A detailed and brilliantly reasoned 128-page judgement of the Supreme Court delivered on May 3, has huge implications for the country’s under-appreciated 450,000 private schools which — most people are unaware — host 48 percent of India’s 260 million in-school children. Upholding two sets of appeals filed by the Indian School, Jodhpur and Association of Private Unaided Schools of Rajasthan against the state government, a two judges bench comprising A.N. Khanwilkar and Dinesh Maheshwari JJ, read down, i.e modified, ss. 4, 6, and 10 of the Rajasthan Schools (Fees Regulation) Act, 2016 (FRA). The first appeal filed by the petitioners challenged the constitutional validity of several sections of the Act. In the second set of appeals they challenged an order of the state government — upheld by the high court — directing private schools to collect only 70 percent of tuition fees — and no other fees — from parents for the academic year 2020-21. The state government had successfully con[1]tended in the high court that since all schools had been under lockdown during the academic year and were teaching online, their managements had not provided co-curricular or transport and other services to students, and therefore parents are not obliged to pay for them. Moreover the syllabuses of affiliated schools had been truncated by CBSE and the state exam boards and online education was restricted to three-four hours per day. Therefore, parents should pay only 70 percent of the contracted tuition fees of their wards studying in CBSE affiliated schools and 60 percent for children in state board affiliated schools. This fees reduction order was challenged on the ground that it was issued without any authority of law and was violative of the fundamental right of the petitioners conferred by Article 19 (1) (g) of the Constitution as affirmed by an 11-judges bench of the apex court in the landmark T.M.A. Pai Foundation vs. Union of India (2002). In its detailed judgement the Supreme Court bench held that the right to determine the fees payable by students was vested in every school’s “management alone” by the Supreme Court’s judgement in the Delhi Education News T.M.A. Pai Case. The judges ruled that government can regulate the fee determined by managements of private education institutions only in cases of profiteering and levy of capitation fees. They noted that the state’s FRA prescribed an elaborate process in which the fees of schools were determined by SLFCs (school level fees committees) — drawn from Parent Teacher Associations made mandatory by FRA 2016 — with the right of either party to appeal to a divisional appellate authority and a higher revision authority. Thus the fees of every private school in the state have been agreed to by parents. Moreover under the rules of the Act the school fee fixed by the SLFC was binding for three years on both the parties, i.e. management and parents. This constituted a binding contract with which the State/government cannot interfere. The court also noted that institutional managements determine school…
