The dichotomy of School Fees: Balancing the unbalanced?

The single-most powerful tool for the upliftment and progress of the diverse communities of India is education.

Recently, a disheartening news report showed how a man hailing from Tripura ended his life on account of his inability to buy a smart phone for his daughter for online classes being conducted during the COVID-19 pandemic. Among the innumerable setbacks it has brought with itself, the Coronavirus has also thwarted the basic income earned by families.

The National Disaster Management Authority, while exercising its power under Section 6(2)(i) of the Disaster Management Act, 2005, passed a detailed order, taking into consideration the rapid increase in COVID-19 cases.

In view of the severe restrictions imposed by the Chairperson of the National Executive Committee, the activities and/or services of schools were also disrupted, which in turn, put extreme financial burden on the management of the schools across India. The order, which necessitated the employers to make payment of wages to their employees, was squarely applicable to the management of the schools, meaning that the managements of the schools were obligated to make payment of salaries to their teachers and/or non-teaching staff, irrespective of the closure of the schools.

The deleterious effect of the Coronavirus has and continues to have, drilled the pockets of the parents, which in turn, has resulted in non-payment and/or delay in payment of school fees to the schools. The state governments and the union territories, taking into account the catastrophic financial damage caused to the parents, provided some emergent initial respite to the parents to the extent of rescheduling the last date of payment of fees.

In the month of April, various aggrieved parents and/or public spirited persons, invoked the extraordinary jurisdiction of various High Courts across India to seek various reliefs.

In order to facilitate and ensure smooth access of the virtual learning/curricular activities, various High Courts across India passed necessary directions/orders that requires an in-depth examination and are detailed as under.

1. Delhi High Court

The first writ petition was instituted by a practicing advocate, seeking relaxation or suspension of the fees of private schools of Delhi of any nature except the tuition fees for the month of April, May and June. In and around the same time, the Directorate of Education passed an order stating therein that, the schools are not empowered to charge any fee except the tuition fee till further orders; tuition fee can be collected only on monthly basis; fees for the academic session 2020-21 cannot be increased; online classes are provided to the students irrespective of inability of the student/ parent to make the payment of the fees.

The High Court, taking into account the said order passed by the Directorate of Education, held that charging of the tuition fees is justified since all the schools are conducting online classes and respectively, teachers are carrying their responsibilities. It was however, clarified in the order passed by the Court that in case, that if schools resist the demand of payment of fees without distinguishing various heads of fees, the parents would be within their rights to bring it to the notice of the Directorate of Education.

The second writ petition sought a direction to prevent the schools from charging tuition fees and additionally, set aside the order passed by the Directorate of Education to the extent that tuition fees may be charged after an appropriate time from re-opening of the schools.

The High Court, taking into cognizance the detailed order passed by the Directorate of Education and the painstaking efforts of the schools to provide virtual education/classes to the students, held that the schools are permitted to charge tuition fees and anything to the contrary would be bordering on absurdity. The Court also took stock of the fact that the tuition fees charged by schools shall aid and assist the school authorities in defraying their daily expenses, including salaries.

2. Uttarakhand High Court

Two petitioners invoked the jurisdiction of the High Court, challenging the artifices adopted by the schools to collect fees from students/parents under the protection of the order passed by the state government, which directed the schools to conduct online classes and collect only tuition fees subject to the school providing the facility of online classes.

An interim order came to be passed, which directed the state government to appoint a District Education Officer and a Block Development Officer, who shall be the nodal officers to redress the complaints of the parents. The Court granted liberty to students who are able to access online classes, to make payments, and restrained schools from sending emails or WhatsApp messages to parents calling upon them to make payment of fees.

Being aggrieved by the interim order, the Principals of Progressive Schools Associations, Uttarakhand filed a Special Leave Petition under Article 136 of the Constitution of India, wherein, the Apex Court issued notice to the respondents. The Supreme Court, however, refused to grant a stay on the High Court's interim order.

Meanwhile, the High Court disposed of the petitions with a direction that the schools are at liberty to submit representations to the Secretary, School Education, who in turn, shall examine the representation and arrive at a decision as to whether the Government Orders dated April 22 and May 2 requires reconsideration or amendment.

