Friday, September 29, 2023

Batting for students

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By Sanjay Raman Sinha

A recent verdict of a single bench of the Delhi High Court on a student’s right to continue study despite failing to pay dues has raised eyebrows. A Class X student studying in a private unaided school had failed to pay his school dues due to his father’s poor pecuniary condition. The student was to appear in CBSE board exam practicals, but the school took stringent action against non-payment of dues and struck his name off the rolls. In his plea, the student prayed for permission to appear in the practicals.

Justice Mini Pushkarna held that not allowing a student to take examinations infringes on his right to life under Article 21 of the Constitution. Taking note that the boy had approached it at the last hour for reprieve, the Court held that a student cannot be made to suffer and not be allowed to attend classes or be barred from taking examinations in the middle of an academic session for non-payment of fees.

The Court directed the school to issue a Class X CBSE roll number to the student so that he can take the Board exams. The order said: “Education is the foundation which shapes the future of a child, and which in turn, shapes the future of society in general. Therefore, not allowing a student to take examinations, especially the Board Examinations, would be infringement of the rights of a child akin to Right to Life as guaranteed under Article 21 of the Constitution of India.” 

Further, the Court held that if a student is not admitted in the economically weaker section (EWS) or disadvantaged group (DG) quota, a private unaided school cannot be forced to retain a child who is unable to pay fees. The order further instructed the student to pay some amount as fees to the school.

As the verdict was for a school located in Delhi where the Delhi School Education Rules, 1973, apply, the order clarified: “The constitutionality and validity of Rule 35 of DSER (Delhi School Education Rules), 1973, which authorises the head of the school to strike off the name of a student from the rolls of the school on account of non-payment of fees, has not been struck down by any court of law.” The Court held that the rights of a child to education have to be balanced with the rights of the school under DSER. “If the petitioner is unable to pay the fees of the school, the petitioner certainly does not have a right to continue education in the school in question.”

However, taking a considerate view, the Court held that the petitioner cannot be tormented in this manner in the middle of the academic session and that too in a Board exam where his career is at stake.

The broader question in such cases is how the rights provided to students under the Right to Education (RTE) and EWS quota balances with the rights of private unaided schools. 

This was amply clarified in a June 2022 verdict of Delhi High Court. In this particular case, a Class VI student’s name was struck off the school rolls for non-payment of school fees. The Delhi High Court ruled: “The Right to Education (RTE) Act guarantees the right to education. However, it nowhere provides that the said right can be unconditionally enforced against a private unaided school.”

The Court noted that restraining private schools from charging any fee to meet their expenses on their own is “completely untenable”.

However, RTE has been a thorn in the flesh of private schools for many other reasons and underprivileged children are denied their statutory guaranteed rights.

The Constitution (Eighty-sixth Amendment) Act, 2002, inserted Article 21-A to provide free and compulsory education to all children in the age group of six to 14 years as a Fundamental Right in such a manner as the State may determine by law.

“Free” education means that no child shall be liable to pay any kind of fee, charges or expenses which may prevent him from pursuing and completing elementary education. “Compulsory education” makes it incumbent on the government and local authorities to provide and ensure admission, attendance and completion of elementary education to all children in the 6-14 age group.

But there are hiccups. The state government reimburses schools for books, fees and uniforms for the students. However, if the government fails to reimburse the schools, students are hit. Then, in many cases, schools go slow on RTE admissions claiming lack of funds. Cases of forced private tuitions are also reported.

Under the RTE Act, there is a provision for students from socially and economically backward classes to avail 25% of the total seats available in recognised private schools. However, EWS students getting admission in private schools under the quota have a different set of woes.

Students have to face social discrimination too due to the difference in social status with well-off students. Elite private schools are conscious of this fact. Also, as it goes against their brand, they go easy on RTE admissions. 

But courts have come to the rescue. In December 2022, the Delhi High Court held that private schools will have to give admission to all the children mentioned in the list issued for EWS admission after the draw of lots by the Directorate of Education. Private schools pleaded that they fill the EWS seats in proportion to general quota seats which don’t get filled up fully. The Court put down its foot and ordered that relief in EWS quota admission will be allowed only as per the permission of Directorate of School Education.

RTE has statutory mandate as well. In May 2014, the Supreme Court upheld the constitutional validity of the RTE Act. However, a five-judge Constitution Bench headed by then Chief Justice RM Lodha had then said that the Act will not apply to aided or unaided minority institutions. The bench held said Article 21 (A) does not alter the basis structure of the Constitution.

With a strong constitutional and legal mandate in place, it is up to governments and school managements to ensure that children are not denied educational rights.

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