Case BriefsSupreme Court

Supreme Court: The bench of BR Gavai* and PS Narasimha, JJ has held that the right to establish an educational institution is a fundamental right under Article 19(1)(g) of the Constitution of India and reasonable restrictions on such a right can be imposed only by a law and not by an execution instruction.

What was under challenge?

The ruling came in a case where the Court was called upon to decide whether the moratorium, as imposed by the Pharmacy Council of India (PCI), could have been imposed by resolution/communications dated 17.07.2019 and 09.09.2019, which is in the nature of an executive instruction of the Central Council.

Resolution/Communication dated 17.07.2019: A moratorium on the opening of new pharmacy colleges for running Diploma as well as Degree courses in pharmacy for a period of five years beginning from the Academic Year 2020-2021.

Resolution/communication dated 09.09.2019:  

  1. Modified the aforesaid moratorium, thereby exempting its application to

(i) Government Institutions;

(ii) Institutions in North Eastern region; and

(iii) States/Union Territories where the number of institutions offering D. Pharm and B. Pharm courses (both combined) is less than 50.

  1. The institutions which had applied for opening colleges offering D. Pharm and/or B. Pharm courses for 2019-2020 academic session were allowed to apply for conducting diploma as well as degree courses in Academic Session 2020-2021 and existing approved pharmacy institutions were allowed to increase the intake capacity as per PCI norms and/or to start additional pharmacy course(s).

The 4 High Court judgments in question

The Karnataka High Court[1]; Delhi High Court[2] and Chhattisgarh High Court[3], while allowing the writ petitions filed by the respondent-institutions and quashing and setting aside the Resolutions/communications of PCI’s Central Council, in a nutshell, held:

 (i) That the right to establish educational institutions is a fundamental right guaranteed under Article 19(1) (g) of the Constitution of India;

(ii) That there can be reasonable restrictions on such a right. However, such a restriction can be imposed only by law enacted by the competent legislature;

(iii) Resolution/Communication dated 17.07.2019, vide which the moratorium was imposed is an executive instruction and could not be construed as a law and, therefore, the moratorium imposed by an executive instruction is not sustainable in law.

Bombay High Court[4],  on the other hand, upheld the moratorium. It was argued before the Court that said judgment of the Bombay High Court has not been considered by all the three High Courts of Karnataka, Delhi and Chhattisgarh.

Supreme Court’s Analysis and Verdict

Holding that the right to establish an educational institution is a fundamental right under Article 19(1)(g) of the Constitution of India and reasonable restrictions on such a right can be imposed only by a law and not by an execution instruction, the Court held that the Bombay High Court, did not lay down the correct position of law and that the view taken by the High Courts of Karnataka, Delhi and Chhattisgarh laid down the correct position of law.

Deciding against PCI, the Court held that PCI could not impose restrictions on the fundamental right to establish educational institutions under Article 19(1)(g) of the Constitution of India. Hence, the Resolutions/communications dated 17th July 2019 and 9th September 2019 of the Central Council of PCI have been struck down.

On Necessity to impose restrictions

There could indeed be a necessity to impose certain restrictions so as to prevent mushrooming growth of pharmacy colleges. Such restrictions may be in the larger general public interest. However, if that has to be done, it has to be done strictly in accordance with law. If and when such restrictions are imposed by an Authority competent to do so, the validity of the same can always be scrutinized on the touchstone of law.

On requirement of “No Objection Certificate” 

The applications seeking approval for D. Pharm and B. Pharm courses are required to be accompanied by a “No Objection Certificate” (“NOC”) from the State Government and consent of affiliation from the affiliating bodies. While scrutinizing such applications, the Council can always take into consideration various factors before deciding to  allow  or  reject  such  applications. Merely because an institution has a right to establish an educational institution does not mean that such an application has to be allowed.  In a particular area, if there are more than sufficient number of institutions already existing, the Central Council can always take into consideration as to whether it is necessary or not to increase the number of institutions in such an area. However, a blanket prohibition on the establishment of pharmacy colleges cannot be imposed by an executive resolution.

[Pharmacy Council of India v. Rajeev Pharmacy College, CIVIL APPEAL NO. 6681 OF 2022, decided on 15.09.2022]


*Judgment by: Justice BR Gavai

For PCI: Senior Advocate Maninder Singh

For Respondents: Senior Advocates Rakesh Dwivedi and Vinay Navare, Advocates Amit Pai, Sanjay Sharawat, Siddharth R. Gupta, and Shivam Singh


[1] Writ Appeal No. 746­748 of 2020, dated 09.11.2021

[2] Writ Petition (Civil) No.175 of 2021, dated 07.03.2020

[3] 2022 SCC OnLine Chh 762

[4] 2020 SCC OnLine Bom 2564

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a case where the mother (‘applicant’) who is in judicial custody for an alleged grave offence seeks interim bail to get her child admitted in a school, Swarana Kanta Sharma, J. took suo motu cognizance and directed Delhi police to ensure admission of the child recognizing right to education as a fundamental right of the child. The bail application was thus directed to be withdrawn and a compliance report was sought regarding admission.

The present application was filed by the petitioner seeking interim bail for two weeks in FIR registered under sections 302/365/292/397/411/120-B/201 & 34 Penal Code, 1860 (‘IPC’) for alleged involvement in the murder of an old lady whose body parts were severed and disposed of in a drain. The petitioner and her husband, who is the co-accused in the aforementioned FIR, have been in judicial custody since 11-07-2021. The application was preferred by the mother of the child on the grounds that she is concerned about the admission to a school of her child, who is about 8 years of age. It is stated that without her presence, she cannot be admitted to any school.

It was brought to the attention of the court that the presence of the applicant/mother is not required for admission of the child in the school and the Aadhaar Card of the mother shall suffice. Investigating Officer (IO) also verified the same stating that the child’s admission can be done without the Aadhaar Card if the child has a certificate bearing the child’s date of birth from any government institution. It is further stated that any local guardian of the child can also get him/her admitted in school.

The Court noted that once it comes to the notice of the court that a child or an individual is deprived of a fundamental right, the courts have to ensure that the fundamental right is enforced and there is no impediment for any individual to enjoy the same. Right to Education is a fundamental right guaranteed to every citizen under Article 21-A of the Constitution. A child must not suffer the consequences on account of their parents having been in judicial custody for a crime which is yet to be adjudicated upon by the court. Thus, the child must get admitted in a school at the earliest so that the shadow of nothing unpleasant happening falls upon the child’s life to darken her future.

The Court further noted that in the present unpleasant situation of the case, the court has to become the voice of the voiceless child. The parents are in judicial custody and the prime concern of the parents is the education of the child. Thus, court feels the need to exercise its discretionary powers under Article 226 of the Constitution of India and take suo-motu cognizance to facilitate the child’s admission in a school so that the child does not lose out on the current academic year 2022-23.

The Court directed the SHO concerned to get the child admitted to the school adjacent to the senior branch of the school in which the older sibling of the child is already enrolled and pursuing her education and asked the principal of the school to extend full cooperation for the admission of the child. The compliance report is directed to be filed within 10 days.

[Kamini Arya v. State of NCT of Delhi, 2022 SCC OnLine Del 2367, decided on 03-08-2022]


Advocates who appeared in this case :

Ms. Anu Narula, Advocate, for the Petitioner;

Mr. Manoj Pant, APP for the State with Inspector Devendra Singh, P.S. Mohan Garden, Advocates, for the State.


*Arunima Bose, Editorial Assistant has reported this brief.

Call For PapersLaw School News

The GNLU Centre for Women and Child Rights is organizing a two-day “Right to Education Conclave” on 8th – 9th October 2022 at Gujrat National Law University, Gandhinagar. The RTE Conclave is a first-of-a-kind conference that seeks to bring academicians, students, practitioners, activists, and policymakers together to work towards the effective implementation of the RTE Act, both in essence and spirit. The Conference aims to set a reference point for future discourse on the RTE Act by identifying and addressing some of the contemporary issues and challenges. The Two-days Conclave is expected to witness many participants, including students, renowned keynote speakers, practitioners, and academicians from different parts of the country.

Main sub-themes of the Conclave are:

  1. Role of Legal Professionals and students of law in improving access to education in India.

  2. NEP 2020 and RTE Act 2009: Issues, challenges, and way forward.

  3. Implementation of Section 12(1)c of the RTE Act, 2009 in India.

  4. Understanding RTE in light of specially-abled children.

  5. Reforms in the school examination system.

  6. Education as a subject under the concurrent list: Emerging issues between Centre and States.

  7. Economic Analysis of RTE Act, 2009.

  8. Regulation of Private Unaided Schools in India.

  9. Role of RTE in addressing challenges for doubly oppressed and marginalized sections.

  10. Education and Gender. Re-imagining Indian Education Laws in light of global standards.

  11. Impact of social media on the Right to education.

  12. The future of Ed-tech in the development of the Education Centre in India.

  13. Please note that the list of sub-themes is merely suggestive and non-exhaustive in nature. The authors can choose to submit manuscripts on other relevant and contemporary topics under the broad theme.

It is also pertinent to point out that the top three papers will be awarded a cash prize as well as a certificate of merit. Further, the conclave shall also ensure ample opportunities to interact with professionals and practitioners in the RTE sector. The last date for the submission of abstracts for the conclave is 31st July, 2022. The communication of acceptance of the abstracts shall be done by the 8th of August, 2022. The last date for the final paper submission is the 8th of September,2022. The communication of acceptance of full paper shall be done by the 15th of September, 2022. The payment of conference fee must be cleared by the 17th of September 2022.

Please find attached herewith the Conclave brochure as well as the link for abstract submission.  The GNLU Centre for Women and Child Rights look forward to positive responses and participation.

Link for Abstract Submission: HERE

High Court Round UpLegal RoundUp

Allahabad High Court

Disability

In a case where an employee of Central Bank of India petitioned to be exempted from routine transfers due to permanent disability of wife, Rajesh Singh Chauhan, J. held that the transfer is an exigency/ incidence of service and no courts are ordinarily interfered with the transfer orders but if such transfer may be avoided for any specific compelling reason and that reason is unavoidable, the Competent Authority being model employer should consider such condition sympathetically. Read more

Right to Education

The Division Bench of Rajesh Singh Chauhan and Subhash Vidyarthi, JJ., dealt with a case where the admission of a class VIII student was rejected by the school authorities without proper information being given to the parents on time, so that such student could get his admission in any other institution inasmuch as to receive proper education is a Fundamental Right enshrined under Article 21-A of the Constitution of India. Read more

Manual Scavenging

The Division Bench of Manoj Kumar Gupta and Chandra Kumar Rai, JJ., took up suo motu cognizance and directed the authorities concerned to take concrete measures for implementation so that some change is discernible in the working conditions of the sanitary workers in line with Standard Operating Procedure (SOP) to be followed in cleaning sewers and septic tanks. Read more

Andhra Pradesh High Court

Habeas Corpus

A Division Bench of Tarlada Rajashekhar Rao and K Manmadha Rao, JJ., directed the State authorities to produce the detenu-wife before Court as couple is major and have agreed to live together. Read more

Bombay High Court

POCSO

The Division Bench of Prasanna B. Varale and S.M. Modak, JJ. dismissed an FIR lodged under Section 376 of the Penal Code, 1860, and Section 4 of the POCSO Act, observing that the conflict had been addressed and the girl and boy intended to marry. Read more

Personal Liberty

A.S. Chandurkar and Amit Borkar, JJ., stated that the right to travel abroad is spelled out in Article 21 of the Constitution and that the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, do not implicitly confer such powers on the Debt Recovery Tribunal to restrain a person from travelling abroad. Read more

Extra-Marital Affair

The Division Bench of Sunil B. Shukre and G.A. Sanap, JJ., granted an application to quash an FIR filed under Section 306, 34 Penal Code. Read more

Advertisement/ Qualification

The petitioners contested a School Tribunal judgement ordering them to reinstate the respondent/employee. In overturning the Tribunal’s decision, the Bench of Rohit B. Deo, J. clarified that job advertisements are not limited to reserved positions. Under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, it is also obligatory to advertise the positions in the open category. Read more

Motor Vehicles Act, 1988

S.G. Mehare, J., authorised an appeal against the July 30, 2001 order of the Commissioner for Workmen’s Compensation and Judge Labour Court. Read more

Burden of Proof

The appeal against the appellant’s conviction for the offence is punishable under section 302 of the Penal Code, 1860, whereby he was sentenced to suffer R.I. for life and a fine of Rs. 5,000, was permitted by the Division Bench of Sadhana S. Jadhav and Milind N. Jadhav, JJ. Read more

Copyright Infringement

RI Chagla J. awarded an ad-interim injunction in favour of the “Janhit Mein Jaari” film’s creators and ordered the defendants to take down infringing links right away. Read more

Hindu Marriage Act

Bharati Dangre, J. dismissed a writ petition brought by the petitioner-husband against maintenance order towards his daughter stating that an unmarried major Daughter is entitled for maintenance from her father and glossy life on Instagram do not prove independent and sufficient income to exempt petitioner’s responsibility/liability. Read more

Consent vis a vis Sexual Relationship

Bharati Dangre, J. rejected an anticipatory bail application which was filed apprehending arrest for the offences punishable under Sections 376(2)(n), 376(2)(h) and 417 of the Penal Code, 1860 and held that merely sharing friendly relationship with a girl does not permit a boy to take her for granted and construe it as her consent to establish physical relationship. Read more

