Wednesday, June 10, 2015

Lawyer-Activist’s comments to Delhi Govt. on the proposed Delhi School Education Act & Rules 1973 (Amendment) Bill, 2015

I have gone through the Draft-Bill at length. This Bill may be seen as comprising of two separate parts: The first part dealing with fee-regulation and the second part dealing with admission criteria. As regards the first part, the basic premise of the proposed Bill is itself faulty. It presupposes that fee-hike by the private schools is per-se legal and valid, unless the same is challenged through a complaint and is set aside by the committee. If we look at the existing Acts on private unaided school-fee regulation, particularly the Tamil Nadu (Regulation of Collection of Fee) Act, 2009, there is a stipulation of prior approval by the Committee before fee-hike and the said hiked fee, once approved, cannot be further hiked upto three years. While here, this Bill has put the entire burden upon the complainant. It is expected that the Delhi’s Act should be advancement over Tamil Nadu Act and should surpass the benchmark set by Tamil Nadu, but this Bill falls way short of even what Tamil Nadu has already achieved.

Besides being premised on a faulty presupposition, this Bill, so far as it seeks to regulate fee, suffers from various practical anomalies. Firstly, the burden has been cast upon the aggrieved parent to move in complaint. This onerous task would make the parent, and ultimately the child, liable to be subjected to victimization. Further, once a complaint is made, no time-limit has been stipulated for disposal of the same by the committee, making it liable to be reduced to futility by sheer lapse of time. Even after a complaint has been decided, there is enough room for delay as the school can file objections, and even after consideration of the same and final decision by the committee, there is a provision of appeal to the Director, for disposal of which, no time-limit has been stipulated. The school shall thus continue to enjoy its free hand at least throughout the process which has enough scope for inordinate delays. The committee itself is a rather weak one compared to the Tamil Nadu model where a retired judge of the High Court heads the Committee.

It is needless to mention here that the Hon’ble Delhi High Court in its decision dated 12.08.2011 in Delhi Abhibhavak Mahasangh & ors. vs. GNCTD & ors. [W.P. (C) No.7777/2009] had constituted Justice Anil Dev Singh Committee to look into the accounts of each school and find out whether the fee-hike by private unaided schools on the pretext of 6th Central Pay Commission was justified. The High Court had further directed that if the fee-hike was found to be unjustified, it would be refunded by the school to parents along with 9% interest. Justice Anil Dev Singh Committee has so far indicted more than 450 schools and the refundable amounts cumulatively come to more than Rs.250 crores. However, till date, not a single school has refunded the due amounts to the parents. Thus, it is our experience that once a school charges fee from the parents, it becomes next to impossible to get it refunded.

It has been held by the Delhi High Court in Delhi Abhibhavak Mahasangh & ors. vs. GNCTD & ors that it is not only within the powers but also a legal duty of the Delhi Government to check commercialization of education by private unaided schools.  The proposed Bill in regard to fee-regulation fails to address the issue, ignores ground realities and is rather counter-productive as it revives certain irrelevant criteria such as location of the school and available infrastructure, which have already been dismissed under the existing jurisprudence on fee-regulation. It is relevant to mention here that it is already a settled legal position that no fee can be charged by the school on account of capital expenditure.

In my view, at the time of drafting of Delhi School Education Act, 1973 (DSEA, 1973) there was not enough foresight regarding the dangers of arbitrary fee hike by private unaided schools.  The said Act thus does not render any effective assistance in this regard and amending the same may not serve the purpose well. We need an independent legislation on fee–regulation, on the lines of Tamil Nadu, even more robust and effective than Tamil Nadu.

As far as the admission criteria part is concerned, the Bill again fails to meet the need of the hour. It merely proposes to empower the Director to issue instructions to make the process “transparent” and “inclusive”. Firstly, mere transparency would not serve the purpose. The greater mischief is the discrimination prevalent in the admission criteria. Moreover, the term “inclusive”, being vague, is liable to be misused to rather permit discrimination. It is thus, counter-productive.
As far as the admission criteria part is concerned, an amendment to DSEA, 1973 would serve the purpose, provided it incorporates Section 13 read with Section 2 (o) of the RTE Act, 2009 and makes it applicable below Class I, i.e., to the pre-primary classes. In other words, it should prohibit screening as defined in Section 2 (o) of the RTE Act, 2009 in the matter of admission to pre-primary classes.

I strongly feel that we need to hold extensive consultations on the issue and re-think the proposed Bill in the light of the above. Delhi, being the Capital, should set an example for other States to emulate.

Ashok Agarwal, Advocate
M: 9811101923

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