Private school autonomy is not absolute

Balancing the autonomy of private schools with state regulations aimed at collective interests of students, teachers and community continues to be a contentious issue.

Balancing the autonomy of private schools with state regulations aimed at collective interests of students, teachers and community continues to be a contentious issue. The questions of fee regulation, wage parity, admissions, appointment and conditions of staff have unsurprisingly been a site for chaotic executive policies and school malpractices, resulting in protests and judicial action.

Recently, one such contestation has been on the extent of control a private school can exercise on the terms of employment of its staff. Section 8(2) of the Delhi School Education Act, 1973, prohibits recognised private schools from terminating the service of an employee without prior permission from the Directorate of Education. This provision was struck down by the Delhi High Court in the Kathuria Public School vs Director of Education case (2005). However, the Supreme Court, on April 13, overruled this judgment in the Raj Kumar vs Director of Education case and restored Section 8(2).

Private schools have criticised this law as being an interference with their administrative autonomy. Therefore, an argument has been made that the judgment would disallow private schools from firing under-performing teachers, thereby jeopardising quality of teaching. But, at the same time, ‘quality’ is not an isolated concept and, among other things, is affected by the morale of teachers. Equating a law on security of employment as a hazard to quality is fallacious. The arguments fail to recognise that this regulation could promote accountability and transparency in private schools.

In the Raj Kumar case, the Supreme Court highlights Section 8(2) as a procedural safeguard for employees against arbitrary termination of service. In fact, in a 1991 judgment, the Supreme Court, recognising the relation between quality of teaching and morale of teachers, criticised the unsatisfactory service conditions and job insecurity associated with ad hoc appointment of teachers.

While the law prescribes maximum autonomy to private schools, the same is not absolute. Consequently, the Supreme Court drew the contours of the autonomy of private schools in the TMA Pai Foundation vs State of Karnataka case (2002). It prescribes independence of private school managements in matters of administration, appointment of staff and disciplinary powers. Private managements, therefore, need not seek state approval in matters involving disciplinary action.

The Delhi High Court, in the Kathuria case, relied on this reasoning while striking down Section 8(2). However, in the Raj Kumar case, the Supreme Court held that the discourse in the TMA Pai case is restricted to the right of private educational institutions to exercise autonomy, and that routine issues of disciplinary action can be distinguished from the immediate concerns of security of employment.

The criticism of the judgment as well as the law is based on an apparent clash between autonomy and regulation (discounting the fact that vouchsafing autonomy would itself require a regulatory move). Regulations bring accountability in an otherwise unchartered private school space. Admittedly, private schools are autonomous in their day-to-day administration.

At the same time, there must be a balance between the right of private schools to exercise autonomy and the right of staff/teachers to security of employment. Quality, accountability and regulation must not be seen as mutually-exclusive spheres. Instead, they are threads which reinforce each other. Laws on admissions, fee regulation, classroom teaching methods, infrastructural requirements, teacher training and examinations, which bolster quality and accountability, are an example of this.

The challenge a regulator faces is to achieve a mix that balances these aspects with autonomy. In this scenario, an assumption which conflates employment safeguards with constraints that slow down private schools is, at best, hasty.

The author is a junior research fellow, Education Initiative, Vidhi Centre for Legal Policy, New Delhi

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