Departmental Proceedings

The Division Bench of S.B. Shukre and G. A. Sanap, JJ. sets aside an FIR for the offences punishable under Sections 13(1)(c)(d) and 13(2) of the Prevention of Corruption Act, 1988 in the matter of departmental proceedings being based on identical/similar charges as criminal proceedings cannot be proceeded with if accused was exonerated in departmental proceedings based on identical/similar charges. Read more

Calcutta High Court

Gratuity/ Pension

Amrita Sinha, J. dismissed a petition filed by an Assistant Teacher who retired on October 31, 2020, concerning the delayed payment of the gratuity and arrear pension amount. Read more

Dispute Bill

Sabyasachi Bhattacharyya, J. granted a petition directing CESC Ltd. to restore the petitioner’s electricity supply unconditionally. Read more

Peaceful Procession

Shampa Sarkar, J. heard a petition alleging that the Commissioner of Police, Kolkata, denied Utshi United Primary Teachers Welfare Association permission to march peacefully from Raja Subodh Mullick Square Park to Rani Rashmoni Avenue on June 11, 2022. Read more

Reasonable Opportunity

The Division Bench of Debangsu Basak and Bibhas Ranjan De, JJ. dismissed an appeal directed against the order dated 09-02-2022, holding that, despite the assessee receiving additional evidence regarding the quantum of tax liability after the conclusion of the order or refund, there was no material irregularity in the order of refund warranting interference under Article 226 of the Indian Constitution. Read more

Child Trafficking

Ananya Bandyopadhyay and Joymalya Bagchi, JJ., the division bench, denied a request for bail in a human trafficking case. The report was read in court, and it said that on June 14, 2022, psychological treatment was provided to trafficking victims. A request has been submitted for the lawful award of interim compensation. To provide the aforementioned witnesses with the security they need, measures were taken. Read more

Prostitution

A revisional application was filed for the quashing of the proceedings under Sections 3, 4, 5, 7, and 18 of the Immoral Traffic (Prevention) Act, 1956 (commonly referred to as the “I.T.(P) Act”) read with Section 120-B of the Penal Code, 1860,” and also for the setting aside of the order by which the Additional Chief Metropolitan Magistrate took cognizance against the current petitioner. This application was granted by Judge Ajoy Kumar Mukherjee. Read more

Victim Compensation Scheme

After hearing a petition, Moushumi Bhattacharya, J. gave instructions about the non-payment of victim compensation following a decision made by the Secretary of the District Legal Services Authority setting the compensation amount at Rs. 1,50,000/-. Read more

Arbitration

The Arbitral Tribunal’s award was affirmed by Shekhar B. Saraf, J., who also ruled that the award holder should be held liable for the full sum, plus interest and additional fees. Read more

Delhi High Court

Arbitration & Conciliation

While addressing the ineligibility of an arbitrator to be appointed, Vibhu Bhakru, J., elaborated on the expression ‘close family member’ and the likelihood of bias. Read more

Dishonour of Cheque

Asha Menon, J. refused to allow a petition filed under Section 482 CrPC seeking quashing of summoning order passed by the Metropolitan Magistrate, Patiala House Courts in a complaint filed by the respondents 1 and 2 against the petitioner under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881. Read more

Income Tax Act

The Division Bench of Manmohan and Manmeet Pritam Singh Arora, JJ., expressed that, merely because there was a delay of one day in asking for an adjournment, the assessee living outside India cannot be denied his right to file an objection to Show Cause notice. The present petition had been filed challenging the order passed under Section 148 A (d) of the Income Tax Act, 1961, and the notice was passed under Section 148 of the Act. Read more

A Division Bench of Manmohan and Manmeet Pritam Singh Arora JJ. dismissed the petition and ordered the respondents to refund the amount adjusted more than 10% of the disputed tax demands for the Assessment Year 2017-18 to the petitioner. Read more

Arbitration

While hearing an application against an arbitral tribunal’s award, Vibhu Bakhru, J. ruled that the arbitral tribunal could not rewrite or examine the parties’ agreement. Read more

FATF/ Economic Security

The Division Bench of Mukta Gupta and Mini Pushkarna, JJ., stated that the simple smuggling of gold without any link to a danger to the country’s economic security or monetary stability is not a “terrorist crime” under the Unlawful Activities (Prevention) Act. Read more

Police Post

In a case where a police officer was injured after being attacked with an illegal weapon outside of the police station, Talwant Singh, J., stated that a police station is a place where people go to lodge complaints about disputes among themselves, not a place where public servants are supposed to be attacked. Read more

Trademark Infringement

Prathiba M. Singh, J. granted Colorbar Cosmetics Private Limited an ad interim ex parte injunction, restraining the Canada-based Faces Cosmetics India Private Limited from manufacturing, selling, and offering for sale cosmetics and other products under the trademark “Velvet matte.” Read more

Jyoti Singh, J. granted an ex-parte injunction and noted that a stricter approach is required in cases of medicinal preparations and products because any confusion between the respective medicinal products is likely to have a disastrous effect on public health. Read more

Dinesh Kumar Sharma J. granted an ex parte injunction to Voltas Limited restraining a website from using their registered trademark and logo VOLTAS and block and suspend the website. Read more

Matrimonial Offences

Swarana Kanta Sharma, J., stated that cases under Section 376 of the Penal Code, 1860 should not be quashed and should not be considered a crime against the society at large. However, in unusual circumstances, where the complainant states that her future depends on the quashing of the FIR and adds that the rape was not committed upon her, it would be in the interest of justice to quash the FIR. Read more

Illegality

Geetanjali Goel, J. upholds the discharge of Delhi CM and others in the Anshu Prakash assault case, finding no reason to interfere with the Trial Court’s impugned order and dismissing the petition as without merit. Read more

Adjudication

A Division Bench of Manmohan and Manmeet Pritam Singh Arora, JJ., dismissed the petition and ordered a new adjudication since the Assessing Officer did not examine any of the representations and contentions. Read more

Organ Donation

Yashwant Verma, J. dismissed the petition and directed the respondent hospital to process the petitioner’s application and request following the law. Read more

POCSO

A Division Bench of Mukta Gupta and Mini Pushkarna, JJ., maintained the assailed conviction decision, citing the accused’s terrible act of rape on a four-year-old child from his close family. Read more

Income Tax

Jyoti Singh and Anoop Kumar Mendiratta, JJ., of the Division Bench, struck aside notices addressed to a deceased assessee despite being informed of his death by his relatives. Read more

Injunction

Pratibha M Singh, J. issued directives to domain name registrars whose offices are located outside of India and whose details are not disclosed so that they do not avoid injunction orders issued by Indian courts. Read more

Compensation

Manoj Kumar Ohri J. dismissed the petition because the employer-employee relationship was established before the court by a witness and strict rules of evidence are not applicable in such cases. Read more

Controller of Patents

The applicant did not intend to abandon, the court should be lenient in its approach if it is convinced that the patent agent made a mistake and the applicant can demonstrate full diligence, said Pratibha M. Singh J., who also excused the delay in filing the applicant’s reply to the First Examination Reports. Read more

Foreign National Reservation

The refusal of admission by AIIMS and PGIMER was supported by Sanjeev Narula, J., because PGIMER did not promote seats for foreign nationals simply because it mentioned the requirements for admission as a foreign citizen in its prospectus. Read more

Mandamus / Judicial Review

Table tennis players Swastika Ghosh and Manush Shah, who had challenged the decision made by the Table Tennis Federation of India on the athletes who will represent India in the Commonwealth Games in 2022, were refused relief by Dinesh Kumar Sharma, J. Read more

Gujarat High Court

Wages

Biren Vaishnav, J. dismissed a petition filed by a petitioner who was dissatisfied with the award dated 14-02-2020, which directed the petitioner-State of Gujarat to pay the respondent-sweeper salary for four hours of work per day, plus arrears from the date of reinstatement. Read more

Rape/Sodomy

Biren Vaishnav, J. dismissed a petition filed by a petitioner who was dissatisfied with the award dated 14-02-2020, which directed the petitioner-State of Gujarat to pay the respondent-sweeper salary for four hours of work per day, plus arrears from the date of reinstatement. Read more

Family Law

The Division Bench of Vipul M. Pancholi and Rajendra M. Sareen, JJ., rejected a plea brought by the father under Article 226 of the Indian Constitution seeking custody of his daughter. Read more

Arms Act

The licence under the Arms Act of 1959 (“the Arms Act”) for self-defense was rejected by the District Magistrate, and the Additional Secretary Home Department of the State Government upheld the previous ruling in an appeal. The petitioner filed a challenge, which was accepted by Judge A.S. Supehia. Read more

Promotion

A petition asking for a directive to nullify and disregard the Seniority List of Multi-Purpose Health Workers was granted by Judge Biren Vaishnav. Read more

PPF

A.S. Supehia, J. allowed a writ petition directing Bank to deposit PPF amount deducted for settlement of liability that the amount of Public Provident Fund account shall not be liable to any attachment in respect of any debt or liability incurred by the account holder. Read more

Gauhati High Court

Anticipatory Bail

Sanjay Kumar Medhi, J. denied a petitioner’s request for bail under Section 438 of the Criminal Procedure Code, 1973 (CrPC), in a case that was filed under Sections 21(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Read more

Drug and Food Safety

According to Rumi Kumari Phookan J., only a food inspector can investigate offences under the Food Safety and Standards Act, 2006 (FSS Act), and Maharashtra Police lacks both jurisdiction and jurisdictional authority to do so. As a result, the court ordered Maharashtra Police to pay the petitioner Rs. 2,00000 as petition costs. Read more

Narcotic Drugs and Psychotropic Substances Act

While granting bail to the applicant herein, under Section 439 of the Criminal Procedure Code (CrPC) for a case registered under Narcotic Drugs and Psychotropic Substances Act, 1985, Ajit Borthakur, J. held that the provisions of Section 37 of the NDPS Act shall not be applicable if the service courier driver is unaware of what is being transported by him. Read more

Himachal Pradesh High Court

Arbitral Proceeding

In the case where it was argued before the Court that the Arbitration and Conciliation Act, 1996 does not provide for any remedy to challenge an arbitral order and was therefore contrary to the “public policy of India,” Satyen Vaidya J. observed that, “The term “public policy of India” carries within it innumerable facets. Read more

Bail/ Parole

The plea for a parole extension filed under Section 482 of the Criminal Procedure Code (the “CrPC”) was denied by Judge Vivek Singh Thakur because Article 226 of the Indian Constitution provides the appropriate remedy. Read more

Jammu & Kashmir and Ladakh High Court

Anticipatory Bail

While deliberating on an anticipatory bail application concerning an FIR registered in Neemuch, Madhya Pradesh, the Bench of Sanjay Dhar, J., considered whether this High Court has the jurisdiction to grant bail in a case that has been registered beyond its local limits of jurisdiction under Section 438, CrPC. Read more

Right to Life

While reviewing the information and concerns provided by the petitioners, the M.A. Chowdhary, J. bench made some important remarks regarding the voluntary marriage of two adults. The Court declared that Articles 19 and 21 of the Constitution properly recognise a couple’s right to get married. Read more

Kashmiri Pandits

The bench of Sindhu Sharma, J., dismissed the petition because the petitioners lacked any inalienable right to allotment of government housing when ruling on the instant petition filed by 3 retired State Bank of India employees who had retained their respective government accommodations and were unhappy with the rent being charged at a commercial rate. Read more

Jharkhand High Court

Qualification for promotion

Anubha Rawat Choudhary, J. held that the respondent had the necessary experience of guiding research at the Doctoral level as of the cut-off date in a case relating to qualification to be appointed as a professor at Vinoba Bhave University, even though the concerned research student did not receive her degree. Read more

Karnataka High Court

Rape

M Nagaprasanna, J., annulled the proceedings against the petitioners in Byadarahalli Police Station Crime No.87 of 2022, which was pending before the Chief Judicial Magistrate, Bangalore Rural District, Bangalore. Read more

Agricultural land compensation

A Division Bench of Alok Aradhe and J M Khazi, JJ., rejected the appeal and overturned the impugned verdict, ordering the appellants to determine and pay the compensation to the respondents. Read more

Protection of Witness

S. Sunil Dutt Yadav, J. listed a few causes of investigation delay, the primary causes of low conviction rate, the consequences of investigation delay, and guidelines for speedy investigation. Read more

Bigamy

M. Nagaprasanna, J. granted the petition in part and remarked that the quadrangle’s protagonists should resolve the issue among them rather than drag other people into the proceedings. Read more

Principles of Natural Justice

S.G. Pandit, J. dismissed the petition, leaving respondent-Railway authorities free to take action against the catering services after providing them with an opportunity under the law. Read more

Cruelty/ Divorce

The plea was partially granted by the division bench of S. Sunil Dutt Yadav and K.S. Hemalekha, JJ. The parties’ marriage was ended due to mental cruelty for the wife’s unfounded accusations against the husband. Read more

Domestic Violence

M. Nagaprasanna J. granted the petition and ordered that the application for maintenance be decided within two weeks after receiving a copy of this decision. Read more

Child sexual offence

The victim has now turned 18 years old, so the strictures under S. 33(5) of the Protection of Children from Sexual Offenses Act, 2012 (the “POCSO Act”) are no longer relevant. Therefore, M. Nagaprasanna, J. granted the petition filed to conduct an additional cross-examination of the child victim. Read more

