NEED OF THE HOUR:LAW TO CHECK ARBIRARY FEE HIKE IN UNAIDED SCHOOLS

GOVERNMENT MUST BRING A CENTRAL LAW ON THE LINES OF TAMIL NADU SCHOOLS (REGULATION OF COLLECTION OF FEE) ACT, 2009

Ashok Agarwal, lawyer & civil rights activist

After the Hon’ble Supreme Court’s Order of 11.05.2010 dismissing Special Leave Petitions of several Unaided Private Schools of the State of Tamil Nadu challenging the Madras High Court Judgment of 09.04.2010 upholding the constitutional validity of the Tamil Nadu Schools (Regulation of Collection of Fee) Act, 2009 (in short, Tamil Nadu Act, 2009) and The Tamil Nadu Schools (Regulation of Collection of Fee) Rules, 2009, the Central Government now in public interest must bring a national law immediately on the lines of Tamil Nadu Act, 2009 to check the menace of commercialization of education in unaided private schools all over the country and to protect the hapless parents and students from exploitation. The Apex Court has once again re-affirmed the law of the land that the capitation fee, exorbitant fee, profiteering, commercialization of education and exploitation of parents/students by the unaided private schools are impermissible in law and the Government has not only the powers but also the duty to regulate fee in these schools to prevent commercialization of education.


A Division Bench of the Madras High Court has delivered a landmark Judgment on 09.04.2010 dismissing all the writ petitions challenging the constitutional validity of Tamil Nadu Act, 2009 by holding that the scheme of the Act is in consonance with the law laid down by the Apex Court, and it by and large strikes a balance between the autonomy of the institutions and measures to be taken to prevent commercialization of education. “There are sufficient guidelines in the statute for either approving or fixing the fees. The procedure prescribed provides for appropriate opportunity to the managements. The Committee is headed by a retired High Court Judge. The minority institutions have also to maintain non-exploitative terms as held in P.A.Inamdar’s case. The impugned Act, therefore, cannot be said to be in any way in violation of Articles 19(1) (g) and 26 and 30 of the Constitution of India”, said the Hon’ble Judges.


The Tamil Nadu Act, 2009 was enacted in the backdrop of the fact that in the State of Tamil Nadu, there were about 5500 Nursery/Primary Schools, 4100 Matriculation Schools, 38 Anglo Indian Schools and 500 State Board Schools of Tamil Medium totaling to 10, 148 schools which were unaided. There was no uniformity in their fee structure and on the face of it large numbers of them were charging very high fees, which could not be justified. The Madras High Court while deciding the case has also taken note of the fact that the Government has placed on record considerable material showing that private schools charging exorbitant fees. The High Court has further taken note of the fact that large number of representations have been made by the Parents’ Associations all throughout the State against charging of high fees by particular schools and the news reports of agitation by parents at different places. It was, therefore, felt necessary to regulate their fees.


The salient features of the Tamil Nadu Act, 2009 are: (a) The Committee constituted under Section 5(1) for the purpose of determination of the fee shall be headed by a retired High Court Judge. (b) The Committee has to call upon the private institutions to place before it the proposed fee structure of the institution with all relevant documents and books of accounts for scrutiny within the period to be indicated by the Committee in the given notice. (c) After the receipt of the proposal from the concerned institution, the Committee has to verify as to whether the fee proposed by the Private School is justified and it does not amount to profiteering or charging of exorbitant fee. (d) In case the Committee is of the view that the fee structure proposed by the institution appears to be correct, taking note of the various facilities provided and that there was no profiteering or collection of exorbitant fee, it has to approve the fee structure. (e) In case the Committee is of the view that the fee structure forwarded by the institution is exorbitant and that there is an element of profiteering, the Committee has to determine some other fee. (f) While fixing some other fee, the Committee has to follow certain procedures taking into consideration the factors as found mentioned under Section 6(1) as well as Rule 3 of the Rules. (g) The determination of the fee as made by the Committee should be intimated to the concerned institution and there upon the institution has got a right to submit their objections within fifteen days. (h) The objection so submitted by the institution shall be examined by the Committee. The Committee has to consider it objectively. The Committee was not expected to reject the objection summarily. As per Section 7(4), the Committee shall have the powers to regulate its own procedure in all matters and it shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 regarding summoning and attendance of witness and related matters. Therefore, the Committee would be within their powers to get the factors verified in respect of the claim made by the institution, to approve their fee structure, as against the fee determined by the Committee. (i) The fee so prescribed would be in operation for a period of three years and at the end of such period, it would be open to the institution to make an application for revision of fees. (j) Under Section 3(2) no fee in excess of the fee determined by the Committee shall be collected in a private school and the punishment provided for contravention thereof is imprisonment for a term which shall not be less than three years but which may extend to seven years and with fine which may extend to five thousand rupees and the Court may, for any adequate and special reason to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three years. (k) The person convicted shall refund to the pupil from whom the excess fee was collected, such excess fee.


