INTRODUCTION
Vide Judgment dated 03.05.2021 in the case of Indian
School, Jodhpur & Anr. v. State of Rajasthan & Ors., Civil
Appeal No. 1724/2021, the Hon’ble Supreme Court of India decided some pertinent
issues relating to regulation of fees in the Schools in the State of Rajasthan.
There were two sets of petitions. In the first set
of Petitions, private unaided schools had assailed the validity of the Rajasthan
Schools (Regulation of Fee) Act, 2016 (in short, “Act of 2016”)
and in the second set of Petitions, Orders directing deferment of collection of
school fees including reduction of fees limited to 70% of Tuition Fees by CBSE
Schools and 60% from Rajasthan Board Schools, in view of reduction of syllabus
by the respective Boards due to the Covid-19 Pandemic.
FIRST SET OF PETITIONS
Grounds of Challenge to the Rajasthan Schools
(Regulation of Fee) Act, 2016
1. Arbitrarily restricting the autonomy of the
School to determine fee is violative of Article 19 (1) (g) of the Constitution
of India.
2. The Constitution of School Level Fee
Committee (SLFC) under the Act of 2016 wherein the School Management has
only one representative against five parents, three teachers and one principal,
restricts the autonomy of the School Management to regulate fees. Such parents
could also be of those wards who are availing free education under the Right of
Children to Free and Compulsory Education Act, 2009 (in short, “RTE Act”)
and thereby have no stakes at all in relation to the School Fees.
3. The Division Fee Regulatory Committee (DFRC)
and the Revision Committee constituted under the Act of 2016 have powers
to issue summons, search, seizure and penalties thereby considering School Fees
to be res extra commercium (thing that is outside purview of commerce)
and endlessly embroiling the School in the process of appeal, revision and
judicial proceeding putting their financial future in jeopardy.
4. The process of determining fees is a dynamic
exercise and the factors enumerated under the Act of 2016 are vague, subjective
and irrelevant. In TMA Pai Foundation & Ors. v. State of Karnataka
& Ors., (2002) 8 SCC 481, it was observed that it is in the
interests of the general public that autonomy and non-regulation of the school
administration will ensure that more good quality schools will get established.
5. It was also urged that the field of regulation
of fees of schools is already occupied by the RTE Act and the State Legislature
cannot enact a law on the same subject.
Grounds taken by the State in relation to the
Act of 2016
1. The State/Respondent cited various cases such
as Modern Dental College and Research
Centre & Ors. v. State of Madhya Pradesh & Ors., (2016)
7 SCC 353, wherein identical provisions enacted by various states in relation
to fixation of fee by external committees were upheld.
2. Article 19 (1) (g) of the Constitution of India
is not an absolute right and the State has the power to regulate such rights.
Observations by the Court in relation to the
Act of 2016
1. It is not open to argue that the Government
cannot provide for external regulatory mechanism for determination of school
fees. The real question is whether the Act of 2016 stands the test of
reasonableness and rationality and balances the rights of the School under
Article 19 (1) (g).
2. The Court also considered the ground that the
RTE Act already occupies the field and observed that the purpose of the RTE Act
is completely different since it talks about free and compulsory education to
the children of the age of 6-14 years and otherwise has no connection with the
fee structure that is adopted by the Schools.
3. The Court considered the Act of 2016 in great
depth and upheld the validity of the Act of 2016; however, it read down the
following provisions: -
a. Section 4 that talks about lottery
system was read down wherein even the parents of the wards admitted under the
RTE Act could become a part of the SLFC. The Court held that the parents
who are part of the SLFC must be willing, well-informed and capable of having a
meaningful discourse on the proposal of fee structure. Such eligibility ought
to be specified in the Act.
b. Section 7 was also read down to the
extent that the constitution of DFRC under it must ensure that only
those parents who wards are actually studying in the School at that point of
time are a part of it and such parents should not be the members of SLFC of any
school within the divisional area. Further, such parents should have basic
knowledge about functioning of the Schools and that their ward should not have
secured admission under the RTE Act.
c. Section 10 was also read down that deals
with the Revision Committee wherein the decisions of the DFRC could be
assailed, to the extent that in the Revision Committee as well, the
stipulations contained in point b. hereinabove are followed.
SECOND SET OF PETITIONS
In the second set of Petitions, Orders were passed
by the Rajasthan Government directing deferment of collection of school fees
including reduction of fees limited to 70% of Tuition Fees by CBSE Schools and
60% from Rajasthan Board Schools, in view of reduction of syllabus by the
respective Boards due to the Covid-19 Pandemic. Those Orders were upheld by the
Division Bench of the Rajasthan High Court taking the view that such Orders
could also be even in exercise of powers under the Disaster Management Act,
2005 (in short, “Act of 2005” of “DM Act”)
According to the Schools, they were already
following the mandate of the Act of 2016 and the Fee was fixed by the SLFC and
there is no provision under the Act of 2016 that permits such interference by
the State Authorities in respect of School Fees. Further, it was urged that the
Disaster Management Act has no applicability in the facts of the present case as
it has nothing to do with regulation of fees.