Dowry Death

The FIR against the lady who had illicit connections with the complainant’s husband and was charged under Section 498-A of the Penal Code, 1860 was dismissed by Hemant Chandangoudar J. Read more

Dishonour of Cheque

M. Nagarprasanna J. allowed a petition filed under Section 482 of Criminal Procedure Code, 1973 (CrPC) and directed that interim compensation which would vary from 1% to 20% after recording necessary reasons be given as per the “conduct of the accused” for the applications filed under Section 143-A of the Negotiable Instruments Act, 1881 (NI Act). Read more

Kerala High Court

Habeas Corpus/ Special Marriage

A Division Bench of K Vinod Chandra and C Vijayachandran, JJ. dismissed the plea and denied the requested relief, concluding that the detainee maintained that he was not under any unlawful confinement. Read more

POCSO

Taking note of the alarming increase in the number of sexual offences committed against schoolchildren, Bechu Kurian Thomas, J., directed the Kerala Government and the Central Board of Secondary Education (CBSE) to include sessions/classes in the school curriculum on the provisions of the Protection of Children from Sexual Offenses Act, 2012. Read more

NTPC/ Discrimination

The decision by V.G. Arun, J., that NTPC’s notification for the recruitment of Assistant Law Officers is discriminatory and in violation of Article 16 of the Constitution because it restricts the selection process to only CLAT PG-2021 candidates comes as a significant relief to non-NLU law graduates looking for employment opportunities in PSUs. Read more

Cruelty/Desertion

A. Muhamed Mustaque and Sophy Thomas, JJ., who made up the Division Bench, ruled that cruelty must be judged from the viewpoint of a spouse, or how that spouse would interpret the actions of the other spouse, to be considered. Read more

Anticipatory Bail

Vijay Babu, a film producer and artist, was granted anticipatory bail by Bechu Kurian Thomas, J., in a high-profile rape case that sparked outrage in the film industry. The Court ruled that there is no legal prohibition against granting anticipatory bail to a person who is physically present overseas. Read more

Reproductive Rights

The Assisted Reproductive Technology (Regulation) Act of 2021 prohibits the sale of human gametes, zygotes, and embryos but does not forbid a couple from using their embryo to conceive a child. This is why V.G. Arun, J., allowed a couple to transfer their frozen embryo to another hospital for infertility treatment. Read more

Pre Arrest Bail

In a case concerning attacks against doctors and medical institutions, Bechu Kurian Thomas, J., denied pre arrest bail and held that granting pre-arrest bail to an accused who is alleged to have committed violence against a healthcare professional will send a wrong message to the public. Read more

Compulsory Licensing

While adjudicating a petition filed by a breast cancer patient seeking to afford life-saving medicines which otherwise cost more than twice her monthly income, V. G. Arun, J. directed Central Government to consider compulsory licensing of the breast cancer drug “Ribociclib”. Read more

Madhya Pradesh High Court

Rape

Anand Pathak, J. granted a petition filed under Section 482 of the Code of Criminal Procedure seeking the dismissal of an FIR filed against the petitioner and subsequent criminal proceedings for an offence under Sections 376 and 506 of the Penal Code, 1860. Read more

Bail/ Corruption

The applicant was arrested on February 3, 2022, for a crime punishable by Sections 409, 420, 467, 468, 471, 201, and 120-B of the Penal Code, 1860, as well as Sections 7, 13(1) and 13(2) of the Prevention of Corruption Act, 1988. Anand Pathak, J. refused the applicant’s motion for bail. Read more

Arya Samaj

A petition was submitted to address and investigate several concerns regarding marriages solemnized in Arya Samaj Vivah Mandir Trust, and the Division Bench of Rohit Arya and Milind Ramesh Phadke, JJ. accepted it. Read more

Motor Vehicle

While dismissing an appeal filed under Section 173(1) of the Motor Vehicles Act, 1988 , Vishal Dhagat, J. held that the present case is a case of misrepresentation on the part of legal representatives/driver/owner of vehicle in contracting with the appellant for purchase of policy in name of deceased owner as contract entered between the parties is not voidable. Read more

Madras High Court

Mental Illness

G R Swaminathan J. answered in negative to the moot consideration that can certifying authority insist a Child suffering from mental illness, who requires a disability certificate, to come to premises of institution for assessment. Read more

Educational certificate

While addressing the grievance of some qualified doctors, G.R. Swaminathan, J. stated that because an educational certificate is not a marketable commodity, no lien can be exercised under Section 171 of the Indian Contract Act, 1872. Read more

Income Tax Appellate Tribunal

G. Chandrasekharan, J. declined to quash prosecution against actor SJ Suryah as the order of the Income Tax Appellate Authority, cancelling the assessment orders was not on merits. Read more

Social Media Intermediaries

B. Pugalendhi, J., revoked the bail of a YouTuber who made disparaging statements about the former Chief Minister of Tamil Nadu. Read more

Documentary/Oral Evidence

Senthil Kumar Ramamoorthy, J., stated that a suit cannot be hurriedly determined at the request of a plaintiff unless the plaintiff convinces the court that the suit claim has been fully established. Read more

Income Tax

A Division Bench of R Mahadevan and Sathya Narayan Prasad, JJ. rejected the tax appeal because guarantee commission and royalty must be subtracted from company profit to calculate the deduction under Section 80 HHC of the Income Tax Act, 1961. Read more

Service Rules

S M Subramaniam, J. upheld the decision taken by Indian Banks Association to unilaterally withdraw the facility for State Bank of India officers to visit overseas countries as part of Leave Travel Concession ‘LTC’/ Home Travel Concession ‘HTC’. Read more

Meghalaya High Court

POCSO

W Diengdoh J. quashed a POCSO case opining that just holding the hands of the victim girl and complimenting them would not amount to sexual intent or sexual assault under POCSO. Read more

Rape

The appeal, which challenged the April 27, 2021 judgement of conviction finding the appellant guilty under Section 376(2) of the Penal Code, 1860, was decided by the Division Bench of Sanjib Banerjee, CJ. and W. Diengdoh, J. The main focus of the appeal was the 20 years of rigorous imprisonment and Rs. 50,000 fine that was imposed. Read more

Public Interest Litigation

A petition concerning the current health-care system was heard by the Division Bench of Sanjib Banerjee, CJ, and W. Diengdoh, J. Read more

Life Imprisonment

The Division Bench of Sanjib Banerjee, Chief Justice, and W. Diengdoh, J., dismissed the petition and set aside the conviction order, which was directed against a judgment of conviction under Section 302 of the Penal Code, 1860 and the order of punishment, which sentenced him to life in prison. Read more

Orissa High Court

Superannuation

S.K. Panigrahi, J., denied the petition, stating that “no plea for a change of date of birth after five years from the joining date will be considered.” Read more

Transgender Rights

A.K. Mohapatra, J., has been instructed to complete the trans-sexual woman’s application for a family pension as soon as feasible, ideally within six weeks after receiving a certified copy of the order. Read more

Administrative laches

S. K. Panigrahi, J., ordered the State to pay simple interest at the rate of 6 percent per year on postponed salary within 30 days of today. Read more

Guardian and Wards Act

The case was dismissed by a Division Bench consisting of SK Sahoo and M S Raman JJ., giving the petitioner the freedom to seek the proper remedy before the proper venue in line with the law. Read more

Central Information Commission

A Division Bench of S. Muralidhar and R.K. Pattnaik, JJ. issued a declaratory writ to the effect that the impugned notification dated 11-08-2016 issued by the Information and Public Relations Department, Government of Odisha under Section 24(4) of the Right to Information Act, 2005 (‘RTI Act’), will not permit the Government to deny information pertaining to the Vigilance Department involving allegations of corruption and human rights violations, and other information that does not touch upon any of the sensitive and confidential activities undertaken by the Vigilance Department. Read more

Compensation

Arindam Sinha, J. criticised the State for not following the procedure and granted compensation to a woman who conceived even after being sterilised by the State. Read more

Patna High Court

Right to Sanitation

Sanitation is a private, individual matter that is intimately connected to human dignity. Additionally, cleanliness has a crucial public health component. According to a recent ruling by the Division Bench of Sanjay Karol CJ and S. Kumar J, the right to sanitation falls under the purview of Article 21 and as a result, the State, National Highway Authority of India, and Oil Marketing Companies have been instructed to build public restrooms and other conveniences along all of Bihar’s highways. Read more

Rape

While dealing with a case of rape, A M Badar, J. observed that mere non-offering of physical resistance by a rape survivor cannot amount to the consent given by a woman for sexual activity under Section 375 of the Indian Penal Code (‘IPC’). Read more

Punjab & Haryana High Court

Religious Beliefs

Karamajit Singh, J., directed the State of Punjab not to take “coercive steps” against Raveena Tandon, Farah Khan, Bharti Singh, Screen Abbas Aziz Dalal, and Frames Production in response to their petition seeking the quashing of an FIR filed against them for allegedly hurting religious sentiments during a Flipkart web show titled “Backbenchers.” Read more

NDPS Act

In a petition under section 439 CrPC for regular bail under sections 22, 25, 27-A, and 29 of the NDPS Act, Jasjit Singh Bedi, J., expanded the petitioner-accused on bail while repeating the observations made by various Courts, including the Supreme Court, on the requirement that section 42 of the NDPS Act be complied with by the relevant authority. Read more

Muslim Personal Law

After the petitioners were forced into marriage, a writ petition was filed to seek the protection of their life and liberty from family members. Jasjit Singh Bedi, J. instructed the Senior Superintendent of Police to determine the petitioners’ claims regarding the threat to their life and liberty after taking into account the petitioners’ capacity to enter into a legal marriage contract and attending to their concerns. Read more

Rajasthan High Court

Bailable Warrant

Dinesh Mehta, J. granted the petition and stated that while expediting the disposition of cases is important, so is adhering to the mandate of the law, including procedural law. Read more

Culpable Homicide

Farjand Ali, J. rejected the petitioner’s request for bail after finding that the investigating agency had overlooked several relevant pieces of evidence. The petitioner was accused of committing an honour killing. Read more

Police Protection

Sameer Jain J. granted police protection and directed the State authorities to charge an appropriate fee from the couple seeking police protection before the Court, if the income is found to be more than the taxable income under the Income Tax Act, 1961. Read more

Telangana High Court

Anticipatory Bail

Juvvadi Sridevi, J., granted anticipatory bail pending the conclusion of the inquiry and the submission of the final report. The Court remarked that the accused 2/petitioner 2 did not appear to have been served with a notice under Section 41-A CrPC, whereas the accused 1/petitioner 1 was simply provided with the notice. Read more

Prevention of Money Laundering

K. Lakshman, J. upheld the petitioner’s appeal against the Directorate of Enforcement’s (ED) request to extend the petitioner’s judicial custody so that the investigation could be finished, stating that a complaint filed without a complete investigation cannot be used to avoid the right to statutory bail under Section 167(2) CrPC. Read more

Maintenance under Section 125 CrPC

In a maintenance case, Sathish Reddy, J. stated that the wife’s earning capacity cannot be used to deny her maintenance. Read more

Commercial Courts Act

The appeal was allowed by the Division Bench of P. Naveen Rao and Sambasivarao Naidu, JJ., who overturned the impugned order’s stance that any disagreement arising from a contract involving real estate that is solely used for business or commerce and whose “specified value” exceeds one crore belongs in a commercial court alone. Read more

Tripura High Court

Harassment

While noting that there were no legitimate grounds to deny the employee gratuity and other retrial benefits, Arindam Lodh, J. directed the employer to release the employee’s gratuity, pension, and other retrial benefits. Read more


*Arunima Bose has put this report together.

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Rajesh Singh Chauhan and Subhash Vidyarthi, JJ., dismissed a Special Appeal which assailed the dismissal of a writ petition by a Single Judge holding the same as not maintainable.

The son of the deponent of the writ petition appeared in the entrance test on March 20, 2022 held for the admission as Resident Scholar in the educational institution in question i.e. La Martiniere College, Lucknow for taking admission in Class-VIII. Result of the entrance test was declared on March 25, 2022 and he was declared successful to get admission in Class-VIII as Resident Scholar. Due to some compelling circumstances i.e. serious illness of the mother of the candidate and his father being out of town for the purposes of service, the student could not get admission in Class-VIII as Resident Scholar, therefore, an application was preferred by the father of the candidate to the Principal of the Institution on April 04, 2022 through e-mail that instead of treating his son as a Resident Scholar, he may be given admission as Day Scholar as he was ready to complete all required formalities including the fees. 

Counsel for the appellant/writ petitioner, submitted that the father of the candidate had not been informed about the fate of the admission of his son till April 18, 2022, therefore, he filed a writ petition which was dismissed placing reliance on the Supreme Court judgment of Committee of Management, La Martiniere College Lucknow v. Vatsal Gupta, 2016 SCC OnLine SC 743 where it was held that the institution being an unaided minority private institution, therefore, the writ petition against such institution may not be entertained. 

The Court dismissed the special appeal holding that they were in full agreement with the observations and findings of such judgment. However, the Court observed that if the admission of the student-appellant for Class- VIII for that he was admittedly qualified was not possible as Day Scholar student as he had qualified such entrance examination for Resident Scholar, at least specific information to this effect must be provided to the parents of such student at the earliest so that appropriate steps could be taken by the parents of such student. The Court further stated that in such compelling circumstances, at least on the basis of principles of equity, it was bare minimum required on the part of the Principal of the institution to apprise the parents of the student that the institution would be unable to provide admission to their ward in Class-VIII as a Day Scholar student.  

