Nishtha Tripathi and Deepti Shinde, both 4th year students of National Law University, Jodhpur discusses about effects on the cost and quality of higher education due to Covid-19.

Introduction

If you happen to be a student pursuing higher education in the middle of the COVID-19 pandemic, you have been handed a raw deal. UNESCO reports estimate that close to 1.52 billion students have been left bereft of the classroom.[1]

The threat of contagion has shifted classes to the online realm, following lockdown orders[2] issued under sections 6(2)(i) and 10(2)(1) of the Disaster Management Act, 2005[3]

In such a scenario, the prospect of fees has left a sour taste in the mouths of the students. Not only are they raising demands for reduced fees but are also claiming a fee refund for the facilities that they paid for and cannot avail.

Here, the authors present the stance of both the stakeholders and conclude with plausible solutions to arrive at a balance.

Students’ Perspective

What is the hue and cry about?

  • Deprivation of Campus Infrastructure

The education sector has witnessed severe disruption.[4] Students have asserted how unfair it is to be charged for campus infrastructure they have been unable to redeem, for instance, libraries, laboratories, studios for the arts and architecture based courses.[5] The University Grants Commission Act, 1956, specifies that these are activities which students need to necessarily engage in during their courses of study and a university is not entitled to charge under these heads unless it is making provisions for the same.[6]

  • Deprivation of campus life

Virtual education has also not been received warmly because it robs students of many on-campus opportunities like interpersonal engagement and interaction, development of networking skills and participation in a diverse and closely-knit student community.[7]

  • Quality of online classes not up to the mark

Students have balked at the mounting fees because they believe that online classes are not a substitute for the in-person ones. A UK Parliamentary report notes that the vast majority of students express dissatisfaction with the online mode of delivering education.[8] PowerPoint presentations uploaded by faculty members have not been interactive enough to bolster conceptual understanding and faculty feedback has been drastically restricted. In some cases where efforts have been made to conduct live classes, students have reportedly been unable to follow the course of the lectures. 

  • Fall in class hours

Another glaring deficiency has been the fall in teaching hours across courses. This becomes exponentially serious when regulatory bodies, such as the UGC, the Bar Council, and the Medical Council, mandate providing elite education that adheres to standards higher than the minimum in terms of teaching hours.[9] For instance, Bar Council requires that a semester in law school shall be spread over not less than 18 weeks with not less than 30 hours per week dedicated to classes, including moot court exercises and seminars.[10]

Moreover, online classes are unsuitable where practical competence, like undertaking medical residencies and internships, counts.

  • Pass/Fail Assessment System Does not Reflect Learning

The assessment patterns have also made the students feel short-changed. The pandemic made universities cancel exams for the first and second years and resort to the no-detriment or average grading policy for the others.[11] It is reasonably apprehended that qualifications thus secured will generate learning loss.[12] 

  • Access to Disadvantaged Students severely hampered

Advocates for the students’ cause have further pointed out that the distance model has amplified the rampant inequalities in the education system. Students from disadvantaged backgrounds have to slog through connectivity issues like weak Wi-Fi signal, video glitches, audio lags, limited concentration in crowded households, etc.[13]

All these factors have connived together, resulting in a disgruntled student class.

Are there legal remedies?

Aggrieved students have made recourse to civil remedies. In the United States and India, contractual breach claims have been made on account of universities failing to live up to the vibrant promises they made in their brochure/prospectus.[14] Some student class actions have alleged unjust enrichment on part of universities which continue to charge for amenities they no longer provide.[15] It can be argued, for instance, that the case falls squarely under Section 70 of the Indian Contract Act, 1872.[16] Deficiency of service has also been claimed under Section 2(1)(g) of the Consumer Protection Act, 1986[17], because of the unsatisfactory quality of online teaching.[18]

While these might crumble in the face of the contractual defence of force majeure, the authors would argue that there is an overarching relief to be had in the precedent that holds education to be a constitutional objective and a public good, which stands apart from a commercial transaction, and must not be profiteered from.[19] As per this line of reasoning, it follows that if colleges have registered a drop in variable costs incurred, the same should reflect in the fees that they charge. It is not within their rights to demand for full fees if they are unable to deliver all or some of what they offer. 

