petition on RTE

IN THE HIGH COURT OF DELHI AT NEW DELHI

EXTRAORDINARY CIVIL JURISDICTION

CIVIL WRIT PETITION NO. OF 2010

(PUBLIC INTEREST LITIGATION)

IN THE MATTER OF:

SHREYA SAHAI & others ......... Petitioners

Versus

UNION OF INDIA & others .......... Respondents

WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA CHALLENGING THE CONSTITUTIONAL VALADITY OF THE IMPUGNED RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT, 2009, THE SAME BEING ULTRAVIRES AND REPUGNANT TO THE CONSTITUTION OF INDIA AND VIOLATIVE OF FUNDAMENTAL RIGHTS GUARANTEED UNDER ARTICLE/S 14, 19, 21, 21A, 25, 26, 28, 29 and 30 OF THE CONSTITUTION OF INDIA

To,

THE HON’BLE CHIEF JUSTICE OF AND HIS COMPANION JUDGES OF THE HON’BLE HIGH COURT OF DELHI.

The humble petition of Petitioners above named.

MOST RESPECTFULLY SHOWETH:

1. That the present petition has been preferred by the petitioners named above challenging the various provisions of the RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT, 2009 (hereinafter referred as “The Act”) inasmuch as they are repugnant to and ultravires the provisions of the Constitution of India and violative of the fundamental rights enshrined in Part-III of the Constitution of India. The true copy of the said Act is annexed herewith and marked as Annexure P-1.

2. That the petitioner no. 1 is at present a student of class VI studying at Mirambika Public School at Sri Aurbindo Ashram, New Delhi-110016, and being a minor, is being represented through her mother, Ms. Saloni Srivastava. The petitioner no. 2 besides being the father of the petitioner no.1 is a highly educated person, author of numerous books and an alumnus of Indian Institute of Technology (IIT) Delhi at New Delhi. The petitioner no. 2 is spending his time and hard earned money and other valuable resources in getting his child educated at the aforesaid school.

3. That at Mirambika Public School, departing from the prevalent formal class room academics oriented education, special endeavour and efforts are made at expanding the mental, creative and physical capabilities by nurturing the nature of the child and to bring out and enhance the latent creative capacity and talent of its students. At the base of this process of integral growth stands the unfolding of the psychic being which is the guide throughout. The education is child-centric. Teachers and children play, work and learn together. Instead of purely academics oriented education and examinations, the children learn through various innovatively devised methods focussed at nurturing the nature of the children.

4. Therefore, exercising their inherent parental rights and duties, the parents have chosen to get their child educated at the said school to help the petitioner no. 1 realise her dream of becoming the carrier of Indian cultural and spiritual heritage to the next generation. With the help of her school and support of her parents the petitioner child has made her brilliance felt in the areas of photography and painting from a very tender age. Her work has been appreciated by many contemporary stalwarts of the respective fields. Her work has been covered by both print and electronic media and has fetched her many accolades. Along with her intense practice in her chosen field for excellence she has been successful in maintaining her growth in academics as well.

5. WHEREAS at the time soon after the India gained independence and Constitution for the Democratic Republic of India was under preparation, the Universal Declaration of the Human Rights was adopted by the UN General Assembly on December 10, 1948. Whereby, under Article 26 not only the citizen's right to education against the State was recognised, but the prior common law rights of the parents was also acknowledged as part and parcel of the human rights setout therein, in the following terms:

“(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

(3) Parents have a prior right to choose the kind of education that shall be given to their children.”; and

6. WHEREAS since time immortal education has always been part and parcel of religious and social community based system of upbringing of children and the people and the society have all the freedom to decide the best course for the children, with minimal interference of the State; and

7. WHEREAS the people have a right of religious freedom and the right to liberty and freedom of conscience, speech and expression; and the freedom of education, to make a choice of education of ones own liking, is intrinsic to the fundamental rights guaranteed under the Constitution of India; and