Expressing displeasure towards the approach of the Principal of the institution the Court opined that they should have been immediately informed about such fact so that such student could get his admission in any other institution for receiving proper education inasmuch as to receive proper education is a Fundamental Right enshrined under Article 21-A of the Constitution of India.

[Tanishk Srivastava v. State of U.P., Special Appeal No. – 294 of 2022, decided on June 8, 2022] 


Counsel for Appellant :- Satendra Kumar Singh 

Chief Standing Counsel for State Respondents: Ms Deepshikha


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Rajasthan High Court: Dinesh Mehta J. allowed the petition and decided that the school will be converted to English medium subject to the decision taken by SDMC by majority of its members.

Background

The facts of the case are such that a school named Shri Hari Singh Sr. Sec. School, Pilwa has been functioning in village Pilwa since 1980. The school has been catering to the educational needs of about 600 children from all sects including girls residing in such village and nearby villages. The medium of instruction in the school is ‘Hindi’ since its inception. The petitioner 1 is the School Development Management Committee i.e. ‘SDMC’ represented by one of its members while petitioners 2 and 3 are parent-members of the SDMC. The SDMC is a statutory body constituted under section 21 of Right of Children to Free and Compulsory Education Act, 2009 i.e. RTE Act’. The petitioners in the instant case feel aggrieved of the decision dated 13-09-2021 taken by the State Government and consequential decision/order dated 20-09-2021 of the respondent No.2 by which ‘the school’ has been converted to an English Medium School – Mahatma Gandhi Government School (English Medium).

Observations

(i) Whether Article 21A of the Constitution of India which guarantees a right to education, also guarantees right to receive education in mother tongue or home language?

The Court observed that from perusal of Article 21A of the Constitution of India reveals that it enjoins upon the State to provide free and compulsory education to all children between the age of 6 to 14 years, but then, such right is not an absolute right, as its expanse has been hedged by the expression “in such manner as the State may, by law determine”. Since, Article 21A of the Constitution is tethered with the words “in such manner, as the State, may, by law determine”, according to this Court the State may by law provide the medium and manner to provide such free education, which in a given case can be Hindi, English or even regional dialect – the mother tongue of the child. No child or parent can claim it as a matter of right, which he/his ward should be instructed in a particular language or the mother tongue only, on the basis of what has been guaranteed under Article 21A of the Constitution.

(ii) Whether right to get education in mother tongue or Hindi is a fundamental right?

 The Court observed that fundamental right guaranteed under Article 19(1)(a) is only subject to reasonable restriction by law to be enacted, by the State, in the opinion of this Court, the instant decision taken or the State’s policy decision, cannot whittle down the fundamental right of a child to be taught in a particular medium, which is assured rather protected by Article 19(1)(a) of the Constitution of India.

(iii) Whether the State’s policy decision of converting the school in question to Mahatma Gandhi English Medium School is in conflict with the provisions of section 20, 21, 22 and 29(2)(f) of the Act of 2009?

The State of Rajasthan promulgated Rajasthan Right of Children to Free and Compulsory Education Rules, 2011 wherein section 21 and 22 of the Act of 2009 and Rule 4 & 5 of the Rules of 2011, lays down that School Management Committee is required to prepare a school development plan which shall contain details of class-wise enrollments each year, requirement of number of additional teachers, requirement of additional infrastructure etc. Thus, by reading the provisions of the Act of 2009 and Rules of 2011, the Court is unable to conclude that prescription of medium of instruction is a decision to be taken by the School Management Committee, as a part of school development plan. Preparing a school development plan cannot be misconstrued to mean the prescription of syllabus and medium of instructions. It has to be done by the experts in the field of education/child education.

(iv) Whether the consent of School Development Management Committee (SDMC) is necessary before converting a Hindi medium school to an English medium school?

The Court observed that the functions to be discharged by the School Development Management Committee under clause (a) and (b) of section 21 (2) of the Act of 2009 do not include the decision to be taken with respect to language or medium in which the students of the school shall be taught. The medium of instruction is to be determined by the Appropriate Authority or Rajasthan School Education Council.

The Court observed that Article 19(1) (a) of the Constitution of India is the fountain head, being repository of the right to freedom of speech and expression from where flows such right. Article 19(1)(a) has wide ambit and it includes within its fold, right to have education in a particular medium. The right of having elementary education in mother tongue is also a statutory right conferred by section 29 (2)(f) of the Act of 2009, according to which medium of instruction, as far as practicable, is required to be in child’s mother tongue.

The power to frame laws in the subject of education falls in the Entry No.25 of concurrent list of the VII Schedule. And since the Act of 2009 occupies the field which unequivocally prescribes that medium of instructions in elementary education as far as practicable, be in mother tongue/home language of the child, any law made or framed by the State but for the assent of the President would be repugnant by virtue of Article 254 of the Constitution.

The Court opined, English, as a medium of instruction cannot be thrusted upon a child even by a legislation enacted by the State Government, much less by a policy decision.

Be that as it may. Since the petitioner No.1 – SDMC of which petitioner No.2 & 3 are members, has itself decided to have a school of English medium, impugned decision of the State at the instance of the present petitioners cannot be quashed, more particularly, because the decision of the State or its policy as such are not under challenge.

The Court observed that the rights of the petitioners and the pupil of the school to have instructions in Hindi that are protected under Article 19(1)(a) of the Constitution of India and such rights can be diluted only by way of a legislation enacted in the contingencies mentioned in cause (2) of Article 19. In absence of any valid legislation brought by the State of Rajasthan, this Court is of the view that such right cannot be abrogated or taken away. The impugned decision dated 20.09.2021 seeking to convert the school in question to a Hindi medium school with immediate effect (session 2021-22) is fortiori, violative of Article 19(1)(a) and 14 of the Constitution of India.

Indisputably, the School Development Management Committee is a statutory body, constituted under the provisions of section 21 of the Act of 2009 and Rule 3 of the Rules of 2011. Section 21(2) and 22 of the Act of 2009 enjoins upon the committee to monitor the working of the school and prepare/recommend school development plan. In the opinion of this Court, the State’s administrative decision and action of forcing English as a mode or medium of instruction is violative of section 21 and 22 of the Act of 2009, particularly, in the face of resolutions adopted by the SDMC.

The Court keeping in mind the facts, policy decision and laws/rules directed that “in case, for the ensuing session i.e., 2022-23, the State wishes or proposes to convert the school in question to Mahatma Gandhi English Medium School, it shall convene a meeting of the School Development Management Committee constituted under Rule 3 of the Rules of 2011 in presence of the Sub Divisional Magistrate/Tehsildar and a nominee of District Education Officer concerned. Notice of the meeting with the proposed agenda will be circulated well in advance. If the School Development Management Committee by majority of the members present, resolves that the school in question be converted to an English medium school, then only, the State’s decision to convert the school in question to a Mahatma Gandhi English Medium School shall be given effect to. Else, the school will not be converted to an English medium school.”[School Management Development Committee v. State of Rajasthan, 2022 SCC OnLine Raj 38, decided on 04-01-2022]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For petitioner: Mr. Moti Singh

For respondent: Mr. Pankaj Sharma, Mr. Rishi Soni and Mr. Deepak Chandak

Case BriefsSupreme Court

Supreme Court: In a case where a person suffering from Dysgraphia was denied compensatory time while appearing for National Eligibility cum Entrance Test (NEET), the bench of Dr. DY Chandrachud* and AS Bopanna, JJ has directed the National Testing Agency to the steps that can be taken to rectify the injustice within a period of one week. It said that NTA cannot hide behind the argument that ‘sixteen lakh students appeared for the NEET and hence injustice to a “one-off” student cannot be remedied’.

APPELLANT’S CASE

The appellant suffers from Dysgraphia, which is a specified disability listed in Entry 2(a) of the Schedule to the Rights of Persons with Disability Act 2016. She has been diagnosed with a 40 per cent permanent disability, falling within the statutory definition of a ‘person with benchmark disability’ under Section 2(r) of the RPwD Act 2016. As a person with disability, she is entitled to reasonable accommodation and certain relaxations. Among them is the benefit of “inclusive education” by a suitable modification to the examination system, as mandated by Section 17(i) of the RPwD Act, 2016. The guidelines for conducting “Written Examination for Persons with Benchmark Disabilities”, 2018 govern the examinations of all students covered by the RPwD Act 2016. They are to be followed by all examining authorities and educational institutions conducting regular or competitive examinations.

The appellant, who appeared for NEET, averred that the designated centre was ignorant of the grant of special facilities that had to be provided to PwD candidates and that towards the end of the scheduled duration of three hours, her answer sheet was “forcibly” collected together with the category of regular students appearing for the examination depriving her of compensatory time.

On 23 September 2021, the appellant moved a writ petition under Article 226 of the Constitution before the Bombay High Court, seeking a direction to NTA to hold a fresh examination for her while accommodating her with all relaxations and benefits to which she was entitled under the rules and regulations.

NATIONAL TESTING AGENCY’S CASE

The appellant has secured an All India Rank of 1721 out of 2684 candidates qualified in the PwD category. In relation to the State of Maharashtra, the appellant has secured rank 249 out of 390 candidates in the PwD category.

Approximately 15.4 lakh candidates appeared at the NEET (UG) 2021 on 12 September 2021 for which the result was declared on 1 November 2021 and the All India Rank was forwarded on November 2021 to the Ministry of Health and Family Welfare, Government of India to conduct counselling for admission. It was, hence, submitted that alteration of the result at this stage would prejudicially affect other candidates who are ranked above the appellant. It was argued that, sixteen lakh students appeared for the NEET and hence injustice to a “one-off” student cannot be remedied.

ANALYSIS

Not pleased with the submission of NTA, the Court said that it must remember that all authority under the law is subject to responsibility, and above all, to a sense of accountability.

“Behind the abstract number of ‘15 lakh students’ lie human lives that can be altered due to the inadvertent, yet significant errors of NTA.”

The Court said that as an examining body, NTA was bound to scrupulously enforce the Guidelines for Written Examinations dated 29 August 2018 which provides for specific relaxations.

The Court stated that since the appellant has suffered injustice by a wrongful denial of these relaxations, a lack of remedy by would cause irretrievable injustice to the life of the student. The RwPD Act 2016 prescribing beneficial provisions for persons with specified disabilities would have no meaning unless it is scrupulously enforced.

Holding that NTA cannot be allowed to simply get away when confronted with the situation in hand whereby injustice has been caused to a student by standing behind the situation of a large competitive examination, the Court said,

“Individual injustices originating in a wrongful denial of rights and entitlements prescribed under the law cannot be sent into oblivion on the ground that these are a necessary consequence of a competitive examination.”

RELIEF AND DIRECTIONS

  • The relief sought by the appellant for holding a re-examination for the NEET (UG) is denied;
  • The appellant was wrongfully deprived of compensatory time of one hour while appearing for the NEET without any fault of her own, despite her entitlements as a PwD and a PwBD. Accordingly, NTA is directed to consider what steps could be taken to rectify the injustice within a period of one week. Further, it shall take necessary consequential measures under intimation to the DGHS;
  • In the future, NTA shall ensure that provisions which are made at the NEET in terms of the rights and entitlements available under the RPwD Act 2016 are clarified in the NEET Bulletin by removing ambiguity;
  • Facilities which are provided by the law to PwD shall not be constricted by reading in the higher threshold prescribed for PwBD;
  • For the purpose of availing of the reservation under Section 32 of the RPwD Act 2016 or an upper age relaxation as contemplated in the provisions, the concept of benchmark disability continues to apply; and
  • The persons working for NTA and exam centres should be sensitised and trained, on a regular basis, to deal with requirements of reasonable accommodation raised by PwDs.

[Avni Prakash v. National Testing Agency, 2021 SCC OnLine SC 1112, decided on 23.11.2021]


Counsels:

For appellant: Advocate Rushabh Vidyarthi,

For NTA: Advocate Rupesh Kumar


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of AM Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ has directed the Central Government to notify the norms and standards of pupil-teacher ratio for special schools and also separate norms for special teachers who alone can impart education and training to Children/Child with Special Needs (CwSN) in the general schools. While the Petitions before the Court pertained to State of Uttar Pradesh and Punjab only, the extensive direction issued by the Court will apply pan India.


What was the case about?


Petitions were filed before the Supreme Court to espouse the cause of teachers having B.Ed. (Special) and D.Ed. (Special) degree/diploma courses and fully trained to cater to the requirements of Children/Child with Special Needs also known as Divyang, including to impart them education and make them independent.

According to the petitioners, there is a need to appoint 73,888 special teachers on regular basis to teach 3,69,443 CwSN in the State of Uttar Pradesh and equally large number in the State of Punjab so as to fulfil the required pupil-teacher ratio i.e., 5:1.

The thrust of the grievance in the writ petition was about the illegality being committed by the concerned State and its Authorities in employing them in recognised schools on contract basis without any certainty of tenure.


