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Case Comment on Avinash Mehrotra v. Union of India & Others (2009) 6 SCC 398

Categories: Social Legislations
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Published on: March 22, 2011

Education today remains liberation – a tool for the betterment of our civil institutions, the protection of our civil liberties, and the path to an informed and questioning citizenry. Education remains essential to the life of the individual, as much as health and dignity, and the State must provide it, comprehensively and completely, in order to satisfy its highest duty to citizens.

The right to education is a fundamental right conferred by Article 21-A of the Indian Constitution. The right has been further implemented by Right to Education Act 2009, which came into force in April 2010. Free and compulsory education under Article 21-A should not be implemented by putting the lives of students at stake by not complying with the minimum standards of safety. The Supreme Court in the case Avinash Mehrotra v. Union of India and Others issued guidelines to ensure fire safety standards. The issue involved in the case is whether right to education involves right to study in quality school which does not pose threat to child’s safety.

The present case was a public interest litigation filed by Mr. Avinash Mehrotra praying to the court to protect against tragedies resulting from eruption of fire and similar causes, by improving the conditions of the schools in our country. The Supreme Court in People’s Union for Democratic Rights & Others v. Union of India & Others observed that the “Public interest litigation is a cooperative or collaborative effort by the petitioner, the State of public authority and the judiciary to secure observance of constitutional or basic human rights, benefits and privileges upon poor, downtrodden and vulnerable sections of the society”. The apex court in the case State Of Uttaranchal v. Balwant Singh Chaufal has dealt with the origin and development of public interest litigation. The Court has divided the public interest litigation into three phases. Viz:-

Phase-I: It deals with cases of the Supreme Court where directions and orders were passed primarily to protect fundamental rights under Article 21 of the marginalized groups and sections of the society who because of extreme poverty, illiteracy and ignorance cannot approach the courts.

Phase-II: It deals with the cases relating to protection, preservation of ecology, environment, forests, marine life, wildlife, mountains, rivers, historical monuments etc.

Phase-III: It deals with the directions issued by the Courts in maintaining the probity, transparency and integrity in governance.

The Court has placed the present case in the first phase. The case is an exemplary public interest litigation which has drawn the attention of the apex court to the plight of children who attend schools with no safety and security and moreover, even basic facilities. The right to education need to be protected and guaranteed with the activism of judiciary and to awaken the sleeping executive with such mandatory directions.

Background

Education occupies an important place in our Constitution and culture. There has been emphasis on free and compulsory education for children in India for a long time. The Hunter Commission, almost 125 years ago, recommended Universal Education in India. It proposed to make education compulsory for the children. The Government of India Act, 1935 provided that education should be made free and compulsory for both boys and girls. While debating in a bill in Imperial Legislation Council in 1911, Shri Gopal Krishna Gokhale strongly advocated that elementary education should be both compulsory and free. The framers of our Constitution placed free and compulsory education in the Directive Principles. The un-amended Article 45 provided that: “The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years. The Kothari Commission on Education strongly recommended free and compulsory education for children up to 14 years. It observed that there is no other way for the poor to climb their way out of this predicament.

Education occupies a sacred place within our Constitution and culture. Parliament placed the right to education within the Constitution’s set of Fundamental Rights. Article 21A of the Constitution codified the Supreme Court’s holding in Unni Krishnan, J.P. & Others v. State of Andhra Pradesh & Ors, in which right to education was established. In the years since the inclusion of Article 21A, right to education attaches to the individual as an inalienable human right. The broad scope of this right was elucidated in R. D. Upadhyay v. State of A.P. & Ors , holding that the State must provide education to all children in all places, even in prisons, to the children of prisoners. The inviolability of the right to education was affirmed in the case Election Commission of India v. St. Mary’s School &Ors., the court refused to allow the State to take teachers from the classroom to work in polling places. The democratic State may never reach its greatest potential without a citizenry sufficiently educated to understand civil rights and social duties.

Unlike other fundamental rights, the right to education places a burden not only on the State, but also on the parent or guardian of every child, and on the child itself. Article 21A, places an obligation primarily on the State. By contrast, Article 51A(k), places burden squarely on the parents. This Court has routinely held that another fundamental right to life encompasses more than a breath and a heartbeat. The apex court in Ashoka Kumar Thakur v.Union of India & Ors. observed as under:

“It has become necessary that the Government set a realistic target within which it must fully implement Article 21A regarding free and compulsory education for the entire country. The Government should suitably revise budget allocations for education. The priorities have to be set correctly. The most important fundamental right may be Article 21A, which, in the larger interest of the nation, must be fully implemented. Without Article 21A, the other fundamental rights are effectively rendered meaningless. Education stands above other rights, as one’s ability to enforce one’s fundamental rights flows from one’s education. This is ultimately why the judiciary must oversee Government spending on free and compulsory education.”

The Right to Education Act, was passed by the Parliament in August 2009 and came into force from April 1 2010, provides for free and compulsory education as a fundamental right of every child in the 6-14 age group. This is stated as per the 86th Constitution Amendment Act which added Article 21A. The right to education Act seeks to give effect to this amendment. The government schools shall provide free education to all the children and the schools will be managed by school management committees. Private schools shall admit at least 25% of the children in their schools without any fee. The National Commission for Elementary Education shall be constituted to monitor all aspects of elementary education including quality. Attempts were made to implement the amendment since the year 2003 but it became a reality after six years.

