This article is written by Revati Magaonkar, from Dayanand College of Law. Here in this article, the observations were done by the court for the case relating to lockdown and student fees in detail.
The said case is related to the lockdown and the excess fees by the school. The High Court of Karnataka has directed the State Government not to take coercive action against the members of the Association of India schools which are affiliated to the CBSE and the ICSE. In this case, the government has ordered schools not to take more than 70% of the tuition fees, this order was given for the previous academic year 2019-2020. This order was passed in the petition by challenging the January 29 order which directed private or unaided educational institutions to collect only 70% for the academic year 2020-2021.
Association of India Schools v. the State of Karnataka
In the interim order, the High Court of Karnataka has given orders to the members of the Association of India Schools, running central syllabus school, and the state government so that they should not take any coercive measures regarding the matter of payment of a reduced fee. Justice R Devdas, in this case, asked the management of schools to consider the matter of such parents who pay lesser fees than last year. Here, the state government was also directed to not initiate any coercive action against the schools based on January 29, 2021, circular. With a circular, the government directed to reduce the fees up to 70% as mentioned above. The General Secretary of the Management of Independent CBSE Schools Association, Mansoor Ali Khan expressed his disappointment in the “Arbitrary decision of the department”.
The petitioners have challenged the provisions of the 2016 Act and 2017 Rules, that these are violating Article (19)(1)(g) of the Constitution of India. Which states the right to carry the occupation of imparting education which includes the right to determine the school fees by the Management of private unaided schools. An urge has been made that imposition of any restriction will be arbitrary and unreasonable. They also urged that it limits the school management of the private unaided school to merely proposing the school fees on the school-level committee, and which includes five parents members who know about school management and financing in comparison to only one member of the management, and those members will support for lesser fees.
The provisions of the 2016 Act give authority to SLFC to go through the proposals of school management which consist of parents, teachers, and one management member, and the decision of SLFC will remain unchanged for the next three years except for some unavoidable situations. So according to appellants, factors enumerated for the determination of school fees are vague and irrelevant. However, the provisions enumerated in the Act of 2016 are unworkable and violate fundamental rights.
Appellants think that the activities of school-level education are varied from professional-level education. Hence the determination of school fees stands different from the determination of professional-level education.
It lastly urged that the legislative provisions for fees are already included by the Parliaments RTA Act and the state legislature doesn’t have the authority to enact any law on the same subject.
The respondent-state countered the same with an argument that the Act of 2016 nature was of regulatory law, by giving complete autonomy of deciding school fees and its structure to be decided by the school management itself. It also stated that the SLFC does not include the parents of wards but it also consists of school management and the school teachers as their representatives.
The SLFC approves the proposal by the school if it is found in order, and if it doesn’t fall under order the SLFC can give suggestions on it and if it still doesn’t work (such as differences in opinions) then it goes for adjudication of the rival claims to the DFRC. Hence the decision of the DFRC becomes binding on parties. Hence everyone included in this process (school management, SLFC, adjudicator cum regulatory authority) is guided by the principles and factors given under Section 8 of the Act 2016 and the Rule of the Rules of 2017 in the matter of determination of school fees.
The respondent has also denied the challenge to the impugned Act of 2016 just based on terminology.
The state mentioned that the non-mentioning of the word prevention of profiteering and charging of the capitation fee in the aid Act of 2016, doesn’t “ipso facto” make that constitutionally suspect.
The respondent state urged that the High Court in the said judgment after advertising to the analysis of different Constitutional Benches of the court, respondent concluded that the Act of 2016 had not visited the Article 19(1)(g) of the Constitution, as the right is given therein, is not absolute.
The management representatives who represented schools challenged the January 2021 directive given by the High Court to the state government. The petition, in this case, has been filed by the Associated Management of the Primary and Secondary Schools in Karnataka (KAMS), Karnataka State Minorities Educational Institutions Managements Federation, and others.
In this case, the petition has claimed that some of the parents of students in their school have stopped paying fees and the circular bars are making coercive steps against them. They also contended that even if the government has permitted the collection of 70% tuition fees, in reality, the total calculation of collection is only 50%. Because there are no admission fees and other charges are being collected by the school schools for the year 2020-2021.