8. WHEREAS despite the aforementioned UN Declaration adopted on December 10, 1948, initially when the Constitution of India was adopted on 26.11.1949, right to free and compulsory education was not recognized as a fundamental right of the people enforceable against the State; and

9. WHEREAS 53 years after India becoming a socialist democratic republic the right to free and compulsory education has been finally incorporated in the Indian Constitution as a fundamental right against the State by way of Constitution (Eighty-sixth Amendment) Act, 2002 inserting Article 21A, which reads as under:

Article 21A: The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine; and

10. WHEREAS in terms of the aforesaid Article 21A of the Constitution every child of the age of six to fourteen years has been assured of a fundamental right of free and compulsory education against the State. It makes the State duty bound to provide education to every child availing his right of free and compulsory education. It does not take away the prior rights of parents providing for the education of their children on their own, that is without invoking their right under Article 21A; and

11. WHEREAS in the present era of technology and advancements, education is no more limited/restricted to schools and is no longer thought of as an exclusive and the only source for earning bread and butter; and it is rather considered a vital tool for overall development and empowerment of human being and is aimed at the manifestation of human rights and values.

12. That lately Parliament has enacted the impugned Act purportedly to give effect to the State’s duty arising out of the aforesaid article of the Constitution and the same has been published by the respondent no. 1 in the Gazette of India, Part-II on August 27, 2009. As per the information and knowledge gathered by the petitioners from the details provided by the Ministry of Human Resources Development and published in various leading newspapers, including The Times of India on 13.02.2010, the said act is set to come into force with effect from April 01, 2010. A true copy of the news item published in this regard in The Hindustan Times newspaper is annexed herewith and marked as Annexure P-2.

13. That on detailed examination and study of the impugned Act and on the basis of legal advice received by them, the parents of the Petitioner no. 1 came to understand that the human right and common law right of the petitioners safeguarded by the Constitution of India, will get severely infringed and violated if the impugned Act is implemented and enforced in its present form.

14. That in the garb of effectuating the citizen right to free and compulsory education under Article 21A of the Constitution of India, the respondents are illegitimately seeking to control and regulate the educational institutions and the education system throughout the country.

15. That against the clear intent of the Constitution to provide “compulsory education”, and giving education a wider meaning distinguished from formal schooling, the respondents have arbitrarily and recklessly misconstrued the intent of the Constitution and replaced it with “compulsory schooling”.

16. That instead of aiming to achieve the purpose and object of the education for all, the respondents has misdirected their efforts to bring all children to school, as if schooling is the only mean and mode available for education. The impugned legislative is entirely misconceived and misdirected inasmuch as it is aimed against the now well established modes of education through distant and other means.

17. That blinded by their ulterior motives the respondents have even failed to recognise and appreciate the commendable work done and service rendered to the nation by its own institution namely National Institute of Open Schooling providing opportunity of self learning at their own pace to the children and elderly alike, providing them certificate for class III, VIII, X, and XII up to pre-degree level. Under the scheme of NIOS anyone can appear in the examination of the respective course/class and upon clearing gets awarded the certificate. So far more than 15(fifteen) lacs students, majority of whom are simultaneously either working or pursuing their dream pursuits, have been the beneficiaries of various programs of NIOS. Upon notification of the impugned Act, not only NIOS, catering the educational needs of poor and deprived class of children will become non-operational but other special schools such as Mirambika of the Petitioner No.1, and Homeschooling and other means and modes of education and those specially directed to instigate and bring out the creative capabilities of children and to direct and educate them towards a profession of their own choice and natural aptitude and capability will become illegal, to deprive the people of their prior right – a human right and a fundamental rights to choose education of their choice and means. Many parents in India have opted for homeschooling as the regular schooling has failed to nurture the nature of the children. On 16.01.2010, naitionaly daily Time of India carried a news item to the same effect , a true copy of which has been annexed herewith and marked as Annexure P-3.

