Dewangi Sharma (IV B.A. LLB) and Nihar Chitre (Batch of 2021)
Introduction
The central government’s declaration of victory over the first wave of the Covid-19 pandemic and the chest-thumping over the largest vaccination drive in the world, blinded the “the system” as the second tsunami of the Covid-19 grappled us. The soul-stirring, heart-wrenching images of the desperate citizenry to avail basic medical resources not only anguished the Indian Society but the world at large. But this is not the topic for today’s article. Today, we are focusing on another devastating aspect of the Covid-19 and demand our serious and immediate attention: Covid-19 and its impact on the education system.
There are various diversified issues at large but here we restrict ourselves to two core issues: regulation of school fees by various state governments and cancellation of various exams in the backdrop of the Covid-19 pandemic.
Regulation of School fees
The Central and state executive authorities have relied excessively on the use of delegated legislation under the Disaster Management Act, 2005 (‘DMA’) and the Epidemic Diseases Act, to tackle and mitigate the effects of the pandemic. It is however important to demarcate the limits and scope of such expedient delegated legislation to ensure that citizens’ fundamental rights and freedoms are not being violated. It is in this background that the Supreme Court has delivered the judgement observing that the state government does not have the necessary power to pass orders regulating school fees even as a welfarist policy measure to provide relief to parents suffering from the economic devastation of the pandemic. The imposition of nationwide and localized lockdowns since the past year, along with the transition of physical activities to a virtual or ‘online’ setting led to various demands from citizens for a reduction in their financial burden. Many states came to the rescue of citizens and passed executive orders to provide some modicum of economic relief.
Various states including Rajasthan, Maharashtra, Gujarat, Punjab, Haryana, etc. have passed executive orders/regulations/circulars which attempted to regulate the fee structures of private educational institutions in an attempt to provide relief to the parents as the classes shifted online. For instance, the General Resolution (‘GR’) issued in Maharashtra dictated private schools to not increase their fees, and to not expel any student on the account of non-payment of fees. The resolution was challenged before the Bombay High Court on the grounds that the State government does not have powers to regulate fees of private schools. The Bombay High Court stayed the GR in an interim order observing a prima facie lack of legality and rationality but eventually vacated the stay when the State said that the resolution would only be applied prospectively. The Court observed that due to the complexities arising in this issue, it would not decide on the validity of the resolution.
The government of Gujarat went to the extent of passing a Government Resolution that private schools in the state cannot charge any kind of fees from students for tuition or other co-curricular activities for the period of the Covid-19 lockdown. The Gujarat High Court subsequently refused to intervene in the matter albeit observing that the measure was excessive. Punjab and Haryana High Court held that the state governments of Punjab and Haryana were not competent to pass such orders/circulars, whereas the Madras High Court issued guidelines barring an increment in school fees and dismissal of students on the non-payment of fees. The Orissa High Court also dismissed similar petitions after the stakeholders reached an agreement to provide concessions in the fees. Clearly, there was no consistency in the High Courts’ decisions and no clarity was provided on the executive’s powers to regulate private economic transactions of the schools who also enjoy the protections of the fundamental right to trade under Article 19(1)(g).
Validity Of The School Fees Circulars/Orders
The issue before the apex court was related to multiple orders issued by the Director, Secretary of Education (Rajasthan) which dictated that schools that were imparting online education could only charge 70% and 60% (for State board schools) of tuition fees (CBSE) for the academic year 2019-20, it also ordered deferment of payment of fees till schools reopen. The authority of the Director to issue such orders was challenged before the Rajasthan High Court which upheld their validity. The court observed that the executive authority was well within its power to pass such policy measures to mitigate the hardships of the parents. The court traced these powers to the broad provisions under the DMA and held that the State is empowered under Article 162 to issue such directions amid the unforeseen and unprecedented COVID-19 situation. According to the court, the present legislation (Rajasthan Schools (Regulation of Fee) Act, 2016) does not account for the special circumstances created due to the pandemic and therefore, the executive can step in to protect the citizens from economic hardships.
In Indian School, Jodhpur & Anr. v. State of Rajasthan, the Supreme Court undertook a detailed analysis of the scope and power of the state government and subjected the impugned orders/circulars to strict scrutiny to assess its legality. The court struck down the orders on the grounds that the Director, Secretary of Education, and the state government do not have the power under DMA to regulate commercial transactions between two private individuals while mitigating the effects of a disaster. It noted that private unaided schools have the fundamental right to trade under Article 19(1)(g) which includes the right to decide their fee structure, as was held in T.M.A Pai Foundation. The state is empowered to interfere only to prevent “commercialisation of education”. According to the court, as the private schools were not indulging in such behaviour, the state government would not be authorised to dictate the terms of school fees to the schools.
Restraining Welfarist Measures Of The Government
However, the court itself goes on to direct the private schools to waive off 15% of the school fees and bars suspension of students on the grounds of default in payment. This approach taken by the court is problematic as it issued such directions while observing that if schools profit from unutilized facilities during online classes, it would amount to ‘profiteering’. The state government had issued the circular on the same reasoning, which the court had elaborately rejected in the earlier paragraphs. If the court agrees that the schools cannot charge fees for facilities that are not being used in the ‘online’ mode and should provide concessions as they have saved overheads, then the state government indeed has the power to regulate fees in this context. In Islamic Academy of Education, ‘profiteering’ was defined as meaning “taking advantage of unusual or exceptional circumstances to make excessive profits”; that the state could ensure educational institutions “do not indulge in profiteering or otherwise exploiting its students financially”. It has been made clear through various judgments of the apex court that education is seen as a “charitable” profession and a ‘public interest good’ and therefore it does not enjoy the same levels of protection as other businesses – especially when it comes to the question of profit.
