Appointment of Special Education Teachers

Appointment of Special Education Teachers in Government & MCD run schools in Delhi for education of children for disabilities – Delhi High Court on 22.12.2010 in the matter of a contempt petition filed on behalf of Social Jurist, A Civil Rights Group against Delhi Chief Secretary and MCD Chief complaining violation of Delhi High Court order dated 16.09.2009 passed in W.P. (C) No. 6771/2005, directed Delhi Government and MCD to file their compliance report before 15.02.2011, the next date of hearing in the case.

Formal schools of Delhi may admit children at the age of 3+ yrs at their own peril

Formal schools of Delhi may admit children at the age of 3+ yrs in pre-primary/nursery class in the academic year 2011-12 at their own peril as the same would be in violation of Delhi High Court Order of 26.09.2007 – Contempt petition against the Delhi Chief Secretary complaining failure on the part of the Delhi Government to implement Delhi High Court Order dated 26.09.2007 passed in PIL (W.P.(C) No. 12490 of 2006) ruling that there would be one year of pre-primary class only with minimum entry age of 4+ yrs therein for a child from the academic year 2008-2009 is pending in the Hon’ble Delhi High Court and the next date of hearing is fixed for 11.01.2011. In the meanwhile, the petitioner Social Jurist, A Civil Rights Group will be filing an additional affidavit in the Hon’ble High Court detailing a list of the formal schools which are going to admit children at the age of 3+ yrs in the pre-primary/nursery class in the forth coming academic year of 2011-2012.

NURSERY ADMISSION BLUES - AIPA WRITES TO SONIA GANDHI SEEKING INTERVENTION

ALL INDIA PARENTS ASSOCIATION

AGARWAL BHAWAN, G.T.ROAD, DELHI-110054

To,

Smt. Sonia Gandhi

Chairperson,

National Advisory Council,

Government of India,

2, Motilal Nehru Place,

New Delhi-110001

18.12.2010

Subject: Stop Delhi Govt to violate RTE Act, 2009 in the matter of nursery admission criteria for admission of fee-paying students in unaided private schools.

Respected Smt. Soniaji,

We are seeking your intervention in an urgent matter where the Delhi Government by an order of 15.12.2010 has given totally free hand to all the unaided private schools of Delhi to formulate their own nursery admissions criteria based on categorisation of the children for admission in schools in the academic year 2011-12. It is submitted that the said order of Delhi govt is contrary to the provisions of the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act, 2009) and would only lead to further commercialisation of education at the cost of hapless parents/students. Such categorisation of children is impermissible under RTE act 2009.

Madam, you are well aware of the fact that the fee-paying parents are already being exploited by the unaided private schools all over the country by subjecting them to arbitrary and exorbitant fee-hike every year. It is submitted that the AIPA has been demanding an enactment of a Central Law to regulate fee and other charges in unaided private schools all over the country.

We would like to bring to your notice that prior to the academic session 2006-07, there was no check at all on the unaided private schools of Delhi in the matter of admissions of children in nursery classes and the schools were unethically resorting not only to subjecting children of 3+ years age and the parents to written test and interview but also adopting totally discriminatory, non-transparent and unaccountable method of selection of children for admission. In this back drop, the issue was raised in the Hon’ble Delhi High Court in LPA No. 196/2004. The Hon’ble Delhi High Court by order dated 4.9.2006 constituted an experts committee known as ‘Ashok Ganguly Committee’ to look into the matter and make recommendations keeping in view three parameters, namely,

I) The entire process leading to admission of tiny tots should be transparent;

II) System of interview should be eliminated, &

III) Discretion of management or principal is minimised.

After the Ashok Ganguly Committee submitted its report to Hon’ble Delhi High Court, the Hon’ble Court by order dated 7.10.2006 directed schools to follow the criteria having been laid down by the Committee for admissions in the academic year 2006-07 on an experimental basis. Thereafter, the High Court by order dated 8.03.2007 asked the same committee to ‘fine tune’ the criteria in view of the experience of earlier criteria. Thereafter, the Committee submitted another report to the Hon’ble High Court thereby suggesting some changes in the earlier 100-points criteria. The Hon’ble Court asked the Delhi Govt to examine the report and take a decision thereupon. The Govt. of Delhi in its cabinet meetingof 3.9.2007 took decision on the report of the committee and placed a draft provisions before the Hon’ble Court and the Hon’ble Court in the view of the matter, disposed of the petition by order dated 19.11.2007 with right to the parties to approach and file appropriate application, if required. Thereafter, the Govt of Delhi notified the RECOGNISED SCHOOLS (ADMISSION PROCEDURE FOR PRE-PRIMARY CLASS) ORDER, 2007. In terms of the said Order of 2007, the unaided private schools were given freedom to formulate their own admission criteria based on 100-points system. It is submitted that though criteria based on the 100-points system was arbitrary, discriminatory and throughout remained a subject of controversy but the same has continued till date.

It is submitted that on coming into force of RTE Act, 2009 w.e.f. 01.04.2010, the prevailing criteria based on 100-points system is no longer valid. The RTE Act, 2009 expressly mandates random method only. Section 2(o) of the RTE Act, 2009 defines “screening procedure” means the method of selection for admission of a child, in preference over another, other than a random method. Section 13 (1) of RTE Act, 2009 mandates that “no school or person shall, while admitting a child collect any capitation fee and subject the child or his /her parents or guardian to any screening procedure. Section 13(2) of RTE Act, 2009 prescribes punishment against school/person who contravenes the provisions of Section 13(1) RTE Act, 2009.

It is unfortunate that the Delhi Govt instead of bringing regulations falling in the line of the provisions of the RTE Act, 2009 which not only completely prohibits “Screening Procedure” but also makes it an offence punishable at law, the Govt of Delhi by order of 15.12.10 has allowed the unaided private schools to have complete freedom to formulate its own criteria based on categorisation of the children in accordance to their policy which can include sibling, transfer case, single parents and alumni. It is submitted that the policy of the schools is to make money only.

It is submitted that the afore-mentioned order of Delhi Government permitting the unaided private schools to formulate their own admission criteria based on categorisation of children is not only unjust, arbitrary, irrational, non-transparent, discriminatory but also violates the provisions of RTE Act 2009 with impunity. Instead of eliminating the arbitrariness and the discretion of the schools and protecting the interest of hapless parents/children as desired by the Hon’ble Delhi High Court, the Government of Delhi has surrendered itself totally before the private schools lobby.

It is submitted that ‘neighbourhood + draw of lots’ is the only criteria which is just, scientific, fair, transparent and non-discriminatory and stands the test of the provisions of RTE Act, 2010. Any other criteria would be unjust, arbitrary, discriminatory, unconstitutional, anti-child-rights and also contrary to the intent and the object of the RTE Act, 2009.

It is submitted that despite wide-spread public opposition to the aforesaid decision of the Delhi Government, the Govt of Delhi is proceeding further with the said decision. Needless to say that the said decision of the Delhi Government has sent a wrong message to the entire country. Delhi being a national capital is expected to act as a role model but in the present case, unfortunately, it has set a very wrong precedent which is against public interest and opposed to public policy.

There is one more aspect to be brought to your notice. A controversy regarding what should be the minimum age of a child for entering into formal school system had been a subject matter of a PIL (WP (C) No. 12490/2006, Social jurist, A Civil Rights Group vs. Union of India and others) before the Hon’ble Delhi High Court. In this case also, the Hon’ble Delhi High Court requested the Ashok Ganguly Committee to look into the matter and submit its recommendations. The said Committee placed its report before Hon’ble High Court recommending that children below 4 years of age should not be permitted to enter into formal school system and that it should be implemented from the academic year 2008-09 in all schools. Due to the intervention of Hon’ble High Court, the Government of Delhi accepted the recommendations of the Committee in entirety and made a commitment by way of an affidavit before the Hon’ble High Court to implement the same in its true letters and its spirits from 2008-2009. The afore-mentioned order of 15.12.2010 of Delhi Govt has totally over looked the said aspect of ‘entry age’ of children in school. The Hon’ble Education Minister of Delhi, Mr. Arvinder singh lovely has publically stated that entry age of children shall continue to remain as 3+ years. It is submitted that the Govt. of Delhi appears to have totally forgotten their obligation to protect the rights of the tiny tots. We have no hesitation to say that the Government of Delhi is only and solely looking after the commercial interests of the unaided Private schools and has utterly failed to protect the interest of the hapless parents and children.

It is, therefore, requested that you may please intervene in the matter and ensure that the Government of Delhi reconsiders their order of 15.12.2010 and modify the same in the light of afore-mentioned submissions.

