The recent Delhi High Court verdict in a case laying down that RTE cannot be enforced unconditionally in private schools has come under criticism for misconceiving the petition before it.
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A class VI student, Divyam Bhateja, whose name had been struck off the school rolls on account of failing to pay the school fees, had challenged Rules 35 and 167 of the Delhi School Education Rules, 1973, and Section 75 of the Juvenile Justice (Care and Protection) Act, 2015 before the Delhi High Court, through advocate Khagesh B. Jha.
Divyam’s father Vinod Bhateja lost his job as an accountant at a private firm during the pandemic and could not pay the fees, resulting in the removal of his son by the Bhai Parmanand Vidya Mandir school.
What provisions of the Delhi School Education Rules were challenged, and why?
Prayer (a) of the petition was concerned with the validity of Rules 35 (striking off the name from the rolls) and 167 (name of the student to be struck off for non-payment of fees and contributions) of the Delhi School Education Rules. The petition claimed that these rules impinged with the Right of Children to Free and Compulsory Education Act, 2009 (‘RTE Act’), and were ultra-vires Articles 19(1)(a), 21 and 21A of the Constitution, as well as contrary to Section 75 of the Juvenile Justice (Care and Protection) Act, which deals with punishment for cruelty to a child.
According to the petitioner, Divyam was tortured by the school authorities for not paying the fees on time.
What did the court say?
On May 27, the high court’s division bench comprising Acting Chief Justice Vipin Sanghi and Justice Sachin Datta only examined, and rejected, prayer (a) of the petition, leaving prayers (b)-(h) to be examined by another single judge-bench of the court seized of a similar matter in which the fees demanded by the same school from Divyam’s sibling had been challenged.
The division bench upheld the validity of rules 35 and 167 of the Delhi School Education Rules, stating: “The 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 further held that restricting private schools from charging any fee to meet their expenses on their own is “completely untenable”.
The court also rejected the claim of any inconsistency between section 75 of the Juvenile Justice (Care and Protection) Act, and rules 35 and 167 of the Delhi School Education Rules.
Did the high court misconceive the petition?
Advocate Jha, who was the petitioner’s counsel in the case, told The Leaflet that the primary issue raised in the petition was not about paying fees, but about whether or not the school can torture a child for the same, which is why the rules were challenged. A recovery suit can be filed to claim the fees, but the child can’t be tortured over non-repayment of the fees for creating pressure on the parents, which was done in the instant case by striking off the name of the child, according to Jha.
Jha also believes that the court will have to correct its judgment because the court misconceived the petition: the petitioner, according to Jha, never refused to pay the fees; his contention was regarding the school asking for Rs. 57,000 when the fees were Rs. 37,000. “The school is free to go for recovery where they’ll have to prove the amount they are asking as fees,” said Jha. According to him, the bench has given a judgement on the issue of private schools charging fees that was not even raised.
What are the other reliefs sought
Prayers (b) to (h) sought, among other things, a declaration that the private schools of Delhi collecting tuition fees without the filing of a revised statement of fee, and charging for expenses that neither occurred nor had any probability of occurring during the COVID-induced lockdown, as per the order passed by the Directorate of Education, Delhi on April 18, 2020, be held ultra vires Sections 17(3) and 18 of the Delhi School Education Act, 1973, and Rule 165 of the Delhi School Education Rules.
The petition also sought directions for the Delhi Directorate of Education and the Delhi Development Authority to ensure that schools should not be allowed to increase their fees without prior sanction from the Directorate of Education. These prayers will be dealt with by a single judge-bench that is dealing with an identical matter initiated against the same school by the petitioner’s father.
Click here to view the Delhi High Court’s full order.