Tuesday, February 24, 2009


The Right of Children to Free and Compulsory Education Bill, 2008 (hereinafter referred to as RTE Bill, 2008) introduced by the Central Government in the Rajya Sabha on 15 December 2008 though appears to be a progressive legislation but on examination thereof, it is not difficult to conclude that the same does not stand the test of constitutional mandate guaranteed under Article 14 (right to equality), Article 21 (right to life with dignity), Article 21-A (right to education) and Article 38 (right to social justice) of the Constitution of India.

Undoubtedly, some of the provisions of the RTE Bill, 2008 are laudable. Section 3 talks of right to free and compulsory education and admission in a neighbourhood school. Section 4 talks of admission of child in class appropriate to his or her age. Sections 8 & 9 talk of obligations of the government to provide compulsory education to children. Section 12 talks of obligation of the unaided recognised private schools to provide free seats to the extent of 25% to the children of the economically weaker sections. Section 13 (1) talks of “no capitation fee” and “no screening procedure” for admission. Section 14 talks of admission without insisting upon production of age proof. Section 16 talks of “no expulsion of a child”. Section 17 bans corporal punishment. Section 23 talks of formation of school management committees. Section 23 ensures recruitment of only qualified teachers. Section 25 talks of ensuring Pupil-Teacher Ratio as specified in the schedule. Section 32 talks of grievance redressal mechanism.

On the other hand, several provisions of the RTE Bill, 2008 are meant to legalise and to perpetuate the existing unjust and discriminatory school education system based on socio-economic status. Section 3 (b) defines “capitation fee” means any kind of donation or contribution or payment other than the fee notified by the school. The import of this provision is that a school is free to notify any amount of fee whether needed or not and once it is notified, it will be legal. The Bill does not provide any fee regulatory mechanism to check the menace of commercialisation of education. Moreover, the right of every child to receive free and compulsory education as guaranteed under Articles 21 and 21-A of the Constitution does not depend on the capacity of the parents to afford fee or not. Therefore, every child whether studying in private or State-run school, is entitled to free education. The State should bear the entire expenses even of the children studying in private-run schools. On the other hand, Section 8 disentitles a child studying in such private school even to claim from the State the reimbursement of expenditure incurred.

Section 2 (n) instead of permitting only same category of schools for all the children, sanctifies different categories of schools for the children of different socio-economic status. Most objectionable is; “a school belonging to specified category”. Section 2 (p) defines “specified category” in relation to a school, means a school known as Kendriya Vidyalaya, Sainik School or any other school having a distinct character which may be specified by notification, by the appropriate Government. How can you have such a specified category of school with ‘State Funding’ which does not provide equal opportunity to all the children in the matter of admission? That providing only 25% of seats to the children of weaker sections in such ‘specified category of school’ is a cruel joke.

Section 7 talks of sharing of financial responsibilities between the Centre and the States. It appears that the Central Government does not want to provide funds to the States uniformly. The State Governments cannot insist upon the Central Government to provide funds more than what is provided under Section 7 (3). The State Governments have been made responsible to provide funds for implementation of the Act. It is submitted that unless the Central Government takes upon itself to provide entire funds for the implementation of the Act, the object of the Act is not possible to be achieved, particularly when the State Governments have publicly declared their inability to implement the Act on account of paucity of funds.

Section 10 talks of duty of parents to admit his child in neighbourhood school. It is submitted that the duty of parent is alright but where is the duty of the State to bring the child to the school. The State has completely absolved itself of such duty. Section 13 (2) provides punishment with fine against a school, if it is found violating the provisions relating to ‘no capitation fee and screening procedure for admission’. Interestingly, the Central Government has lost sight of the fact that if a school is punished with fine; such amount of fine would simply be passed on by the school to the children by levying the same in the fee slip. It is submitted that thereby it is the child and not the school which would be punished. What is required is the punishment with imprisonment and not merely punishment with fine.

Section 26 permits the Government to keep the vacancies of the teachers unfilled up to 10% of the total sanctioned strength. It is a well known fact that on average 10 % of the teaching staff at a time remains on leave for one reason or another. Therefore, there is a need to have 10% extra teaching staff instead of reducing it by 10% as contemplated in the RTE Bill, 2008. Section 31 talks of monitoring of child’s right to education by NCPCR. Experience with all the Commissions including NCPCR is that all these Commissions work like the department of the Government. Moreover, the Government has not so far appointed full strength members in the NCPCR. It is submitted that the District Judge of every District in the country, should be entrusted with the work of monitoring of child’s right to education. I am conscious of the fact that the Hon’ble Judges are already burdened with deciding so many pending cases but one can not lose sight of the fact that the right to education is a most precious human and fundamental right and any further delay in implementation of the same would be a great peril to the nation. The Bill does not at all talk of accountability of the authorities. Unless there are provisions for the penalties against the erring authorities similar to those available in the Right to Information Act, 2005, it is really doubtful if the authorities would honestly perform their tasks.