Moreover, regard must also be had to other sympathetic grounds in the name of complete justice- parents losing means of livelihood, economically backward classes struggling from poor connectivity, the adverse effects of online learning on the students’ mental, emotional and physical health[20], the lack of individualized follow-up that demoralizes students into performing poorly and dropping out[21], etc. 

Universities’ Perspective

University finances are also threatened by the pandemic, thus, making it essential to levy fee. At the school-level, High Courts have understandably been conflicted between allowing for the legitimate management concerns of unaided institutions[22] and maintaining the sanctity of the right to education.[23]

  • Infrastructural Costs

While the resumption of classes remains uncertain, the need for robust virtual platforms strengthens manifold. Such platforms require solid technological support, trained teachers, desired equipment, and other contractual obligations. Making institutions waive off full tuition fees would prevent them from procuring distance learning mechanism.[24] 

  • Salaries to staff

Universities have to pay the working staff, irrespective of the shutdown, which includes retirement benefits, advances and health care. These can only be paid on the receipt of the fee charged. 

  • Health compliance costs

Furthermore, once reopening becomes a possibility, institutions shall have to prepare strong facilities for sanitation, innovative measures for following social distancing, health care amenities, and maintenance of other educational supplements, which naturally requires more expenditure.[25]  

  • Other costs related to maintenance of standards

When it comes to unaided institutions which function without state funds, it is their exceptional services, quality education, and infrastructural benefits, which encourage students to opt for them.[26] These standards draw upon the fee received, thus, denying institutions the levying of fee could jeopardise their viability and the students’ future.

Similarly, even when facilities like hostels, electricity, gyms, library, and buses remain unused, universities have to pay minimal charges[27] and depreciation costs on the fixed assets. 

Thus, exemption of fees becomes unreasonable because it impedes the payment of maintenance costs, current liabilities, loans payable, taxes, investments and other expenses.

Striking a balance

Court recommended dialogue

There arises a need for innovative solutions that can provide balance among the parents and educational institutions. For instance, the Punjab High Court, while upholding the legitimacy of university fee, suggested the establishment of a financial aid committee in institutions, which can help the parents affected most by the pandemic.[28] Such committee shall act as vanguard by providing concession, waiver of fee, or opportunity to submit the fee in installments, on submission of required documents.[29] 

The authors would like to stress that while government policies have allowed full tuition fees in some cases, it falls upon the judiciary in their parens patriae role[30] to help smoothen out access to education, especially, considering that education is an inherent human right, as per Article 26 of the Universal Declaration of Human Rights[31] and Article 13 of the International Covenant on Economic, Social and Cultural Rights.[32]

Detailed breakdown of fees and no late payment penalty

Even if courts dismiss petitions praying for exemption of fees, it becomes imperative for institutions to maintain the trust, faith, and future security of students, and make amenable decisions by not denying ID cards for online classes in cases of non-payment due to financial constraints. They could also decide for non-imposition of penalty for late fee submission.[33] 

It is always feared that universities take undue advantage by charging more than what is incurred under a consolidated head. Therefore, universities must adhere to accounting standards with break-down of detailed heads, leaving no scope for ambiguity. While they can make space for a reasonable surplus, they must abstain from profiteering[34], keeping in mind the sensitive times.

Private sector funding of education 

Lack of central or state funds exerts more pressure on institutions.[35] Therefore, more funds should be sanctioned for education sector, perhaps, by channelling CSR from companies.[36] 

Additionally, now that ESG bonds have gained tremendous momentum[37], they could also be deployed to invest in educational and health care infrastructure[38] to ensure that universities are adept at carrying out screening and quarantining in the post-COVID period. 

This would also be in keeping with World Bank’s advice to countries to prioritize investments in technology so that the low-income students facing digital divide can catch-up.[39]

State Support and Legislative Reforms

Government representatives must also push for further action on UGC guidelines regarding scaling of college fees and put into action the 2019 UGC reform recommendations that had proposed constitution of Fees Committees to analyse the reasonableness of fee levied by private and unaided institutions.[40] 

Undertaking steps to mitigate the negative consequences on education is a State responsibility[41], and a constitutional mandate[42]. As a welfare state in letter and spirit, the legislature must draft and implement measures such as the US Coronavirus Aid, Relief and Economic Security Act which makes available grants for students in both public and private universities[43], and other pipeline bills that aim at helping educational institutions offset compliance costs associated with following public health orders[44], assisting student loan borrowers by way of moratorium and zero interest rates[45], etc. 