With regards

Ashok Agarwal, Advocate

National President, AIPA

M – 09811101923

18.12.2010

NURSERY ADMISSIONS BLUES - Govt Order dt. 15.12.2010 is Devoid of Legal Sanctity

Delhi Govt order of 15.12.2010 containing nursery admissions guidelines is simply an order having no legal sanctity and therefore, having no legal consequences.The order has been issued neither under the provisions of the RTE Act, 2009 nor under the provisions of Delhi School Education Act ,1973 nor under any law for the time being inforce. Even the order does not spells out under which provisions of law , the Delhi Govt., Directorate of Education has issued the same.

Ashok Agarwal, Advocate
Advisor, Social Jurist
17.12.2010
M-09811101923

Legal Practitioners (Regulations and Maintenance of Standards in Professions, Protecting the Interest of Clients and Promoting the Rule of Law) Act

Undoubtedly, there is a need to check exploitation of litigants and clients by legal professionals including advocates and the State Bar Councils have not been able to check such exploitation. The existing law is adequate but implementation thereof is zero. The professional standards are deteriorating day by day. The working conditions available to most of the lawyers are pitiable. Many lawyers resort to short-cuts to become rich over-night. Socio-economic conditions are also responsible. The proposed law –‘Legal Practitioners (Regulations and Maintenance of Standards in Professions, Protecting the Interest of Clients and Promoting the Rule of Law) Act, 2010 is no a solution.

Draft of Protection of Women Against Sexual Harassment at Work-place Bill, 2010

Union Cabinet approval of the draft of Protection of Women Against Sexual Harassment at Work-place Bill, 2010 is little late but a great step. The proposed legislation provides a wide umbrella of justice to women who face sexual harassment at their workplace in public, private and unorganized sectors. The importance of any social legislation depends upon its effective implementation. The women labour particularly in unorganized sector is deprived of all basic human and fundamental rights.

RTE Act, 2009 discourages govt employees to send their wards to unaided schools - SJ writes to GOI to enforce S 8(a) & 9(a) of RTE Act, 2009

SOCIAL JURIST
A Civil Rights Group

To, 03.11.2010
The Secretary,
Govt. of India,
Ministry of Personnel, Public Grievances and Pensions,
Shastri Bhawan, New Delhi-110001


Sub:- Enforce Sections 8(a) and 9(a) of RTE Act, 2009 prohibiting govt. employees to claim reimbursement of school fees at elementary level

Dear Sir,

I invite your kind attention to Sections 8(a) and 9(a) of Right of Children to Free and Compulsory Education Act, 2009 (RTE, Act 2009) which are reproduced as under:-

“8. Duties of appropriate Government.- The appropriate Government shall –
(a) provide free and compulsory elementary education to every child:

Provided that where a child is admitted by his or her parents or guardian, as the case may be, in a school other than a school established, owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or a local authority, such child or his or her parents or guardian, as the case may be, shall not be entitled to make a claim for reimbursement of expenditure incurred on elementary education of the child in such other school.

9. Duties of local authority.- Every local authority shall-
(a) Provide free and compulsory elementary education to every child.
Provided that where a child is admitted by his or her parents or guardian, as the case may be, in a school other than a school established, owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or a local authority, such child or his or her parents or guardian, as the case may be shall not be entitled to make a claim for reimbursement of expenditure incurred on elementary education of the child in such other school;”

You are well aware of the fact that the RTE Act, 2009 has come into force w.e.f. 01.04.2010. My understanding of the aforementioned provisions of the RTE Act, 2009 is that the parents or guardians, as case may be, w.e.f. 01.04.2010 are not entitled to claim re-imbursement of expenditure incurred by them on elementary education of their wards studying in unaided private schools. It would obviously include parents or guardians employed with Govt., Semi-Govt., Govt. Undertakings, Universities and Govt. Autonomous Institutions, etc. and sending their wards to the unaided private schools. The objective of the aforementioned provisions appears to discourage the government employees to send their wards to unaided private schools.

It has come to my notice that the employees employed with above said institutions and organizations and sending their wards to unaided private schools have been submitting their claims to the departments for re-imbursement of expenditure incurred by them on their wards studying in such schools and such claims are being sanctioned by the departments. It is submitted that such claims of the employees are in violation of the aforementioned provisions of the RTE Act, 2009.

You are, therefore, requested to kindly examine this matter and do the needful with intimation to the undersigned.

With regards,


Ashok Agarwal, Advocate
Advisor, Social Jurist
M-09811101923

SJ writes to DOE to enforce RTE Act, 2009 prohibiting govt. employees to claim reimbursement of school fees

To, 02.11.2010

The Director of Education,

Govt. of NCT of Delhi,

Old Secretariat Building,

Civil Lines, Delhi-110054

Sub:- RTE Act, 2009 prohibits govt. employees to claim re-imbursement of school fees at elementary level

Dear Sir,

I invite your kind attention to Sections 8(a) and 9(a) of Right of Children to Free and Compulsory Education Act, 2009 (RTE, Act 2009) which are reproduced as under:-

“8. Duties of appropriate Government.- The appropriate Government shall –

(a) provide free and compulsory elementary education to every child:

Provided that where a child is admitted by his or her parents or guardian, as the case may be, in a school other than a school established, owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or a local authority, such child or his or her parents or guardian, as the case may be, shall not be entitled to make a claim for reimbursement of expenditure incurred on elementary education of the child in such other school.

9. Duties of local authority.- Every local authority shall-

(a) Provide free and compulsory elementary education to every child.

Provided that where a child is admitted by his or her parents or guardian, as the case may be, in a school other than a school established, owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or a local authority, such child or his or her parents or guardian, as the case may be shall not be entitled to make a claim for reimbursement of expenditure incurred on elementary education of the child in such other school;”

You are well aware of the fact that the RTE Act, 2009 has come into force w.e.f. 01.04.2010. My understanding of the aforementioned provisions of the RTE

Act, 2009 is that the parents or guardians, as case may be, w.e.f. 01.04.2010 are not entitled to claim re-imbursement of expenditure incurred by them on elementary education of their wards studying in unaided private schools. It would obviously include parents or guardians employed with you and sending their wards to the unaided private schools. The objective of the aforementioned provisions appears to discourage the government employees to send their wards to unaided private schools.

It has come to my notice that the employees employed with you and sending their wards to unaided private schools have been submitting their claims to the department for re-imbursement of expenditure incurred by them on their wards studying in such schools and such claims are being sanctioned by your department. The HOS of your schools are not aware of these provisions of law. It is submitted that such claims of the employees are in violation of the aforementioned provisions of the RTE Act, 2009.

You are, therefore, requested to kindly examine this matter and do the needful with intimation to the undersigned.

With regards,

Ashok Agarwal, Advocate

Advisor, Social Jurist

M-09811101923

Penalty for participating in CWG – School threatens students to deny Maths in the Commerce Stream

25 Class XI students of G. D. Salwan Public School, Rajender Nagar, New Delhi participated well in CWG and could not study for 20 days. Immediately after CWG, they were asked to take exams. All of them could not do well in Maths paper. Now the school has threatened parents that the students would not be allowed maths in Commerce Stream.

The above contemplated action on the part of the school is totally unjust, arbitrary, illegal and unconstitutional. The school has no moral or legal authority to spoil the career of the students.

NCERT Expert Committee on RTE Act, 2009

Salient features of the recommendations (03.03.2010) of the NCERT expert committee headed by lawyer-activist Ashok Agarwal on Development of a Policy Framework for Implementation of the Right of Children to Free and Compulsory Education ACT 2009 in Schools in the NCT of Delhi

1. One Unified Body: All State provided School Education (MCD, NDMC, Cantonment Board, Govt.) should be administered by one unified body-i.e. Government of NCT of Delhi and its schools managed with due regard to decentralization of responsibility; this body should also accord approval to all proposed academic changes, such as of textbooks, pattern of evaluation, medium of instruction etc. It should also be referred to for closure of any school.

2. Convert Double Shift Schools into Single Shift :All double shift schools would need to be forthwith converted to single shift schools, with the teacher pupil ratios as specified in the Schedule. The distance and accessibility norms will have to be adhered to and arrangements made to address any cases of difficulty anticipated or experienced. Supplemental instructions to children, including children with disabilities who have been (age appropriately) enrolled in classrooms will have to be carefully monitored, (and arrangements created for the same) in order to ensure that teachers are child friendly, and the teaching learning environment remains free from anxiety.

3. Only Full Time Formal Schools: All alternative modes of education such as for example ‘bus schools’ and other para formal schools would have to be replaced by full time formal schools.

4. Change Mode of Admission in Pratibha Vikas Vidyalayas: The right of all children to equal opportunities at this stage would render the ‘Pratibha Vikas Vidyalayas’ and their mode of selective admission as contrary to the spirit of the Act, at least till the end of class eight.