Analysis of the relevant Statutes


Rehabilitation Council of India Act, 1992

According to Section 13 of the Rehabilitation Council of India Act, 1992, a rehabilitation professional who possesses prescribed qualification and is so recognized by and enrolled on the Register of the Council alone can practice as rehabilitation professional anywhere in India, including as a special teacher. That is to say that no other person (not possessing such recognition and not being registered with the Council) can engage himself in serving the handicapped persons, CwSN in particular, or impart education to them, for that would be a contravention and punishable under Section 13(3) reproduced above.

“Indeed, this enactment in a way is a general law, but would still govern the special teachers engaged by any school/institution for imparting education and training to CwSN. They must fulfil this requirement over and above the qualifications prescribed under the special law concerning registration and recognition of schools and maintaining minimum standards for imparting quality education.”

Scheme of Integrated Education for the Disabled Children 1992

With the need to have a formalized   scheme   for   imparting quality education to CwSN in absence of any specific law on that subject, the Union framed the 1992 Scheme.

“There was a phenomenal expansion of educational opportunities in the post-independence period, yet the children with disabilities were left out of that growth in educational facilities.  To include CwSN to achieve the goal of education for all, the 1992 Scheme was formulated providing for educational opportunities to CwSN in general schools and to facilitate their retention in the school system.”

The Scheme further recognized that CwSN who were placed in special schools should also be integrated into general schools, once they acquired the communication and daily living skills at a functional level.  Indisputably, concern was felt as a substantial number of persons with disability in India were not able to pursue even primary/secondary level education much less to complete their basic education in a formal school. To encourage   them   and   to   facilitate   their   retention   in   the   school system, the 1992 Scheme was propounded which stated that the pupil¬teacher ratio be maintained in the concerned schools and their qualifications and training.

Right of Children to Free and Compulsory Education Act, 2009

There was a paradigm shift in the approach of imparting education to children between the age of 6 and 14 years consequent to the enactment of the Right of Children to Free and Compulsory Education Act, 2009. This Act generally applies to all the schools, be it a general school or a special school and attempts to universalise education and to open new vistas for providing free and compulsory inclusive   elementary education to all and more importantly quality education in the neighbourhood school.

However, the 2009 Act merely attempts to expressly include “child with disability” by inserting Section 2(ee) and Section 3(3) vide the 2012 amendment, but makes no corresponding changes to the “Norms and Standards for a School” specified in the Schedule to the Act.

“The Central Government in exercise of the enabling power in Section 20, by now, ought to have   provided suitable norms and standards for a general school admitting CwSN for providing inclusive,   free, and compulsory education in a neighbourhood school, and separately for the special school which also is covered within the expansive definition of schools in Section 2(n) of the 2009 Act.”

However, the norms and standards, in particular regarding pupil-teacher ratio, specified in the Schedule of the 2009 Act, are only to delineate the minimum benchmark.  It is open to the State Government, being the appropriate Government, to provide for a higher benchmark for ensuring imparting of quality education by the schools within its jurisdiction. Further, besides the benchmark specified in the Schedule or by the appropriate Government, as the case may be, it is always open to the school management to appoint more teachers on their own than the notified pupil-teacher ratio, if they so desire, for ensuring imparting of quality education to its students.

Rights of Persons with Disability Act, 2016

The 2016 Act, in a way, is a general enactment for giving effect to the rights of persons with disabilities which includes the CwSN. But, when it comes to subject of education, a separate Chapter has been provided for fastening responsibility coupled with duty upon the appropriate Government, local authorities and the concerned educational institutions in matters specified therein (Sections 16 and 17). The purport of these provisions is to make available a platform to the CwSN to avail the rights of full participation by means of inclusive and quality education in the neighbourhood school.

“For giving effect to this mandate, it is essential for the concerned authority and more particularly for the schools imparting education to CwSN, to ensure that a just pupil¬teacher ratio is maintained without exception, including as specified under the law made by the Parliament or the scheme enunciated by the executive in that regard.”


Directions issued by the Supreme Court


  1. The Central Government must forthwith notify the norms and standards   of   pupil¬teacher   ratio   for special schools and also separate norms for special teachers   who   alone   can   impart   education   and training to CwSN in the general schools; and until such time, as a stopgap arrangement adopt the recommendations made by the State Commissioner, NCT of Delhi

“As a stopgap arrangement until the competent authority formulates a comprehensive action plan including to specify the norms and standards   regarding   pupil-teacher   ratio   to   be maintained by the concerned schools imparting education to CwSN, we are persuaded to adopt the pupil¬teacher ratio ascertained in this decision as 8:1 for children with cerebral palsy; 5:1 for children with intellectual disability, ASD and specific learning disabilities; and 2:1 for deaf-blind and a combination of two or more of the seven disabilities mentioned in the recommendation… . Indeed, the teachers to be so appointed need to be duly qualified, recognized and registered with the Council in light of Section 13 of the 1992 Act.”

  1. To create commensurate permanent posts as per the just ratio to be specified by the competent authority for the rehabilitation professionals/special teachers who can cater to the needs of CwSN;
  2. To initiate appointment process to fill-in vacancies for the posts so created for rehabilitation professionals/special teachers for being appointed on regular basis. The same shall be completed within six months from the date of this order or before the commencement of academic year 2022¬ 2023, whichever is earlier;
  3. To overcome the shortage of resource persons (rehabilitation professionals/special trained teachers), the training schools/institutions must take steps to augment the number whilst ensuring that the norms and standards specified under the governing laws and regulations including that of the Council for grant of recognition and registration are fulfilled;
  4. Until sufficient number of special teachers becomes available for general schools and special schools, the services of special trained teachers can be availed as itinerant teachers as per the SSS within the school block (cluster schools)   to optimize the resource persons and as a stopgap arrangement;
  5. The other teachers and staff in the general schools be given compulsory training and sensitized to handle the CwSN in the general schools, if admitted; and
  6. The authorities may also explore the possibility of merging unviable special   schools   with   relatively viable special schools in the neighbourhood, so as to entail in consolidation of assets and resources for better delivery to the requirements of CwSN.

With a view to ensure that the directions are effectively complied with, the Court directed the State Commissioners appointed under Section 79 of the 2016 Act in the concerned States/Union Territories to forthwith initiate suo motu enquiries regarding compliance and then make recommendation to the appropriate authority (of the concerned State/Union Territory), as may be necessary, so that the authority will be obliged to submit compliance report to the State Commissioner within three months from the date of receipt of recommendation, as mandated under Section 81 of the 2016 Act.

The respective State Commissioners may then submit report in respect of compliances/non-compliances within their concerned State/Union Territory to the Court by end of February, 2022, so that further directions, as may be necessary, can be issued by this Court State/Union Territory wise.

[Rajneesh Kumar Pandey v. Union of India, 2021 SCC OnLine SC 1005, decided on 28.10.2021]


*Judgment by: Justice AM Khanwilkar

Know Thy Judge| Justice AM Khanwilkar

Case BriefsHigh Courts

Rajasthan High Court: A Division bench of Manindra Mohan Shrivastava and Farjand Ali granted interim relief against State’s directions to prohibit admission to pre-school classes under RTE Act.

The instant petition in the nature of PIL was filed challenging the policy of the State insofar as direction has been issued by the State Authorities that admission to pre-school classes in educational Session 2020- 21 shall not be governed by The Right of Children to Free and Compulsory Education Act, 2009.

Counsel for the petitioners submitted that the State’s directions to prohibit admission to pre-classes under RTE Act is contrary to the statutory scheme of Section 12 of the RTE Act and the State has illegally absolved the private schools from complying with the statutory obligation enjoined under Section 12(1) (c), in relation to pre-educational classes, in ignorance of scheme under Proviso to that provision.

Counsel for the State would submit that the applicability of the provisions to pre-school would essentially depend upon proper reimbursement to be made to the State by the Central Government under the scheme of Section 7 of the Act and, therefore, unless such scheme is properly worked out and implemented, no direction could be sought in the garb of PIL by the petitioners.

The Court observed that proviso to Subsection (1) of Section 12 provides that where a school specified in Clause (n) of Section 2 imparts pre-school education, the provisions of Clauses (a) to (c) shall apply for admission to such pre-school education. Thus, Proviso creates an obligation on the schools specified in Sub-clauses (iii) and (iv) of Clause (n) of Section 2 to admit, to the extent of at least twenty five percent of the class, Children belonging to weaker section and disadvantaged group.

The Court thus held “the direction of the State shall not come in the way of performance of statutory obligation by the schools specified in Sub-clauses (iii) and (iv) of Clause (n) of Section 2 of the RTE Act and Proviso as referred to above shall oblige them to make admission under the RTE Act. Such admission, however, would be provisional in nature and to be governed by the final order that may be passed by this Court in the writ petitions”

[Smile for All Society v. Elementary Education Rajasthan, 2021 SCC OnLine Raj 1592, decided on 23-10-2021]


Arunima Bose, Editorial Assistant has reported this brief.


For Petitioner(s): Mr Vikas Jakhar and Mr Abhinav Sharma
For Respondent(s): Mr Chiranji Lal Saini and Mr Akshay Bhardwaj

Case BriefsHigh Courts

Bombay High Court: The Division Bench of R.D. Dhanuka and R.I. Chagla, JJ., addressed a petition revolving around the Right to Education Act, 2009.

In the instant petition, petitioner sought directions against respondents 1 and 2 to forthwith grant admission to his son as per the allotment letter issued to the petitioner by the competent authorities under Right to Education Act, 2009 in Standard I during the academic year 2020-21 and 2021-22.

Petitioner’s son was issued a certificate of disability of persons with autism by Nair Hospital and sometime in the year 2019, he applied for online admission of his son under the RTE Act, 2009.

Later, respondents 3 and 4 granted admission to petitioner in the respondent 1 school. The admission was granted after verification of the documents submitted before the committee.

Further, the petitioner made a representation to the Education Department informing that though the petitioner had visited the respondent 1 school in the month of August, 2019, the Administrative Officer refused to grant admission to the petitioner in spite of the letter of allotment issued by the authority. Hence the petitioner filed the present petition.

Analysis, Law and Decision

It was noted that respondent 2 had been granted a certificate of ‘minority education institution’ within the meaning of Section 2(g) of the National Commission for Minority Educational Institution Act, 2004 on 17-02-2020 and respondents 1 and 2 were issued a letter in favour of the petitioner for granting admission to the son of the petitioner in the respondent no.1 school much prior to the date of such certificate.

Hence, respondents 1 and 2 were thus required to comply with the said directives issued by the competent authority within the time prescribed therein which was much prior to the said date of certificate.

Upon raising a query upon the learned counsel for respondents 1 and 2 whether any other students had been admitted by respondents 1 and 2 prior to the date of obtaining such certificate dated 17-02-2020 under the provisions of the Right to Education Act, 2009, learned counsel fairly on instructions states that four students were admitted prior to 17th February, 2020 based on the directives issued by the Education Department under the provisions of the Right to Education Act, 2009.

Counsel for respondents 1 and 2 could not dispute that the respondents could not have cancelled the admission once granted to the petitioner on the ground of minority status granted subsequently.

Bench opined that respondents 1 and 2 cannot be allowed to take advantage of such certificate obtained after committing default in complying with the directives which were already issued prior to the date of such certificate.

The disobedience of the directives issued by the Education Department cannot be condoned by obtaining certificate as minority education institution subsequently.

Medical certificate by the petitioner indicated that the recommendation made by the Department of Psychiatry were that the petitioner’s son should continue in a regular school with various further advise.

Therefore, Court directed the respondent 1 and 2 to comply with the directives issued by the Education Department and to grant admission to the son of the petitioner in respondent 1 school within one week.

In view of the above, petition was disposed of. [Ashish Patel v. Edubridge International School, 2021 SCC OnLine Bom 1587, decided on 5-08-2021]


Advocates before the Court:

Mr C. R. Sadasivan, a/w. Mr Anup Dhannawat for the Petitioner.

Mr Pradeep Bakhru, a/w. Ms Upasana Vasu i/b. M/s.Wadia Ghandy & Co. for the Respondents 1 and 2.

Mr Milind More, Additional Government Pleader for the State – Respondents 3 and 4.

Case BriefsSupreme Court

Supreme Court: The division bench of AM Khanwilkar* and Dinesh Maheshwari, JJ has issued “general uniform direction” of deduction of 15 per cent of the annual school fees for the academic year 2020-2021 in lieu of unutilised facilities/activities and not on the basis of actual data school-wise.

The said direction was issued in order to obviate avoidable litigation by over 36,000 schools and to give finality to the issue of determination and collection of school fees for the academic year 2020¬21, as a one-time measure.

On 09.04.2020, an order was issued by the Director, Secondary Education, in the wake of COVID¬19 pandemic, directing the private schools recognised by the Primary and Secondary Education Departments to defer collection of school fees for a period of three months.

Before expiry of the period noted in the aforementioned order, the Director, Secondary Education issued another order on 07.07.2020 which read as

“The fee chargeable by non¬government schools from the students/guardians after 15th March, the applicable fees at present   and   payment   of   advance   fee   was   deferred   for   3 months, as per the direction of the State Government the said deferment is extended till the reopening of the schools. In case of non-deposition  of fees  during the  said  period, name of such student will not be struck off from the rolls of the school.”

On 07.09.2020, Rajasthan High Court directed the school Authorities to allow the students to continue their studies online and also to deposit only 70 per cent of the tuition fees element from the total fees chargeable for the period from March 2020 in three instalments.