The schools also claimed that they Are spending even more on the online method of teaching, which has been continuing for the last six months. The court indicated that it will consider the prayer of interim relief in the next hearing, and also directed the state to file a statement of objection.
Observations by the High Court
After advertising the arguments of both sides the High Court dismissed the challenge made to the validity of the Act of 2016 by a common judgment. The observations made by the Court are as follows:
Therefore, according to the law laid down by the Constitution Bench in the car of the Modern Dental College Research Centre. After objective examination of the said Act and its provisions which the petitioners have sought to be assailed and the regulatory measures provided under Rules with a pragmatic approach, it would reveal that ipso facto which the State has not made any endeavour for trenching the autonomy of the petitioner-institutions. The said provisions of the Act are purgatory in nature with the sole purpose of preventing profiteering and the commercialization of school education.
The constitution of the fee structure regulatory Committee has been construed as an attempt to completely bypass the school management. The committee is constituted as its chairperson as management representative beside the principal of the school as a secretary, three teachers nominated by the management, and five parents of the student nominated by the student teachers association. However, the conditions made by the petitioners where the petitioner contended that the State had molded the wings of the management or has invaded the autonomy is without any merit.
The criteria provided for the determination of the legitimate consideration under the Section of the said Act. Hence the committee cannot act upon its urges and liking considering the fee structure of the school, it has to adhere to the criteria provided under Section 8 of the Act. And the remedy against the fees structure has been determined by the committee and provided in the Statute by the way of appeal and second appeal, it properly repudiates the connections made by the petitioners about the unreasonable restrictions imposed on their autonomy within the mischief of unacceptable restrictions envisaged under the clause (6) of Article 19 of the Constitution.
Stepping onto the coercive measures and the penal provisions given under the statute and the methodology if enforcement prescribed under its rules and it would be just and reasonable for observing that all the said provisions are important and concomitant of the regulatory mechanism for achieving the desired goals. However, it cannot be categorized as unreasonable restrictions. And in the whole scene, the Court has assured that Section 13 to 18 of the said Act and the Rule 11 of the Rules not being intended to be gathered on the sundry occasions, for interfering with the day to day functioning of the recognized unaided schools. However, the complaint made by the petitioners about the frivolous and inconsistent supplication of the said provisions appears to be per se a far cry without any actual meaning.
Hence without any need for negotiation, arguments, or disputes the Rules are like subordinate legislation and framed by the government in exercise of a given power under Section 19 of the Act for carrying out all or any objectives of the said Act. Hence Rules of such nature are not available on the ground that there is a lack of legislative competence and also not for the failure to fulfill the parent statute under the said Rules have been formed. These Rules are not offending any rights bestowed on the petitioner under Part 3 of the Constitution and also not violating any provisions of the Constitution. Hence the challenge made to the Rules is unsustainable.
The argument made by the council on behalf of the petitioners appears to be quite alluring but doesn’t have any significance. After analyzing the arguments in the backdrop of the list involved in these matters the court has already rejected the same. At all chance of repetition of this, the court repeated that the said Act and its provisions are not taking away or abridging the rights of petitioners which are conferred on them by Party 3 of the Constitution. The court also added that the entire building of the challenge in all these petitions alleged for the infractions of Article 19(1)(g) of the Constitution, which are not an absolute fundamental right without any dispute on it.
As the observations made by the court, the said fundamental right is subject to putting reasonable restrictions and these restrictions are permissible as they aim for seeking laudable objectives in the substantial public interest.
Hence by observing it from any angle the impugned provisions of the said Act and the Rules are ultra vires of the Constitution, as it’s not violating Article 13(2) and 19(1)(g) of the Constitution.
The result of all the above observations made by the court is that all these petitions have failed and are now dismissed. The petitions which have been stayed have also been dismissed and the interim order given on 9th April 2018 is relinquished.