18. That acting against the very objective and purpose of the right to free and compulsory education under Article 21A the respondents are not only seeking to overpower the people’s fundamental right to adopt educational system and to establish schools of their choice but the impugned Act has also resulted in taking away the parents’ prior right and common law right and the constitutional fundamental right and freedom of choice for the type and mode of education for their child.

19. That under sub-section (6) of section 7 read with section 29 of the Act, the Central Government has been empowered to prescribe the curriculum for education and to carryout evaluation of elementary education throughout the country; and under section 18 and 19 of the Act no privately funded school is anymore permitted to establish and function without the prior permission of the government. Furthermore, the Central Government has been given unfettered powers under section 20 to prescribe, omit or amend the norms and standards for the establishment and functioning of schools in the country.

20. That the provisions of the impugned Act are oppressive for the growth and sustainment of education in the country. Seemingly, the real and hidden purpose of the impugned Act is to empower the respondents to act totalitarian in manner and terms so as to pursue their own political agenda and to unduly influence the impressionable minds of children in their own way to control them and to make them their subservient for all time to come.

21. That the impugned Act has no reasonable nexus with the object it purportedly seeks to achieve. The motive behind the impugned Act is not to effectuate and implement the fundamental right guaranteed under Article 21A of the Constitution of India becomes more explicit and clear on making reference the various other provisions to the impugned Act.

22. That, whereas the basic hypothesis behind the Article 21A of the Constitution is to make the State duty bound to provide free education to every child, the impugned Act seeks to shift this burden upon the shoulders of parents.

23. Whereas under section 3 of the impugned Act the right to free and compulsory education is purportedly extended to every child of age between six to fourteen years, however by way of the inherently contradictory and self defeating provisions made under section 8 and 9 of the Act, a child admitted in a private school is not entitled to reimbursement of expenses incurred in his/her education, yet the parents of such a child have been placed under a bounden duty to compulsorily get the child admitted in a school.

24. That inasmuch as the Central Government has taken over the control of every school in the country in its own hands and no one is permitted to run a school as per his/her own standards, norms, and beliefs; and the parents have been placed under a bounden duty to compulsorily get the child admitted in a school, the parents and the children are being denied the freedom to get education at home or by other informal means/methods and the parent's prior right to decide the type, ways and means of education for their children are being infringed upon.

25. That the overall effect of the impugned Act is unlikely to promote and spread education but is bound to have a stifling effect and many existing schools including the school of the petitioner, not subscribing to the curriculum, norms and standards being prescribed by the government are very likely to be closed down. The undisclosed purpose of the impugned Act is to promote government sponsored education and schools and to render community based and other privately funded schools non-functional and non-operational.

26. That the respondents instead of achieving the aim of ‘education for all’ while retaining the people’s right to choose the education of their own liking by providing financial aid to the poor and by running campaigns to inform and enlighten uneducated masses of the benefits of the education can bring to their children, the sole aim and object of the respondent is to enslave the people’s mind, particularly those of the poor, deprived and vulnerable class of people.

27. That instead of empowering the poor, deprived and vulnerable class of people with additional and suitable help, and to empower them to realise of their own bad and good the respondents have empowered themselves to take decision on the behalf of these vulnerable classes, thereby depriving them of their rights, which they are obviously unaware of.

28. While the aim and object of education is full development of the human personality and to strengthen respect for human rights and fundamental freedom, the respondent in the name of providing education are snatching from the people the prior right and the fundamental and human right to choose the kind and means of education.

29. That the respondents failed to appreciate and distinguish the second onwards generation learners from the first generation learners who are in a dire need of state guided and sponsored education, while the latter need to be given the freedom and liberty in choosing the kind of education they wish to provide to their children. The impugned act is wrongly treating unequals as equals.

30. That the impugned act has failed to take into congnizance the diversified nature of the Indian society and has taken no measure to serve the diversified interest of various constitutionally recognized sections of the society.