On 28.10.2020, the Director of Secondary Education , Rajasthan issued an order stating that the   schools which were/which are imparting online teaching then capacity building fees can be charged from such students which will be 60% of the tuition fees.

The Supreme Court noticed that the Director, Secondary Education had no authority whatsoever to issue direction in respect of fee structure determined under the Rajasthan Schools (Regulation of Fee) Act, 2016 including to reduce the same for the academic year 2020¬21 in respect of private unaided schools. However, this does not give licence to the School Management to be rigid and not be sensitive about aftermath of pandemic.

“Undeniably, an unprecedented situation has had evolved on account of complete lockdown due to pandemic. It had serious effect on the individuals, entrepreneurs, industries and the nation as a whole including in the matter of economy and purchasing capacity of one and all. A large number of people have lost their jobs and livelihood as aftermath of such economic upheaval. The parents who were under severe stress and even unable to manage their day¬to-day affairs and the basic need of their family made fervent representation to the school Management(s) across the State.” 

The Court explained that, in law, the school Management cannot be heard to collect fees in respect of activities and facilities which are, in fact, not provided to or availed by its students due to circumstances beyond their control. Demanding fees even in respect of overheads on such activities would be nothing short of indulging in profiteering and commercialisation.

Further, due to complete lockdown the schools were not allowed to open for substantially long period during the academic year 2020-21. Resultantly, the school Management must have saved   overheads and recurring cost on various items such as petrol/diesel, electricity, maintenance cost, water charges, stationery charges, etc.

“Indeed, overheads and operational cost so saved would be nothing, but an amount undeservedly earned by the school without offering such facilities to the students during the relevant period.  Being fee, the principle of quid pro quo must come into play.”

However, no accurate (factual) empirical data has been furnished by either side about the extent to which such saving has been or could have been made or benefit derived by the school Management.     The Court, hence, assumed that the school Management(s) must have saved around 15 per cent of the annual school fees fixed by the school/adjudicated by the Statutory Regulatory Authorities for the relevant period.

“… we would assume that at least 15 per cent of the annual school fees would be towards overheads/expenses saved by the school Management. Arguendo, this assumption is on the higher side than the actual savings by the school Management of private unaided schools, yet we are inclined to fix that percentage because the educational institutions are engaged in doing charitable activity of imparting and spreading education and not make money. That they must willingly and proactively do. Hence, collection of commensurate amount (15 per cent of the annual school fees for academic year 2020¬2021), would be a case of profiteering and commercialisation by the school Management.”

DIRECTIONS

(i) The school Management of the concerned private unaided school shall collect annual school fees from their students as fixed under the Act of 2016 for the academic year 2019-20, but by providing deduction of 15 per cent on that amount in lieu of unutilised facilities by the students during the relevant period of academic year 2020¬21.

(ii) The amount so payable by the concerned students be paid in six equal monthly instalments before 05.08.2021.

(iii) Regardless of the above, it will be open to the concerned School Managements to give further concession to their students or to evolve a different pattern for giving concession over and above those noted in clauses (i) and (ii) above.

(iv) The school Management shall not debar any student from attending either online classes or physical classes on account of non¬payment of fees, arrears/outstanding   fees   including   the   installments, referred to above, and shall not withhold the results of the examinations of any student on that account.

(v) If any individual request is made by the parent/ward finding it difficult to remit annual fees for the academic year 2020¬21 in the above terms, the school Management to consider such representation on case¬to¬case basis sympathetically.

(vi) The above arrangement will not affect collection of fees for the academic year 2021-22, as is payable by the students of the concerned school as and when it becomes due and payable.

(vii) The school Management shall not withhold the name of any student/candidate for the ensuing Board examinations for Classes X and XII on the ground of non-payment   of   fee/arrears   for   the   academic year 2020-21, if any, on obtaining undertaking of the concerned parents/students.

[Indian School, Jodhpur v. State of Rajasthan, 2021 SCC OnLine SC 359, decided on 03.05.2021]


*Judgment by: Justice AM Khanwilkar 

Know Thy Judge| Justice AM Khanwilkar

For appellants: Senior Advocate Pallav Shishodia, Shyam Divan,  Puneet Jain and Romy Chacko

For State of Rajasthan: Senior Advocates Dr. Manish Singhvi and Devadatt Kamat

Mr. Sunil Samdaria, in­person

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of L. Nageswara Rao, Hemant Gupta and Ajay Rastogi, JJ has issued directions to ensure education of children in Child Care Institutions which has suffered due to the COVID-19 pandemic.

Amicus Curiae Gaurav Agrawal suggested the Court that infrastructure available in the Child Care Institutions for providing education to children needs to be assessed. On the basis of the assessment of the infrastructure, Child Welfare Committees and the Juvenile Justice Boards through the District Child Protection Units shall inform the State Governments about the deficiencies in the infrastructure, stationary/books etc. It is necessary to ensure that extra classes should be held for children residing in Child Care institutions to make them holistically prepared to take the examinations in March-April, 2021.

Amicus Curiae also highlighted that State of Telangana is providing extra classes for children in Child Care Institutions. The other states should also follow the lead of the State of Telangana and ensure that such extra classes be provided for students/ the children restored to the families due to coronavirus pandemic.

“2,27,518 children were in the Child Care Institutions before the pandemic and 1,48,788 children have been restored to their families/guardians and other foster care homes, as a result of the pandemic. Educational needs of those children who have been handed over to their parents or guardians should be assessed. They might not have attended schools due to various reasons including the financial distress of the parents.”

Further, State of Tripura is following a practice of providing financial aid of Rs.2160 per month to the parents or guardians of the children who have been restored from the Child Care Institutions.

Taking note of the aforementioned submissions of the amicus curiae, the Court issued the following directions

  1. State governments to provide the necessary infrastructure, stationary, books, printers along with the other equipment that is necessary for children to quantitatively attend online classes on the basis of the recommendation made by the District Child Protection Units, within 30 days from the date of the order.
  2. State Government shall also ensure that the required number of tutors are made available for teaching the children in various Child Care Institutions. Extra classes, if necessary, should also be taken for the children to help them in preparing for the final examinations to be held next year.
  3. District Child Protection Units shall inform the District Legal Service Authorities about the progress made in the infrastructure being provided to the Child Care Institutions and the functioning of online classes periodically i.e. once in a month.
  4. District Child Protection Units to make an assessment of the children who are restored to their families or guardians or foster homes during the lockdown by taking the assistance of other statutory bodies like the Child Welfare Committees and Juvenile Justice Boards.
  5. District Child Protection Units to enquire about the financial position of the parents or guardians of the children. If it is found that the children are not being sent to school in view of the financial disability of their parents or guardians, the District Child Protection Units are directed to recommend to State governments to grant financial aid to the parents or guardians concerned. On such recommendation being made by the District Child Protection Units, the concerned authorities of the State governments are directed to release an amount of Rs.2000/- per month for each child, to the parents or guardians of the children in distress, which shall be used for the purpose of the education of the children.
  6. District Care Protection Units to ascertain the number of children who are restored to their families due to lockdown in a particular geographical locality and organize a guide or a teacher for each group of 25 children.

The Court will now hear the matter in February, 2021.

[IN RE: CONTAGION OF COVID 19 VIRUS IN CHILDREN PROTECTION HOMES, 2020 SCC OnLine SC 1026, order dated 15.12.2020]

Law made Easy

Under the Constitution


This right guarantees free and compulsory education for children between the age of 6 to 14 years in India under Article 21A of the Constitution of India.

  • Free education’ means that no child, other than a child who has been admitted by his or her parents to a school, shall be asked to pay any kind of fee/charges/expenses which may prevent him or her from pursuing and completing elementary education.
  • Compulsory education’ casts an obligation on the appropriate Government and local authorities to provide and ensure admission, attendance and completion of elementary education by all children in the 6-14 age groups.

Under the Right to Education Act, 2009


Focus:

  • Providing elementary education to a child (6-14 years) who does not/could not go to school. Such child to be admitted in age appropriate class and has the right to receive special training.
  • Seeks to provide children right to seek transfer from a government or govt. aided school to another such school in order to complete elementary education. Such child also has right to immediately seek a transfer certificate (TC).
  • Mandates non-minority private unaided schools to reserve at least 25% of their entry level seats for children belonging disadvantaged sections to create a more integrated and inclusive schooling system.
  • Mandates the appropriate government and local authorities to provide for children’s access to elementary schools within the defined area or limits of the neighbourhood.
  • Lays down the responsibilities of the State and Central government for carrying out provisions of the act.
  • Constitution of a School Management Committee (SMC). The role of this committee to manage, monitor and support a school in its functions.
  • Indicates that within 3 years from the date of commencement of the act, the appropriate government and local authority shall insure that the Pupil Teacher Ratio (PTR) is maintained in each school.

Ensures:

  • Compulsory and free education for all.
  • Special provision for special classes.
  • Minimum standards.
  • Admission for all.
  • Quality and quantity of teaching.
  • All-round development.
  • By the people, for the children.

Objectives:

  • Ensure that every child below the age of 14 gets free and compulsory education.
  • Curb the problem of illiteracy.

Ensure personal growth and in turn growth of the country.


This Article is a part of the ‘Know Your Rights’ series by Centre for Clinical Legal Education, Maharashtra National Law University, Mumbai 

Case BriefsSupreme Court

“It needs no emphasis that the right to education guaranteed in terms of Article 21A of the Constitution would envisage quality education being imparted to the children which in turn, would signify that the teachers must be meritorious and the best of the lot. Any process which applied equally to all the candidates and was designed to garner the best talent, cannot be called arbitrary or irrational.”

Supreme Court: In the case relating to filing up of 69000 vacancies of Assistant Teachers in the State of Uttar Pradesh, the bench of UU Lalit* and MM Shantangoudar, JJ has dismissed the petitions challenging the fixation of 65-60% as minimum qualifying marks for Assistant Teacher Recruitment Examination- 2019 (ATRE-2019) and the eligibility of B.Ed. candidates for the posts of Assistant Teachers under the U.P. Basic Education (Teachers) Service Rules, 1981. While doing so, the Court said,

“If the ultimate object is to select the best available talent and there is a power to fix the minimum qualifying marks,… we do not find any illegality or impropriety in fixation of cut off at 65-60% vide order dated 07.01.2019.”

Resultantly, the Court has directed that the State Government shall now be entitled to fill up all the concerned posts in terms of the result declared on 12.05.2020. 


Relevant Facts


  • On 26-5-1999, a Government Order was issued by the State of U.P. for engagement of Shiksha Mitras (Parateacher) in order to provide universal primary education and to maintain teacher student ratio in primary schools by hiring persons who were not duly qualified at lesser cost as against the prescribed salary of a qualified teacher.
  • On 19-6-2013, a GO was issued giving permission for appointment of Shiksha Mitras on the post of Assistant Teachers in primary schools without having the eligibility and qualifications in terms of the RTE Act, 2009. Consequential executive orders were issued for absorption of 1,24,000 graduate Shiksha Mitras and 46,000 intermediate Shiksha Mitras.
  • On 27.05.2018 ATRE-2018 was conducted. In the results, 41,556 candidates were declared to have qualified with qualifying marks of 45- 40% out of which, 40296 candidates applied for counselling and were selected for appointment on 13.08.2018. About 4500 candidates were added to this number after re-valuation process.
  • On 06.01.2019 ATRE-2019 was conducted without there being any specification of minimum qualifying marks.
  • On 07.01.2019, an order was passed by the Special Secretary to the State Government: prescribing the minimum qualifying marks in respect of ‘Assistant Teacher Recruitment Exam 2019’ for Primary Schools run by Uttar Pradesh, Basic Siksha Council.
  • On 24.01.2019, 23rd Amendment to 1981 Rules was published. Consequently, Graduates having 50 per cent or more marks and holding degree of Bachelor of Education (B.Ed.) became eligible for posts of Assistant Master and Assistant Mistresses in Junior Basic Schools in the manner laid down in the Amendment. The concerned provisions in 1981 Rules dealing with eligibility of such candidate were given retrospective effect from 01.01.2018.

What the Supreme Court said


On eligibility of B.Ed. candidates

For maintaining standards of education in schools, the NCTE is specifically empowered to determine the qualifications of persons for being recruited as teachers in schools or colleges. In addition to regulating standards in “teacher education system”, the NCTE Act also deals with regulation and proper maintenance of norms and standards in respect of qualifications of persons to be recruited as teachers.

The eligibility or entitlement being already conferred by Notification dated 28.06.2018, the amendments to 1981 Rules were effected only to make the statutory regime consistent with the directives issued by the NCTE. The right or eligibility was not conferred by amendments effected to 1981 Rules for the first time but was only to effectuate the statutory regime in tune or accord with NCTE directives. Theoretically, even if such statutory regime was not made so consistent, the concerned candidates holding B.Ed. degrees could still be eligible and could not have been denied candidature for ATRE-2019. Pertinently, the performance in ATRE is one of the indicia that goes into making of quality points which in turn have to be considered at the stage of preparation of merit list for selection. By the time the actual process of selection was undertaken, the statutory regime in the form of 1981 Rules was perfectly consistent and in order.

Hence, the B.Ed. candidates were rightly allowed to participate in the instant selection process.

