INFRINGEMENT OF RIGHT TO EDUCATION DUE TO ONLINE LEARNING

Author: Ashwin Singh, Symbiosis Law School, Pune

Introduction

In all sectors worldwide the impact of the COVID-19 pandemic is apparent. This is seriously affecting both the education sectors of India and the world. It has caused the global shutdown to create very poor effects on the lives of pupils. Approximately 32 crore students have ceased moving schools and all educational activities in India have ceased. The COVID-19 epidemic has shown us that there is no need for modification. It has been utilized as a catalyst to develop and choose platforms using technologies that have not before been employed in educational establishments. The education sector struggles with a different method for the survival of crises and digitises the issues of eliminating the risk of a pandemic.[1]

India’s educational sector is quickly becoming worse, as can be seen by the NSO statistics. This survey covered quality and quantitative aspects related to the educational achievements of household members and educational services used for these groups, published as Household social consumption: Education in India Reports, covering 64.519 rural households in 8.097 villages and 49.238 urban areas. This poll shows that 4% of rural homes and 23% of urban households had computers and 24% had an internet connection.[2]

Current Situaion

Greater countries such as Uttar Pradesh, Tamil Nadu, Karnataka and Andhra Pradesh have a lower connection rate of 20 per cent. Literacy and educating are significant multipliers of forces for society and country building that improve the effectiveness of all other endeavours in development. In 2004, the digital gulf that separates people from the rich, despite attempts like Broadband Policy, is still same and its impacts have increased in the middle of COVID19. Since all lessons take place online, the students are suffering from the lack of Internet access or appropriate devices, occasionally leading to suicides.[3]

Legal Status of the Situation

By placing Article 21-A in the Indian Constitution, the Right to Education (RTE) was recognized by the 86th Amendment Act as a fundamental right. It is intended to offer children aged 6-14 years with free and compulsory education. The phrase “obligatory education” thus imposes a duty on the Government and local governments to assist and guarantee that all children of the appropriate age group complete primary education. Prior to the amendment, RTE was found implied and follows from the right to life provided in accordance with Article 21. in Bandhua Mukti Morcha Case.[4]

Moreover, in Unnikrishnan v State of A.P.[i], Article 21 provides that the child’s right to education, which is vital for a healthy development, to freedoms and dignity, is protected. The limitation of internet connection thereby impedes access to education and impacts on children’s dignity and freedom to study. Moreover, in Mohini Jain vs. Karnataka, it was decided that basic rights guaranteed to people under Article 21 and 19 cannot be achieved without guaranteeing the right, according to particular directives established by Articles 38, 39, 41 and 45Therefore, in places like Kashmir, this might create an overarching effect upon the exercise of rights under Article 19 and disable the children from expressing their opinions via internet due to complete internet shutdown.

All of this creates a digital barrier between children, dependent on resources available and residence available. It may be expected to give better opportunities to learn and develop those with access to all of these resources. Digital divide-based preferential treatment is contrary to Article 14 principles of equality. In the instance of Unnikrishnan, RTE was considered to be a ‘social right’ and the court cited both to Article 13 ICESCR and to the UDHR. Worldwide country data shows very substantial relationships between the rates of per capita GDP and literacy. Thus, the various sociocultural challenges within India might worsen the digital divide between youngsters

Programs and Efforts

Some digital literacy programmes, such Bharat Net and PMGDISHA, were established by the government. However, the execution of all of these measures was ineffective. Of nine pillars, six focused on internet access under the National Education Policy (NEP). However, the execution policy did not mention a viable implementation mechanism. This failure, in turn, shows a divergence from UNCRC Articles 28 and 29 recognizing the child’s right to education to the progressive attainment of that right on an equal footing. The government must re-evaluate its implementation techniques and make Internet access a priority.[5]

The Delhi Supreme Court stated on Friday that online education is subject to the Right to Education (RTE) Act, which means that private schools have the same responsibility and not the same voluntary or social responsibility. A bench of Judges Manmohan and Sanjeev Narula stated that, although physical classrooms are closed owing to the epidemic of COVID-19, private schools charge tuition fees on the basis of “synchronous face-to-face online instruction.”

The school fee was paid for teaching and “not for a lock on a seat.” “The word education thus comprises synchronous real-time online learning and the institutions in question are prevented from contesting otherwise. “The neighborhood schools thus provide online synchronization in real-time, not as a voluntary or social service but within the RTE Act 2009 responsibility,” concluded the decision.[6]

At the meeting of the NGO Justice for All, represented by Khagesh Jha, the bench commented on the Center and Delhi government’s need to enable impoverished students with free computers, tablets or phones to attend online lessons in the lockdown period of COVID-19.In its 94 page ruling on the case, the High Court led private and government institutions like KVs to supply underprivileged students with devices and an Internet package for online lessons, not declaring this amounted to “discrimination.”[7]

While directing private unassisted schools to provide the necessary equipment and the Internet package to the students of the EWS/DG, the High Court said they are “will be allowed to claim the reimbursement of a fair charge” by the State for the provision of the same equipment and Internet package under the 2009 Right to Education Act (RTE).’ Contrary to the petition, private schools had argued that the Parliament did not envisage the breakout of pandemic and technological developments during the passage of the RTE Act, and thus the Court could not apply this legislation in light of the current scenario.[8]

Private schools have also argued that the RTE Act only includes education in physical classrooms by a neighbourhood school rather than digital online education. They stated that certain private non-assisted schools offered online education as a social service, and not due to any legal or legislative duty. They had also submitted that if the court had interpreted online education, it would unfairly extend the scope of the RTE Act even if a lawgiving had expressed a narrow intention by using the word neighborhood in the most relevant provisions, which is unmistakably qualifying and restrictive, before the word school.[9]

Conclusion

They also maintained that a legal intention that was not established in the statute by dynamic interpretation and that it could not pass legislation under interpretation could not change.