The Madras High Court in Para 21 of the Judgment noted, “The observation of the Supreme Court was against the Government fixing the rigid fee in respect of private institutions. The impugned Act, in no way fixes the rigid fee. It only calls upon the management to forward their fee structure with details as to how they arrive at such a fee structure. The main idea is to see as to whether under the guise of collection of fees they are indirectly collecting the capitation fee or indulging in profiteering. That is why the Act initially uses the term Approval of the fee structure and only in such cases where the committee is of the view that the fee structure proposed is exorbitant and is in the nature of capitation fee or profiteering, it intervenes in the matter and for the purpose of fixing the correct fee, the private institution is given liberty to specify their fee structure, taking into account the expenditure necessary for running the institution as well as its future needs. Thus, it proceeds to determine the fee structure thereafter. In that process, it considers the objections given by the management to the fees proposed by the Committee. The consideration of objections by the Committee cannot be treated as an empty formality. The Committee has to consider the objections made by the institution in an objective manner and if necessary, by inspecting the institution and calling upon the management to produce the records in their possession in respect of various facets and to arrive at a decision as to whether the fee determined by the Committee was the correct one or it requires modification. It cannot be ignored that the committee is a high powered committee headed by a retired High Court Judge”.


The Madras High Court in Para 35 of the Judgment while dealing with the contention of one of the petitioners that the Act runs counter to the policy of ‘common school system’ noted, ‘As can be seen from the judgment in T.M.A. Pai’s case and other cases, the Apex Court has taken cognizance of the fact that private contribution in the field of education is necessary, and Government is not in a position to have sufficient resources for providing education to all. If that is so, it is difficult to bring about a common school system. The Right to Education Act does not prevent private schools. The only thing, which is possible to be realized, is to bring in legislation of fees structure and to check exploitation in private schools, which is sought to be brought about and that being so, the Act cannot be criticized on that score”.


The Madras High Court in Para 36 of the Judgment while commenting on the reservation of 25 percent seats in the private schools for the children belonging to poor strata of society noted, “The Constitution (86th Amendment) Act, 2002 has made elementary education a fundamental right under Article 21-A of the Constitution of India. The right to free and compulsory elementary education was a long felt need, which has now been given the status of a fundamental right. The Right of Children to Free and Compulsory Education Act, 2009 which came into force from 1st April 2010 was a consequential legislation to translate the constitutional intent into action. The RTE Act, 2009 provides for 25% seats in private schools for children from poor families and prohibits donation or capitation fee. Though the RTE Act is Central Legislation, its effective implementation lies in the hands of the State Governments. While implementing the RTE Act from 1st April 2010, the Government of India announced that 25 percent reservation for children from economically weaker sections of the society would be operational from Class I with effect from the academic year 2011. The present impugned legislation if examined in the context of Article 21-A of the Constitution of India and RTE Act is also valid”.


It is interesting to note that the parents all over the country have been raising voices against the inaction on the part of the Central and State Governments to check the menace of commercialization of education in unaided private schools. In 1997, on the pretext of 5th Pay Commission Recommendations, the unaided private schools in Delhi increased fee and other charges ranging from 40% to 400%. This gave rise to unrest amongst the middle class parents and the parents organized themselves against the arbitrary fee hike by the unaided private schools. Needless to say that a PIL was filed in 1997 in the Hon’ble Delhi High Court which was decided on 30.10.1998 in favour of the parents. The High Court laid down the criteria and guidelines of fixing a reasonable fee structure in an unaided private school. The High Court also held that the Government is not only empowered but also has a duty to regulate fee of such schools to prevent commercialization of education and exploitation of parents/students. The schools filed appeals before the Hon’ble Supreme Court against the High Court decision which was dismissed on 27.04.2004. The schools took another opportunity through filing a review petition before the Hon’ble Supreme Court seeking review of Supreme Court decision of 27.04.2004. Fortunately, the Supreme Court also dismissed the review petition on 07.08.2009 reasserting that the fee has to be justified and not arbitrary and there has also to be accountability and transparency.

In 2008, on the pretext of 6th Pay Commission Recommendations, the unaided private schools all over the country hiked fee and other charges exorbitantly and arbitrarily while Central and State Governments were just mute spectators to the same. This time, the parents all over the country organized themselves to a larger extent and openly protested against the schools and the Governments. The parents associations in many parts of the country approached their respective High Courts by way of filing writ petitions. The agitation by the parents led some States to constitute committees to look into the issue of the arbitrary fee hike. The Government of Delhi constituted S.L Bansal Committee, the State of Maharashtra constituted Kumud Bansal Committee and the State of Goa constituted D.P.Pednekar Committee. It is respectfully submitted that all these Committees in the absence of examining the financial records of each school to determine whether the fee hike was justified or not by applying the principles laid down by the Supreme Court in Modern School case, just ended up in making unsound and illogical solutions.

The Tamil Nadu Act, 2009 is providing solution to a larger extent. However, the application of the said Act is limited to the State of Tamil Nadu. In all other States, practically, there are no laws to deal with the fee hike problems. All India Parents Association (AIPA) has since long been demanding a Central Law to deal with the issue of commercialization in unaided private schools but the Central Government has not taken any step in this regard so far. The public interest demands that the Central Government must immediately enact a Central Law may be on the lines of the Tamil Nadu Act, 2009 to check the rampant commercialization of education in unaided private schools all over the country. We need of have a uniform law for all over the country as the problem of exploitation of parents and students by the unaided private schools all over the country is more or less the same. We hope and expect that Shri Kapil Sibal, Union Education Minister will rise to the occasion and sincerely take up this matter on urgent basis.

Last but not the least, we should not forget that while fighting against the exploitation of the parents/students by the unaided private schools, we have to continue our fight for the up-gradation of the standard of education in very Government School all over the country to the level of Kendriya Vidayalays (Central Schools).

{The author is a lawyer, a civil rights activist and also National President, All India Parents’ Association and can be contacted at ashokagarwal1952@hotmail.com Mob.09811101923 (30.05.2010)}