31. That the impugned act has failed to take congnizance of the need to prescribe an education system which can nurture the nature of today's children and it has prescribed the same medicine to all patients without considering their background, their interest, their religion and their economic and mental capabilities and forcing them to gulp the medicine without their consent and knowledge. The socio-economic structure of our society finds no place in the impugned act in deciding the kind of education the state needs to provide to children belonging to diversified strata of our society.

32. That the respondents have completely ignored the fact that not only children withheld from pursuing their dream of becoming dancers, musician, painters, sportspersons etc. have opted to end their lives rather than giving in to the peer pressure of performing in academics, but such children need special attention and education to ignite/brighten their creative capabilities from very tender age itself and the educational system and school propounded by the respondents are entirely misfit to meet the demands of these children, who are assets and custodians of the future. The system must accommodate their demand and aspirations and provide them education which can help them realize their dream pursuits and do not let them get so stressed that they prefer ending their lives when pushed to opt for a wholly academics oriented education system. A true copy of the news item/report on this alarming trend amongst children published on 21.05.2008 and 01.02.2005 at an online newspaper available at http://www.indiatogether.org/2008/may/edusuicides.htm and http://www.indiatogether.org/cgi-in/tools/pfriend.cgi is annexed herewith and marked as Annexure P-4 Colly.

33. That academics oriented education is not for everyone and when children are pushed to pursue academics oriented education and neglecting their dream they prefer to end their life. The same can be assessed from the following.

According to statistics, around 16,000 committed suicides in India between 2004- 2006. Around five to six suicides occur a day in the country. This is alarming. One out of six children is clinically depressed," said Fauzia Khan. "Every parent wants their ward to specialise in engineering or medicine. In this scenario, a child comes under tremendous pressure.” as appeared on 21.01.2010 in news item in The Indian Express, a true copy of which is annexed herewith and marked as Annexure P-5. A deep analysis of this horrible and inhuman treatment being given to our children who are the assets to India and world at large shows that majority of them wanted to pursue their dream pursuits of becoming a musician or a dancer or a painter or a photographer but they were put on a road leading to engineering or medicine, a path which they were not equipped to move on.

34. BECAUSE in the event the respondents are not immediately checked and restrained and compelled to acknowledge the defective vires of the impugned RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT, 2009, it will continue to entail serious hardship by way of application and enforcement of illegal, unlawful, mala fide, arbitrary, unreasonable, discriminatory, freakish, bizarre and weird policy, practices and procedures by the respondents; net effect thereof is likely to setback and endanger the fundamental constitutional and human rights of the petitioners to the freedom of education, life and liberty, freedom of speech, expression and conscience, freedom of religion and of equality before law, ingrained under Part III of the Constitution, besides trivializing the internationally recognized most basic human right – a prior right of the parents to choose the kind of education that shall be given to their children; the petitioners having no other efficacious remedy, on being aggrieved by the disregard, and malafide attitude of the respondents in discharge of their constitutional duties and responsibilities, seeks the intervention and indulgence of this Hon’ble Court on the aforesaid grounds and amongst others, on the following:

G R O U N D S

I. BECAUSE the right to freedom of education is a fundamental constitutional right of the petitioners available to them as citizen against the respondents who all are State with in the meaning of Article 12 of the Constitution of India;

II. BECAUSE the respondents have constitutional, human, social and international obligation for the fullest realization and fulfillment of the above said rights of the petitioners;

III. BECAUSE the right to freedom of education has been recognized as one of the human rights available to the petitioners against the respondents under the UN Declaration of Human Right, 1949;

IV. BECAUSE the parents have a prior right to choose kind and means of education for their child;

V. BECAUSE the right to freedom of education is an unalienable human right and is of central importance for enjoyment of all economic, social and cultural rights available to the petitioners against the respondents;

VI. BECAUSE the right to freedom of education is indispensable for the overall and all round development of child in accordance with the best thoughts and beliefs of the parents and of their religious and social beliefs, practices and customs;

