Supreme Court Stays Delhi HC Order Directing Private Unaided Schools To Provide Internet Gadgets Free Of Cost To EWS Students For Online Classes

The Supreme Court on Wednesday stayed a Delhi High Court judgment which directed private unaided as well as government schools like 'Kendriya Vidyalayas' to provide gadgets and internet packages to students from economically weaker section (EWS) or disadvantaged group so that they have access to online classes.

A bench led by CJI stayed the HC judgment while issuing notice on a petition by Delhi Government.

A division bench of the high court had directed that cost of gadgets and internet package are not a part of tuition fee and have to be provided free of cost to these students by the schools, subject to the right of private unaided schools to claim reimbursement from the state in accordance with provision of the Right of Children to Free and Compulsory Education Act, 2009.

Senior Advocate Vikas Singh, appearing for the Delhi Government, submitted that the judgment of the Delhi High Court "rewrote the Right to Education Act".

While issuing notice, the CJI orally remarked that courts cannot create additional burden on State. The CJI mentioned that there was a Supreme Court precedent which reversed a Himachal Pradesh High Court direction to the government to construct a road, observing that Court cannot create additional financial burden on the state.

The CJI asked Vikas Singh to find out that precedent.

"Issue notice. In the meantime, there shall be stay of operation of the impugned order of the high court, the bench, also comprising Justices A S Bopanna and V Ramasubramanian, said in its order.

High Court judgment spoke of the need to bridge the digital divide

The challenge was made against a judgment delivered by the High Court on September 18, 2020, on a PIL filed by an NGO called 'Justice for All'.

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 allowed schools to seek reimbursement for the costs incurred in making such facilities available to the students from the appropriate government under section 12 of the Right to Education Act.

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 High 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.

Click here to read/download the order