High Courts

Delhi High Court: On 21st December, 2020, the Government of NCT of Delhi submitted in Court that elections of the School Management Committee (SMC) will be held within 2 months of school reopening. On 1st July, the Delhi Government had issued a circular by which SMCs were to be reconstituted through a draw of lots instead of elections right in the middle of the pandemic which was challenged by the petitioners as being opposed to the Right To Education Act. After the first hearing of this case, the Government issued a new circular (dated 16.07.20) adding information regarding tenure of  SMCs constituted by the draw of lots method. This information was missing from the impugned circular dated 01.07.20.  The new circular added that the SMCs constituted by the draw of lots method was only a ‘stop gap’ arrangement and elections to reconstitute SMCs would be held ‘after normalcy returns’. However, what ‘normalcy’ meant remained ambiguous.

Ms. Garima Sharma, the counsel appearing for the petitioners, pressed that the respondents commit to reconstitute the SMCs via elections within a fixed timeframe after school reopening. After seeking instructions from the Department of Education, the Government of NCT of Delhi, represented by Advocate Gautma Narayan, submitted that they will conduct elections to reconstitute SMCs within 2 months of school reopening. The same has been recorded in the order. The petitioners were satisfied with the submission made.  The bench of Navin Chawla, J. binding the respondents to the statement made disposed of the petition.

A SMC Meeting In Progress

This comes as a big relief to the petitioners who feared that the constitution of SMCs, by an opaque, exclusionary method such as draw of lots, if went unchallenged could become the norm and could take away the opportunity for parents to participate in choosing who will represent them in SMCs. SMCs are an important platform for parents to effect change inside a government school as they constitute 75% of the committee and SMCs have significant oversight and administrative roles and responsibilities.

[Indra v. Government of NCT of Delhi, Writ Petition (C) No. 4076 of 2020, dated 21-12-2020]

Click to access Note-On-The-Gaps-In-Current-SMC-Constitution-Ciricular_1-1.pdf


Nilufer Bhateja, Associate Editor has put this story together 

Also read: Delhi HC| Reconstitution of Delhi School Management Committees postponed till next hearing

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The Delhi Government has issued a new circular dated 16.07.20 wherein they have shared  details regarding SMCs being reconstituted by a draw of lots. This circular has added information regarding tenure of such constituted SMCs, which was missing from the previous circular dated 01.07.20. The new circular states that these SMCs are being re-constituted only until elections can be held after the situation returns to normalcy. This signals a clear significant shift in the stance of Delhi Government in the aftermath of writ petition[1] filed in the Delhi High Court where in the Delhi Government had submitted that the SMCs being constituted by a draw of lots was only a stopgap arrangement

In the abovementioned petition, the petitioners had challenged the circular dated 1.07.2020[2] and prayed that the circular be quashed. The petitioners argued that the circular violated the spirit of the act as it didn’t allow parents to participate in the process of choosing who will represent them in SMCs. They contended  that extending tenure of the previous SMCs was a better option than reconstituting SMCs through a draw of lots. They gave examples of other states where tenure of SMCs were extended. The counsel for the petitioner, Garima Sharma, argued that it was a better option since members of existing SMCs already had experience of working in a SMC.

Despite the fact that the Delhi Government has been holding elections since RTE was implemented, the respondents submitted that there was no mandate to hold elections and that the Government had issued the impugned circular only as a stopgap arrangement.

The order released by the Delhi High Court on 14.07.20 has recorded the Delhi Government submitting in court  that the impugned circular has been issued “only as a stopgap arrangement and the SMCs so constituted by following the procedure as laid down in the impugned Circular shall continue till elections can be held after normalcy returns.” A fact that didn’t find any mention in the impugned circular dated 01.07.20.

The circular calls upon the head of schools to complete the reconstitution process of the SMCs through a draw of lots by the 21st of July, 2020.


[1] Indra v. Government of NCT of Delhi, Writ Petition (C) No. 4076 of 2020, dated 13-07-2020

[2]  http://www.edudel.nic.in/upload/upload_2017_18/117_129_dt_01072020.PDF

Case BriefsCOVID 19High Courts

Delhi High Court: Naveen Chawla, J. in an order dated 13th July, 2020 has refused to interdict a Delhi government circular which directed reconstitution of School Management Committees through a draw of lots instead of holding elections.The petitioners had challenged the circular dated 1.07.2020 and prayed that the circular be squashed. The petitioners argued that extending tenure of the previous SMCs was a better option than reconstituting SMCs through a draw of lots. They gave examples of other states where tenure of SMCs were extended. The counsel for the petitioner argued that it was a better option since members of existing SMCs already had experience of working.

Despite the fact that the Delhi Government has been holding elections since RTE was implemented, the respondents submitted that there was no mandate to hold elections and that the Government had issued the impugned circular only as a stopgap arrangement. The Circular shall continue till elections can be held after normalcy returns. The Counsel for the respondent government also mentioned that the petitioners had concealed that they have applied under the circular. The petitioners submitted that it was a bonafide mistake.

