Gujarat Bill to cap school fee has thrilled the Centre, but parents and lawyers point to loopholes

After the Gujarat government on March 30 passed a Bill to regulate the fees charged by private unaided schools, the Centre is looking at adopting a similar policy at the national level. However, parents and activists who have been fighting against increasing private school fees for years said the Gujarat Self-Financed Schools (Regulation of Fees) Bill 2017, signed by state Governor OP Kohli last week, has several loopholes.

Some lawyers fear that the legislation may get stuck in litigation for years because of a provision that seeks to impose limits on the annual fee that schools can charge, while others feel the Bill should have better protected the interests of parents and students.

The Gujarat Bill empowers the state government to establish four fee regulatory committees – spread over four zones – to regulate fees charged by self-financed, or private unaided, schools in the state. According to media reports, the government has a proposed an annual fee structure of Rs 15,000 for primary classes, Rs 25,000 for secondary ones and and Rs 27,000 for higher-secondary classes. If a school wants to charge more than the specified limit, it will have to approach the committee for permission.

The committee has the power to initiate an inquiry into schools that are overcharging. It can impose a fine of up to Rs 5 lakh for the first offence, upto Rs 10 lakh for the second and can cancel the registration of the school for the third offence. Schools, in turn, can appeal to fee revision committees if they find the regulatory body’s decision unacceptable. All school boards are covered under the legislation.

How do states regulate fees?

Before Gujarat, laws to regulate school fees had been enacted in Tamil Nadu, Maharashtra and Rajasthan and Punjab. Other than that, several states have clauses in their education Acts pertaining to fee regulation.

Most fee regulation policies, said lawyers and activists, fall in two broad categories. The first kind require schools to seek permission from government, or fee-regulation committees under the state, before increasing their fees. Tamil Nadu’s law on fee regulation, enacted in 2009 and subsequently upheld by both the High Court and Supreme Court, belongs to this category, as does a policy developed by the Delhi government based on a High Court order (which pertains only to schools on government land.)

In the second category, fee regulation committees come into the picture only if there is a dispute. For instance, in Maharashtra, where a fee regulation Act was passed in 2014, the case goes to a district fee regulation committee when there is a dispute between a school’s management and its parent-teacher association over fees. In Punjab, the Act allows schools to fix and increase fees independently but the increase cannot be of over 8% of the previous year’s amount.

“It is the executive council of the parent-teacher, a committee within the parent-teacher association that works with the administration to fix fees and all schools argue that the individual parent has no right to approach the district committee,” said lawyer and member of a parents association in Maharashtra, Anubha Sahay. “However, very few schools have even formed parent-teacher associations.”

According to Rajasthan’s legislation, each institution will have a “school-level fee committee” – which has representation from parents – to decide the school’s annual charge. In case the body is unable to arrive at a figure, the matter will go to the divisional fee regulatory committee. “During the pendency of the reference, the management shall be at liberty to collect the fee of the previous academic year plus 10% increase in such fee till the final decision of the Divisional Fee Regulatory Committee,” said the Act, passed in 2016.

Lawyer and Activist Khagesh Jha said that policies requiring schools to get permission before increasing the fee work better. “It is very hard to get schools to return money they have already collected,” he said.

The cap

The Gujarat Bill, however, has elements of both categories. For instance, the most widely reported aspect of the Bill is that it seeks to impose limits on school fees, which would fall into the first category. However, it also has a clause stating that schools who want to charge more than the specified amount can approach a fee-regulatory committee.

Pooja Prajapati, a lawyer from Ahmedabad who also heads the association Parents Ekta Manch of Gujarat, was disappointed that the state’s lawmakers introduced “caps on fees” but, at the same time, permitted schools to breach them.

However, several lawyers and parents who have been fighting fee increases in other states said the limits imposed in the Bill were a problem and could invite lawsuits. “We have been asking the Centre to introduce a Central law and body to regulate fees,” said Sahay. “But it would have to be one that cannot be challenged. The Gujarat model will be stuck in court because there are several Supreme Court judgements that state categorically that a government cannot fix fees or impose caps but regulate it based on a school’s expenses on infrastructure and other facilities. Trying to adopt the Gujarat model nationally could do more harm than good.”

Ashish Naredi, who is in the legal cell of the Hyderabad School Parents Association, said that little homework goes into deciding what the caps will be and that renders the whole system vulnerable. “We have fought cases in the High Court and Supreme Court and this point has come up repeatedly,” he said. “What is the rationale behind selecting these amounts in the proposed fee structure? The basic data-crunching that should go into these decisions is missing. In 2010, the Andhra Pradesh government had issued an order imposing a cap of Rs 12,000. It is still stuck in court.”

Other objections

Legal concerns apart, parents associations also complained about the composition of the regulatory committee. “All members are nominated and there is no representation from parents,” Prajapati said. This will make it easier for schools to justify fee hikes to the committee, she said, by claiming they are needed for development purposes. Under the Gujarat Bill, school managements are free to increase their fee within the proposed caps. If it exceeds the specified limits,they will need an approval from zonal fee regulation.

Jha is also worried that the proposed fee cap could encourage more affordable schools to raise their fees. “The schools that were charging less [than the proposed fee] will now increase it to the levels of the proposed structure and tell parents the government has allowed them to do so,” he said.

Jha said that a similar trend was seen in Delhi, when the reccomendations of the Sixth Pay Commission for teachers was implemented. At that time, the government had issued fixed rates of increase in school fee to make up for the increased salaries for teachers, but even schools that did not have to pay revised salaries increased their fee.