kindergarten students. Shall consider the wisdom in conducting such online programmes for these children in Upper Kindergarten, examine whether this is just a ruse to collect tuition fee from them, and issue appropriate directions, to all such private schools, in this regard as he considers appropriate.

Matter to be posted on 26-05-2020. [Japinder Singh v. Union of India, 2020 SCC OnLine Utt 217, decided on 12-05-2020]