Suppose you have a 10-year-old child in your imagination. Her parents have made sure she got into a better school. She is excited. However, her old school won’t give her her Transfer Certificate without which her new school will not let her in. The reason? Her parents are due 3 months of unpaid fees.

The child is not responsible for any offence. But she sits at home, her schooling never completed and is caught between grown-ups over cash. It is not a scenario. This is not a ‘what if’. It’s happening in thousands of classrooms across India, without a crackdown every year, and there’s no one reporting it.

The question may seem simple on the surface, but it is one that truly goes to the core of institutional authority, parental responsibility and a child’s right to a place in school. Does a school have the power to withhold a Transfer Certificate in return for unpaid fees? Under Indian law, the answer is a resounding NO. It’s a ‘no’ to unpack, however, because schools still do it, and parents may not realise they have a right to stand up to them.

WHAT IS A TRANSFER CERTIFICATE, AND WHY DOES IT MATTER?

A Transfer Certificate (TC), also known as a School Leaving Certificate in certain states, is a formal certificate provided by a school when a student leaves it. It shows the student’s name, date of birth, class last seen and conduct. No school (Government, Aided, Private) can allow admission of a student without providing a valid TC from the previous school in India’s education system.

The TC is not a courtesy document, so to speak. It is a “gate-keeping” process in the education pathway. The decision not to provide it is not only a paper hassle, but it’s a complete interruption of the educational flow. The absence of a TC means the absence of education for a child.

“The Transfer Certificate is not the school’s property — it is the child’s passport to her constitutional right to education — it is a violation of her rights to deny her the certificate.”

Every State in India has its own Education Regulations in which the procedure for issuing TCs is mentioned. The regulations are made within the framework of the respective State Education Acts and, importantly, are now to be read in conjunction with the central legislation, namely the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act)[1].

THE CONSTITUTIONAL FOUNDATION: EDUCATION AS A FUNDAMENTAL RIGHT.

Article 21A of the Constitution of India[2], added by the Constitution (Eighty-Sixth Amendment) Act, 2002, is the foundation of this analysis. It states that the State shall make provision for the free and compulsory education of all children aged 6 to 14 in the manner as the State may prescribe from time to time by law.

In India, the right to education was acknowledged before the enactment of Article 21A of the Constitution as a derivative of the right to life and personal liberty under Article 21[3] of the Constitution by the Supreme Court of India. In Mohini Jain v. State of Karnataka (1992)[4]It was held that education at all levels is a fundamental right of a citizen under Article 21. The Court in Unni Krishnan J.P. v. State of Andhra Pradesh[5] reiterated this and ruled that the right to education is a fundamental right of every child up to the age of 14 years.

Mohini Jain v. State of Karnataka (1992): The Supreme Court held that the right to education is a fundamental right flowing from the right to life under Article 21. A student’s access to education cannot be subjected to arbitrary institutional barriers.

It is not just a regulatory violation when a school withholds the TC due to a fee issue. It is blatantly interfering with the child’s right to a fundamental right, as guaranteed by the Constitution. This makes it a constitutional wrong against the child, not a contractual matter between school and parents, and one that cannot be visited on the child because he or she is not “breaching” their contract by not paying for the services.

THE RIGHT TO EDUCATION ACT: AN EXPLICIT PROVISION.

The Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) gives legislative force to Article 21A. Section 4 of the RTE Act[6] is of special significance. It shall ensure that, if a child over the age of six is not enrolled in any school, or if a child is enrolled but is unable to complete his elementary education, he shall be admitted to a class appropriate to his age. Importantly, Section 4 also stipulates that a child shall not be refused admission because a TC is not provided by the school where the child attended.

Special provisions for children not admitted to, or who have not completed, elementary education[7].—Where a child above six years of age has not been admitted in any school or though admitted, could not complete his or her elementary education, then, he or she shall be admitted in a class appropriate to his or her age: Provided that where a child is directly admitted in a class appropriate to his or her age, then, he or she shall, in order to be at par with others, have a right to receive special training, in such manner, and within such time-limits, as may be prescribed: Provided further that a child so admitted to elementary education shall be entitled to free education till completion of elementary education even after fourteen years.