5.. No Extra Fee from Children with Disabilities: The rights of equitable access to private schools will also have to be strictly monitored by the Government of NCT of Delhi in order to ensure that children with disabilities are not discriminated against in their access to the school, nor are their parents asked to pay more fees because they have ‘special needs’. Sample checking and research is recommended to ensure equal opportunities in all schools for children with disabilities.

6. Inclusive Education to Children with Disabilities: As per orders dated 10.09.2009 of the Hon’ble High Court of Delhi in W.P.(C) No. 6771 of 2008 entitled Social Jurist, A Civil Rights Group vs. Govt. of NCT of Delhi, An Action Plan for education of children with disabilities was prepared. This committee recommends the implementation of the Action Plan for the implementation of the RTE. The needs of children with disabilities (Section 3) will need to be addressed through inclusive classrooms in accordance with the provisions laid down in Article 24 of the UN Convention on the Rights of the Persons with Disabilities (2008) as ratified by the Government of India.

7. Appoint RTE Protection Officers: Posts of ten ‘attendance officers’ existed in the MCD and at one time were expected to deal with admission, and truancy in relation to compulsory education. Similar posts need to be created, and renamed for the implementation of the RTE. This committee also recommends that in view of the expansion of number of schools, and enrolment, the number of officers may be increased adequately. These posts may rightly be renamed as ‘Right to Education Protection Officers’ and as part of their duties they should:

§ constantly ‘walk their beat’ especially at construction sites, garbage dumping grounds, urban villages etc. looking for children who should be in school;

§ enable out of school children to secure admission;

§ coordinate between home and school for children

§ coordinate with community groups, especially mothers

§ ensure issuance of transfer certificates

§ respond to reports of violation of child rights

§ serve to support admission and retention of children in government and private schools

§ all tasks related to service as a ‘nodal officer’ for right to education

8. Road Marshals through Volunteers of NCC/ NSS/ Scouts etc. Delhi is a city state, and despite the best of planning, children will need to cross roads in order to reach schools, and in many places this is a risky exercise. Therefore, in order to literally facilitate access to schools, this committee recommends that traffic marshals be deployed at points at which children cross roads on the way to schools. Giving right of way to school goers will not only make the right to education ‘visible’, but will also give a new Delhi/ urban specific task to the NSS/ NCC volunteers to do. Coordination between school and the traffic police personnel is also recommended to ensure safety of the school going children.

9. Incentives for children identifying out of schoolchildren: It is recommended that children be used to search for and identify children who are for some reason not in school. An incentive of about Rs. 50/- could also be given to children who identify a child who could be brought to school.

10. Prohibit Closing of Schools: Govt of NCT of Delhi to deal in future to prevent extraneous reasons from operating to close down schools, or to resist encroachment of the school land for commercial purposes. (land in urban areas such as Delhi has high property value, and schools attended by the children belonging to economically weaker sections can fall prey to such designs). If for some reason, there are no children available to attend a particular school, then the school building shall be used for other purposes related to education only, such as for a residential camp for migrant children etc.

11. Supports for completion of EE: Schools should provide after school care and protection to children, especially girls, as one of the means of ensuring their continued attendance at school.

12. Pre-school education: Pre school arrangements need to be available either in schools or near to communities. Crèches and after school care arrangements required to be made to facilitate education of girls.

13. Appointment of heads of schools and Strengthening of SCERT and DIETs in Delhi:

a. Firstly, the selection of 75% of the heads of schools through direct selection processes, and only 25% through limited departmental examination.

b. The strengthening of the State Council of Educational Research and Training (SCERT) and DIETs in Delhi which will work towards the development of a cadre of educational management professionals for management of schools provided by the state. These institutions should also be engaged in full time policy research related to management of education in Delhi

14. EWS admission and support: The obligation of all private recognized schools stands at 25 per cent and the Delhi government is advised to ensure that the problems experienced in the past do not hamper the inclusion of the children of the EWS. The recommendations of the Krishna Kumar Committee and of the Janaki Rajan Committee, 2006 may be referred to in this regard, since they are all the more relevant, and it is imperative that a climate of ‘true inclusion’ is fostered in schools. Needless to say, it is expected that wide publicity shall be given to this provision, and rules shall be framed to enable, the eligible parents to take advantage of the choice offered to them.

15. Issuance of Birth certificates: Birth certification is a right of the child, and it is recommended that it be ensured that those children who enter state provided schools without a formal birth certificate are provided a certificate through the school. The government, if necessary, may bring amendment in the Birth and Death Registration Act thereby creating an obligation on the State to provide birth certificate to the school children without subjecting them to difficult procedure. This should be made a duty of the school. It also supports the UID project of the central government.

16. SMC, School Development Plan, capacity and information needs: The RTE Act 2009 mandate an SMC for each school at the elementary stage. In Delhi, there are no elementary schools. There are primary schools, or middle schools having classes 6-8, or composite schools having both primary and upper primary classes, and secondary schools having upper primary classes. Delhi will need to work out a mechanism to ensure that the children in classes 1 to 8 have the benefit of a school management committee and a school development plan prepared by the committee. The committee noted that Delhi will need to replace its nominated Vidyalaya Vikas Committees, at least at the elementary stage, with statutory School Management Committees having wide ranging powers.

17. Teachers’ salaries & Recognition of small schools: Protection of state salaries for teachers in private schools recognised under RTE Act and consideration in exceptional cases of grant in aid for payment of salaries of teachers. Where the neighbourhood Govt / MCD / NDMC School is witnessing declining enrolment, PTR lower than 1:30; this fact should be taken into consideration before giving recognition to another (unaided private) school within one km radius.

18. Leave substitute’ Teachers: The absence of a teacher violates the right of the child to education. Therefore, in order to ensure that a class is at no time deprived of a teacher, it is recommended that about 10% extra teachers are selected and placed on a reserve panel to be tapped whenever there is need for a substitute teacher.

19. Child line as in model rules to RTE: Again, in the model rules to the RTE Act 2009, this aspect has been dealt with and it was the view of the committee that a mechanism such as recommended in the model rules be adopted for Delhi. The system should be transparent and should enable cross check by NGOs, with Delhi legal services authority, by independent lawyers & by law colleges, in addition to the other safeguards provided. It is recommended that the model rules circulated by the MHRD in this regard be adopted by Delhi.

20. Awareness creation about rights against punishment and harassment: It is recommended that the model rules circulated by the MHRD in regards to a child helpline coupled with an alert and action mechanism be adopted by Delhi. Since this right relates to a school, and every school has a unique ID code number, it is suggested that the online mechanism should be linked using this unique ID code to the page of the school – so that all the details of the school are immediately at hand, and the complaints are recorded against a page related to the school. Linkage with NGOs, lawyers, legal services authority is also recommended. Discrimination, what constitutes discrimination in this context and Complaints mechanism should be given wide publicity

21. Part-Time Instructors: It is recommended that part-time instructors for art, music, health and physical education be also provided for the children of classes I to 5 in addition to the general teachers to develop potentiality, knowledge and talent.

22. Totally Free Education: No fee in any kind or form should be charged from the students of elementary school.

23. Government of NCT of Delhi may issue notification in terms of Section 1(d) bringing ‘children with disabilities’ within the ambit of “child belonging to disadvantaged group” as defined in Section 1(d) of the Act.

24. Information about Fees charged by Schools and salaries paid to its teachers should be placed in the public domain i.e. on the Delhi Schools website and also on the ‘school report card’ of each school

25. Unified Website: There needs to be a unified website for all state and state recognised schools in Delhi with School Report Cards and reporting on child progress on measures of continuous and comprehensive evaluation supplemented with remarks of the SMC. Information dissemination about RTE to children in schools and Child line as in Model Rules.

26 Orientation and Training of School Management Committees (SMCs) needs to be taken up as an ongoing exercise. This work could be shared among Community based voluntary organisations, SCERT, DIETs, universities and colleges (as part of their ‘extension’ responsibilities)

27. Girls Safety: Establishment of Police beats (with lady police constables) at girl schools to ensure safety and security to the girl students.

28. Exemption from Stamp Duty: Government of Delhi should exempt stamp duty on the affidavit regarding date of birth of the child to be submitted to the school for the purpose of admission.

29. HOS to Attest Affidavit: Government of Delhi should authorize head of the school to attest the affidavit regarding date of birth of the child to be submitted to the school for purpose of admission.

-----------------------------

Govt. schools poor in education - Result of a politically designed conspiracy

There is no point accusing a High School Master for not sending his child to government school. The fact is that those manning the government schools are themselves convinced that government schools do not provide good quality education. The people sitting at the top (both politicians and bureaucrats) are not interested in improvement of education in government schools. It is a politically designed conspiracy. Let all government schools all over the country be upgraded to the level of Kendriya Vidyalaya (Central School). With unequal school system, we cannot expect school teacher to send his ward to the government school.