Our constitutional goal is to achieve casteless and classless society as has been highlighted by a seven-judge bench of the Hon’ble Supreme Court in the recent decision in OBC reservation in educational institutions case. The Government should have brought a Bill which would have directions towards casteless and classless society. However, the Bill in the present form, on the other hand, perpetuates the inequality and unjust discrimination amongst the children in the matter of right to education. That while expressing the above concerns regarding the serious drawbacks of the RTE Bill, 2008 particularly when it fails the test of Constitutional mandate, it cannot be over emphasised that the Bill should not be delayed any further on account of need to have a more comprehensive national debate on the same in the interest of the future of the children.

(author can be contacted at
-by Ashok Agarwal, Advocate

Sunday, February 22, 2009


Indian rulers are even worst than the British rulers. They have eaten away the entire wealth of the common people. Only common people will teach them.
ashok agarwal, advocate

Saturday, February 21, 2009



The management of M/s Parrys Confectionery Limited terminated services of its four workers namely; S.P.Kapoor, N.N.Nayar, J.C.Bhatia and O.P.Dhingra on 26.09.1975. These workers raised an industrial dispute before the Labour Court under the Industrial Disputes Act, 1947 challenging the validity of their termination of services claiming reinstatement with full back wages and continuity of services. During the pendency of the dispute before the Labour Court, two of the workers namely S.P.Kapoor and O.P.Dhingra died. The Labour Court passed Award dated 05.08.1995 dismissing the claim of the workers holding that they were not ‘workman’ within the meaning of the Industrial Disputes Act, 1947 and therefore, not entitled to any relief.

The workers challenged the Labour Court Award in the Hon’ble Delhi High Court by way of writ petition under Article 226 of the Constitution of India in March, 1996. The writ petition remained pending disposal till 20.02.2009 when the Hon’ble Mr. Justice Kailash Gambir of Hon’ble High Court finally heard and decided the case. The Hon’ble Judge remanded the matter back to the Labour Court for reconsideration after taking into account the documentary evidence having been produced by the workers in support of their case. Mr. Ashok Agarwal, Advocate who appeared for the workers before the Hon’ble High Court argued that the Labour Court erred in law as it had failed to appreciate the documentary evidence having been produced by the workers in support of their case.

Though the Judgement of the Hon’ble High Court has come in the favour of the workers but there is nothing to celebrate the same as the workers after fighting the legal battle for more than 34 years for justice are still back to square one. Though the Hon’ble High Court has expressed hope that the Labour Court would decide the case as expeditiously as possible, no body knows when the Labour Court would hear and decide the case once again. Two of the workers are not alive and the other two, though have not yet lost the hope, but have a grudge against the present justice delivery system.
By Ashok Agarwal, Advocate

Monday, February 16, 2009

Legal intervention to avail right to education and right to health - A report on Mr.Ashok Aggarwal's lecture

By Guest Blogger: Sandeep Vishnu

[Student, III Year, Campus Law Centre, Delhi University]

As part of its ongoing series of guest lectures, the Seminar and Discussion Committee of Campus Law Centre, Delhi University invited advocate Mr. Ashok Aggarwal from Social Jurist on February 5. The subject of his talk was “Legal intervention to avail right to health and right to education.”

Mr. Aggarwal has been practising at the bar since 1982 and has been instrumental in filing numerous PILs on rights of citizens against hospitals and schools, both government and private-run.

The first part of the talk was devoted to the present status of the right to health available to the poor in India. Mr. Aggarwal talked of the effort it takes to make your voice heard when it comes to assertion of your basic rights. Giving examples of actual situations faced by poor patients who could not afford to spend any money on their medical treatment, he expressed dissatisfaction at the state of affairs in government hospitals. He stated that nothing is mandated by our law as such when it comes to free treatment of the poor and needy in government and private hospitals. He had filed a writ petition in 2002 in the Delhi High Court in this regard.

Mr. Aggarwal pointed out that the law in India does not mandate anything like basic health care to every citizen, but was of the opinion that health and education must be made free at all levels as is the case in some countries such as Cuba. It would be a good futuristic investment to do that, especially when the current situation reeks of arbitrariness in policy making and failure in deliverance of promised constitutional goal of social justice.

When the writ petition was filed in 2002, the data depicted a large number of hospitals run by numerous societies which were operating on subsidized government allotted land. But as a matter of social responsibility towards the poor, neither the hospital authorities nor those in the health department of the government were contributing anything. The writ petition started to yield some positive results when the Court ordered private hospitals, built on land allotted by government authorities at subsidized rates, to provide free beds and free OPD treatment for a fixed percentage of patients.

