The High Court of Karnataka on Wednesday expressed the prima facie view that State Government orders banning online classes encroached upon the Fundamental Right to Life and Education conferred by Article 21 and 21A of the Constitution of India.
"Prima facie we are of the view that both orders of June 15 and June 27, encroached upon the Fundamental Right conferred by Article 21 and 21A of the Constitution of India", observed a division bench comprising Chief Justice Abhay Srinivas Oka and Justice Nataraj Rangaswamy.
The Court said that the executive orders passed by the Government under Article 162 of the Constitution cannot curtail the fundamental rights under Articles 21 and 21A.
Therefore, the bench passed an interim direction staying the government orders issued on June 15 and June 27 to the extent they imposed ban/embargo on conduct of online classes by the schools from LKG to Class X.
The Court clarified that the order should not be construed to mean that authorities of school have right to make online education compulsory or will have right to charge extra fees for conducting online classes.
"Our order should not be construed to mean that students who do not opt for online education should be deprived of their normal education as and when the schools are able to start education", the bench added.
The order came in a bunch of writ petitions, which challenged the government decision.
"There cannot be any dispute that academic term for this year has already commenced. Only way of providing education was by providing facility of online coaching/online training", the bench said.
The bench held that there was no "rational basis" for passing orders banning online education.
The fact that state is not able to extend online education to certain category of schools is not a ground to hold that the so called "elite schools" should not extend online education to their students, added the bench.
The bench further said that it was difficult for the Government to derive support from the opinion expressed by NIMHANS, Bangalore.
The Government ordered on June 15 that no schools should impart online education until the expert committee constituted by the Government submitted its suggestions regarding the viability of online classes.
Later on June 27, the Government modified the order allowing online classes for limited hours for students from lower KG to Standard V, following the guidelines laid down by the authorities.
The State said that the ban was only an interim measure, until the government explored options to ensure that no student was deprived of education on account of lack of access to internet.
As per statistics given to the Court by the Government, around 1.45 crore students are there in the state. Around 44 lakh students are enrolled in government schools, 13.60 lakh in private aided schools and around 45 lakh students are studying in private unaided schools. Among them, 58.61 lakh students are in urban areas and 45.88 lakh students are in Rural areas.
Defending the government decision, Advocate General Prabhuling Navadgi had submitted :
"It is the state's endeavour to ensure that not a single student is deprived of education. If eight students are taking online classes and two are not, then they will be left out. These are all factors which need to be considered. The students between 0-6 years is a more delicate subject which needs to be dealt with not only from the point of view of education or fundamental rights but also child psychology. How Children are going to react to online classes?. Because kindergarten is not only about schooling but more about parenting. These are formative years, whatever we teach them today will lay the foundation of their personality".
Senior Advocate Uday Holla and Advocate Pradeep Nayak, appearing for the petitioners, had submitted that the government decision was violative of right to education of the students.
The petitioners also raised the argument that the government lacked powers to control the schools affiliated to CBSE/ICSE boards.
Advocate Pramod Nair, appearing for a parent, had argued that the State cannot rely on its executive powers under Article 162 to issue orders that affect fundamental rights. Any restriction of fundamental rights requires the authority of a law and cannot be validly given effect to by means of an executive order. The issue is no longer res integra and has long been settled by judgments of the Supreme Court.