The proviso in Section 4 is a brilliant piece of legislation. It challenges the chokehold that TC schools have on transferring students. If a TC is not forthcoming, the new school has a legal duty to take the child in. The child can, therefore, not be caught between two institutional actors.

Section 17 of the RTE Act[8] It is even more expensive. It forbids any kind of physical punishment or mental harassment of a child. A failure to provide a child with a TC (which delays or disrupts their education, causes anxiety and means they miss out on having peers and learning opportunities) can arguably be considered mental harassment under this provision, especially if the child is caught in a dispute that he or she did not set up.

STATE EDUCATION REGULATIONS: AN EXPLICIT BAN ACROSS JURISDICTIONS:

Almost all the states in India have prescribed guidelines for education, which clearly state that Transfer Certificates cannot be denied on fee grounds. The regulations made under the respective State Education Acts have the force of law and are binding on all recognised schools, including government, aided and unaided private schools.

The distribution is consistent statewide:

• The Maharashtra Educational Institutions (Regulation of Fee) Act and the education regulations of the Maharashtra government categorically stipulate that no fees can be recovered from TCs.
• The Directorate of Education, Delhi, in multiple circulars, has clarified that no school will be allowed to withhold the TC for any reason, even if the fees are pending.
• Karnataka: The Karnataka Education Act, 1983, and rules made thereunder do not allow for withholding of TCs. The Karnataka courts have always upheld this ban.
• In Tamil Nadu, the Tamil Nadu Private Schools (Regulation) Act, 2018, and the earlier Private Schools Regulations do not allow for refusal of school certificates to pressure for fee payment.
• The District Basic Education Officer has a similar prohibition in the U.P. Intermediate Education Act and basic education regulations in Uttar Pradesh.
• In Rajasthan, Gujarat, Haryana and most of the other states, there are similar provisions, and the Department of Education publishes state-level circulars to that effect.

This universal statutory prohibition is clear evidence of the legislature’s acceptance that a Transfer Certificate is a document of the student’s academic history, and not a lever in a negotiation for financial resources. The child’s right to receive education continues to be more important than the school’s interest in collecting the amount of the dues.

JUDICIAL PRONOUNCEMENTS: COURTS HAVE SPOKEN CLEARLY

The judiciary has certainly given a clear answer on this issue. All over India, High Courts have expressly ruled that the collection of fees by withholding of TCs is illegal and issued directions like a Mandamus mandating the immediate issue of TCs.

In the case of Suo Motu v. State of Kerala, 2019[9]The Kerala High Court, suo motu, gave the matter a hearing, held that withholding of TC without notice was illegal, and all schools should abide by and follow the law. The Court had stated that a recovery of fees is something that the school has remedies under one possible under law for a child’s fees, but TC is not it amongst other remedies that the school has.

State of Tamil Nadu v. All India Private Schools Legal Protection Society[10]The Madras High Court has determined that the retention of a TC for fee dues violates fundamental rights and is also opposite the RTE Act. A child’s purpose of learning is not to be subjected to the will of the education institution entrusted with their learning.

In Court on its own Case v. Delhi Directorate of Education (2019)[11]The Delhi High Court issued far-reaching directions to the Directorate of Education to not withhold the TC, Mark Sheet or any academic document from the student as a means of fee recovery. Earlier, the Court described these actions as ‘an abuse of authority and an infringement upon the child’s right.

The National Commission for Protection of Child Rights (NCPCR)[12] has also clearly expressed its opinion on this issue. The NCPCR has emphasised that the refusal to issue the TC due to fee-related disputes is a violation of the RTE Act and the child’s right to education, and called upon the state governments to take action against the schools that are acting out.

