The recent MHA Order “Unlock” [Govt. of India, Ministry of Home Affairs, Order No. 40-3/2020-DM-I(A) dated May 30, 2020] states that the date for reopening of educational institutions is to be decided in the month of July. The mode of online education is thus, likely to carry on for a few more months before normal classes resume. In these circumstances, this article aims to address the impact on right to education during the crisis, challenges posed by the online class regime, and the question of whether the school fee has to be paid in the current situation.
The circumstances created by the spread of the coronavirus have led to the suspension of several rights we assumed to be undeniable, for our own health and safety. The message, however, through the entire crisis has been to keep a semblance of normal life present, and try and get as many things done remotely using social distancing, as possible. The right to education is a fundamental right, and it must not be let go off in these times.
Through Article 21A, Right to Education was read into the Constitution of India as a fundamental right available to all children in age group 6-14 years, who are to be provided free and compulsory education. The Directive Principles of State Policy also promote this right [Articles 45 and 51A(k), Constitution of India]. Much before the Constitutional Amendment, the Supreme Court of India had also held that the right to education was a fundamental right, enshrined in Part III of the Constitution [Mohini Jain v. State of Karnataka, (1992) 3 SCC 666]. The Court had observed:
“The right to life under Article 21 and the dignity of the individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to provide educational facilities at all levels to its citizens.”
In several later decisions, the Supreme Court emphasized the importance of this right and the duty of the state in its regard. [Unni Krishan v. State of Andhra Pradesh, (1996) 5 SCC 8; M. C. Mehta v. State of Tamil Nadu, (1996) 6 SCC 756]. The Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) was enacted by the parliament to provide free and compulsory education to children between the ages 6-14.
One of the most significant provisions of this act is that it directs private schools to fill 25% seats in Class I with children from weaker and disadvantaged groups [S. 12, The Right of Children to Free and Compulsory Education Act, No. 35 of 2009]. This aspect of the Act with regard to 25% seats being reserved for children in need was challenged by several private schools as a violation of their right to free trade, but the provision was held to be valid by the Courts. [Society for Un-aided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1].
It is thus clear that imparting education is a duty of the state, and receiving education is a fundamental right of every child, including those who come from more challenged economic backgrounds. Therefore, even during the ongoing crisis, every effort must be made to ensure that children, who are the future of the country, continue to receive an education in whichever form possible.
The challenges being faced are not at one end alone. While students, particularly those belonging to economically weaker sections (EWS), struggle to keep up with online classes, even teachers are having to master a skill they were not trained for. Online teaching is a significantly different experience from the classroom, and even teachers are required to have efficient devices to be able to carry out their duties. They have been expected to familiarize themselves with new softwares and technologically sound teaching methods in a short while of time, so that the education of children is not interrupted for a long period.
A significant difficulty that looms before a large number of children is missing out on classes and falling behind their classmates due to a lack of resources. Government schools are shut down for younger students, and classes are only being conducted for ninth to twelfth graders. These students are over the age of 14, and would not be covered by the Right to Education. Thus, while ideally liability will exist towards imparting equal opportunity of education to them, the same will be limited. Private schools, however, are conducting classes for junior students as well. These private schools have a number of EWS students enrolled in their institutions. Quite a number of these children, unfortunately, don’t have the necessary resources to be able to attend classes online, and are falling behind in the curriculum. Private schools are being advised to address the concerns of such students and try and provide them alternatives.
The understanding that emerges from this discussion is that educational institutions are currently tasked with a two-fold challenge: they must foremost, protect the right to education of all their students, particularly keeping in mind the responsibility bestowed upon them with regard to EWS students by the Supreme Court in Society for Un-aided Private Schools of Rajasthan v. Union of India (supra). At the same time, they cannot ignore the right of their teachers, as employees providing an essential service.
During the lockdown, Rajasthan, Punjab, Haryana and Uttar Pradesh state governments have announced that schools should not pressurize parents to pay fees. The Delhi government also prohibited schools from denying access to online classes to students whose parents are unable to pay the fees due to financial crisis in the lockdown period, further stating that fee be charged at an appropriate and later time.
A confusion that arose as consequence of these orders was whether the fee had been waived by the government for the period in question, or was it simply a moratorium. Considering how online classes have taken place during this period and education has been imparted to the best extent possible by most schools, it would be unfair to simply waive off the fee in this period, specially considering that schools are still incurring all their running expenses of maintenance and payment of salaries to employees.
Courts have also been trying to balance the plight of struggling parents with the requirements of schools who have to keep their establishments running, and require money for the same. In a recent matter, the Kerala High Court restrained certain schools from levying additional fees for the conduct of virtual classes amid the COVID-19 pandemic, after noting that “the right to education was sacrosanct in the Constitution and is the mandate under the Right of Children to Free and Compulsory Education Act, 2009” [Reference Order, Kerala HC, C. S. Dias, J. in W.P (C ) No.10867/2020 dated June 3, 2020].
The Delhi High Court, while attempting to balance the rights of all involved, refused to accept the submission that no tuition fees be charged by schools during the lockdown as the institutions are closed. The court observed that judicial notice may be taken of the painstaking efforts, made by schools and teachers, in providing education, and holding classes, through online platforms, acknowledging the effort that the teacher has to expend, in providing online education. [Naresh Kumar v. Directorate of Education, Delhi HC W.P.(C) 2993/2020, Order dated April 24, 2020].
Thus, the present trend and language of the Orders passed by the states indicates that there is no waiver of tuition fees during this period but simply a deferral of payment to a time when it is possible for people to be able to complete it. This approach has been adopted balancing the children’s right to education which must not be impacted, with the need of unaided institutions for money to continue imparting education.
As of now, some of the temporary issues being faced as a consequence of COVID are a loss of learning and social development opportunities for children all across the country. There can be no certainty of what will happen in the future, and with an unprecedented global crisis, predictions become even more difficult. Despite that, some long-term dangers feared as a consequence of the current situation are wider educational disparities, increased drop-out rates, surge in poverty, and greater risks for marginalised children, particularly vulnerable children such as girls and those who are differently abled, in terms of their wellbeing and safety [UNESCO, Stefania Giannini, “Covid-19 school closures around the world will hit the girls the hardest” dated March 31, 2020].
Another feared impact is the employment opportunities that await children who will step into the world after having completed their education, while this crisis is still on. Employers cannot be tasked with not slowing down recruitment when income is gravely impacted.
The short-term challenges are only a shadow of the marks the COVID crisis will leave in the spheres of education and skill development, and it will take base-level policy implementation and strong economic boosts and concessions for Indian students to be able to recover from this crisis anytime soon.
By Shiv Mangal Sharma
Advocate Supreme Court