Providing online education during pandemic responsibility of pvt schools under RTE Act: Delhi High Court

The Delhi High Court on Friday said that online education was covered under the Right to Education (RTE) Act and therefore, the private schools were providing the same as part of their responsibilities under the statute and not as a voluntary or social service.

A bench of Justices Manmohan and Sanjeev Narula said the private schools were charging tuition fees, despite closure of physical classrooms due to Covid-19 pandemic, on the ground that they are providing 'synchronous face-to-face real time online education'.

It said the tuition fee was payable towards imparting education and "not for a lien on a seat".

"Accordingly, the word education includes synchronous face-to-face real time online education and respondent schools are estopped from contending to the contrary.

"Consequently, the neighbourhood schools impart synchronous face-to-face real time online education not as a voluntary or social service but as part of their responsibilities under the RTE Act, 2009," the bench said.

The observations by the bench came while hearing a PIL by NGO Justice for All, represented by advocate Khagesh Jha, seeking directions to the Centre and the Delhi government to provide free laptops, tablets or mobile phones to poor students so that they can access classes online during the Covid-19 lockdown.

The high court in its 94-page judgement, on the plea, directed the private as well as government schools like KVs to provide gadgets and an internet package to poor students for online classes, saying not doing so amounts to "discrimination" and creates a "digital apartheid".

While directing the private unaided schools to provide the required equipment and internet pack to the EWS/DG students, the high court said they "shall be entitled to claim reimbursement of reasonable cost" from the state for procuring the same under the Right to Education (RTE) Act, 2009, "even though the State was not providing the same to its students".

Opposing the plea, the private schools had contended that outbreak of a pandemic and development in technology had not been visualized by Parliament while passing the RTE Act and therefore, the court cannot apply it to the present situation.

The private schools had also contended that the RTE Act only contemplates providing education by a neighbourhood school in a physical classroom and not online education by digital means.

They had claimed that online education was being provided as a social service by certain private unaided schools and not because of any legal or statutory obligation cast on them.

They had also contended that if the court includes online education by way of interpretation, it would unduly expand the scope of the RTE Act even when the legislature has expressed a narrow intent by using the unmistakably qualifying and restrictive word "neighbourhood" before the word school in the most relevant provisions of the statute.

They had further argued that the court could not evolve a legislative intent that is not found in the statute by way of a dynamic interpretation and it cannot legislate under the garb of interpretation

Rejecting these contentions of the private schools, the bench said it can dynamically interpret provisions of the RTE Act according to the evolving needs of the society and also apply the statute to new technologies like synchronous online learning in the current Covid-19 pandemic situation, even if, the Parliament while passing the Act did not anticipate such an "unforeseen and unprecedented situation as prevailing today".

The high court further said that the Act "intentionally" does not define the word education as it needs to deal with changes in society, technological advances, outbreak of diseases, natural calamities and a broad range of circumstances that are not possible to anticipate in advance.

"Consequently, the word education is not a static one but an evolving and a dynamic concept. The mode, manner and method of imparting education have evolved from time to time and if universal good quality education has to be achieved in future, the mode and method of education have to undergo a complete revolution," it said.

The bench further said that the schools were free to choose their mode and method of imparting education provided they fulfill the minimum statutory requirement.

"Consequently, the concept of synchronous face-to-face real time online education, like any other alternate means/methods of dissemination of education, in that sense, is covered under the RTE Act, 2009," it said.