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Regulation of Private Educational Institutions During the COVID-19 Pandemic

Introduction

The ongoing pandemic-induced lockdown has exposed India’s workforce to an existential crisis of epidemic proportions. From the perspective of private educational institutions—at risk are students, and parents who are struggling to pay fees amidst rising unemployment, and declining incomes—as well as teachers, and staff members, who are at the receiving end of the resultant cash flow crisis in the said institutions. Governmental authorities have decided to respond to this unprecedented Catch-22 situation, by making State paternalism, and regulation— the norm in the day-to-day functioning of the said institutions. Notwithstanding the fact that this is not a desirable way of conducting socio-economic life, it is important to recognise that dire times call for exceptional measures. We should, however, be vary of reflexive over-regulation that may on balance, cause more disruption in long-term, than what it may seek to avoid in the short-term.

Regulation of Private Unaided Schools: The Policy Perspective

During the COVID-19 pandemic, State Governments have used varying degrees of coercion, and control—to regulate the financial functioning of private unaided schools. In Maharashtra, the Education Department has issued a Circular to all the private schools in the state to not compel parents to pay their children’s school fees, during the ongoing lockdown. Some other states where similar directions have been noted include Uttar Pradesh, Haryana, Telangana, Odisha, Bihar, West Bengal, Uttarakhand, Punjab, and Rajasthan. Reports further indicate that the Union Ministry of Human Resource Development has also written letters to its State counterparts, advising them to issue necessary directions.

The most extensive set of directions appear to have been issued by Delhi. By invoking the emergency powers under the Disaster Management Act, 2005, and the Epidemic Diseases Act, 1897, Directorate of Education, Government of NCT of Delhi has passed an Order dated 17.04.2020, issuing a bunch of mandatory directions to all schools in the national capital. The Government has directed that no fee, except Tuition fee, shall be charged from the parents, “till further orders”. It has further directed the schools, “not to increase any fee in the academic session 2020-21 till further directions”. Directions have also been issued to ensure that the monthly salary of the teaching and non-teaching staff members of schools is not stopped in the name of non-availability of funds. Another noteworthy direction is the one which provides that Heads of Schools shall, in no case, deny any student who is unable to pay the school fee due to financial distress—access to online learning resources.

Given that many families are facing economic hardships in this unprecedented crisis, the direction to not increase any fee appears to be fairly reasonable. Further, the direction to not deny any child—access to digital learning classes, is also justifiable, on compassionate grounds. In a similar vein,  at the outset, the direction to not charge any other fee except for Tuition fee, seems to be reasonable, and ethical. This is because the stated rationale behind the said decision is that the schools are not likely to be incurring any expenditure on co-curricular activities, sports activities, transportation, meal charges, and other development-related activities. However, a closer analysis would reveal that the direction may be inadequate in addressing the concerns of both the schools, as well as the parents. For instance, while the school may not be providing meals, or running its buses, it is still required to maintain the cooking, and transportation staff. Similarly, it is not difficult to comprehend that the school may indeed be incurring some development expenses—for the upkeep of its digital learning ecosystem, security & sanitation, Wi-Fi, and other such unavoidable maintenance costs. From the perspective of parents, it is worth considering that the fee has not been waived off. Therefore, sooner rather than later, pending dues would need to be cleared, and carrying them forward may not be advisable (except wherever necessary).

The direction to continue paying the teaching, as well as the non-teaching staff is well-intended, but is unlikely to achieve the desired objective, in the absence of other supporting measures. The disruption in fee collection will inevitably lead to a financial crunch. Given that schools in India are allowed to be run by only not-for-profit trusts, and societies, it is likely that many small, and medium-scale schools may not have the requisite reserves to afford the staff bill. Reports already indicate that many workers are being forced into taking voluntary cuts in pay, rendering staff members helpless. It is, therefore, important for the government to step in, and ensure that a line of credit is available, to get the schools up and running, as and when necessary. It may be beneficial for the government to step in as a guarantor, and encourage Public Sector banks to provide a line of credit at zero, or low interest rates— to enable the schools to pay salaries for the next few months. Without requisite assistance, schools many find it harder to recover from the economic consequences of the lockdown.

Regulation of Private Unaided Schools: The Legal Perspective

Law is well-settled that maximum autonomy should be given by the State, in the administration of private unaided schools, as presence of Governmental interference will undermine their independence. In this regard, it may be beneficial to refer to the landmark 11-judge Bench decision in T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors., (2002) 8 SCC 481, wherein the Hon’ble Supreme Court, , held that:

“55. …There, necessarily, has to be a difference in the administration of private unaided institutions and the government-aided institutions. Whereas in the latter case, the Government will have greater say in the administration, including admissions and fixing of fees, in the case of private unaided institutions, maximum autonomy in the day- to-day administration has to be with the private unaided institutions…”

This view has been reiterated by Constitutional Courts repeatedly. Most recently, Hon’ble Delhi High Court reaffirmed this principle in Manju Sipayya v. Directorate of Education & Ors., LPA 808/2017.

At the same time, it is to nobody’s surprise that while underlining the role of private schools in realising the right of education, Courts have considered education to be a public good, and a charitable activity. This has led to constant over-regulation by Directorate of Education, in many states. In Modern School v. Union of India, AIR 2004 SC 2236, the Apex Court frowned upon commercialisation of education. It held that profiteering was disallowed, and private schools could only be allowed to make a reasonable surplus. This makes one wonder if schools would have been better prepared (at least financially) to handle the crisis at hand, had they been given more autonomy—in peacetime.

Regulation of Private Universities

COVID-19-related regulatory measures have not been limited to school education alone. Reports have highlighted that private Universities have continued to charge fees, and have laid off several employees.Guidelines have been issued in this regard, by All India Council for Technical Education (AICTE), in a Correspondence dated 15.04.2020. AICTE has accordingly “clarified” that “colleges/institutions should not insist on payment of fees till the ongoing lockdown is lifted and normalcy is restored”. It has further “clarified” that the “salary and other dues to the faculty/staff members will be released for the duration of lockdown and also terminations, if any, made during the lockdown will be withdrawn”.

While it is abundantly clear that above-mentioned directions strike at the heart of autonomy, there is undoubtedly a greater moral, ethical, and legal argument to be made in favour of regulation, during the COVID-19 pandemic. However, for the regulation to be effective, and equitable—there is a need to announce other supporting measures. During the present pandemic, Universities world over have assumed a significant role, by doing useful research, and formulating relevant models. From natural science to social science, there is no department of academic, and professional studies—which is incapable of building research capabilities, and models, which will go a long way in understanding how best to respond to the crisis. By encouraging Universities to remotely work on optimising their research capabilities, the Universities may be better positioned to raise critical resources. There is, for instance, a greater likelihood that undertaking high quality research will provide Universities the perfect opportunity to leverage their alumni base, to generate funds.

Conclusion

American economist Robert Higgs, in his book Crisis and Leviathan, extensively argued that during the 20th century—various wars, and declared equivalents of war, such as the ones against prohibited drugs, deadly viruses, and terrorism—regularly led to expansion of state power. Higgs relied on what he called the ratchet effect to demonstrate that the expansion in state power was largely irreversible, and led to the rise of the Big Government. In their zeal “to do something”, regulators should not lose sight of this risk, and should take proactive measures which aid private educational institutions in getting back on their feet, at the earliest.

Image Source: Wikimedia Commons

Gaurav Sansanwal
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