Arbitrary School Fee - Law Prohibits Fee on Capital Expenditure

Unaided school namely, St. Francis School, Indrapuram (U.P.) has asked each parent to pay Rs.10, 000/- to the school as Building Fund. Parents are protesting. Supreme Court in Modern School case has held that a school can not levy fees on a/c of capital expenditure. Moreover, such a demand amounts to ‘capitation fee’ prohibited by RTE Act, 2009. State Government must take action against the school.

A mentally ill woman wondering at large - Social Jurist writes to CP & SHO to act under Mental Health Act, 1987

To

1. The Commissioner of Police, Delhi
Police Headquarters,
I.P.Estate, New Delhi-110002

2. The S.H.O.
P.S. Roop Nagar,
Delhi-110007

23.10.2010


Sub: Request to take into protection in terms of Section 23 of the Mental Health Act, 1987 a mentally ill woman (name not known but photo attached) seen wandering at large within the limits of Roop Nagar P.S.

Dear Sir/Madam

1. I would like to draw your attention in respect of a lady aged about 43-44 years, who is mentally ill, and has been seen wandering in a bad condition on the streets of Shakti Nagar (hereinafter referred to as said Area), which falls under your jurisdiction.

2. That the said lady was located by Sh. Kamal Kumar (M-9899161614), a Social Jurist Volunteer, having his shop at 24/5,Shakti Nagar, Delhi and was seen picking rag and garbage on the streets of the said area. As per information received, the said lady is well educated, belongs to a Sikh family and was residing 3 years back in an Ashram of Shakti Nagar area with her father. That after the demise of her father, she has been found and observed to be in a mentally ill condition from past 3 years who has not only lost her state of mind, but has been living on streets and found begging and rag picking. It is unfortunate that till date no one has come for her rescue and the local residents of Shakti Nagar have no details in respect of her family and relatives. I understand that the police officials must have frequently seen her here or there in the area but no action as required under the law for the benefit of such lady has been taken.

3. It is submitted that Mr. Kamal Kumar brought the above facts to my notice this week. At my instructions, he has taken the photo of the said lady two days back (photo is enclosed). I have also talked to some shop keepers of Shakti Nagar area and all of them confirmed the above facts and requested me to take steps to see that the lady is given protection and proper medical treatment.

4. That in reference to the powers and duties conferred upon you under Section 23 of the Mental Health Act, 1987, necessary action be taken to rescue and protect the said lady and thereafter, admit her to a psychiatric hospital and be given due care and treatment as the said patient/lady is not in a condition/unable to explain the cause of her present condition.

5. That the said patient/lady be provided proper safety and correct treatment in order to ensure that she is not only protected from being subjected to any grave acts of physical, mental, verbal, emotional and economic abuse but her right to life and liberty as enshrined under the Article 21 of the Constitution of India are protected and she has been given due opportunity to lead a healthy and peaceful life.

With regards,


Ashok Aggarwal, Advocate
Advisor, Social Jurist
M-09811101923

RTE victim of Govt Apathy - Ye Suurat Badalnii Caahiye-Letter from friend Rama

The situation is much worse than this. We have done an intensive study in MP and it is clear that there is no way girls and other children from marginalized groups will ever be able to access anything beyond primary education, which is also in a deplorable condition. Rather than improving the conditions of government schools, the state is increasingly withdrawing itself from education. Most welfare schemes are cosmetic and publicity stunts. There is an acute shortage of teachers, buildings, classrooms, toilets, infrastructure etc. Add to this the pyramid like structure of school education which makes the most irrational. inhuman and unjust assumption that a large number of children MUST drop out of the system after primary education, parents having to pay substantial amounts of fee, perpetuation of patriarchy and negative stereotypes associated with girls, dalits and denotified tribes, highly insecure environment at home and school and on the way to school, very high rate of sexual harassment and child abuse...

So far disability is concerned, there is utter insensitivity in all sectors of society. University of Delhi has over 1500 seats for PwD; it ends up filling no more than 500 each year; unless our schools become disabled friendly, how will children with disability ever reach the Univ? We also need to understand that all of us are disabled in some way or the other; it is just that we have created a world in the image of some ideal 'normal' person who actually does not exist.

ye suurat badalnii caahiye

RTE victim of Govt Apathy - A letter from friend Shamsul Islam

it is terrible but a perpetual and almost universal reality in the areas inhibited by marginalized people of india. i am ashamed as an indian and a teacher. ashok agarwal and his team must be congratulated for exposing it. how to change it is a big challenge. we should join hands to undo this terrible scenario.

shamsul islam.

HUM KHO GAYE HAIN - A letter from friend Francis Chamerlain

Dear Friends,

I was very touched by your story regarding the two children. I'm very glad you interceded on their behalf. Some years ago I met Ashok Agarwal, who kindly took me to a ragpicker slum and also described his legal work on behalf of disadvantaged children. I will be arriving in Delhi in two weeks (beginning Nov. 5) for a brief visit, (in part volunteering with ASHA, an NGO founded by Dr. Kirin Martin, which focuses on health care and educational services in many Delhi slum areas. Perhaps during that time I could meet with Ashok or a Social Jurist volunteer, even if very briefly, to catch up on the work of the Social Jurists as well as inquire about your fundraising approaches (though I remember Ashok saying that, regardless of funding, he is fully committed to doing the work).

At any rate, it's very impressive that Ashok now has volunteers working with him, for I'm sure the tasks facing the Social Jurist team are limitless. Warm greetings to you all, and my wishes that you continue to find success in your endeavors to help disadvantaged people.

With best regards
Francis Chamberlain

HUM KHO GAYE HAIN - Law student shares her experience

“HUM KHO GAYE HAIN”, these two kids told me when I found them sitting near Delhi Haat, Netaji Subhash Place, New Delhi around 2.30 p.m. on Wednesday, Oct 20, 2010 and asked them, “what are you doing here”.

One of the girls, Aarti was seven years old, whose father is a laborer in a corrugated factory and the other girl, Kunti was six years old whose father is running a kabaadi shop told me that one of their friend asked them to accompany her to her parents shop near Netaji Subhash Place, and then left them. The girls did not know the way back home and told that they resided in Shakurpur I Block.

I decided to take them to the police station, so that the girls could be handed over to the safest custody. There was no point leaving the innocent kids at the mercy of god in that situation. My sister, my friend and I firstly went to the Prashant Vihar Police Station about which we knew. There we met a gentleman and two ladies and after we narrated the entire episode to them and asked them to lodge a report, they said they can not lodge a report as no duty officer is available as they all are on field duty and we should take these kids to other police station, either somewhere near the area where the kids were found or else should take them to Prashant Vihar Police Station at Deepali Chowk.

When we took the kids to Prasant Vihar Police Station at Deepali Chowk, the duty officer said why we had brought the kids there and it would be better if we take them to the Shakurpur Police Station since the kids resided there, so their parents would come searching there only. Another gentleman sitting in the Police Station gave his advice that we should not have helped the kids, as these poor kids may be fooling the people this way for the purpose of making money. What the ideology of these police officials reflected here is, probably because the kids belonged to the poor strata of the society and therefore, they are free to condemn them criminal by birth.

We were shocked to hear their response and nonplussed as to what to do next, we made the duty officer to talk to Advocate Ashok Agarwal which changed the story a bit and after which he asked us to meet the SHO. Another shock awaited us, the SHO though kind in his attitude but questioned us as to why we had brought to them rather then calling a PCR van or reporting to the police station in the Shakurpur area itself. Finally, when he asked his official to call Juvenile Officers, he was told that both of them were on leave. Thereafter, he asked S.I. Narender to take the charge of the kids and instructed him to take our statements and then take the kids and locate their house and if their home is not found, then report the matter in Shakarpur Police Station.

S.I. Narender asked us that it would be better if we too accompany him in locating the house of kids because if the house is not located, he will have to report in Shakurpur Police Station and they will not easily trust his statement and these kids will consequently become a “bla” (a big problem) for him if their house is not located. Though we did not accompany him but told him to call us, if we were really required at any stage.

In the evening when we called S.I. Narender to know the status, we were informed that both the kids have been handed over to their parents. Though it was a great relief to me but at the time I was unhappy to find police officials insensitive attitude towards the children of the poor.

Aarushi Agarwal
Social Jurist Volunteer and
Law Student, Delhi University

Late Fee Charges - School Exploiting Parents and Students

Adv Rajeshwer K. Gupta. a parent, has informed me that DAV Public School, East of Kailash, New Delhi is harassing the students and the parents by not accepting and returning cheques of fees for the Oct-Dec quarter without late fee charges at Rs.5/- per day. The school has remained closed up to 17 Oct 2010 on account of CWG. Where is a delay if the fee cheque is presented to the school on 18.10.10? Moreover, as per law, the late fee fine is only five paise per day and not Rs.5/- per day.