Clearly charging of normal fees or any increment in fees could be seen as ‘excessive’ during a pandemic and an online mode of education. The court could have applied the proportionality test on the circulars to assess their validity and rationality, but it ruled that the state government has no power to pass any such orders in the first place. Such a measure seems inconsistent with the court’s guidelines granting 15% relief in fees to the parents.
The court also observed that the state government cannot draw on the ‘DMA’ to regulate private transactions of commercial nature with which the State has no direct causal connection, 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”. The court does not clarify what ‘direct causal connection’ means and how the shutting down of schools and the economic hardship faced by the parents would not come under the purview of the Act. The ‘DMA’ was never envisaged to be applied to a pandemic type situation, however in the present circumstances; the legislation was interpreted to suit the need of the time. As per Section 24(j) of the Act the State Executive Committee can ensure that ‘non-governmental institutions carry out their duties in an equitable and non-discriminatory fashion”. Here, ‘non-governmental institution’ can be broadly interpreted to cover private unaided educational institutions to mitigate the plight of the citizens due to the unprecedented crisis post COVID19 pandemic.
Even though the state government did not rely on this provision to justify its circular, the court understands that the government cannot pass welfarist and relief measures that intervene with commercial transactions between private entities can pose a hurdle for the government authorities in protecting citizens from the economic struggles during the pandemic. It may bring under scanner the measures undertaken by state governments to provide support and relief to citizens such as the mandatory payment of wages to workers even during lockdown. The problem highlights the need of a special legislation to take care of the peculiar and extraordinary effects of the Covid-19 pandemic while also ensuring that principles of proportionality and legislative oversight are followed.
Cancellation of Examination
Both the first and the second wave of the pandemic severely impacted the conduction of Examination whether it may be the regular 10th and 12th board examination conducted by CBSE, State Boards and ICSE or the Competitive Examination such as UPSC or PCS. The approaches of the Constitutional Courts have been different. Let us analyse the judicial approach and scrutiny with regard to examination pattern.
The track record of the Constitutional Courts is mixed. Some orders and observations were applauded, while others batted an eye. An excellent example of judicial restraint was shown by the Principal Bench of Bombay High Court, when it refused to intervene with executive action of cancelling the class 10th Exam. The Court observed that even though it disagrees with the decision of state government of Maharashtra, it simply cannot intervene and change the executive action unless it is shown that the public is affected at large. A similar approach was taken by Madras High Court, where it remarked that it wasn’t inclined to hear the petition. The PIL is now listed for 23rd June.
Yet another example, we see is from the Karnataka High Court where it refused to entertain a PIL challenging the decision of the Central Government to postpone NEET PG Exam after 31st August 2021. The decision of the government to postpone the exam was based son opinion of the experts and sound discretion.
Interestingly, the Nagpur Bench of the Bombay High Court refused to entertain where a PIL was filed in offline examinations of Maharashtra University of Health Sciences. The Court instead of going deeper into the issue restricted itself to issue advisory to the MUHS mandating that students must conduct Covid 19 test before entering the examination hall.
The Court ought to have delved into the issues deeper and must have considered the petition as it involved substantial and direct violation of “Right to life” enshrined under art. 21 of the Constitution. Mere issuing of an advisory doesn’t do justice to the students. There is a difference between judicial restraint and abdication. The attitude of the Hon’ble court falls more into judicial abdication.
Lastly, in a PIL challenging the cancellation of the 12th Class board exams, the Supreme Court did not intervene on policy decision of cancellation of examination. It largely accepted the formula scheme devised by the two boards for evaluation and declaration of the result. The Hon’ble Court, however, asked the two boards to incorporate two aspects:
“First is dispute resolution in case students want correction of final results declared. Second, is about timeline for declaration of results and the date before which optional exam be conducted,“
Here, we have not taken all the PILs that have been filed in various Constitutional High Courts but have restricted ourselves to the important ones.
Judicial Activism or Restrain OR Abdication?
The approach of the Constitutional Courts should be looked at through the lens of judicial activism, restrain, or abdication. Fortunately, of all the cases we have illustrated above, the attitude of the Courts has been that of restraint. There are various antecedents where the Courts have flexed their muscles and behaved like “unqualified” executive and “unelected” legislators of the Country. The excitement of the courts to encroach on the duties of the other two organs of the country is worrying.
In the school fees matter, the High Courts and the Supreme Court took it upon itself to dictate policy and step into the legislator’s shoes to provide relief to the parents. However, the court’s decision to hold the executive’s actions ultra vires and still end up providing a 15% fee concession is problematic. In cancellation of examination issue, the approach of Court is generally of judicial restraint and not activism.
The judiciary walks on the tight rope of judicial restraint and activism. Any imbalance would have serious ramifications on the rights of the citizenry. The problem is not judicial activism; the proactive approach of the court is appreciated. The cause of the problem begins when the Court thinks that it can replace the other two organs of the State and govern. Activism is welcome but encroachment and dictating policy is not. Let it be clear that incidental encroachment on policy-making is alright as long as the policy patently violates any fundamental rights in Part III of the Constitution.
No other encroachments in form of orders or remarks should be avoided. Only then a healthy functioning of rule of law and democracy will prevail.
ILS Centre for Public Law 