Bombay High Court
Arun Digambar Joshi vs The State Of Maharashtra And Others on 11 July, 2013
Bench: D.Y. Chandrachud, S.C. Gupte
1 of 5 PIL.105.2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO.105 OF 2013
Arun Digambar Joshi Petitioner
versus
The State of Maharashtra and others Respondents
Mr.Samir A. Kumbhakoni for Petitioner.
Mr.S.K.Shinde, GP with Mr.A.B.Vagyani, AGP for State.
CORAM : DR.D.Y.CHANDRACHUD AND
ig S.C.GUPTE, JJ.
DATE : 11 July 2013
PC :
1. The Petitioner who is stated to be a director of an educational institution at Solapur and in the field of education for nearly forty three years, has challenged the constitutional validity of Section 16 of the Right of Children to Free and Compulsory Education Act, 2009 (`The Right to Education Act'). Section 16 of the Right to Education Act provides as follows :
"S.16 : Prohibition of holding back and expulsion :
No child admitted in a school shall be held back in any class or expelled from school till the completion of elementary education."
The contention of the Petitioner is that the restraint against holding back a child admitted to a school in any class till the completion of elementary education, has resulted in a deterioration of educational ::: Downloaded on - 27/08/2013 21:05:58 ::: 2 of 5 PIL.105.2013 standards. On this ground, it has been urged that the restraint that has been enacted in Section 16 is violative of Article 21A of the Constitution.
2. The Right to Education Act was enacted in order to provide for free and compulsory education to all the children between the ages 6 and 14. Article 21A of the Constitution was inserted by the Eighty Sixth Amendment in 2002. Article 21 A stipulates that the State shall provide free and compulsory education to all the children between the ages 6 and 14 in such a manner as the State may, by law, determine.
The Act defines `elementary education' in Section 2(f) to mean education from the first class to the eighth class. A `child' is defined by Section 2(c) to mean a male or female child of the age of six to fourteen years. Section 3 provides a right of free and compulsory education to every child in a neighbourhood school till the completion of elementary education. Section 8 casts a duty on the appropriate Government to provide free and compulsory elementary education to every child. Similar duties are cast on every local authority under Section 9.
3. The prohibition which has been enacted in Section 16 of the Act against holding back a child and the expulsion of a child from school until the completion of elementary education, is in pursuance of the legislative policy of ensuring universal access to elementary education to all children between the ages of six and fourteen. A child who is held back for want of an adequate `performance', assessed generally with reference to conventional evaluation methods such as ::: Downloaded on - 27/08/2013 21:05:58 ::: 3 of 5 PIL.105.2013 examinations is placed in a position of disadvantage in relation to his or her peers. A child who is held back and not allowed to progress to the next standard suffers from an intense psychological trauma resulting in a loss of self worth by being unable to attain the same level of proficiency as his or her peers and friends. This does not reflect a failure of the child but the inability of the teacher to address the needs of the child. The child is being conditioned by a social system which provides a disadvantaged environment. The Act casts an obligation on teachers in Section 24(d) to assess the learning ability of each child and to accordingly supplement additional instructions as are required. The Act casts obligations on the State and upon local authorities, schools and teachers to contribute in providing meaningful access to primary education on a universal basis to all children between the ages of six and fourteen until they complete elementary education. The obligation of doing so is assumed by the State. As a necessary corollary, a child who is a victim of a social handicap, is protected against the imposition of measures such as holding back or expulsion, which are liable to result in a loss of identity and add to prejudices. Children constitute the building blocks of society and define the future of the nation. Impressionable and vulnerable, children have to be moulded for the future by allowing them to grow up in an environment which promotes creativity, encourages a search for their intrinsic talents and fosters respect for diversity and inclusion. To hold back a child or expel a child from elementary school is wrong because it transfers the duty of an enabling school environment from the teacher to the taught. On the contrary, to render the Act responsive to the needs of ::: Downloaded on - 27/08/2013 21:05:58 ::: 4 of 5 PIL.105.2013 our young, teachers have to be evaluated periodically and their skills have to be upgraded by the State by a continuous process of learning. Far from violating Article 21A, as the Petitioner asserts, the provisions of Section 16 advance its object.
4. It is a matter of common knowledge that in many cases children are held back as a result of the inability of the parents to shoulder the financial burden of education for the children in the family. Parliament was evidently conscious of these social realities and the provision has, therefore, been carefully enacted to ensure that children are not victims of an unequal social system. If a child needs special attention, a duty is cast upon the teacher and the institution to take all measures. The underlying principle is that a child should not be penalized for a situation on which he or she possibly can have no control. The submission that this would lead to a deterioration of academic standards, is untenable. First and foremost, the term "academic standards" is itself capable of more than one meaning and content. To assess education merely in terms of the proficiency in an examination is to adopt an extremely narrow view of the object of education. Education particularly at the elementary level must emphasise the need to encourage a child into a holistic pattern of development which is ethical and value based.
5. For these reasons, we are of the view that the policy which is embodied in Section 16 was one which fell within the domain of Parliament as an enacting body. It would be impermissible for the Court in the exercise of its writ jurisdiction to reassess the wisdom of ::: Downloaded on - 27/08/2013 21:05:58 ::: 5 of 5 PIL.105.2013 the policy adopted by the Parliament which in any event is both fair and proper. We are, however, of the view that the State must ensure a process of continuous evaluation of teachers and put in place a scheme for upgrading skills for teachers. For these reasons, we dismiss the petition. There shall be no order as to costs.
(DR.D.Y.CHANDRACHUD, J.)
ig (S.C.GUPTE, J.)
MST
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