Areas of Service
- Capital Markets
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- Human Resources Law (Employment and Labour)
- Intellectual Property
- International Dispute Resolution and Investigations Practice
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- International Tax Litigation
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- 5G Sector
- AgriTech Sector
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- E-Mobility Education
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Our Education Law Expertise
NDA is one of the top tier law firms in India which has a niche focus on Education. The team regularly advises clients on all facets of the legal, regulatory, tax and policy aspects in the education sector. As part of our legal services, we advise clients on education laws, contractual and commercial issues, intellectual property (IP) and employment laws, tax concerns, as well as pre-litigation and litigation strategy. We also assist clients with structuring, compliances, and investments, including documentation for all of the above.
NDA strives to provide its clients with creative and pragmatic solutions and effective strategies. Resultantly, the team has been involved in some of the notable education matters and has an esteemed clientele. We have also authored various research papers and articles relating to education laws. Some of our research papers can be accessed at the following links:
1. Higher Education: Opportunities for Foreign Education Institutes in India: https://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research_Papers/Higher-Education-Web.pdf
2. EdTech: From IT to AI, a legal perspective: https://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research_Papers/EdTech_From_IT_to_AI.pdf
3. Investment in Education: http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research_Papers/Investment-in-Education.pdf
Our articles and hotlines can be accessed through our knowledge site www.nishithdesai.com).
Scope of Services
Our Education Law practice area encompasses the following areas:
Regulatory issues: NDA has been instrumental in advising various clients in the pre-school, K-12 and higher education sector on regulatory issues. This includes advice on inter alia structuring expansions, investments, right to education laws , fee regulation statutes in various states, transfer of schools, etc. NDA has also advised numerous foreign institutions on their entry and establishment of presence in India, including through collaborations, twinning, credit transfers and pathways programmes. We have also assisted clients in structuring arrangements for providing online degree / diploma programmes in India through various arrangements. We also assist in reviewing / strategizing marketing and advertising related issues from a regulatory lens, especially for entities in the EdTech sector.
Documentation: The Firm has been actively involved in the K-12 and higher education space in India. Resultantly, we help clients in drafting and reviewing deal documents whether in relation to investments, licensing or services arrangements or the like. In the K-12 and EdTech space, NDA has been involved in various investments and has helped in review and drafting of transaction documentation. In the higher education space, the expertise of the Firm is in advising foreign clients and assisting with documents for collaborations, twinning, credit transfers, pathways and other programmes.
Documentation often involves elements of IP, tax, employment and other regulatory aspects, and the Firm’s expertise in all these areas enables it to provide holistic advice on the entire transaction.
Pre-litigation and Litigation: We have advised various clients on both pre-litigation and dispute resolution strategy. NDA has also been involved in litigating the legality of fee regulation acts in the State of Maharashtra before the High Court of Bombay. NDA has also successfully represented its education clients in numerous IP and commercial disputes.
REGULATORY AND LEGAL FRAMEWORK APPLICABLE TO THE INDUSTRY/ SECTOR
India's education sector can be divided into four broad categories. Each of these categories has its own regulatory framework and nuances. These include:
1. Pre-school education
The pre-school education sector in India largely caters to children aged below 3 years. Pre-school education is not a formal education setup but mostly focuses on early holistic development of children. It is poised to grow by a CAGR of 9.57% or $957 million from 2022-2026.1 The current regulatory framework for pre-school education is entirely recommendatory in nature, with the exception of some states such as Delhi, Karnataka and Tamil Nadu which have sector-specific regulations. In 2018, the National Council of Education Research and Training ("NCERT") issued guidelines for preschool education.2 The guidelines ascribe standards for infrastructure and administration of preschools. The National Commission for Protection of Child Rights ("NCPCR") has published separate guidelines for regulating private play schools for children in the age bracket of 3-6 years.3 NCPCR guidelines provide a framework of granting recognition to private play schools and delineating a curriculum at the pre-school education level. The National Education Policy, 2020 ("NEP 2020") has created sub-frameworks for pre-school education under the National Curricular and Pedagogical Framework, and proposes to include all children from age of 3-8 years within the formal schooling system.
