'Bridge The Digital Divide, End Digital Apartheid', Delhi HC Directs Schools In Delhi To Provide Adequate Gadgets and Internet Package To EWS Students For Attending Online Classes [Read Judgment]

While hailing the principle of bridging the digital divide between the privileged and the disadvantaged, the Division Bench of Justice Manmohan and Justice Sanjeev Narula has allowed schools to seek reimbursement for the costs incurred in making sch facilities available to the students from the appropriate government under section 12 of the Right to Education Act.

The order has come in a plea moved by Justice For All, seeking laptops, internet connection, and other devices for EWS and DG category students, in order to enable them to participate in the online classes organised by the schools.

Appearing for the Petitioners, Mr Khagesh B Jha had argued that the present writ has to be allowed to implement the the right to free and compulsory education created under Article 21A of the Constitution of India read with Sections 3 and 8 of the Right of Children to Free and Compulsory Education Act, 2009, in its letter and spirit.

Mr Jha further argued that Section 12(2) of the Right to Education Act (RTE) makes provision for and defines the extent of reimbursement to the private unaided schools as defined under Section 2(n)(iv), which are providing free and compulsory education in terms of Section 12(1)(c). However, he submitted that the proviso to Section 12(2) stipulates that if schools are prepaid in terms of concessional land or other facilities, the said schools are not entitled to reimbursement.

Mr Jha further argued that Section 8(d) of the RTE Act, 2009 casts a duty upon the State/GNCTD to provide all the requisite infrastructure including school building, teaching staff as well as learning equipment, which includes the gadgets required to participate in virtual classrooms/online education.

After taking into consideration the arguments made in lengths by not just the State Government and the Petitioner, but also the various private schools who were made parties to this petition, the court relied upon the judicial precedent from both India and abroad, as well as on the Learning: The Treasure Within report of UNESCO.

While holding that the court can apply an updating construction or dynamically interpret the provisions of the RTE Act according to the evolving needs of the society, the court said:

'The private schools which are providing Synchronous Face-to-Face Real Time Online Education are the very same neighborhood schools which satisfy all the requirements of RTE Act, 2009. Hence, the teaching through online means is in accordance with RTE Act, 2009 requirements. Therefore, both the requirements of Article 21A and Section 3 of RTE Act, 2009 are clearly fulfilled even in respect of education being imparted through online means.'

While observing that rights of the EWS and DG category students under section 3 of the RTE Act have been seriously undermined by the schools, the court declared that:

'As online learning facility is nothing but a virtual classroom, i.e. simulation of a physical classroom by replacing dissemination of instructions in direct physical presence by virtual dissemination, by not providing the required indispensable equipment to the EWS / DG category students (who, otherwise, are not in a position to buy /source such equipment from their own means) the schools are putting a financial barrier qua such students and thereby preventing them from opening the link and pursuing and completing their elementary education in the present pandemic at par with other students in the same class.'

To address this discrimination, the court declared that the private unaided schools under Section 12(1)(c) and Government schools like Kendriya Vidyalayas under Section 3(2) of RTE Act, 2009 are directed to provide equipment of optimum configuration which is sufficient to enable EWS / DG students to get access to online learning.

The court said:

'Consequently, to ensure level playing field and to remedy this digital divide or digital gap or 'digital apartheid' in addition to segregation, if the private unaided school has to bear any additional cost, it must bear it in the first instance with a right to claim reimbursement from the State in accordance with Section 12(2) of the RTE Act, 2009.'

In addition to this, the court also constituted a committee comprising of Secretary, Education, Ministry of Education, Central Government or his nominee, Secretary Education, GNCTD, to make Standard Operating Procedures for identification of standard gadget(s)/equipment(s) as well as the manufacturer/supplier and internet package so that EWS/DG students can access elementary education through digital online means. The Committee shall identify gadget(s)/equipment(s) taking into account all relevant factors including their utility, ease of operation, cost, maintenance, charges, life of the gadget(s), reputation of the manufacturer, child lock etc. within two weeks from its constitution.

The said committee shall also decide as to whether any gadget(s)/equipment(s) needs to be purchased by cluster bidding or by individual schools or hired by way of lease or licence agreement

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