CONSULATION MEET FOUND MANY FLAWS IN DRAFT RAJASTHAN RTE RULES, 2010

0ct 17, 2010 - Social Jurist Team consisting of Adv Ashok Agarwal, Law Students Neha Rathi, Nisha Tomar and Aarushi Agarwal participated in a day long consultation meeting on the Draft Rajasthan Right of Children to Free and Compulsory Education Rules, 2010 organized jointly by Alwar Mewat Institute of Education and Development, Rajasthan (AMIED) and SCERT, Alwar. Number of changes in the draft rules has been suggested.

RTE VICTIM OF GOVT APATHY

On 0ct 16, 2010, Social Jurist Team consisting of Adv Ashok Agarwal, Law Students Neha Rathi, Nisha Tomar and Aarushi Agarwal alongwith Nur Mohd of NGO AMIED visited Govt Upper Primary School, Neemli and Govt Middle School, Bagore of Tijara Block of Distt Alwar (Rajasthan) and found absence of almost all basic physical and academic infrastructure therein.

Govt Middle School, Bagore, Tijara, Alwar, Rajasthan – Some features highlighted –

(i) Sonu, 8 years old disabled child (MR) though allowed to attend the school but has not been formally enrolled. There is no special teacher in the school to teach Sonu. There are over 10 other disabled students in the village who are not even attending the school.

(ii) The school has been upgraded from class VIII to class X two years ago but no teacher has yet been provided to the school.

(iii) Toilet block in bad condition.

(v) Students sitting on floor. There is not desk. The classrooms are in bad condition.

Govt Upper Primary School, Neemli, Tijara, Alwar, Rajasthan – Some features highlighted –

(i) Parents complaining shortage of teachers, students of even class VIII do not know how to write or read, shortage of class- rooms, no play ground, no portable water, toilet block in bad condition etc.

(ii) Dismal condition of the classrooms.

(iii) Class VIII student telling that no teaching at all take place in the school.

Gaps in Corporal Punishment Law

There are serious gaps in the law relating to prohibition of corporal punishment in the schools. Section 17 of RTE Act, 2009 talks of only disciplinary action without saying that such conduct should be treated as serious misconduct warranting major penalties like dismissal, removal and reduction in rank and also without laying down criminal prosecution attracting imprisonment. The provision does not lay down the mechanism to prevent corporal punishment and also to deal with post corporal punishment cases. The children below 6 years and above 14 years have not been included in the provision.

Chilean Miners Rescued - What a Pleasant News

Normally reading morning news papers with lot of bad news lead to some-what dis-comfort. But today's news papers carrying news of successful rescue operation of the miners who spent 69 agonising days deep under Chilean earth has given me immense pleasure and happiness.

A LETTER FROM DEAR FRIEND SHASHANK SHEKHAR

Respected Sir,

I am really grateful to you for putting we advocates on a completely different pedestal, a pedestal where there is a yearning for Equity, Justice and Rights for our children and above all it has got compassion and love for them. Your lecture reflects you and your priorities.

I have got an opportunity to work with you and so I can appreciate and understand it even better. A tremendous lecture in-deed.

Regards,

Shashank Shekhar Advocate & Member DCPCR

Social Jurist Offer of Technical Resource Support

To Empower NGOs, Lawyers and Communities in
USING THE LAW FOR PROTECTION OF THE RIGHT OF THE CHILD TO EDUCATION

After the notification of the Central Right of Children to Free and Compulsory Education Act, 2009, many non-government organisations, communities, lawyers, Law colleges, Departments of Education of Colleges, Universities etc want to know more about the use of courts for the justiciable right to education.

Social Jurist is a not-for-profit-organisation, which for the past 15 years has been engaged in providing free legal support to children, whose rights to and in education have been compromised.

Social Jurist would like to share its knowledge and experience with others in order to empower them to use the law for the protection of the right of the child to education. To this end, it offers to make its members and associated persons available free of charge, as resource persons for training / orientation programmes organized with objectives such as:

→ To introduce participants to the concept of supporting the right to education through the courts
→ To sensitize them to the role of lawyers (their potential and constraints) in RTE
→ To prepare them to work within the legal framework for the right to education

Typically, such programmes could be of two days duration, preferably on Weekends, or for longer duration on other days when courts are not in session. Alternate Formats with inputs devoted to understanding the RTE Act, and concerns and issues related to the RTE could also be envisaged.

NGOs, communities, lawyers, Law colleges, Departments of Education of Colleges, Universities etc who wish to seek such resource support to their programmes may contact:

socialjurist@bol.net.in; or 09811101923 (Ashok Agarwal)

ALL PARENTS ARE EXPLOITED LOT

The existing exclusive nature of education system in both private & state-funded schools has divided the parents in different classes, each class of parents having its own set of problems towards education of their wards. One thing is common, i.e. all are exploited lot.

Ashok Agarwal

PIL Postcard Campaign - Appeal to the School Students

Dear Students,

Even after 62 years of independence, right to good quality school education has remained elusive. Centre and the State Governments are totally insensitive. Civil society and parents have also not done much to improve the standard of education in State-run schools. You are the sufferers. You have to take upon yourselves this fight for the realization of your rights. That is the only way left. Once you start, I hope, the Civil Society and the parents would join you. Every day, after attending school, pick up a postcard and write to the Chief Justice of your State about the shortcomings you have come across in your school. Don’t stop writing unless you are able to find substantive improvements in the standard of education in your school. Please spread this message amongst other schools students. I strongly believe in your strength and wisdom and I am sure of your victory. For any help or information, don’t hesitate to contact me at Mob-09811101923.

Yours,
Ashok Agarwal, Advocate
483, Block II, Lawyers Chambers,
Delhi High Court, New Delhi-110003
Off: 011-23384000

GREEDY SCHOOL REMOVES CLASS VIII STUDENT

Dayanand Public School, Model Town, New Delhi-9 (India), an unaided pvt school functioning on public land allotted to it on a throwaway price with condition to provide admission to the students belonging to Economically Weaker Sections (EWS) to the extent of 25% and grant them freeship has arbitrarily removed class VIII student Master Pradeep Kumar from school from 29.09.2010 because his poor parents were unable to deposit school fees.

NURSERY ADMISSION BLUES

Some parents go to the extent of giving their child to a near relative in adoption (on papers only) with a view that the child gets maximum points for purpose of admission in an elite private school in Delhi.

Gopalpur Beach (Orissa) Photos by Ashok Agarwal on Oct 03, 2010

Child Labour in Legislators' Colony - Mockery of RIght to Education

On Oct 04, 2010 while I was in Bhubneshwar City of Orissa, I was delighted to see the hoardings with message 'DON'T ENCOURAGE CHILD LABOUR' on road side and also on road divider between the VIDHAN SABHA and the MLAs flats. However, I was disturbed to find a child working in a tea shop just a hundred meters away in the MLAs flats Colony from such hoardings. This child has never attended the school.

Ashok Agarwal

ROLE OF LAWYERS IN EDUCATION

Mahadevi Verma Fourth Memorial Lecture 2010, delivered by Mr. Ashok Agarwal, Advocate on 5^th October 2010 at the Regional Institute of Education (NCERT), Bhopal, M.P. (India)

Respected Prof. Mohan Gopal, Director National Judicial Academy, Bhopal, Dr. K. B. Subramaniam, Principal, Regional Institute of Education, Bhopal, faculty members, staff and dear students,

Until not so long ago, lawyers had little or no role in school education, except perhaps in relation to cases regarding service matters of teachers and of cases of school managements against teachers, etc. The phenomenon of voluntary action by lawyers, acting on behalf of children too poor to afford either private schooling or lawyers, is a fairly recent trend, perhaps not more than 10 to 15 years old. However, as soon as education comes to be defined as a right of the child, the importance of lawyers in completing the circuit that will ensure the right to education becomes inevitable.

This lecture will trace the movement for defending the right to education from the advent of PILs to the present, before discussing some issues that can and have emerged in the context of right to education in schools. Some of these relate to - denial of admission in government schools; cruelty against children in the name of private school admissions; lack of basic amenities in schools, such as water, electricity, proper roofs and walls which can protect from harsh weather, etc; corporal punishment and other forms of humiliation; lack of connection between primary and upper-primary education; the dissociation between the aims of education and the goals of schools; the issue of unjustifiable fee hike in private schools; and issue of allotment of free land to private schools; and violation of educational rights of poor children.

This lecture will then discuss how in taking action on behalf of educational rights of poor children, one comes to the awareness that simply finding a case and fighting it is not enough. Unless public opinion and public anger are also not built up against such denials, these wrongs will continue. I will then discuss how I learnt to enlist the support of the media in creating awareness and opinion.

At the same time, however, I realised that going to the courts alone cannot and should not be an answer to all the ills in education. Mobilising public outcry is also important. Sometimes, when people come together to demand action, matters can be rectified without going to a court. I will discuss in my lecture how at this point, I learnt to make correct strategy to achieve justice for children’s right to education.