In terms of the said directions of the High Court, the Education Secretary passed an order stating that the private schools which are providing virtual classes to its students are empowered to collect the tuition fees from the student/parent. Further, private schools were barred from collecting any other fees with a caveat that in case the school is virtually teaching extra subjects, the schools may charge for the same. The schools were also barred from increasing the fee for the academic session 2020-21. In case parents are unable to pay the fees, a written communication detailing the reasons has to be addressed to the Principal of the school, who in turn shall consider the representation sympathetically.

3. Bombay High Court

A social worker filed a Public Interest Litigation before the Court seeking directions to the schools to charge fees from parents with an upper limit of 50% for the academic year, and to waive off the school fees during the lockdown. The Court politely declined to intervene in the matter, with an observation that the framing of academic policy was the domain of the executive and judicial intervention is not necessitated, however, granted liberty to the ‘aggrieved persons’ to pursue their remedy in terms of law.

The Government of Maharashtra issued a resolution preventing schools from increasing the fees for the academic year 2020-21. A bunch of petitions were filed challenging the vires of the Government Resolution on the premise that it interferes with their right to setup a reasonable fee structure. The Court, after carefully examining the Maharashtra Educational Institutions (Regulation of Fees) Act, 2011, was of the prima facie view that no powers were vested in the state government under any law to issue the Government Resolution. However, the Court provided an option to the students/parents to pay the fee through online mode in installments, as the school management may deem necessary.

4. Calcutta High Court

A petition came to be filed with the apprehension that the schools, in order to augment their resources, may increase the fees, impose charges in the nature of late fees, and charge fees during the lockdown period. The state authorities, in order to create a middle path for ending the debacle inter-se the school and the students, have initiated a dialogue, which was observed in the order passed by the Court and the matter stood adjourned awaiting a decision on the constructive dialogue between the parties.

5. Madras High Court

A slew of petitions were filed before the Court challenging a Government Order by which schools were prevented from collecting any fees from students/parents. The Court, taking into account the grievances of the parties, directed the schools to formulate a scheme in relation to collection of fees and encapsulate the same in the form of a detailed representation, which shall be considered by the state authorities.

6. Punjab and Haryana High Court

The Court passed detailed directions, after appreciating the legitimate difficulties faced by the schools and the parents. It permitted the schools to collect admission fees and tuition fees, irrespective of whether the school provided online classes or not during the lockdown period. It was also held that schools shall restrain themselves from charging enhanced fee for the academic session 2020-21, and that they shall recover only genuine expenditure incurred by them. The Court granted liberty to parents who are unable to pay the fees, to submit a representation along with necessary documents, which shall be considered sympathetically. Further, schools facing a financial crunch may approach the District Education Officer.

7. Karnataka High Court

The issue which arose in the petition was whether the state government was justified in passing a blanket order preventing the schools from conducting online classes. Ex-facie, the Court was of the view that the state government was not justified in imposing a complete ban on conducting online classes. During the pendency of the petition, the state government appointed a committee on technology-enabled education, which shall submit its report to the government on the aspect of viability of the ban on online classes.

The Court went on to stay the part of the Government Order imposing a ban on online classes for students in LKG to Class 10.

The way forward

The need of the hour is certain guidelines/orders to be passed from the Supreme Court in order to protect the interests of all the stakeholders. Parents' associations of nine states have sought indulgence of the Supreme Court to safeguard the right of the parents/students. Uniform guidelines/directions, if passed by the Supreme Court, taking into account the precarious situations faced by the school authorities and the parents, shall be a positive step in the direction to eradicate the difficulties faced by the parties.

Alternatively, the state governments and union territories can establish a corpus - whilst exercising their powers under the State Epidemic Diseases COVID-19 Regulations - for supporting private schools in maintaining their infrastructure and enabling payment of salaries to staff and day to day expenses till such time the schools are able to operate smoothly. A corollary can be drawn from the funds which are accumulated in the Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (PM CARES).

An amendment can also be brought by Parliament, wherein the monies infused by the companies can satisfy their liability towards corporate social responsibility. In case such a scenario is adopted, school managements shall be in a better and a more equipped position to meet their obligations qua students and/or their teachers/non-teaching staff. The advantage of this can also be shared with the students, in the form of adopting advanced technology to provide virtual education, which shall go a long way in the overall development of the student. Contributing monies towards the education sector shall always give high-dividends in the long run.