According to the Hon’ble Supreme Court, the
Disaster Management Act, 2005 provides for preparation of a plan for disaster
management by concerned authorities and “it is the direct effect of
disaster that is required to be mitigated and not indirect hardship caused to
individuals much less in respect of contractual matters” and “in
the scheme of the Act of 2005, there is nothing to indicate that the
Authorities can interfere with
contractual matters or indirect hardships — such as inability of parents
to pay school fees due to pandemic situation. The Director, Secondary
Education, in no way, is concerned with
the preparation of a disaster plan or its enforcement and implementation under
the Act of 2005.”
The State of Rajasthan also tried to invoke the
Rajasthan Epidemic Disease Act, 2020, to justify its Orders. Section 4 of the
said Act talks about permitting the government to regulate the functioning of
offices, governmental, private and educational, but according to the Hon’ble
Supreme Court, the same gives no authority to the State Government to decide
about the fee structure of unaided private schools.
The Hon’ble Supreme Court also observed that the
State Government cannot issue directions in respect of commercial or economic
aspects of legitimate subsisting contracts (Contract between Students/Parents
and Schools) between two private parties with which the State has no direct causal
connection. It was further observed that “in the guise of management of
pandemic situation or to provide “mitigation to one” of the two private parties
“at the cost of the other”. This is akin to – rob Peter to pay Paul.”
More strong remarks were made by the Hon’ble
Supreme Court and it was stated that in the guise of curbing profiteering, the
State “cannot transcend the line of regulation and impinge upon the autonomy of the school
to fix and collect “just” and “permissible” school fees from its students”
and “it is certainly not an essential commodity governed by the legislation such as Essential Commodities
Act, 1955 empowering the State to fix tariff or price thereof.”
Another interesting argument that was taken by the
Government/Respondent was that it was regulating the Fees while exercising the
powers under Article 162 of the Constitution of India. Article 162 provides that
the Executive/Government has the powers to make laws on all matters to which
the Legislature of the State has power to make laws. On this argument, it was
the view of the Hon’ble Supreme Court that plethora of cases decided earlier
have held that determination of school fee structure is the exclusive
prerogative of the School Management running a private unaided school and
hence, in such cases, it is not open to the Legislature to make a law touching
upon that aspect. In words of the Court, “Ex consequenti, the State
Government also cannot exercise power under Article 162 of the Constitution in
that regard.”
The Hon’ble Court stressed on the fact that the
Disaster Management Act is not a panacea for all difficulties much less not
concerning disaster management as such. While holding that the Government has
no power reduce fees of the Schools, the Hon’ble Court also observed that this
does not mean that the Schools have a Carte Blanche to be oblivious to the
conditions of the Pandemic and the School Managements should “reschedule
payment of school fee in such a way that not even a single student is left out
or denied opportunity of pursuing his/her education, so as to effectuate the
adage “live and let live”.”
Further, the Hon’ble Court also observed that the
Schools can collect fees only in respect of activities and facilities which
they are providing and demanding fees in respect of overheads that are not
being incurred by them would be “nothing short of indulging in
profiteering and commercialization.”
According to the Hon’ble Court, since the schools
were not allowed to be open for a substantial period of time due to the
Pandemic, they must have saved overheads and recurring costs on various items
such as fuel, maintenance, water, stationery etc. Due to lack of empirical data
in this regard, the Court observed that despite lack of mathematical
exactitude, it would assume that the Schools must have saved around 15% of the
annual school fees fixed by them for the relevant period.
In light of the above-stated reasoning, it was
held by the Hon’ble Court that: -
1. The Schools shall provide a minimum of 15%
deduction on the annual school fees to the students.
2. The amount so payable shall be paid in six
equal monthly instalments before 05.08.2021.
3. No student shall be debarred or withheld from
attending either online/physical classes on account of non-payment of fees and
request to remit fees should be considered sympathetically by the Schools.
4. Such arrangement mentioned hereinabove will
not affect the collection of fees for the academic year 2021-22.
OPINION AND CONCLUDING REMARKS
I have mixed feelings about this Judgment. On the
one hand, the Hon’ble Court has artistically brought down every non-sensical
argument of the Government/State to hold that regulation of fee is a private
affair in case of private unaided schools but on the other hand, the Court went
ahead with providing deduction in respect of fees that is to be collected by
the Schools. Further, the students cannot be debarred by the Schools if their
parents fail to deposit fees in respect of academic year 2020-21.
I think the overall winners in this entire battle
of regulation of fees are the students and quite rightly so. They are the ones
who would suffer most if the education were not imparted to them. But, in the
garb of imparting education to the students, I respectfully submit that that
the Hon’ble Court has left the parents without any consequences. I think it
would be better if some form of mandatory direction with respect to the parents
is also given that makes sure that the parents who are in a position to pay
must pay the fees and failure to do so would entail liabilities not for their
kid but directly on them. A small window of opportunity has been given to the
unscrupulous parents who despite having the paying capacity may end up taking
undue advantage of the leniency shown to them by the Court.
But be that as it may, Hon’ble Courts can do only
so much in such uncertain times. The best part of the Judgment is that the
Hon’ble Court considered each, and every argument advanced by all the sides in
proper spirit and perspective and did not allow high-handedness or callousness
to prevail.
I can just hope that our respective governments
also start taking the matters at hand in a serious and a responsible manner, as
is expected from every legitimate government. It is too bad that for every
little thing, painstaking efforts have to be made by the Courts to balance the
rights of the people vis-à-vis the powers of the government whereas such
situations ought not to arise ever if the governments adopt a rational and a
sympathetic view to the legitimate plights of the citizens of this country.
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