On 65-60% cutoff

Difference in nature of ATRE-2018 and ATRE-2019

In ATRE-2018, the percentage of qualifying candidates was thus 38.83%. On the other hand, the percentage of qualifying candidates in ATRE-2019 was 37.62%, which was almost equal to that in ATRE-2018. However, the number of qualified candidates in ATRE-2018 was less than the number of vacancies; while even with the cut off at 65-60% the number of qualified candidates in the present selection was far in excess of the number of posts. This happened because,

“Though the syllabus and subject wise allocation of marks were identical, the nature of ATRE-2019 was entirely different. The questions in ATRE-2018 were descriptive in nature and the duration of examination was three hours. However, those in ATRE 2019 were multiple choice – objective questions and the duration of examination was also different.”

Hence, there could be different parameters regarding minimum qualifying marks for ATRE-2019.

Candidates appearing in ATRE-2018 and ATRE-2019 formed different classes

All the candidates including Shiksha Mitras who appeared in ATRE 2018 formed one class while those who appeared in ATRE 2019 formed another class. There cannot be inter se connection or homogeneity between candidates appearing in one examination or selection with those appearing in another examination or selection.

“The basic norms of ATRE-2019 must be tested on their own and cannot depend upon para meters or norms on the basis of which ATRE-2018 was held. Otherwise the integrity of the examination process will get defeated and nullified.”

65-60% cutoff was fixed to garner best available talent

Even with 65-60% cutoff, the percentage of qualified candidates in ATRE-2019 was 37.62% which was quite close to 38.83% in ATRE-2018 and the number of qualified candidates was far in excess of the vacancies required to be filled up. Thus, cut off at 65-60% level in the present case, by itself cannot be termed as incorrect or illegal exercise of power. Those Shiksha Mitras who were meritorious and took the examination with seriousness that it deserved, certainly succeeded in securing marks more than the cut off of 65-60%. Hence,

“… the fixation of cut off at 65- 60% which was intended to select the best of the candidates cannot be termed as exclusionary nor was it intended to deprive the Shiksha Mitras of the advantage of weightage for experience.”

State Government is empowered to determine minimum marks “from time to time”

In terms of Rule 2(1)(x) of 1981 Rules, qualifying marks of ATRE are such minimum marks as may be determined ‘from time to time’ by the Government. If this power is taken to be conditioned with the requirement that the stipulation must be part of the instrument notifying the examination, it would lead to illogical consequences. On one hand, the relevant Rule requires passing of ATRE while, on the other hand, there would be no minimum qualifying marks prescribed. Hence, the Government must be said to be having power to lay down such minimum qualifying marks not exactly alongside instrument notifying the examination but at such other reasonable time as well.

Therefore,

“If the Government has the power to fix minimum qualifying marks ‘from time to time’, there is nothing in the Rules which can detract from the exercise of such power even after the examination is over, provided the exercise of such power is not actuated by any malice or ill will and is in furtherance of the object of finding the best available talent.”

Third chance to Shiksha Mitras

Even though the challenge by Shiksha Mitras was dismissed, the Court directed that one more opportunity shall be afforded to Shiksha Mitras to compete in the next selection. The Court left it to the discretion of the State Government to consider the manner and the modalities in which such opportunity can be availed of.

[Ram Sharan Maurya v. State of Uttar Pradesh, 2020 SCC OnLine SC 939, 17.11.2020]


*Justice UU Lalit has penned this judgment

Advocates who appeared in the matter

For the Shiksha Mitras: Senior Advocates P.S. Patwalia, C.A. Sundaram, Rakesh Dwivedi,  Rajiv Dhawan, Nidhesh Gupta, V. Shekhar, S. Guru Krishna Kumar, Meenakshi Arora, Dinesh Diwedi, K.T.S. Tulsi, Mr. Jayant Bhushan, and advocates Gaurav Agrawal and Tanya Agarwal.

For State: Additional Solicitor General Aishwarya Bhati

For B. Ed./BTC Candidates: Senior Advocates H.N. Salve,  R. Venkataramani,  Pallav Shishodiya, K.V. Vishwanathan and V. Mohana

Case BriefsHigh Courts

Karnataka High Court: Krishna S. Dixit J., issued a writ of certiorari to quash the impugned orders and sent back the issue under challenge to the state for reconsideration in a time-bound manner, failing which penalty to be imposed on defaulting state officials.

The facts of the case is such that the petitioner is a registered Educational Trust grieving against the denial of permission for establishing a School for imparting education at the level of 1st to 8th Std in English medium, vide Endorsement dated 31-05-2019 issued by the 2nd respondent-DDPI, it’s Revision Petition challenging the same having been negatived by the Government vide order dated 3-2-2020.

Counsel for the respondent-State submitted that the petitioner-Trust has not produced the conversion order of the land in question to the non-agricultural purpose. It was further submitted that the text of the letter dated 02-03-2018 only indicates conversion potential of the land and not the conversion as such to educational purpose. It was also submitted that there is noncompliance of Rule 3(4) of the Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricula etc) (Amendment) Rules, 2018 that reads as

“Every private body of persons desiring to establish and maintain an educational institution imparting pre-primary, secondary and higher secondary education or any part thereof shall own or have on lease for a minimum period of thirty years following minimum contiguous extent of land for the building and playground of the educational institution with permission from relevant authorities to use for educational purposes:”

 Counsel for the petitioners- Trust submitted that land having been converted to the non-agricultural user (industrial) by the Tumkur District Deputy Commissioner’s order dated 23-5-1986, now figures in Yellow Zone in the statutory Revised Master Plan [2031], formulated under the provisions of Sections 9 & 14 of the Karnataka Town and Country Planning Act, 1961, hence there is no requirement of one more formal conversion order that otherwise was warranted in terms of Section 95 of the Karnataka Land Revenue Act, 1964. It was further submitted that the Tumkur Urban Development Authority constituted under the provisions of the Karnataka Urban Development Authorities Act, 1987, vide letter dated 20-7-2018 has specifically stated that the land in question can be used for educational purpose in view of its inclusion in the Approved Comprehensive Development Plan (Revised- II)-2031.

 The Court observed that the land under challenge is taken by the petitioner-Trust on lease basis for a period of thirty years vide registered Lease Deeds is not in dispute; the said land having been converted to industrial purpose way back in May 1986 has no longer retained its agricultural character; such a converted land can be put to residential use because of inclusion per se in the Comprehensive Development Plan and residential purpose necessarily includes educational ones.

The Court further observed that the available facilities in the school building in question certainly do not fall short of those obtaining in any Government schools in the locality infact what is lacking should be pointed out to the petitioner so that it can be improved in a time-bound way; that exercise strangely has not been undertaken and hence it leaves an impression that somehow the powers that be, are working to ensure that this school shall not come up, for an indefinite period of time and that the reasons for the same remaining inscrutable, give scope for assuming ulterior motives.

The Court relied on Bhartiya Sewa Samaj Trust v. Yogeshbhai Amblal Patel, (2012) 9 SCC 310 and emphasized on enactment of Right to Education Act, 2009 and 86th Amendment to the Constitution which introduced Article 21A and Article 51A (k) of Constitution of India to remark:

“….the importance of these new provisions can be understood by the observations of the Apex Court to the effect that without Article 21A, the other fundamental rights are rendered meaningless; without education, a citizen may never come to know of his other rights; since there is no corresponding constitutional right to higher education, the fundamental stress has to be on primary and elementary education, so that a proper foundation for higher education can be effectively laid..”

The Court further reprimanded and stated that the school education in the country inter alia suffers from the limitation of coverage; there are not enough number of government/public schools to cater to the societal need; a corresponding statutory duty is cast on the private schools to make the fundamental right to free education at the primary level, meaningful; if the applications for grant of permission to establish such schools are mindlessly declined, that would muffle the inner voice of the aforesaid constitutional amendments that are complemented by legislative instruments.

The Court before disposing off the petition observed that there exists a certain difference between a requisition for the grant of permission for founding a school and an application for the grant of excise license for opening a wine shop.

In view of the above, petition is allowed and impugned order stands quashed.[Nexgen Education Trust (Regd.) v. State of Karnataka,  2020 SCC OnLine Kar 1647, decided on 21-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Law made Easy

“Child” as defined by the Child Labour (Prohibition and Regulation) Act, 1986 is a person who has not completed the age of fourteen years.

Children, by will or by force are employed to work in the harsh conditions and atmosphere which becomes a threat to their life.

No child (below the age of 14 years) shall be employed or permitted to work in any occupation or process.

Hiring children below the age of 14 years for any kind of work, other than in certain family-based work, is a cognizable offence and will attract a jail term of upto 2 years. Adolescents between the age of 14 – 18 years cannot be employed in any hazardous occupation.

Hazardous Employment

Hazardous child labour is work that is performed by children in dangerous and unhealthy conditions that can lead to a child being killed, injured or made ill as a result of poor safety and health standards or employment conditions. This is referred to as hazardous child labour.

Examples of hazardous employment are-

  • Anything that can cause spills or trips such as cords running across the floor or ice
  • Anything that can cause falls such as working from heights, including ladders, scaffolds, roofs, or any raised work area
  • Unguarded machinery and moving machinery parts that a worker can accidentally touch
  • Electrical hazards like frayed cords, missing ground pins, improper wiring
  • Confined spaces.

Rules for employing Adolescents

The Child Labour (Prevention and Regulation) Amendment Act allows adolescents to work in non-hazardous occupations and processes. If an adolescent is employed, the following conditions must be satisfied by the employer:

  • The period of work on each day should be fixed in a manner that no period or work would exceed three hours.
  • The adolescent must have an interval for rest for at least one hour after working for three hours.
  • The total time spent working by an adolescent cannot exceed 6 hours in a day, including the time spent in waiting for work.
  • Adolescents cannot be employed during the hours of 7PM to 8AM.
  • Adolescents cannot be made to work overtime.
  • Adolescents cannot work in more than one establishment, at anytime.
  • Adolescents must be provided in every week, a holiday of one whole day.

Punishments relating to child labour

  • For parents/guardians There shall not be any punishment in case of a first offence by parents/guardians. In case of a second and subsequent offence, the penalty prescribed is a maximum fine of Rs. 10,000.
  • For employer- Any offence committed by an employer which is punishable under the Child Labour act has been made a cognizable offence. Accordingly, the authorities can file a first information report and commence investigations into the offence without a court order and can arrest without a warrant.
  • PenaltyEmployment of a child or permitting a child to work in any occupation or process in contravention to the statute would lead to Imprisonment of: 6 months to 2 years Fine: Rs.20,000 to Rs. 50,000 or both.

How can we eliminate child labour from our society?

Education is a human right with immense power to transform. On its foundation rest the cornerstones of freedom, democracy and sustainable human development Child labour can limit the time and energy children spend on education. Many forms of child labour are prohibited in international standards. While child labour can be an obstacle to education, at the same time education is instrumental in the prevention of child labour.  Through education, parents and children alike become more aware of its benefits, and the harm that child labour can cause.  And access to education helps reduce poverty, one of the root causes of child labour. It can be concluded that education is the key to abolish child labour across the globe.

Role/Importance of education or Right to Education Act in eliminating child labour

The RTE act is not innovative law. Universal adult franchise in the act was opposed since most of the population was illiterate. Article 45 in the Constitution of India was set up as an act: “The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years”

  • The Act makes education a fundamental right of every child between the ages of 6 and 14 and specifies minimum norms in elementary schools. It requires all private schools to reserve 25% of seats to children from poor families (to be reimbursed by the state as part of the public-private partnership plan).

STOP Child Labour- It promotes jobs & protects people.


*This Article is a part of the ‘Know Your Rights’ series by Centre for Clinical Legal Education, Maharashtra National Law University, Mumbai 

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of UU Lalit, Vineet Saran and Ajay Rastogi, JJ has allowed the 3 accused in the Dr. Payal Tadvi suicide case to complete their Post-Graduation from the same college.

“While balancing the competing claims, in our view, the Appellants must be allowed to go back to their courses of study otherwise the pendency of prosecution against them will add further penalty in the form of prejudicing their career. Any such adverse impact will negate their rights under Article 21 of the Constitution.”


Background of the case


Dr. Ankita Kailash Khandelwal, Dr. Hema Suresh Ahuja and Dr. Bhakti Arvind Mehare (the appellants), after completing MBBS course were pursuing Post Graduate Degree course (M.D.) in Gynaecology and Obstetrics in Topiwala National Medical College, Mumbai. Dr. Payal Tadvi was also student of Post Graduate Degree Course (M.D.) in Gynaecology and Obstetrics in the same college and was junior to the appellants. On 22.05.2019, Dr. Payal Tadvi committed suicide by hanging herself in her room and in the complaint lodged by her mother, it was stated that Dr. Payal Tadvi was harassed by the Appellants and that they were directly responsible for the suicide committed by her. Hence, a case was registered under Section 306 read with Section 34 IPC, under the provisions of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities), Act, 1989 and also under Section 4 of the Maharashtra Prohibition of Ragging Act, 1999, following which the Appellants were suspended by the Dean of the Hospital and the College. The Appellants were arrested on 29.05.2019.

“During the course of investigation, statements of more than 100 witnesses were recorded by the Crime Branch. After completion of investigation, charge sheet running into 1200 pages was filed and the matter is still at the stage of consideration whether the charges are required to be framed or not.”

In the present case, the Supreme Court was called upon to consider the competing claims in such a way that the individual rights of the Appellants to pursue their courses of study are secured and, at the same time, the conduct of prosecution also runs smoothly and without any interference and possibility of witnesses getting won over.


