A December 27 judgement of the Gujarat high court upholding the Gujarat Self-Financed Schools (Regulation of Fees) Act, 2017 which prescribes absurdly low fees ceilings for all primary, secondary and higher secondary schools, has come as a thunderclap for private independent schools countrywide – Dilip Thakore For the more clued-up among the managements of India’s 320,000 private schools struggling to bridge the widening gap in K-12 education between India and not only the developed industrial countries of the West, but also with neighbouring China and the emergent countries of South-east Asia, new year celebrations were surely clouded. On December 27, a two-judge bench of the Gujarat high court upheld the Gujarat Self-Financed Schools (Regulation of Fees) Act, 2017, passed by the state legislative assembly in March last year. The Act prescribes upper fees limits of Rs.15,000, Rs.25,000 and Rs.27,000 per year for private primary, secondary and higher secondary schools in the state. Rejecting around 40 petitions which challenged the constitutional validity of the Act, a division bench of the high court (Chief Justice R. Subhash Reddy and Justice V.M. Pancholi) ruled that the state legislature is entitled to regulate the tuition and other fees of not only schools affiliated with the state board, but also of schools affiliated with the pan-India Central Board of Secondary Education (CBSE) and Council for Indian School Certificate Examinations, both based in Delhi. For the past 70 years since independence, schools affiliated with these national exam boards — and the small number affiliated with offshore exam boards such as Cambridge Assessment International Education (formerly CIE), UK, International Baccalaureate, Geneva, and Edexcel, UK — have been accepted as being beyond the administrative purview of state governments. Essentially, counsel for the petitioners argued that to set common tuition fee ceilings for all primary, secondary and higher secondary schools, which have invested varying amounts in infrastructure, teacher training, teacher-pupil ratios, sports and games facilities, is violative of Article 14 of the Constitution which guarantees all citizens (i.e, promoters of private schools) equality before the law. Indeed legal eagle and former Union minister Kapil Sibal who argued the petitioners’ appeal in the Supreme Court which was admitted on January 15 and listed for February 1, contended that the per student expenditure incurred by the Central government in its 1,140 Kendriya Vidyalaya schools is Rs.98,000 per year and therefore the tuition fees of Rs.15,000 for primary, Rs.25,000 for secondary and Rs.27,000 for higher secondary schools in Gujarat were ex facie absurd and violative of Article 14. In the Gujarat high court petitioners’ counsel argued that in the landmark T.M.A. Pai Foundation Case (2002), the majority of a full bench (11 judges) of the apex court had held that unaided or self-financed institutes of professional education are entitled to charge reasonable tuition fees and earn a surplus for the expansion and maintenance of their institutions. And in the matter of tuition fees, a seven-judge bench in P.A. Inamdar vs. State of Maharashtra (2005) was unequivocal. “Fees to be charged by unaided…