Rejecting the private schools’ contention, the bench stated that, while the Act was passed, Parliament did not foresee such a “unforeseen and unprecedented situation, it can interpret the RTE act’s provisions dynamically, in keeping with changing social needs and apply the statute also to new technologies such as online learning in the current pandemic situation of COVID-19.[10]

The High Court additionally stated that the Act does not “consciously” define the term “education,” which must be used to address changes within the community, technology developments, illness outbreaks, natural disasters and a variety of predictable scenarios. “The word education is therefore not a static, but rather a developing and dynamic idea, the mode, style and approach to education has changed sometimes and the model and technique of training must undergo a full revolution, if universally good education is to be reached in the future;” it stated.

The bank also added that schools are allowed to decide their way and way of teaching if they meet the statutory minimum criteria. “At the same time as any other alternative form/method of education distribution, in that sense the idea of synchronous face to face online learning is covered under the RTE Act, 2009,” it stated.

Bibliography

• McCowan, T., 2010. Reframing the universal right to education. Comparative Education, 46(4), pp.509-525.
• McCowan, T., 2011. Human rights, capabilities and the normative basis of ‘Education for All’. Theory and Research in Education, 9(3), pp.283-298.
• Picciano, A.G., 2015. Planning for online education: A systems model. Online Learning, 19(5), pp.142-158.
• Dobrila, M.C., 2021. Online Education during Pandemic: Sharenting vs. Children’s Right to their Own Image and Education. Revista Romaneasca Pentru Educatie Multidimensionala, 13(1), pp.431-446. Porter, S., 2015. To MOOC or Not to MOOC: how can online learning help to build the future of higher education?. Chandos Publishing.

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[1] Khanam, N. (2021). E-Learning & the fate of Right to Education in India. [online] Bar and Bench – Indian Legal news. Available at: https://www.barandbench.com/apprentice-lawyer/e-learning-the-fate-of-right-to-education-in-india [Accessed 30 Jan. 2022]. ‌

[2] Human Rights Watch. (2021). “Years Don’t Wait for Them.” [online] Available at: https://www.hrw.org/report/2021/05/17/years-dont-wait-them/increased-inequalities-childrens-right-education-due-covid [Accessed 30 Jan. 2022]. ‌

[3] Bhalla, V. (2021). “Education, a casualty in the pandemic violating rights of students.” [online] TheLeaflet. Available at: https://www.theleaflet.in/education-a-casualty-in-the-pandemic-violating-rights-of-students/ [Accessed 30 Jan. 2022]. ‌

[4] Legalonus. (2021). INFRINGEMENT OF RIGHT TO EDUCATION DUE TO ONLINE LEARNING» Legalonus. [online] Available at: https://legalonus.com/infringement-of-right-to-education-due-to-online-learning/ [Accessed 30 Jan. 2022]. ‌

[5] Chander, M. (2020). Inequities and challenges surrounding access to education amidst COVID-19. [online] Bar and Bench – Indian Legal news. Available at: https://www.barandbench.com/columns/inequities-and-challenges-in-access-to-education-amidst-covid-19 [Accessed 30 Jan. 2022]. ‌

[6] The Sunday Guardian Live. (2020). The Sunday Guardian Live. [online] Available at: https://www.sundayguardianlive.com/legally-speaking/right-education-coronavirus-era [Accessed 30 Jan. 2022]. ‌

[7] Deshpande, R. (2020). As classes go online, how can the Right to Education be guaranteed for students without net access? [online] Scroll.in. Available at: https://scroll.in/article/967553/as-classes-go-online-how-can-the-right-to-education-be-guaranteed-for-students-without-net-access [Accessed 30 Jan. 2022]. ‌

[8] Vikaspedia.in. (2012). vikaspedia Domains. [online] Available at: https://vikaspedia.in/education/policies-and-schemes/right-to-education/right-of-children-to-free-and-compulsory-education-act-2009-right-to-education-act [Accessed 30 Jan. 2022]. ‌

[9] Sakshi Shairwal (2021). Uncovering legal Issues Involved in E-learning Platforms. [online] Lexology. Available at: https://www.lexology.com/library/detail.aspx?g=089e8e08-06f2-42f5-9845-9959202ef176 [Accessed 30 Jan. 2022]. ‌

[10] Jammu (2020). Voices of Promise. [online] Voices of Promise. Available at: https://www.promisehumanrights.blog/blog/2020/8/restrictions-on-the-right-to-access-the-internet-as-a-violation-of-the-right-to-education-examining-the-implications-of-restrictions-on-the-internet-in-jammu-and-kashmir [Accessed 30 Jan. 2022]. ‌

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