THE SCHOOL’S REMEDIES; AND WHY THE TC IS NOT ONE OF THEM

This jurisprudence leaves no room for the notion that when the payments are actually not made, the school does not have a remedy. The school has the discretion to:

• Start civil proceedings against parents for outstanding dues in the same way as any other commercial creditor;
• Not to extend the period of defaulting to admission of a student for the next academic year, subject to applicable State rules on the discontinuation of enrolment of a student (such as Rule 167 of the Delhi School Education Act, 197315, that allows discontinuing a student from the school rolls in specific situations); and
• Does not move data from internal financial records onto a document the TC, which moves with the child and has a de facto impact on the child’s standing in a new institution, without transferring data from internal financial records onto it:

Schools cannot place a lien, taking the TC as a security instrument, on the child’s education. What continuously and uninterruptedly developing education means is a matter of public law and must not be made subject to a private financial arrangement to which the child never entered.

THE DOCTRINE OF UNCONSCIONABILITY AND ABUSE OF DOMINANT POSITION:

In addition to constitutional and statutory law, the reasoning behind not granting TCs can be explored within the framework of contract and competition law. The relationship between parent(s) and school, from a legal standpoint, is an agreement for educational services. The school has an informational and institutional superiority over the parent and child.

The school has the dominant power when it provides a parent with a TC that he or she desperately needs and has no other system for obtaining. This is reminiscent of the doctrine of unconscionability that exists in Indian Contract law, whereby a contract, agreement, or act is unfairly imposed and oppressive. Courts have been unpersuaded by clauses or terms that are oppressive or result in an overreach of institutional power.

In several cases concerning private schools, the Competition Commission of India (CCI) had considered whether the unilateral acts of these schools, such as demanding a capitation fee, refusal to issue documents, etc., constituted an abuse of dominant position under Section 4 of the Competition Act, 2002[13]. The CCI has always thought that its competence over ‘services’ education will be in line with the exemptions prescribed under the RTE (Right to Education) Act.

REMEDIES AVAILABLE TO AN AGGRIEVED PARENT.

If a parent is left in a situation where a school refuses a TC due to an issue over payment of a fee, there is a solution. The main methods of redress are:

• written representation to the school stating that it has violated Section 5(2) of the RTE Act[14] In doing so, it is a fundamental legal right of the child to get the TC as soon as possible, but we will contest the demand separately;
• Complain to the District Education Officer, Deputy Director of Education or Block Education Officer, who are empowered under the RTE Act and State School Education Rules, to invoke the head teacher to follow, which can trigger disciplinary action against the head teacher and in accordance with section 5(3)[15];
• Approach to the State Commission for Protection of Child Rights (SCPCR) or the National Commission for Protection of Child Rights (NCPCR)16, which have both issued statements taking cognisance of TC-withdrawing complaints as a violation of children’s right to education;

An academic year may be lost if emergencies arise or when urgency is felt, a petition filed before the jurisdictional High Court under Article 226 of the Constitution with a reference to Article 21A and Section 5 of the RTE Act; and

In the very important case of P.T. Koshy v. Ellen Charitable Trust (2012)[16]The Supreme Court noted that education is not a ‘service’ under the Consumer Protection Act. But the NCDRC and the state consumer commissions have taken a more nuanced approach, and consumer complaints are still allowed to be filed in a case where the deal is clearly commercial, e.g. in private unaided institutions.

THE INTERNATIONAL DIMENSION: CRC AND INDIA’S OBLIGATIONS

India signed the United Nations Convention on the Rights of the Child in 1992. In terms of the UNCRC (Article 28)[17]The child has the right to education, and the State is duty-bound to provide free education until primary school. It explicitly mandates States to ‘take measures’ to ensure school discipline is administered in a manner which is consistent with the child’s human dignity, in accordance with Article 28(2)[18].

The withholding of the TC is in conflict with these international promises. It teaches the child something that is not his fault, that he must do, that is institutional discipline. Affirming this, the Supreme Court of India in Vishaka v. State of Rajasthan (1997)[19] has held that international conventions. ratified by the state can be used as a tool for interpreting constitutional and statutory provisions, and several subsequent judgments have reiterated this.