India could also follow the stead of Russia which has provided operational support to its universities to transition to the online format, including state portal for admissions[46] and employment portal for students who lost their part-time jobs.[47]

A balance in these trying times can only be reached when educational institutions, parents, and students, work in co-operation, without indulging in any malpractices, or taking advantage of concessions by false claims, in order to protect the best interest of students.  


Nishtha Tripathi and Deepti Shinde are fourth year students from National Law University, Jodhpur.


[1]Coronavirus COVID-19 and Higher Education- Impact and Recommendations, UNESCO International Institute for Higher Education in Latin America and the Caribbean (IESALC), March 9, 2020, available at https://www.iesalc.unesco.org/en/2020/03/09/coronavirus-covid-19-and-higher-education-impact-and-recommendations/

[2]Ministry of Home Affairs Order No. 40-D/2020 D dated March 24, 2020, available at https://www.mohfw.gov.in/pdf/Annexure_MHA.pdf and https://www.mha.gov.in/sites/default/files/PR_NationalLockdown_26032020_0.pdf

[3]The Disaster Management Act, Act No. 53 of 2005, Acts of Parliament, 2005. 

[4]Maike Halterbeck, Dr. Gavin Conlon, Mr. Ohys Williams, Ms. Jocelyn Miller, Impact of COVID-19 pandemic on University Finances, London Economics, April 2020.

[5]Nick Morrison, Students entitled to Tuition Fee Refund over Lockdown Disruption, forbes, July 12, 2020, available at https://www.forbes.com/sites/nickmorrison/2020/07/12/students-entitled-to-tuition-fee-refund-over-lockdown-disruption/#2408cbb072f6

[6]§12A(2)(d) and §12A(3)(a), The University Grants Commission Act, Act No. 70 of 1985, Acts of Parliament, 1956.

[7]Andrew Depietro, Impact of Coronavirus (COVID-19) on College Tuition and Finances, forbes, June 2, 2020, available at https://www.forbes.com/sites/andrewdepietro/2020/06/02/impact-covid-19-tuition-finance/#81af544b8839

[8]The Impact of COVID-19 on University Students, Publications and Records, Petitions Committee, House of Commons, available at https://publications.parliament.uk/pa/cm5801/cmselect/cmpetitions/527/52702.htm

[9]§26(1)(f), The University Grants Commission Act, Act No. 70 of 1985, Acts of Parliament, 1956.

[10]Rule 10 Semester System, Chapter II Standards of Professional Legal Education, Bar Council of India Rules of Legal Education, available at http://www.barcouncilofindia.org/wp-content/uploads/2010/05/BCIRulesPartIV.pdf

[11]Supra, note 8.

[12]Shriya Roy, Covid-19: Prestigious universities moving online, but can digital learning compensate for campus experience?, financial express, July 12, 2020, available at https://www.financialexpress.com/education-2/covid-19-prestigious-universities-moving-online-but-can-digital-learning-compensate-for-campus-experience/2020964/

[13]Gilbert, Brittany, Online Learning Revealing the Benefits and Challenges, Education Masters. Paper 303, 2015.

[14]Molly Moriarty Lane, Scott T. Schutte, Ezra D. Church, Brian M. Ercole and Lily G. Becker, Colleges & Universities Hit With Refund Class Actions While Struggling With COVID-19 Effect, lexology, May 18, 2020, available at https://www.lexology.com/library/detail.aspx?g=214a724a-3667-478e-8beb-e443e3698930

[15]Drew H. Campbell, Unjust enrichment claims in tuition refund class actions: No pain, no gain, no claim, Bricker & Eckler Publications, May 19, 2020.

[16]The Indian Contract Act, 1872, No. 9, Acts of Parliament, 1872.

[17]The Consumer Protection Act, 1986, No. 68, Acts of Parliament, 1986.