Now it is possible to see the effect in private hospitals, some of whom have already fixed the number of free beds for economically weaker sections (EWS) and also give free OPD treatment as per guidelines, while more are following suit. He stated that some prominent hospitals like Gangaram, Fortis etc. have contributed a lot of money towards treating the needy. Word of mouth has been the best possible propaganda here. But the condition of government hospitals still leaves a lot to be desired.

Mr. Aggarwal also briefed the audience regarding the sorry state of affairs in some of these hospitals where stray animals breed on beds or medicines are rarely available and stated that to overcome such situations, judicial orders and the media have sometimes temporarily buzzed the sleeping government machinery. Overall picture seems to show that while private health care players have realized that it is necessary to take care of the poor and the needy as a social goal, the government is yet to come to terms with the idea of being the policy maker in this regard and taking a big leap by legislating in this direction so as to motivate more private investment and more contribution in the vindication of this primary social goal.

The second issue regarding the Right to education was essentially taken up on constitutional grounds of directive principles of state policy like Articles 38 , 39 & 45 which aspire for a welfare state and have been given the same weightage as fundamental rights , although the former remain non justiciable. Fundamental Rights in Article 14, 21 & Article 21-A were highlighted in due course along with Fundamental duties in Article 51-A.

Mr. Aggarwal pointed out that in 1993 when the Unnikrishnan judgement was delivered by the Apex Court, it was clear that Article 45 mandates early childhood care and education for all children below 6 years of age. By 86th Amendment in 2002, Article 21-A was inserted into the Constitution mandating the state to provide free & compulsory education to all children between 6 to 14 years of age. But none of the above articles have seen the light of enforcement yet. In such a grim situation Mr. Aggarwal has himself filed over 125 cases including PILs and writs in the High Court as well as Supreme Court in this regard.

According to Mr. Aggarwal, the insertion of article 21-A requires that no child should be out of school and that there is also a ban on all forms of child labour in the age group 6-14 years. He was of the view that our central legislations in this regard are not yet in tandem with the constitutional right to education. In this regard in one of the cases filed in the Supreme Court has been to declare child labour as unconstitutional and to ensure that all future legislations are in tune with our social welfare goals and aspirations.

Another highlight of the talk was the prevalent discrimination in allotment of funds by the government to Kendriya Vidyalayas and other government or Municipal schools. Mr.Aggarwal was of the opinion that all government schools should be treated at par with each other, parallel schooling systems should be done away with and the current pending draft of Right to education Bill should be fast tracked to regulate schooling in the country. The Apex Court has been requested that pending the legislation, guidelines in relation to minimum and basic facilities be framed.

In 1997, when the 5th Pay Commission recommendations were introduced, almost all private schools hiked their fees manifold. When a PIL was filed in the High Court of Delhi, it was felt by the Court that although free education mandate cannot strictly apply to the private schools they must not be allowed to commercialize on such a big scale and must be held accountable by charging just and reasonable fees from children. While the High Court ordered a set of guidelines to the private schools, the appeal of the latter was dismissed by Supreme Court.

Another PIL discussed by him was with regard to lack of proper buildings and other basic facilities in government and MCD schools, which as a campaign, was also supported by the print media. As per the directions issued on the basis of evidence produced in the court, every school is now required to have fixed boundary walls, toilet and drinking water facilities in working condition. Mr. Aggarwal remarked that today we have come a long way, yet the only thing that is lacking in such schools is quality education.

Mr. Aggarwal also highlighted the plight of the children of the jhuggiwalas, the ragpickers etc. in Delhi who want to have basic education but are denied this right and are most often discriminated against for no fault or reason. He has taken up various such matters in the High Court and it has been seen that after initial troubles, justice certainly triumphs. As was the case in health care, the government allots land at subsidised rates to various societies for setting up schools and approximately 265 such schools were listed before the High Court who were doing nothing for the sake of imparting education to the EWS, in spite of the Court's directions in this regard in 2004.

Another issue was the interviewing process of the 3-year olds by the schools in the name of assessing their values and talent as per the school's reputation. The High Court has dealt sternly with the situation and ordered that no such school on government allotted land shall deny admission to the EWS children and that no such interviews shall be permitted any more. Even the Government schools found violating such admission orders have been warned against this practice.

The message conveyed to the audience was that it is not personal grudge but honesty of purpose that is required for a sincere effort towards making of a better society where every person is healthy and educated. It is advisable to form social pressure groups for such purposes and keep litigation as the last alternative. Mr. Aggarwal felt that his efforts showed visible impact, as is evident by the 25 per cent quota for EWS in Delhi private schools or as is visible in the list of over 35 private hospitals with free beds and free OPD facilities.