Both the withholding of TC and any definition that allows TC in cases of fee defaults have been interpreted in the context of India’s obligations under the UNCRC, and therefore, it is incompatible with international human rights standards.

THE SYSTEMIC PROBLEM: WHY SCHOOLS KEEP DOING IT

With a law this unambiguous, why is TC withholding still going on? The solution is to have system asymmetry, not legal ambiguity. Indeed, many parents don’t even know about their rights, most of all in smaller towns and economically disadvantaged communities. A school that refuses to supply a TC knows that most parents will end up paying it rather than bothering a complaint procedure, or going so far as to file a writ petition. The TC is not simply a document; rather, it is a means of power, and it does its best job working where the victim is usually a family who do not have a legal representative.

However, there is also a gap in the regulation enforcement. State or department education agencies print circulars and ban activities on paper, but are not very active in proactively challenging misbehaving schools. There is likely to be a lot of delay or informal resolution for complaints. However, if there are no meaningful repercussions such as the loss of recognition, monetary fines or public exposure, there is not much incentive to comply.

CONCLUSION: THE CHILD IS NOT COLLATERAL

The definition of law in India is crystal clear that if a parent is having a dispute in relation to the fees, a school cannot deny a Transfer Certificate. The reason behind this ban is the guaranteed right to education enshrined in Article 21A of the Constitution, as well as the explicit provisions in the RTE Act, uniform education laws in the states across the country, and a consistent body of judicial decisions given by the High Courts and the Supreme Court.

The school’s right and interest to claim payment does not justify its acts of punishment towards the child over the default by the parents. There are provisions for the recovery of dues in civil lawsuits, legal notice, administrative complaints and refusal to enrol children. The dependence upon holding a TC hostage is not in the category. This is illegality, aggression and force in the guise of an institutional position.

The core issue of this legal analysis is the “constitutional rights versus institutional power”. A school is not an ordinary enterprise that sells a service. It is an organisation entrusted by the State with the duty of educating youth. In addition, that vesting is accompanied by obligations that can be subjugated to no commercial interests. A school that is asking for the money to withhold a Transfer Certificate doesn’t remember that it’s a teacher first.

Children should not become “collateral damage. They aren’t someone’s pawn for education. And the law is on their side if it is enforced with the force that it demands.

[1] The Right of Children to Free and Compulsory Education Act, 2009, Act No. 35 of 2009, Acts of Parliament,

2009.

[2] INDIA CONST. art. 21A, amended by The Constitution (Eighty-sixth Amendment) Act, 2002

[3] INDIA CONST. art. 21,

[4] Mohini Jain v. State of Karnataka (1992) AIR 1858

[5] Unni Krishnan J.P. v. State of Andhra Pradesh 1993 AIR 2178

[6] The Right of Children to Free and Compulsory Education Act, 2009, §, No. 35, Acts of Parliament, 2009.

[7] Supra note 6.

[8] The Right of Children to Free and Compulsory Education Act, 2009, § 17, No. 35, Acts of Parliament, 2009.

[9] Suo Motu v. State of Kerala 2019

[10] State of Tamil Nadu v. All India Private Schools Legal Protection Society W.P.No.1876 of 2023

[11] Case on its own motion v. Delhi Directorate of Education (2019) W.P.(C) 6658/2019

[12] Comm’n for Prot. of Child Rights Act, 2005, No. 4, Acts of Parliament, 2006 (India)

[13] The Competition Act, 2002. § 4, Act 12 of 2003,

[14] The Right of Children to Free and Compulsory Education Act, 2009, § 5 (2), No. 35, Acts of Parliament, 2009

[15] The Right of Children to Free and Compulsory Education Act, 2009, § 5 (3), No. 35, Acts of Parliament, 200

[16] P.T. Koshy and Ors. v. Ellen Charitable Trust and Ors. 2012 (3) C.P.C. 615

[17] Convention on the Rights of the Child, Nov. 20, 1989, art. 28.

[18] Convention on the Rights of the Child, Nov. 20, 1989, art. 28 (2).

[19] Vishakha v. State of Rajasthan AIR 1997 SC 3011