VII. BECAUSE the right to education being a basic human right is available to the petitioners against the respondents, without any discrimination and classification on any basis whatsoever including income levels and access to economic resources;

VIII. BECAUSE the said impugned Act causes a severe breach of fundamental rights of freedom of education, life and liberty, freedom of speech, expression and conscience, freedom of religion and of equality before law of the humble petitioners in contravention of Article 14, 19(1)a, 19(1)b, 21, 25, 26 and 28 under Part III and of local self-governance in the matter of education under Part IX and IXA of the Constitution of India and of the human rights recognised under the UN Declaration of Human Rights, 1949 and the UN Covenant on Economic, Social and Cultural Rights, 1966 enforceable under the domestic law;

IX. BECAUSE the provisions set out by the respondents under the impugned Act are in contravention of and are inconsistent with the mandate of the Constitution under Article 21A bounding the respondents to provide free and compulsory education to every child in the country;

X. BECAUSE the provisions of the impugned Act thereby seeking to regulate the education and the educational institutions/school are in contravention of and inconsistent with the mandate of the Constitution under Article 21 A and are ultravires the Constitution;

XI. BECAUSE the Article 21A does not empower the respondents to regulate and control education and schools;

XII. BECAUSE the aim and objective behind the Article 21A is to come to the aid of and to add to the existing schools and not to stifle and disband the private funded/ community based schools;

XIII. BECAUSE the surreptitious purpose of the impugned Act is to replace the community based education system and schools with that of the state controlled education system and schools;

XIV. BECAUSE the conditions laid down for the reorganisation of existing and upcoming private/community funded school are very unreasonable and arbitrary and amounts to taking away of the peoples fundamental rights of freedom of education, religion, expression, conscience, and speech, life and liberty, thus are unconstitutional;

XV. BECAUSE the impugned Act purportedly brought by the respondents to enforce the fundamental right under Article 21-A is entirely misdirected, it is farce, sham and deceptive and its purpose is entirely mischievous and malafide;

XVI. BECAUSE the impugned Act will have a grave effect upon the tender mind of the children devolved with special creative capabilities and will be detrimental to their growth, mental well being and instead of making them a national asset of proud it will render them a burden upon the nation and the society;

XVII. BECAUSE the impugned Act is entirely inconsequential to effectuate the right to free and compulsory education or to bring any relief to any cross sections of the society.

XVIII. That the above grounds are being taken without prejudice to one another and the petitioner craves leave to add or to amend the above grounds.

XIX. That no other writ petition or proceeding has been initiated by the petitioner in any other High Court or in Supreme Court of India on the aspects that may be subject matter of the present petition as well in the present context.

XX. That acting bonafide, and out of their concern for the public at large, the petitioners are filling the present petition not only to enforce the private and personal rights of the petitioners themselves but also in PUBLIC INTEREST.

XXI. That the petitioner has no alternative equally efficacious remedy in law for the time being in force, for the cause of action being agitated herein.

P R A Y E R

In the above premises, the petitioner is confident that Hon’ble Court will be pleased to award the following prayer(s) of its duty bound petitioners:

A. to issue a writ of or in the nature of mandamus and/or any other appropriate writ/s, order/s or direction/s quashing the impugned RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT, 2009 and being violative of the fundamental rights enshrined under Part III it be declared as inconsistent with and ultravires the Constitution of India and all effects thereof be declared null and void; or

B. in lieu of and alternative of prayer A to issue a writ of or in the nature of mandamus and/or any other appropriate writ/s, order/s or direction/s declaring the impugned section 10, 12, 16, 18, 19, 20 and 29 of the RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT, 2009 ultra vires the Constitution of India and all effects thereof be declared null and void; or

C. Pass such other writ, orders or directions as this Hon’ble Court deems fit in the circumstances of the case and in the interest of justice including the costs of this petition.

AND FOR THIS ACT OF KINDNESS, THE PETITIONER AS IN DUTY BOUND, EVER PRAY.

Filed on behalf of the Petitioners