Observation of the Supreme Court
After cogitating over the arguments made by the opposite party and also by considering the impugned Judgement given by the High Court, the Supreme Court without any hesitation observed that even if the High Court was right in its conclusion it has disposed of the challenge to the validity of the different provisions given under the Act of 2016 and the Rules framed under it in a summary manner. The court agreed that the mere advertising of the court’s decision is not enough. The High Court should have analyzed the challenge then only with the respective provisions and the overall scheme of the Act. Ordinarily, the court would ask the parties to reconsider the matter before the same High Court, but now considering the issues raised by parties the court addressed the challenge to the provisions of the Act of 2016, in this judgment.
The Court observed that the appellant wants to be justified in assailing the order of 2020. It does not give them the right to be rigid and not being sensitive to the aftermath of a pandemic. The school is a charitable institution of education. It should understand the hardship of students and parents during such situations. The school management should restructure the fees by not letting out a single student from pursuing his or her education. By giving effect to the quote that “live and let live”.
In law, the school management cannot collect fees for things or facilities which are not being given to them in such situations, and demanding the fees yet will indicate this act of profiteering and commercialization. Due to the pandemic schools were not allowed to open fully in the academic year 2020-2021.
Hence, the school must have the overhead charges of this which have not been used in lockdown such as, electricity bill, water charges, petrol cost, etc. So that saved amount will be directly the overhead saved amount without giving facilities to students during the lockdown. As the fees come to the principle quid pro quo automatically comes into existence. But neither side has given the details and information of savings done during such a period.
The court without any mathematical examination assumed that the schools must have saved 15% of the annual school fees which have been fixed by the Statutory Regulatory Authority for that relevant period. The counsel for the appellant said that the petitioner would be content with the order of 2021 given by this court, but it will not indicate the expenses saved by the school in the pandemic. The court said that it will not go further in detail for how much expenses are saved by the school on things that have not been utilized by students during such a period. The court said that 15% is nothing as in reality the amount saved by them, and it will not go deep in this as the schools are considered as the charitable institutions of education and not for making money.
Hence, still a collection of the amount (15% saved on expenses not utilized) will be the act of profiteering and commercialization by the school management. If the court would propose the matter to the regulatory authority for determination of fees after acknowledging the amount saved by schools, it will expand or increase the process by determining an amount for 36,000 schools as per the (school wise) rules. The court gave some directions for doing complete justice between parties at one time, such as giving time to parents to pay fees as fixed according to the Act of 2016 for the year 2019-2020, paying by installments (the amount left out after cutting down the 15% saved), allowing students to attend either online or physical class as per situation, etc. The court disposed of the appeal in a one-time measure and also the contempt petition, impugned judgment so that all contempts to be disposed of.
As the court is conscious of the fact that is not the subject of the appeals before the court. The said directions are issued for giving relief to petitions filed by the private unaided schools and also directing to discharge its statutory obligation within the specified time of paying
the outstanding dues of the concerned private unaided schools towards the unit cost. The outstanding dues to be paid in terms of this direction would be obviously in respect of the academic year up to 2020-21. The court also noted that it has not dilated on each of the reported decisions relied on by parties as it is not necessary for the view taken by the court. Hence there is nothing inconsistent with those decisions.
Order is given by the Supreme Court
- The first set of appeals are called for the validity of the Act of 2016 and the Rules framed under it, with observations and conclusions recorded in this judgment by reading out Section 4, 7, and 8 of the Act. And it directs that the same will be applied in conformity with the law declared in this judgment.
- The second set of appeals is allowed with the above-mentioned directions, and the impugned judgment and order of the High Court is quashed and set aside. The center appeals preferred by the appellants that questioned the decision of the learned Single judge and the writ petition filed before the High Court to assail the impugned order of 2020, stand aa as disposed of in terms of this judgment.
- The contempt petitions pending before the High Court also stand as disposed of and no order as to costs.
Hence, the court has disposed of all the petitions by taking into consideration the situation of pandemic and lockdown, and how it hurt students and parents in learning and paying fees. The Supreme Court has evaluated the provision challenged by the petitioner hereinabove by elaborating the appeals in detail without any further unnecessary process. The court has given relief to all the parties in one-time measure.
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