EDUCATION DURING THE COVID CRISIS: THE ISSUE OF ACCESSIBILITY AND PAYMENT OF SCHOOL FEES
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.
1. Why is there a legal duty on schools to continue imparting education
to the best of their abilities during this period?
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.
2. What are the challenges being faced by students and teachers in
conducting virtual classes?
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.
3. Do parents have to pay fees during this period?
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.
4. What are going to be the long-term impacts of this crisis on
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