After listening to arguments from both sides, the Court stated that since elections cannot be held because of COVID 19, such extraordinary situations would require certain extraordinary measures to be taken by the respondents. The Court noted that respondents seem to have chosen one of the various alternatives that were available. With online classes for the Government schools having started there is an urgent need for the constitution of the SMCs.  The Court did not deem it fit to interdict the process started by the respondents at the present stage.and listed the matter for October 21st.

The order has recorded the government submitting in court that the impugned circular has been issued “only as a stopgap arrangement and the SMCs so constituted by following the procedure as laid down in the impugned Circular shall continue till elections can be held after normalcy returns.” A fact that didn’t find any mention in the impugned circular dated 01.07.20.

[Indra v. Government of NCT of Delhi, Writ Petition (C) No. 4076 of 2020, order dated 13-07-2020]

Case BriefsHigh Courts

Delhi High Court: In a writ petition filed to challenge a Delhi Government Circular which laid down arbitrary instructions to reconstitute the School Management Committee through a draw of lots instead of elections, a bench comprising of Navin Chawla, J. expressing concerns on the matter, has relisted the matter to be heard on Monday, the 13th of July, 2020. The draw of lots for the School Management Committees was to be held by 11th July which now stands postponed till any order is passed on the date of the next hearing.

The School Management Committees (SMCs) are constituted under Section 21 of the Right to Education Act, 2009 and consist mainly of elected parents of the school students. They perform various functions such as monitoring working of school, preparing school development plans, monitoring utilization of funds and perform other functions as prescribed.

On 1st July, the Delhi Government had issued a circular by which SMCs were to be reconstituted through a draw of lots instead of elections right in the middle of the pandemic. Only a week’s time was given to file nominations which could only be filed online. The petitioners contested the circular, praying that the circular be quashed and argued that the reconstitution of SMCs should  be postponed by at least 6 months and/or when normalcy is restored. The petitioner submitted to the Court  that the outbreak of the virus was not a reasonable explanation for adopting the lottery system for constituting SMCs which is otherwise an elected body. They argued that it cannot be the case that the respondents were left with no option but to violate the law.The petitioners drew comparison with the decision of the Punjab Government, which has issued a circular dated 04.06.2020[1] that extended the tenure of the current SMC till 30.09.2020 and postponed the reconstitution due to the circumstances arising out of COVID-19.

They had also prayed that whenever SMCs are reconstituted, it should be through elections, with an appropriate time given to file nominations and with the option to file nominations offline. The next hearing on this matter will be on Monday, 13th July.

[Indra v. Government of NCT of Delhi, Writ Petition (C) No. 4076 of 2020, dated 10-07-2020]


Read the details of the petition here

[1] Circular No. 17/6-2018 Services(2)/224-26

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Delhi High Court: A group of parents of government school students of Delhi have filed a writ petition before the Delhi High Court, challenging the Delhi Government circular which has laid out instructions to reconstitute School Management Committees (SMCs). The School Management Committees constituted under Section 21 of the Right to Education Act, 2009 perform various functions including formulation of a School Development Plan which is the basis of plans and grants which are made by the local authorities to the School. The petitioners allege that the Government has arbitrarily issued instructions for the reconstitution of School Management Committees by way of online draw of lots. This, the petitioners allege, is contrary to the spirit of the Right to Education Act, 2009  which mandates parent-guardian members to be elected and constitute the SMC’s through active participation of the community. The petition asserts that choosing parent representatives by a process which does not give any say to the very parents that these representatives will represent is undemocratic

 

Other objections filed by the petitioners against this government circular are that only a seven day window has been given to file nominations without any prior effort to spread awareness about the nomination process and roles and responsibilities of the SMC, thereby leaving many parent members excluded from the nomination process. Secondly, the nomination process is online, which excludes those who don’t have access to internet facilities. The petitioners have questioned the need to reconstitute the SMCs in the middle of a pandemic.The timing of this circular excludes deeply vulnerable groups, those who are shifting to government schools from private schools because of loss of livelihood and others affected by the pandemic for various reasons.

 

The petitioners have prayed for the following:

  • Reconstitution of SMCs should be postponed during the pandemic and the tenure of the current SMCs should be extended as they are better equipped to support children/ school at this time compared to newly constituted committees which wouldn’t have gone through any training.
  • SMC members should be elected and not selected through draw of lots
  • Whenever elections are conducted the period of filing nominations should be extended beyond 7 days
  • Whenever elections are conducted, offline process of filing nominations should be available
  • Whenever elections are conducted measures should be taken to spread awareness of SMC elections

Also read:

Circular instructing reconstitution of School Management Committees by way of online draw of lots

Note On The Gaps In Current SMC Constitution Circular_

Petition Challenging Delhi Circular