However, there is a limit to what one lawyer can do. There are many problems for one lawyer to cope with. Through my work so far I have merely demonstrated what lawyers can do and how to do it. But it cannot be denied that there needs to be an escalation of lawyer intervention on behalf of the child. Perhaps time has come to move from individual initiative to networked legal aid; to development of systems of case support to lawyers; to build NGO linkages with lawyers, to evolution of government schemes of lawyer involvement; for informational systems to be developed for orientation and briefing of lawyers and judges in right to education.

Maybe it is also time for including Right to Education (RTE) in the formal and informal curriculum of legal education. Students in law colleges should learn about child rights and their defence in the curriculum, just as they learn about contracts and criminal law. Universities should actively think about separate optional papers, diploma and certificate courses in RTE. Similarly there could be research on PILs in education

In closing, I would like to argue that legal intervention acts as a trigger to reform in education. Not only does it serve to highlight wrongs and rectify them, but ultimately, it will also build communities in schools who know their rights and duties, and hence there are fewer predispositions towards violations of children’s right to education. Already, the parents in private schools are no longer as timid as they once were, and already government officers are becoming alert to ensuring transparency and justice. Through the intervention of lawyers, I see a vision of future with mutual respect and improved provisioning of education from a rights-based perspective.

I am grateful for this honour of being chosen to deliver 4th Mahadevi Verma Memorial Lecture, which gives me an opportunity to talk to you about some matters related to the right to education that has been very dear to my heart and to which I have devoted most of my working life and will continue to do so I hope, for as long as I am needed and am able to serve. I am all the more grateful for this honour because we lawyers are seldom remembered at happy moments. Generally lawyers are seen as associated only with bad moments, and when you curse someone you wish them on your enemies, you would wish them to have trouble and to visit courts and lawyers. We lawyers seem to be associated with nothing but trouble, and therefore, I am all the more grateful that I have been remembered as a friend among this much respected community of educationists.

The fact that I have been remembered by educationists is in itself a sign of the change in the relationship between the world of education and the world of the courts. Until not very long ago, we lawyers had very little, if at all anything, to do with school education. May be these two worlds met in relation to cases regarding service matters of teachers and of cases of school managements taking action against teachers, etc. Other than that, to this world of educationists, a lawyer was either someone you hired, or someone who was an adversary – the lawyer was never a friend or a partner. The phenomenon of the lawyer as a friend of the educationist is of very recent origin, perhaps not more than 10 to 15 years old, and it is about this phenomenon, its evolution, its progression and its potential, that shall be the subject of my lecture today. Many consider me to be one of the pioneers in this area, that may or may not be true, but certainly because of the media reports of my cases, the positive role that lawyers can play in defending the right to education has become known to more and more people. In many ways, the evolution and progression of the new role of lawyers in education follows along the trajectory of my own career in fighting for the rights to education, and the rights in education.

You must be very well aware that the whole concept of human rights is itself very recent. The term human rights came in after World War II with the birth of the United Nations, and the Universal Declaration of Human Rights. The very idea of a right, and an equal right to all humans simply by virtue of being human was itself a novel idea around that time. Some races were considered superior to other races, some castes higher than others and the males superior to females–many of these ideas still linger on in the minds of some people, but they have been more or less eradicated in the laws of nations. In such a context, there was hardly any space to even consider the question of children having rights of their own.

People had duties and responsibilities towards children, that much was there, but that a child should be having rights, may be even against parents, simply by virtue of being a child, in the same way that humans had rights simply by virtue of being human–that idea was perhaps too progressive for that period–as the world in that period had enough problems with accepting all humans as equal.

You may be surprised to know that it was only in 1989, that the rights of children came into being in international law, through the UN Convention on Rights of the Child (CRC), and India signed it in 1992.

Most of us, who are present here today, have spent their childhoods without being the subject of rights. But the very fact that we are here today, shows that we were the lucky ones who received food, shelter, clothing, education etc. and everything else that made it possible for us to. Many children even today are not so lucky. They continue to be deprived of all those things that we have perhaps enjoyed and which have enabled us to reach where we are today. So if even after having these things called rights – if children are still no better off than before – then you will say – of what use are these things called rights if it makes no difference whether you have them or not? If ultimately everything is only going to depend on personal goodwill, and you may even say –the sweet will of others – then why talk of rights if they mean nothing at all?

When we say that someone has a right to something, or that children have rights today, it does not mean that with a magic wand, that thing that you have a right to, or that for all children, food, shelter, clothing education etc., will appear out of nowhere as if by magic. Then what does it mean to say that we have a right? To understand this, let us think back to those days when these rights did not exist even on paper. For example not so long ago, it was believed that the children are the property of their parents- they are owned by their parents, and that parents can do anything to them. While many still think in this way even today, the majority of us tend to believe that there are some things that even a parent has no right to do to a child and that children cannot be treated as wished by those in authority. In our time, our father’s words were taken as law- fathers (or grandfathers) decided for us- what we are to become, how we are to act, what we are to do or not do- and it was our duty to pursue that course and no other. Is that the case in our own homes today? Not at all – for my generation it seems that we were dictated to by our parents and now we are dictated to by our children. Certainly the ideas of a parent child relationship have changed in many homes. How did these ideas change?

I would say that that the ideas of rights have gained a lot of ground since then – just as we were first intrigued and then obsessed by the idea of gaining freedom. It is as though a wind blows and it changes what we think and how we do things. At one time, we used to think it was the parents wish whether to send their children to school or not – now we tend to think that any person who chooses not to send their child to school is doing something not good for the child, they are depriving the child of education and the child will suffer later. Nowadays we tend to regard as neglectful or ignorant any parent who does not send a child to school. People have now come to believe that children have a right to education; people now believe parents should not prevent them from getting that right. As I said our ideas change- these days hardly anyone will side with those who argue that it is the right of the parent to keep the child ignorant.

To me, this is what a right means - a right is first adopted by the mind, it makes our ideas change, and as our ideas change, society changes. It is the society that ensures that rights are achieved. Rights do not make things appear as if by magic out of thin air - as I said, by making or adopting something for example education as a right, that something does not appear out of thin air by magic – but certainly our ideas begin to change, we begin to recognise that all children can and should get education. The adoption of a right on paper- is merely a milestone. Some would say, it is a goal post- it gives us a point and a direction to work towards.

So Friends, to me, that is what changes when we say someone has a right to something- a standard is established, and gradually, attitudes, values and practices start to follow until real life, reality, or the norm becomes that situation what was aspired to by the right.

And when rights get established in law – such rights can be claimed by well wishers on behalf of children. Even if a child is not so lucky as to have family and friends to fight for them, the fact of having a right works to ensure that some agency, or even the government, works for the child to ensure that the child’s care, shelter, food and education along with an identity, a birth certificate, nationality, dignity even at school, the right not to be beaten under the pretext of education etc., are all taken care of. All of these rights became accepted the world over with the acceptance of the CRC.

You might ask why am I talking about the CRC, which is an international convention, and which is not binding as a law in India? While that is the case, it is also true, that our Constitution asks us to honour international treaties and conventions and our judgments are in harmony with international Conventions. For example, as soon as India signed the CRC in 1992, the Supreme Court of India passed a historic judgment in the case of Unnikrishnan J.P. vs. The State of Andhra Pradesh, which made education a fundamental right. And even though the judgment itself did not move the Government to take any great steps, a movement began which ultimately led to the right to education being placed even on election manifestos, on Common Minimum programmes and eventually to amendment of the Constitution and education becoming a fundamental right.

A fundamental right is a justiciable right. Justiciable means that if the right as it is stated is not given, or if the government or anyone else who is bound by it defaults in some way, then one can turn to the courts for remedy. And even before the courts come into the picture, the lawyers have to be brought in, in order to complete this circuit of justiciability for which we amended the Constitution. Therefore, although we do not hear too much on this issue, and even the government has not taken steps in this direction, the right to education cannot be enforced without a lawyer coming into the picture. But you will surely see the irony of this situation - How can a child who is not even able to afford a school, or a teacher, can afford a lawyer? As you know, lawyers are private practitioners - we lawyers depend on the income from the practice, we depend on the fees. So on the one hand, we make free and compulsory education a fundamental right, and on the other, in order to enforce this right, we have to go through lawyers – who are by no means free and compulsory, then how is the child to get the right?

Therefore, if without a lawyer, it is not possible to seek to enforce the right in the courts, then it surely amounts to the right remaining where it is – on paper. The purpose of my talk today before this august audience is just this – to reflect on the role of the lawyer in the right to free and compulsory education.