[18]Reepak Kansal v Union of India, Writ Petition dated June 30, 2020, available at https://www.livelaw.in/pdf_upload/pdf_upload-377541.pdf

[19]Modern Dental College and Research Centre & Ors. v. State of Madhya Pradesh, A.I.R. 2016 SC 2601.

[20]Mangis, Jessica, Online Learning And The Effects On Functional Health: A Pilot Study, EWU Masters Thesis Collection, 2016.

[21]Eric Bettinger and Susanna Loeb, Promises and pitfalls of online education, Economic Studies at Brookings, Evidence Speaks Reports, Vol 2, June 9, 2017

[22]Naresh Kumar v. Director of Education & Ors., W.P. (C) 2993/2020.

[23]Amandeep Singh & Ors. v. State of Punjab and others 2020 SCC OnLine P&H 945; Sreelekshmi v. The state of Kerala, 2020 SCC OnLine Ker 2494.

[24]Report on Implementation of Accounting Standards in Educational Institutions of Department of Higher Education,

[25]Ministry of Human Resource Development, available at < https://mhrd.gov.in/sites/upload_files/mhrd/files/document-reports/Report_IASEI_0.pdf>

[26]Independent Schools’ Association v. State of Punjab & Ors., 2020 SCC OnLine P&H 626

[27]TMA Pai Foundation vs State of Karnataka (1994) 2 SCC 199.

[28]Supra, note 25.

[29]Supra, note 22.

[30]Supra, note 25; University Grants Commission, Letter regarding Payment of Fees, D.O.No.F. I -l 12020 NGC (Tf -C OVID- I 9/Fee), May 27, 2020; All India Council for Technical Education, Instructions to Institutes/Colleges during Lockdown 2.0, No. F. 7-2lDDlAdmn/lnter corr.(Vol.-ll) Pt., April 15, 2020.

[31]Charan Lal Sahu v Union of India A.I.R. 1990 S.C. 1480

[32]UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: https://www.refworld.org/docid/3ae6b3712c.html [accessed 16 August 2020]; 

[33]UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3, available at: https://www.refworld.org/docid/3ae6b36c0.html [accessed 16 August 2020]

[34]Rajat Vats v. GNCTD, 2020 SCC OnLine Del 568

[35]Supra, note 19.

[36]Supra, note 23.

[37]Pulkit Malhotra, The Dichotomy of School Fees: Balancing the Unbalanced, July 15, 2020, available at https://www.barandbench.com/columns/the-dichotomy-of-school-fees-balancing-the-unbalanced.

[38]Jean-Jacques Barbaeris, Marie Briere, ESG resilience during the COVID crisis: Is green the new gold?, July 09, 2020,available at https://www.ecmi.eu/sites/default/files/ecmi_commentary_no_67_july_2020.pdf.

[39]George Inderst and Fiona Stewart, Incorporating Environmental, Social And Governance (ESG) Factors Into Fixed Income Investment, the world bank group publication, April, 2018, available at http://documents1.worldbank.org/curated/en/913961524150628959/pdf/125442-REPL-PUBLIC-Incorporating-ESG-Factors-into-Fixed-Income-Investment-Final-April26-LowRes.pdf.

[40]Renaud Seligmann, COVID-19 (Coronavirus) Policy Response to Addressing Learning Gaps and Inequalities in Russia, the world bank, May 07, 2020, available at https://www.worldbank.org/en/country/russia/brief/covid-19-response-learning-gaps-inequalities-russia.

[41]The University Grants Commission (Fees in Professional Education Imparted by Private and Unaided Institutions deemed to be Universities) Draft Regulations, 2019, No. F. 1-6/2016(CPP-I/DU), available at https://www.ugc.ac.in/pdfnews/0811937_Draft-Regulation-fees-DU-Public-Notice.pdf.

[42]§22(1)(i) and 38(1)(f), The Disaster Management Act, Act No. 53 of 2005, Acts of Parliament, 2005.

[43]India const. art. 38, 41 and 46.

[44]Coronavirus Aid, Relief and Economic Security Act, 116 U.S.C., CARES Act, §§ 1102-23008 (2020)

[45]Reopen Schools Safely Act, HR, 116TH Cong., H.R. 7692 (2020).

[46]Student Loan Fairness Act, US Senate, 116th Cong. S. 4237 (2020).

[47]Supra, note 39.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

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