Key points considered by the Court


  1. The Appellants before have completed two years out of three years’ of course.
  2. The Appellants do not appear to be original residents of Mumbai and, as such, it cannot be said that they or their families have deep-rooted presence in Mumbai.
  3. As noticed in Sumit Mehta v. State (NCT of Delhi), (2013) 15 SCC 570 , if the law presumes an accused to be innocent till his guilt is proved, the Appellants as presumably innocent persons, are entitled to all the fundamental rights including the right to liberty guaranteed under Article 21 of the Constitution and are entitled to pursue their course of study so long as exercise of said right does not hamper smooth conduct and progress of the prosecution.
  4. The stand taken by the State through the affidavit filed by the Deputy Secretary, Medical Education and Drugs Department, Government of Maharashtra, is that the Appellants can complete their Post Graduate course in future after conclusion of the trial. The Court, however, found this stand incorrect and said that even a convict is allowed to have academic pursuits while undergoing sentence and develop his potential as a human being to the fullest.

“The State apparatus must facilitate such pursuits rather than hamper any attempts in that behalf. The Appellants, therefore, by any standard, are entitled to continue their courses of study subject to the caveat expressed earlier.”

  1. It is a matter of record that the statements of all material witnesses have been recorded under Section 164 of the Code. In fact, the High Court went to the extent of ensuring that such statements are recorded so that witnesses could not be won over by the Appellants after they were enlarged on bail. Therefore, the apprehension that the witnesses could be influenced is not quite correct.
  2. The majority of witnesses to be examined by the prosecution appear to be in permanent employment of the College and the Hospital. It will be difficult to imagine that three lady doctors who do not otherwise belong to Mumbai will be able to influence any such witnesses by their mere presence in the College and the Hospital.
  3. The Appellants require to put in the last year of their course and the actual period that they need to undergo by way of training is only nine months.

“It is, thus, a question of putting those nine months in one scale and see whether the other scale becomes so weighty that the request to allow them to pursue their courses must be rejected.”


Directions


Considering the matter in its entirety and especially when the Appellants have to undergo training under the same guide and in the same institution where they were registered, the Court was of the opinion that ends of justice would be met if the Appellants are permitted to go back to the College and the Hospital to pursue their studies, subject to the following conditions:-

  1. The Appellants shall not, in any manner, influence or even attempt to influence any of the witnesses.
  2. The Appellants shall present themselves on each of the dates that the matter gets posted before the Trial Court, unless their presence is specifically exempted.
  3. If it is permissible, and subject to the appropriate permission from the Dean of the College and the Hospital, the Appellants may not reside in the quarters allocated to the residents in the College and the Hospital. However, if the registration as Post Graduate students requires the Appellants to be full time residents in the College and the Hospital, then the Appellants shall do so.
  4. The Appellants shall avail study leave so that their actual period of stay inside the College and the Hospital gets reduced to the maximum possible level.
  5. If there be any holiday or vacation and it is permissible for the residents to be outside the College and the Hospital, the Appellants shall avail that and keep themselves away from the Hospital and the College.
  6. If there be any untoward incident or even likelihood of such incident, the concerned authorities shall immediately report to the Police Station of the area and ensure that the life and liberty of everyone including the Appellants are well protected.

Making clear that the Appellants shall be permitted to pursue their courses of study regardless of the Order of Suspension dated 27.05.2019, the Court directed that

“This Order shall come into effect at the beginning of the second term of academic session 2020-2021 and if such term has already begun, it shall come into effect from 12.10.2020.”

[Ankita Kailash Khandelwal v. State of Maharashtra, CRIMINAL APPEAL Nos.660-662 OF 2020, 11.10.2020]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: While allowing the instant petition seeking for issuance of a writ of mandamus directing the State Government to take all necessary steps to establish a Government Lower Primary School at Elambra village in Manjeri Municipality, expeditiously; the Division Bench of S. Manikumar, CJ, and Shaji P. Chaly, J., directed the State Government to sanction the establishment of Government LP School, at Elambra within a period of three months. The Bench strictly observed that the people of Elambra have been fighting a long battle of 35 years with the might of the State Government in order to establish a lower primary school- a demand that is completely in consonance with the law and the Constitution and there is a conspicuous failure on the part of the State Government in acknowledging this demand.

The petitioner, a resident of Elambra, filed the instant PIL. As per the facts, the village is located on the outskirts of Manjeri Municipality and is a socially and educationally backward area. There are no primary schools within the radius of 3 km and during the last 30 years, the local residents have been making continuous effort to get a new Government LP School at Elambra. Several representations were submitted before the concerned authorities concerned, including the Minister of Education, all of which yielded no result. The petitioner further submitted that the concerned authorities have conducted several inspections and had submitted their reports, which were ignored by the Government. P. Venugopal representing the petitioners argued that the Government failed to discharge the duties cast upon them under Section 19 of the Kerala Right of Children to Free and Compulsory Education Rules, 2011 r/w Section 3(3) of the Kerala Education Act, 1958. The petitioner also presented Reports prepared by Manjeri Dy. District Education Officer and Malappuram District Educational Officer; Order issued by Kerala State Human Rights Commission and Kerala State Child Rights Protection Commission (hereinafter Commissions); all of which were clear on the point that Elambra is a remote area with the closest primary schools situated 5 km away and the Government is constitutionally and statutorily obligated to take concrete steps for providing basic educational infrastructure. The respondents were represented by Surin George Ipe.

The Court perused the facts; contentions; the Reports and relevant Supreme Court cases highlighting the Right to Education as a fundamental right. The Bench taking into account international conventions such as the Universal Declaration of Human Rights and Convention on the Rights of the Child observed that, Right to Education is not only a fundamental right but it is also a Human Right. The Court delved in-depth on the evolution of a child’s right to education and the obligations of the State in relation to it. Taking into consideration statutes such as the Right of Children to Free and Compulsory Education Act, 2009, Commissions for Protection of Child Rights Act, 2005, Right of Children to Free and Compulsory Education Rules, 2010 and the concerned State legislations, the Court noted that that the people of Elambra have been demanding establishment of a Government Lower Primary School, whereas the State Government, without considering the reports of local educational authorities, by erroneously applying the Rules and not following the relevant statutory provisions particularly Section 3(3) of Kerala Education Act, 1958, Section 3 of the Right of Children to Free and Compulsory Education Act, 2009 and Rule 6 of the Kerala Right of Children to Free and Compulsory Education Rules, 2011, have denied sanction for establishment of a Government LP School in Elambra. The Court concurred with the reports presented by the local educational authorities which have clearly recorded that the area in question is educationally backward with no proper transport facility. There are Upper Primary and High schools in and around the locality within a distance of 2-5 kms. There is no Government LP school within the radius of 3 kms and people are depending upon schools, which are not within the neighbourhood of Elambra. The Court also noted that since the respondents did not challenge the Orders issued by the Commissions, therefore they cannot argue that such Orders are not binding on them. [T. Muhammed Faisi v. State of Kerala, 2020 SCC OnLine Ker 2981, decided on 29-07-2020]

Kerala High Court
Case BriefsCOVID 19High Courts

Kerala High Court: C.S. Dias, J., while referring the present petition to a Division Bench of the Court stated that,

Right to education is sacrosanct in the Constitution of India and is the mandate under the Right of Children to Free and Compulsory Education Act, 2009.

Petitioners submitted that the respondents 7th and 8th where their children are pursuing their studies have been insisting for payment of additional fees in order to facilitate virtual classrooms in view of COVID-19.

It is disheartening to learn that a student allegedly took away her life due to lack of access to the internet for attending virtual classes.

Payment of Fees

Petitioner in the context of their grievance also submitted that some State/UTs had formulated guidelines for the conduct of online classes and ordered that the students should not be denied education for want of payment of fees during the COVID-19 Pandemic.

Matter adjourned to Division Bench

In exercise of powers of this High Court, under Section 3 of the Kerala high Court Act, 1958, and in view of the substantial public interest in the petition, bench adjourned the matter to Division Bench of this Court.

Interim Order by Single Bench

In view of the outbreak of pandemic, respondents 6 and 7 have been directed not to levy any additional fee from petitioners children until further order.[Sreelekshmi v. State of Kerala, WP (C) No. 10867 of 2020, decided on 03-06-2020]

Case BriefsSupreme Court

Supreme Court: A 3-judge bench of NV Ramana, R. Subhash Reddy and BR Gavai, JJ has constituted a three-member committee to look into demand for allowing 4G mobile internet in the union territory of Jammu and Kashmir. The order of the Court came in the plea seeking restoration of 4G internet services in Jammu and Kashmir claiming the 2G service available in the Union Territory is not sufficient for education and business purposes amid the ongoing coronavirus-induced lockdown.

Noticing that since the issues involved affect the State, and the nation, the Court was of the opinion that the Review Committee which consists of only State level officers, may not be in a position to satisfactorily address all the issues raised. It, hence, found it appropriate to constitute a Special Committee comprising of the following Secretaries at national, as well as State, level to look into the prevailing circumstances and immediately determine the necessity of the continuation of the restrictions in the Union Territory of Jammu and Kashmir.

The Committee will consists of:

  • The Secretary, Ministry of Home Affairs (Home Secretary), Government of India. (Head of the Committee)
  • The Secretary, Department of Communications, Ministry of Communications, Government of India.
  • The Chief Secretary, Union Territory of Jammu and Kashmir.

The Committee will not only examine the contentions of, and the material placed by both the parties but also examine the appropriateness of the alternatives suggested by the Petitioners, regarding limiting the restrictions to those areas where it is necessary and the allowing of faster internet (3G or 4G) on a trial basis over certain geographical areas and advise Centre regarding the same.

It is important to note that, internet services were suspended in J&K in August last year after the abrogation of Article 370 and bifurcation of the erstwhile state into two Union Territories of Ladakh and Jammu and Kashmir . While the 2G services on postpaid mobile phones and broadband have been restored, 4G services still remain suspended. While on one hand, the petitioners have argued that 4G speed was essential for healthcare, education, trade and business in the union territory during this hour of crisis due to coronavirus, the officials in Jammu and Kashmir, on the other hand, contended that restoration of 4G services could give rise to anti-national activities and militancy.

Attorney General KK Venugopal appearing for the Central government had earlier, told the Court that the orders that have been passed specifically stated that restrictions of internet speed are required for national security. Venugopal said that it’s about the protection of the lives of the entirety of the population of Jammu and Kashmir and not just the COVID-19 patients.

“Terrorists are being pushed into the country. Yesterday, there were some tragic events also. These men could easily take videos of the troop movements because they were trusted. The enemy could know the troop movements if they had 4G,”

The attorney general said that the petitions have to be examined against the larger public interest of national security, adding that national security is paramount and those tasked with protecting national security must be the sole judges in the matter.

“The matters of policy decision cannot be interfered with by the court. It must be left to the government,”

Lawyer Huzefa Ahmadi, appearing for one of the petitioners, told the court that the COVID-19 situation in J&K has worsened and added that problems are being faced by doctors who cannot access necessary information about coronavirus treatment due to the internet speed. 75 doctors have also made a representation flagging the same concerns.

Senior lawyer Salman Khurshid, appearing for another petitioner in the matter, said that private schools are under government directions to provide education
via video-conferencing.

“We have an obligation under the Right to Education to provide education”

Solicitor General Tushar Mehta said that the Central government had started with a complete lockdown and then brought in relaxations by allowing movement, followed by landline and then 2G internet services.

Taking note of all the arguments, the Court said that while it might be desirable and convenient to have better internet in the present circumstances, wherein there is a worldwide pandemic and a national lockdown, the fact that outside forces are trying to infiltrate the borders and destabilize the integrity of the nation, as well as cause incidents resulting in the death of innocent citizens and security forces every day cannot be ignored. However, considering that the authorities in the Union Territories of Jammu and Kashmir have selected the 2G speed to restrict the flow of information in order to prevent misuse of data by terrorists and their supporters to disturb the peace and tranquility of the Union Territory of Jammu and Kashmir, the Court, however, said,

“we do recognize that the Union Territory of Jammu and Kashmir has been plagued with militancy, which is required to be taken into consideration.”

The Court, hence, highlighted the observations made by it’s January order in Anuradha Bhasin v. Union of India, 2020 SCC OnLine SC 25, wherein it has said that for meaningful enforcement of the spirit of the judgment, inter alia, the authorities are required to pass orders with respect to only those areas, where there is absolute necessity of such restrictions to be imposed, after satisfying the directions passed earlier.

Though the Court agreed to it’s observation in Anuradha Bhasin judgment that the internet is being used to support fallacious proxy wars by raising money, recruiting and spreading propaganda/ideologies, it was also cognizant of the concerns relating to the ongoing pandemic and the hardships that may be faced by the citizens and that it might be desirable and convenient to have better internet in the present circumstances, wherein there is a worldwide pandemic and a national lockdown.

Terming the issue of restoration of 4G internet service in the valley as “a very important but a sensitive issue on national security and human rights”, the Court asked the Committee to take a balanced decision, keeping both aspects in mind.

[Foundations for Media Professionals v. Union Territory of Jammu and Kashmir, 2020 SCC OnLine SC 453, decided on 11.05.2020]


Also read:

Article 370| Review all orders imposing curbs in a week and put them in public domain: SC to J&K administration [Anuradha Bhasin judgment]