You will ask – but I am a lawyer - why am I doing this? How am I fighting for the right to education? How does a child who cannot even afford a teacher, who does not even know that he has a right to a teacher, would come to me and expect me to fight for him in the courts? What are the problems that children face? In order to reflect on the role of the lawyer in education, I will tell you about my role as a lawyer fighting for the right to education, and then perhaps we can together reflect on whether a lawyer is enough, or we need more lawyers, and if we need more lawyers, where are they to come from? Why would they come? How to sensitise them about denials of rights in education? How to ensure that the lawyer finds the children, because surely, such children cannot find the lawyer?

My own initiation in the right of children to education was actually very conventional. I basically fought labour cases. My ideological leanings were also sympathetic to the right of the workers and the poor, but my first case in education came from a very typical route- some people known to me were concerned that the private school that their children were attending had again raised the fees and there seemed to be nothing that the schools were afraid of. My own education had been in a government school, and I told these people – ‘instead of complaining, you should send your children to a government school – there would be no question of fees.’ I told them, ‘you have come from a government school, I have come from a government school, and we are doing OK’. They told me- ‘when was the last time you saw a government primary school – go and see a government primary school’. So I went to a government primary school. When I saw the state of the school, and the attitude of the head master and the teachers, even the teachers were very few and they were not teaching, only minding the children so that they do not run around or make a noise.

After seeing the state of the government schools, I realised that the reason that parents are at the mercy of the private schools is that the government schools are in a very bad shape, and that the reason that the government schools are getting worse is because more and more people are leaving them for other kinds of schools, and the ones left have no power to make a demand for better schools and better management. Therefore, I came to realisation, that if the situation has to change, then both schools have to improve. Only when children in government schools get their due rights, then only will the children in private schools also get their rights and not be at the whims and mercy of the private managements. There is one system, one set of rights, one set of laws, so improvement has to be done in both kinds of schools.

Anyway, I was lucky to win the case of the fee hike in private schools, and it had the effect of enforcing the law in respect of other private schools. Because it was a private school case, the news was carried in many of the papers, and people came to realise that the private schools were making profits from one school, and using that profit to set up another school, and another, until they became more and more powerful as a chain of schools. Now Godrej and Reliance for example can set up chains of establishments- they are commercial organisations and are subject to the tax, the scrutiny, the quality standards, and consumer interest laws that all such commercial establishments are subject to. Now any philanthropist can set up any number of schools if he has the money- and make a chain. But one school cannot give birth to another school to make a chain.

A school is a philanthropic, non profit organisation in our country. So where is the question of profit, and that too so much profit that you can set up another and yet another school? And if there is profit, then where is the question of not being able to meet the costs, and of hiking fees? It was decided after that case that no school can use the fees from one school for the purpose of another school even under the same trust. And in order to establish profit, the rule regarding submission of audited balance sheets got highlighted. Thirdly, another rule regarding submission and approval of statement of fees before every term got known and enforced.

It was also during this case that I realised that the reason why the profits from one school can be used to set up another is because everywhere the governments were supporting the establishment of philanthropic effort such as educational institutions and hospitals for public purpose by giving them free land. So if the land is free, and the proceeds from another school are funding the building, then where was the problem in building chains of schools? Also, as with any private commercial enterprise, the ‘brand marketing’ exercise ensures that the school is seen to be better and more desirable than the existing government schools. So why should people who have more money not show they have the money? Private schools, far from serving a public purpose became status symbols and everyone wanted to be seen only in these schools.

We all know the story of Akhbar and Birbal in which one day Akhbar drew one line, and told Birbal to make it smaller without touching it. All Birbal had to do was to make another bigger line next the first line and the first line became the smaller one. Same is the case with the government school- If another school next to it, is seen as better, even if only because of the shiny building and the brand marketing, then automatically, the government school is seen as lesser and less desirable, and all those who would have attended it, want to go to the status symbol school – and the private school is placed in the powerful position of being able to select and reject the children of the rich. Other ancillary industries also develop - one industry is that of patronage, anyone who is anybody or knows anybody tries to use influence to get admission; and the rest go to the other industry- that of training the children like animals in a circus- even that is not allowed nowadays, but this is allowed to train children to perform in the admission interview. In all of this unfortunate activity, the school becomes more and more powerful, and even the government officers fear to oppose anything the school does. It seems that they cannot be approached twice even to secure the filling up of the DISE Information Performa- which carries individual report cards of 1.3 million schools in India- but surprisingly, how many private schools are there in the list? You only need to check to see if the schools you know about are represented there, and you will have your answer.

You will find that I started from one case and it was not a case, it was a box- a Pandora’s Box. I have linked everything to everything else through it- actually that is exactly what happened. One thing just led to another. I also realised that when the government granted the free land to the schools, they attached a condition, that the schools would reserve 25% of its total pupil strength for poor children and provide free education. But the schools never bothered, and no one bothered to trouble the schools on behalf of the poor.

This realisation that served me well, because it set the basis for some of my future cases, for example the case about nursery schools admission, about the free seats in land grant schools, the poor condition of government schools and the fee hike in relation to the 6^th Pay Commission. But after my first case, I wanted to do something about the government schools. But where to start?

I started visiting the government schools and meeting the teachers and the headmasters and the parents in order to see where the problems lie. Every Saturday when there was no court, I would take my car and go and visit some government schools. I noted the poor conditions, the apathy of the government towards the teaching staff, the apathy of the teaching staff to the children etc.

One of the first cases I filed was about the infrastructure facilities. Many schools were running in tents, in rooms with tin roofs which became unbearable in summer, and bitterly cold in winter, even the buildings were in dilapidated conditions. I took photographs, and filed them in the court in a series of cases. The courts were kind enough to issue orders banning the use of tents, the use of tin roofs, stating that only proper prefabricated structures may be used for temporary classes. Noting that the schools were running in old and insecure buildings, the courts ordered for the buildings to be replaced by new structures. Today, you will find the teachers working not under trees and in verandas, but in well constructed classrooms and people are surprised to see the new face of schools of the municipal corporation of Delhi.

During this process, it came to my notice that one child had been run over by a truck just outside a municipal primary school. What was the child doing outside the school? And what had caused the child to run outside without looking? It came to light that the school had no facilities for drinking water. When this issue was raised in the courts, the officials quickly, practically overnight put in place the hand pump and water tap, and tried to explain to the inspection team of the court, even though they could see that the cement was still wet, that the school had facilities for water, but that the child had run out simply out of mischief.

The moment they pleaded in that direction, they got caught for not having a proper boundary wall with a gate and a guard. The people had trusted the schools with their children, and the schools were responsible for their safety and care. With this case, all the municipal schools became equipped with water, boundary walls, and security guard. In another case, it was also made the duty of the government to ensure that electricity of a school was never cut off for non payment of electricity bills. The fault was of the government, and the children were made to suffer.

As you can imagine, I became fairly well received in the schools. Even the senior officials in the Municipal corporation, surprisingly did not resent me- they saw that I had managed to bring about the orders for the improvement in the schools, which they had wanted but were not able to bring about.

Alongside the improvement in the structures, I had noted that a number of processes also needed improvement. I realised that in the school there was a regular turnover of teachers- some joined the secondary schools, some got married and left, some retired, etc. But there seemed to be no regular system to take note of this need for teachers or to ensure that there were enough teachers in the schools. So the matter was taken to court to say that if the government was indeed serious about ensuring education, then the process of recruitment of teachers should have began, but not even the vacancies have been advertised to date. The court eventfully ordered that a regular calendar of recruitment be prepared and followed every year to stream line this process.

Another example, the schools were saying they wanted universal enrolment, but they themselves were hampering this process, due to their demand for this or that certificate. So a court order was obtained (after a PIL) that the parents could admit the child without birth certificate or affidavit. But what about the children without parents- i.e. the children on the streets. We took this issue to the courts and there was great drama, because we had brought some street children into the court, and the judge asked the director of education, who is the parent of these children? The media also had a great moment reporting cases like these, and I realised that in the right to education, the greatest battle is that of realisation- once people become aware and realise what is a right and they also begin to recognise the violation of the right. So I realised that the media can play a big role in creating that awareness.

By this time the internet had also come into being, and I learnt how to use it. I learnt how to use the email, and kept the media and a few friends and well wishers aware of my cases, and they in turn gave publicity in the papers. I created a website, and kept some important background information on the website for ready reference.

I gradually made friends in education among the educationists also, and through them also I became aware of some of the issues. Many times, they would be useful to me in discussing the different aspects of a case. What I am trying to say, is that there is very little that I can take sole credit for, and indeed this battle requires teamwork and team support. If I had anything, it was my persistence, and the support of my family that did not complain that I could have earned more or had a better standard of living if I had devoted this time to paid cases. If you think I am rare, I think my family is rare. But if lawyers who are to fight for children are not to be rare, then we must do something that will enable the average person to join as a lawyer in the right to education. I will return to this issue later, and let us first discuss the ways in which children are denied the right to education, and how there is need for support in little, little ways.