2. School Education
The Indian school education system is one of the largest in the world.4 There are more than 15 lakh schools that house nearly 26.5 crore students. The school education sector in India caters to primary and secondary education of students. Schools operating in India generally have to be set up as a non-profit entity as per state laws – either as a charitable trust / society or a non-profit company under the Companies Act, 2013 (with the state of Haryana being an exception). Schools must also comply with the Right of Children to Free and Compulsory Education Act, 2009 ("RTE Act"), which inter alia provides standards to be maintained in schools and also contains provisions on reservation for the economically disadvantaged in private schools. In order to commence operations, schools require a no-objection certificate from the State Government concerned and are require to be affiliated with a board of education to ensure recognition of education and qualification provided by the school (such as the Central Board of Secondary Education, Council for the Indian School Certificate Examinations, International Baccalaureate (IB) from Geneva, International General Certificate of Secondary Education (IGCSE) by Cambridge Assessment International Education or State Boards). These boards prescribe their own pre-requisite for affiliations in addition to bye-laws which must be complied with by the school. Schools must also conform to various state-specific regulations on matters of health, fee fixation, land use, etc.
India has one of the largest networks of higher educational institutions ("HEIs") in the world.5 The higher education sector has seen consistent growth over the years with enrolment in HEIs skyrocketing from 8.1% in 2001-02 to 27.1% in 2020-21. India's higher education sector is divided into two broad categories which include (a) structured sector and (b) unstructured sector. The structured sector includes degree/diploma programs at the undergraduate, post-graduate, and doctoral level. These degree/diplomas are awarded by HEIs which include Universities, Institutions deemed to be Universities, Institutions of Eminence, Institutions of National Importance, and Autonomous Colleges. The key regulator for higher education in India is the University Grants Commission ("UGC"). However, depending on the discipline of courses offered by an institution, there are sector-specific regulators as well such as the All India Council for Technical Education and statutory professional councils such as the National Medical Commission or the Bar Council of India, and various other state-specific regulators. These regulators publish standards for establishment of HEIs, regulation of courses, collaboration arrangements etc. With the advent of NEP 2020, India is seeing a growing trend of internalization of higher education. In May 2022, UGC for the first time recognized the dual and joint degree programs between Indian HEIs and Foreign HEIs under the UGC (Promotion and Maintenance of Standards of Academic Collaborations between Indian and Foreign Educational Institutions) Regulations, 2022.
On the policy front, UGC has formed a committee to finalize regulations that will enable Foreign HEIs to set up campuses in India, in addition to the Minister of Finance announcing the Government’s proposal for allowing foreign universities to offer courses in the financial disciplines in the Gujarat International Financial Tec-City ("GIFT City").
EdTech in India grew at a tremendous pace during 2020-21 having attracted investment to the tune of $4.7 billion in 2021.6 Byju's, which originated in India, has now become the world’s highest valued EdTech startup. It is accompanied by numerous EdTech unicorns which emerged over the past few years such as Eruditus, Vedantu, UpGrad, Unacademy and Lead School. While currently, there are no sector-specific regulations for EdTech entities, they would still be required to comply with existing laws such as the Consumer Protection Act, 2019 and the Consumer Protection (E-commerce) Rules, 2020, the Information Technology Act, 2000 and its allied rules, and payment directives of the Reserve Bank of India.
In India, education is regulated at both the Central and state levels. Consequently, there is a multiplicity of laws, both at the K-12 or higher education levels. EdTech is also a fast-evolving sector in India. While there is no specific regulation for EdTech, there are plethora of laws that are applicable to them, depending on the business model. Given that education is primarily for the benefit of the society, there is also a socialistic lens which is often applied by the regulators while considering issues related to the sector. This makes it even more important to evaluate the best strategy and take sound legal advice with robust documentation.
The recent Indian regulations in the education sector are focused on liberalizing the sector and actively encouraged internationalisation of education, more specifically higher education. The regulators have indicated that they are inclined towards self-regulation for EdTech. The education sector in India is thus a growing, forward-looking sector with a lot of opportunities, and is an exciting sector from an India perspective.
1 See https://www.imarcgroup.com/indian-pre-school-child-care-market; https://www.researchandmarkets.com/reports/4901412/preschool-market-in-india-2022-2026 (Last visited on July 18, 2022).
2 See https://ncert.nic.in/dee/pdf/guidelines-for-preschool.pdf (Last visited on July 18, 2022).
3 See https://www.jpsnoida.com/pdf/Guidelines%20for%20private%20playgrounds.pdf (Last visited on July 18, 2022).
4 See https://www.education.gov.in/sites/upload_files/mhrd/files/statistics-new/UDISE%2B2020_21_Booklet.pdf (Last visited on July 18, 2022).
5 See https://www.ibef.org/industry/education-sector-india (Last visited on July 18, 2022).
6 See https://www.ibef.org/download/1650442073_education-and-training-ppt-feb-2022.pdf (Last visited on July 18, 2022).