T.Muhammed Faisi Vs State of Kerala

Abstract

After confronting the government for 35 years the LP school residence in Elambra in Manjeri Municipality got justice from Kerala High Court. The decision was made on 29th July 2020 where the Bench of Hon’ble Chief Justice Mr. S. Manikumar and Hon’ble Mr. Justice Shaji P Chaly decreed that the children of the village had the Right to Education thus the government should provide necessary facilities. The judgment enunciated about what is Right to Education.

Facts of the Case

Elambra is located on the outskirts of the Manjeri Municipality. It is a socially and educationally backward area, the majority of the population including members of Scheduled Caste/ Scheduled Tribes consists of middle-class families, with agriculture and coolie work as their vocation. An instant writ petition was filed by the petitioner stating that there were no primary schools within the radius of 3 km and for many years the local people of Elambra were making continuous efforts to build Government LP School there. Several representations were made to different authorities but no actions were taken. Later when the absence of land was given as the reason, the local people brought to land for construction of the school. Even after this, the authorities did not take any action to build a school in Elambra.

Arguments made by the petitioner

The petitioners made the following contentions seeking justice and the Right to Education:
• The petitioners have approached multiple authorities for the building of a school in Elambra. Even though the reports and surveys made these authorities stated that Elambra is a socially backward village and it needs a school, there was no action taken and thus they failed to discharge their duties.
• The counsel for the petitioner also stated that the case has been pending in the court for the last 35 years and it has made the place educationally backward.
• Another contention made was that the land was purchased by the people for the construction of school buildings and Municipality is willing to construct the building. All that is required is a sanction for establishing a Government LP School.
• According to Rule 6 of the Kerala Right of Children to Free and Compulsory Education Rules, 2011, learned counsel for the petitioner submitted that in respect of children in Standards I to V, a school shall be established within a walking distance of 1 km of the neighborhood.

Arguments made by the Respondent

The contentions made by the respondents against the claims made by the petitioners were:
• It was submitted that there were schools nearby so there was no need for the school to be constructed in that area.
• It was argued that according to the rules laid down in Rules 2 and 2(a) of Chapter V of the Kerala Education Rules, 1959, starting new schools is a policy decision of the government and individual requests cannot be entertained.
• The petitioner cannot seek a writ of mandamus, based on the order passed by Kerala State Human Right Commission

The rationale of the Court

1. The court referred to the Preamble of the Constitution to understand the rights that are assured by it.
2. Articles 21, 38, 39(a), and (f), 41, and 45 of the Constitution were analyzed with several case laws to understand the scope and applicability of these articles.
3. Art.21 states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Right to education is a part of this Article. Article 38 and 39(a) states the importance of security and welfare as well as the right to adequate means of livelihood. Education is a way to live in today’s contemporary world. Article 41 talks about the Right to work, education, and public assistance in certain cases. Article 45 is provision for free and compulsory education for children.
4. When all these sections are studied keenly the constitution states that the petitioner has the right to education as it is a part of social and economic welfare.
5. The court held the scope of Article 21 A.
6. The court also stated that “…… correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action….”

Judgment

The Hon’ble Kerala High Court passed a judgment stating that the petitioner will be given relief on the basis of decisions and discussions during the legal proceedings. It allowed the petition filed and also instructed the government authorities of Kerala to sanction the establishment of Government LP School, at Elambra within a period of three months. The court directed the municipality to take necessary and rapid steps for the construction of the school.

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Neetu Kukar Vs Union Of India And Others

FACTS:

In this case, a case was filed in the High Court of Punjab and Haryana by Neetu Kukar- The petitioner against Dashmesh Public school in Faridkot. The concern of the petitioner was that the children of the school from 6^th standard were bifurcated in different sections on the basis of their performance and marks in the examinations, this was an issue which was raised by several parents as they were against this process. This bifurcation led to all the high-scorers being placed in one class and the others were put in different classes. This upset a lot of students and the petitioner’s daughter was very upset because she could not make it to the top performing section. She took the extreme step of consuming hand wash liquid as an attempt to end her life. The petitioner along with several other parents claimed that this discrimination led to mental trauma among students who couldn’t make it to the top section of their division and the parents were finding it hard to motivate them.

ISSUE:

Whether it is discriminative and violate of the child’s rights to bifurcate students of the class from 6^th standard on the basis of their performance and marks? And should action be taken against the school for practising this discrimination.

PETITIONER CONTENTION:

The petitioner contended that, it is violative of the provisions of Right of Children to Free and Compulsory Education Act, 2009 to differentiate and discriminate the students on the basis of their marks and that this process should be revoked immediately. Further, the petitioner said that this practice of bifurcating students into sections based on their marks and performance is a discriminatory practice and it is violative of Article 14 under the Constitution of India. It affects the mental health of the students and makes them think that they are not good enough when they fail to make it to the top performing sections.

RESPONDENT CONTENTION:

The respondent contended that, none of the claims made by the petitioner are true and the school has done nothing that is discriminative and violative of article 14 of the constitution of India and also does not break the provisions of right of children to free and compulsory education act,2009. Further, the respondent said that the petitioner has made wrong and false allegations against the school as her daughter could not make it to the top section and justified the reason behind bifurcating the sections that the top section has been constituted on the basis of performance and all other sections have students having different merit. A top Section has been created in the interest of the students so that the School can get better results.

JUDGEMENT:

The bench of Justice Sudhir Mittal gave the judgment that Classification of children into sections on the basis of their marks and performance has the tendency of creating a feeling of inferiority amongst children securing less marks and they might face mental trauma thus, the practice is a violation of the fundamental right of elementary education. Further, the court passed the order that this process of bifurcating students should be revoked and stopped immediately for the benefit of the students.

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