Along with the removal of document barriers to admission, I supported the ‘Dakhila Abhiyan’. This was a process that had the support of the SCERT of Delhi, and was instrumental in generating awareness about school enrolment. Similarly, I found through my friends and unofficial team members that some fees (not exactly fees but some amount for some fund or the other) was being collected at the time of admission in the municipal schools. We first asked the MCD how the schools were colleting anything without receipt. So they issued an order to give receipt. The moment we had a receipt, we produced it in the court saying that here is proof that contrary to the stated policy the schools are charging money, and that free and compulsory education is not free. After that court judgment, now admission is truly cashless and paperless.

Another barrier to the right to elementary education in Delhi was also realised quite by chance. One of my educationist friends mentioned about the system in Mumbai, where despite education being a right until the age of fourteen, the municipal schools would give the children a TC at the end of the last class of the municipal school. The upper primary stage is in an aided school, also free, but it was not the responsibility of the government to see that the child who left the municipal school also was able to join an aided school. Then I realised that same is the case in Delhi. Even though the government provides secondary education, they do not care to take the children of the municipal schools from the last class of the municipal school to the next class in the upper primary in the government secondary school. I added this issue to an ongoing case, and sure enough, the order came that the right to education meant that the onus of education within the elementary stage was on the government, and that it was for the government to ensure the transition of children from the primary stage in the municipals to the upper primary stage in government schools. At first there was little response, but after filing a case of contempt of court, I think the government also realised that this was a good way to ensure a high transition rate. Today, each government secondary school has a number of feeder primary municipal schools attached to it, and the government is proud to have taken a lead in something that is now mandatory through the right to education Act.

You can see therefore, that although when I started out, I neither knew about education, or about the ways in which children are deprived of their rights in the schools and outside the schools, I slowly began to gain awareness of what is happening. My only guide was the law, the Constitution of India, and the International Conventions. These gave me a frame of reference to judge whether what is happening is right or not.

However, I still go the schools, especially the schools in the outlying areas in Delhi in order to see if children are being deprived of their rights, and in what way. However, the problems of the rich are also no less the problems of right to education. Even though my practice also picked up regarding violation of rights in schools, I kept my time for my ‘own’ suo moto cases. One of these was regarding the admission of children of the weaker sections to the free seats that these children were to get after the school got a land grant from the government.

When I took this case to the court, suddenly, a large number of schools in Delhi spontaneously developed a change of heart and opened non formal education classes in the afternoon. The Delhi Government which had so far, not bothered to enforce this clause, suddenly became aware of it, although the same rule gave free land to the schools. They blamed the DDA which gave the land, and the DDA blamed the Directorate of Education, and ultimately rules were prepared, a criterion was evolved to decide who would be called ‘weaker section’, a process was evolved for securing an income certificate of economically weaker section. NGOs joined in the process to make the weaker sections aware of the process of obtaining admission to the schools. Even then, the schools were reluctant to admit the poor.

The schools which had all along been claiming to give quality education. Now when the time came for them to prove it, their behaviour gave away the truth, that the ‘quality’ they professed to be manufacturing in the schools, actually lay in the selected and handpicked batch they admitted every year to the school. Children of professionals, who may be expected to be genetically endowed with this thing called intelligence, and by the success achieved by their parents, they may be expected to have the right attitudes and home circumstances to foster good grades- their indicator of ‘quality’. Of course they also had a good mix of children of business class parents. Very reluctantly, these schools gave admission to only those children who were assisted by some NGOs or whom they could not manage to push away. Some schools of course truly embraced their obligation and are educating the children of the poor and of the rich, but such schools are rare. Although schools all over India receive land grants under the same conditions, but since law is a state subject and the case was in the High Court and restricted to Delhi, the implementation of this nationwide obligation is also limited to Delhi. Now of course, this need for social mixing and the harmful effects of economic apartheid in education have been widely recognised, and now this clause is one of the best known clauses of the ‘Right of Children to Free and Compulsory Education Act 2009’.

Admission to a private school of choice is an annual affair marked with a lot of tension for both parents and children, but for the schools themselves, it is said it is like the harvest festival. I hear that money is made, and people are ‘obliged’. Children who ‘fail’ the admission test and interview recognise early in life, for the rest of their lives that they are somehow ‘less’ than those who were ‘clever’ enough to make it to a particular sought after school. A case regarding this admission process of private school was taken by me to the Court. The court naturally spoke on behalf of the child, but recognising the need to have some criteria other than the present ad hoc tests and interviews, appointed a committee to be headed by then CBSE Chairman, Mr. Ashok Ganguly to develop some criteria. The Ganguly Committee debated and evolved a method to restrict admission to children who live within a certain radius of the school, and also gave ‘points’ for other criteria such a sibling in the same school, parents being alumni of the school etc. Although even now the system is far from perfect, the fact remains that an evil in education and its vicious effects on children was recognised as such and an effort made to induce transparency into a system that had so far resisted all interference into a domain that gave it great power and privilege.

Whether rich or poor, children suffer equally from corporal punishment. They suffer disproportionately when they have disabilities. All types of schools try to hide the fact of child abuse by terror and torture, and all try to keep the disabled out. Even the so called schemes of the education of disabled children are not able to identify the disabled through household survey. I do not know what kind of survey is conducted, because when I went into a basti, I was surprised to find a large number that were there and known to all to be there, but were unable to access schooling. If you keep only the face of the child in your mind, it might occur to you, if you had been that child what would have been your fate? They deserve better, and a society that calls itself civilised should look after its people especially those who cannot look after themselves.

This brings me to the role of the lawyer in education. It is for you to decide, whether a lawyer is the last mile link to the seeking remedy from a court of law or not. I also wish that a lawyer is never needed and that no child or parent needs to enforce their right to education through a court of law. But I have seen that the real world is not like that and if you have reached the same conclusion after hearing about some of the types of issues that I have had to handle through courts, you will also wonder how to bring about situations in which lawyers seek opportunities to serve free of charge for the cause of education. I have no doubt that many more lawyers would like to serve but they do not know where to start or what kinds of issues need their attention.

I have made a start in my community by sensitising more and more of my colleagues, but they will be confined to Delhi. What about Madhya Pradesh, Kerala, West Bengal, Sikkim, Gujarat? Every state, every town and every village needs someone to protect the interests of children, because they are unable to look after their own interests.

I realise my own example may not be that easy for everyone to follow, but what if NGOs who are already sensitised to serve, were also sensitised to rights to education, rights in education, and how to enforce them. It could happen that these NGOs could work in coordination with lawyers, I am sure there will be enough lawyers who would be happy to provide free service, or like any other service that NGOs pay for, the cost of a lawyer and court charges could be built into their plans. NGOs in the education sector, use many strategies - the legal route could one of the strategies that the NGOs could learn to use, and in the process train the lawyers who work with them.

NGOs could also link with legal service authorities that are there in every state. So far these authorities are fairly understaffed and over worked, so they do not actually go looking for instances where the rights have been violated. They are not used to dealing with situations in which even the victim does not realise they have been wronged. NGOs could link with them as well.

There is a need I think for a centralised resource - maybe through websites where information about cases related to the right to education could be collated and made available. Such sites would serve to sensitise all, NGOs, lawyers, Judges about the types of problems encountered by children in the field. Such a site would be essential especially for a state subject such as law, because the cases would be limited to the district or the High Court of a state. Cases in one state would create awareness about issues and inspire other states to get the same or similar situation remedied. The fee hike following the 6^th pay commission for example is an issue that many states have in common. For the first time, an All India Parents Association has been formed and is informing other states about issues and rights. What is needed perhaps is a less partisan and more stable informational resource.

I would say, even sensitisation lectures are useful. There may be some among you, who did not know about the many of the rights or how they are violated even by governments or schools. It is my suggestion that organisations like NCERT, RIE, SCERT, NUEPA etc should give lectures even in law colleges and judicial academies. They could even run courses on right to education and its defence. They could in collaboration with law colleges run course in public legal education and even train children to know their rights recognise its violations.

Friends the possibilities are endless. Now that we have amended the Constitution and made education into a justiciable fundamental right, the role of lawyers in making that connection with the court of law becomes inevitable. Children have been denied their right to education for far too long. I envisage a day in the not too distant future, when speaking softly but carrying a big stick, we will build a future of mutual respect and improved provisioning of education from a rights-based perspective.

With these words I thank you for listening to me so patiently, and for giving me this honor of speaking to you.

Thank you.

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Contact:-

Ashok Agarwal

Advocate

483, Block-II, Lawyer’s Chamber,

Delhi High Court, New Delhi-110003

Off: 011-23384000

Mob- 09811101923

E-mail: juristashok@gmail.com

Website: www.socialjurist.com

http://www.advashokagarwal.blogspot.com/