Bombay High Court
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
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
: 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
: 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
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
::
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.)
(S.C.GUPTE, J.)
MST
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