Private unaided & gov schools like KVs are directed to facilitate students to access online learning

Justice for all v. Govt of NCT of Delhi and ORS - W.P. (C) 3004/2020 & CM APPLS. 10415-10417/2020, 10675/2020, 12235-12236/2020

Date of Decision: 18th September, 2020

COROM: Hon’ble Mr. Justice Manmohan; Hon’ble Mr. Justice Sanjeev Narula

This is a Public Interest Litigation with regards to the disruption of education due to the COVID 19 pandemic and how online classes affects certain classes of society especially the people who cannot afford electronic gadgets. The petition was filed to instruct the respondents to provide free laptops or tablets with high speed internet to the students who are hailing from economically weaker sections (EWS) in order to facilitate their online classes.

The Issue before the Court was

Whether an appropriate order can be provided for to ensure free gadgets to students hailing from ESW and order for eliminating inequality in imparting education?

The main arguments of the petitioner are concerned with the the non-implementation of the right to free and compulsory education created under Article 21A of the Constitution of India read with Sections 3 and 8 of the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act, 2009‟). He submitted that Section 3 of the RTE Act, 2009 is a statutory transcription of Article 21A. He contended that Article 21A cannot be read in a way that would dilute the right of education guaranteed through word “free” which means that the right to education is free from cost, from discrimination, from fear, from mental trauma, from State inaction, from bureaucratic mindset, from inaction of parents etc.

He emphasized that Section 8(d) of the RTE Act, 2009 casts a duty upon the State/GNCTD to provide all the requisite infrastructure including school building, teaching staff as well as learning equipment, which includes the gadgets required to participate in virtual classrooms/online education. He also contented that GNCTD must not lead to a divide between government and private schools and if visual conferencing is a mode of imparting education the GNCTD has to make steps to provide gadgets to the government school also. He pointed out that cannot depart from the policy in view of the New Education Policy, 2020 wherein online education is one of the essential features.

The learned standing council for GNTCD submitted that “State‟ in Article 21A includes the State Government as well as the Central Government and local authorities. He stated that the law giving effect to Article 21A is the RTE Act, 2009, which is a central legislation.

He contended that due to differential fee structure, the method, manner and mode of education is different in different schools. He also produced two circulars dated 2nd July and 13th July where instructed where provided to teaching community behalf of this issue He also contended the fee received by the schools for library, lab and other extracurricular activities can be used for procuring electronic gadgets for EWS, as the library and labs are not accessible. He also contended that the State Government can also help by providing funds but the prime responsibility falls on the Central Government. Hence, according to him, in such a scenario, it becomes the prime responsibility of the Central Government to ensure that in a present case, the State is given additional necessary support so that their responsibility/obligations under the RTE Act, 2009 are implemented.

The learned standing council for Respondent 2 contended that the Central Government is also carrying out its obligations as per the RTE Act, 2009 in respect of the schools it administers, namely Kendriya Vidyalayas. He stated that KV students have access to online education and those who do not have laptop or phones are imparted education through TV channels, contact programmes, worksheets and assignments sent by post. He emphasized that the Central Government is ensuring that EWS children are not deprived of education and is provided access to education through Television Channels, All India Radio, the Internet, etc. In support of his contention, he relied upon one of the examples given in PRAGYATA issued by Department of School Education & Literacy, Ministry of Human Resource Development, Government of India and prepared by NCERT.

The learned Council emphasized that the respondent no.4 is trying its level best to assist the students through WhatsApp etc. as well as through offline means, so that each child has free access to education The councils for respondents contends that steps have been taken to implement the policies like Respondent 4, and l earned senior counsel for respondent no.18 submitted that private unaided schools are engaged in the “occupation‟ of imparting education, which is their Fundamental Right under Article 19(1)(g). The learned councils of respondent 14 and 16, highlighted these devices will not be of any use after the pandemic ends. The Court observed that RTE is a child centric legislation and it should be governing principle. The Court also reinstated the importance of Article 21. It was stated that Acts are usually regarded as “always speaking”. According to “Bennion on Statutory Interpretation” it is presumed that Parliament intends the Court to apply a construction that allows for changes that have occurred since the Act was initially framed. Consistent with the legislative intent, an updating construction has to be applied to RTE Act, 2009 and the Court of law can deal with a drastically changed situation, like Covid-19 pandemic, even if it was not known when the Act was enacted.

The word “education” is not a static one but an evolving and a dynamic concept. The mode, manner and method of imparting education have evolved from time to time. Since mode and method of imparting education is flexible, it cannot be said that the RTE Act, 2009 contemplates providing education only in a formal physical classroom, even though the school which is providing education through online means is indisputably a neighborhood school.

Government and private schools are at the same footing with regard to norms and standards under the RTE Act, 2009. However, insofar as method and mode of providing education is concerned, the same can be different amongst the private schools themselves; The only common bottom line among all the schools is that the method and means of providing education in all such classes should adhere to the minimum prescribed standard under the RTE Act, 2009 ( Para No 132)

There is no statutory obligation under the RTE Act, 2009 that the Synchronous Face-to-Face Real Time Online Education is the only suitable option during a pandemic. The Government schools are free to depart from the mode and method of education adopted by private schools provided the basic minimum standard of impartation of education, which in the present situation would be such mean/method through which the prescribed curriculum is covered by the school, in a meaningful manner.

This Court is of the view that the Union of India must seriously consider increasing its Education budget from the current 4.43% of GDP and investing in digital literacy and infrastructure in order to strengthen and enable the education system to respond promptly to future crisis.( Para no 170)

The argument that private unaided schools are required to provide equipment to EWS/DG students only if they are providing such equipment to the 75% fee paying students is mis-conceived. Section 12(1)(c) requires private unaided schools to inter alia provide free and compulsory elementary education to 25% EWS students; which means education sans financial barrier viz-a-viz those things which are indispensable for access to elementary education.

Therefore Relief was provided and the Court addressed the issue of digital divide, this Court directed the private unaided schools shall be entitled to claim reimbursement of reasonable cost for procurement of the said gadget(s)/digital equipment(s) as well as internet package from the State under Section 12(2) of the RTE Act, 2009, even though the State is not providing the same to its students. The case was allowed.

- Kamalini

Download the Judgment: Justice for all v. Govt of NCT of Delhi and ORS

WP 3004 of 2020

.pdf

Download PDF • 915KB