Educating a child requires more than a teacher and a blackboard, or a classroom and a book, the right to education requires that a child study in a quality school, and a quality school certainly should pose no threat to a child’s safety. Parents should not be compelled to send their children to dangerous schools, nor should children suffer compulsory education in unsound buildings. Likewise, the State’s reciprocal duty to parents begins with the provision of a free education, and it extends to the State’s regulatory power. No matter where a family seeks to educate its children, the State must ensure that children suffer no harm in exercising their fundamental right and civic duty. States thus bear the additional burden of regulation, ensuring that schools provide safe facilities as part of a compulsory education. The right to education incorporates the provision of safe schools.

The reality is that children studying in schools are not safe as there were many tragedies which occurred in schools which killed many children especially due to lack of compliance with building laws as well as lack of fire safety standards. In the year 1995, a school prize-giving ceremony in a Northern Indian town turned to tragedy when a fire broke out, killing nearly 400 people, many of them children and teenagers. The fire was caused by an electrical short circuit in the town of Dabwali in the state of Haryana, about 150 miles from the National Capital. Thus it is evident that the incidence in Kumbakonam District is not the first of its kind. Flagrant violation of school safety regulations continues in the entire country even four decades after the government pledged to enforce them after a private school building in Madurai caves in, killing 35 school girls and injuring 137. Most of the Indian private schools in district towns are dull, claustrophobic, cramped and often have derelict structures with no fire safety systems, playgrounds or libraries. Most of these private schools in the district towns are located in a warren of congested lanes and school authorities often lock the gates when classes are on to keep children from slipping out of the school. Most of the schools in the villages and small towns are still made of thatched roofs made from coconut leaves or other cheap and easily available materials to avoid the cost of construction in flagrant violation of the building laws.

THE SUPREME COURT’S OPINION

The instant Public Interest Litigation relates to a fire swept through the Lord Krishna Middle School in District Kumbakonam in the city of Madras, Tamil Nadu. The fire started in the school’s kitchen while cooks were preparing mid-day meal. Lord Krishna Middle School is one of the thousands of private schools that have sprung up in response to drastic cuts in government spending on education. This building houses more than 900 students in a crowded, thatched-roof building with a single entrance, a narrow stairway, windowless classrooms and only one entrance and exit. The fire had sparked by dry coconut leaves used as firewood in a nearby makeshift kitchen with thatched-roof. The fire had started when the cooks were preparing mid-day meal under a Mid-day meal scheme popular in Tamil Nadu. The ventilation of the entire school building was extremely poor with only cement-perforated windows It took sufficient time for the fire fighters on a crane to break these windows and rescue the few children they could with severe burn injuries. The kitchen fire rose so high that the thatched roof of the classrooms caught fire and the blazing roof supported by bamboo poles collapsed on the school children and most of them died on the spot. The nearby residents started dousing the flames and trying to rescue children. The school’s narrow, steep stairs and few exists apparently hampered those efforts. The crowd of volunteer rescuers ended up blocking the main door as they tried to help.

According to rules, a government-certified engineer is supposed to visit these schools once every two years and issue a “stability certificate” if the building is found to be in good condition and all safety precautions are met. The engineer can refuse to issue the certificate if he finds the safety measures inadequate, losing the school its licence to operate. The investigations have revealed that the school in Kumbakonam was last inspected three years ago. The school had a thatched roof in severe violation of building laws. It even had a thatched kitchen close to the thatched classrooms. The fire officials had described the school as a death trap. They said that the victims had no chance of escape when the fire erupted as they were doing their lessons on the top floor.

The judgment of the court was delivered by Dalveer Bhandari J. and Lokeshwar Singh Panta J. The Court observed that in view of the importance of Article 21A, it is imperative that the education which is provided to children in the primary schools should be in the environment of safety. It has become imperative that each school must follow the bare minimum safety standards, in addition to the compliance of the National Building Code of India, 2005, in particular Part IV – Fire & Life Safety and the Code of Practice of Fire Safety in Educational Institutions (IS 14435:1997) of the Bureau of Indian Standards. The said safety standards are enumerated herein below:

1. FIRE SAFETY MEASURES IN SCHOOLS:

i. Provision of adequate capacity and numbers of fire extinguishers of ISI marks to be provided in eye- catching spots in each block of the school.

ii. First Aid kits and necessary medicines should be readily available in the school.

iii. Provision of water tank and separate piping from the tank with hose reel to the ground floor and first floor.

iv. Fire fighting training to all teachers and students from X to XII standards.

v. Fire Task Force in every school comprising of Head of the institution, two teachers / staff members and one member from the Fire and Rescue Department should be constituted. The Fire & Rescue Department member shall monitor and make fire safety plan and conduct inspections once in every three months.

vi. Display of emergency telephone numbers and list of persons to be contacted on the notice board and other prominent places.

vii. Mock drills to be conducted regularly. Fire alarm to be provided in each floor and for rural schools separate long bell arrangement in case of emergency.

viii. All old electrical wiring and equipment shall be replaced with ISI mark equipments and routine maintenance conducted by the School Management in consultation with the Fire and Rescue Department.

ix. No High Tension lines should run inside or in close proximity to the school. Steps must be taken to shift them if they are already there.

x. The Fire and Rescue Department shall frame guidelines with “DOS and DON’Ts’ for schools and issue a fitness certificate, which shall be renewed periodically.

2. TRAINING OF SCHOOL TEACHERS & OTHER STAFF:

i. The teachers along with other staff shall be trained to handle safety equipment, initiate emergency evacuations and protect their students in the event of fire and other emergencies by the Fire and Rescue Department.

ii. They shall also be trained in providing emergency first-aid treatment.

iii. There shall be a School Safety Advisory Committee and an Emergency Response Plan drafted by the Committee in approval and consultation with the concerned Fire & Rescue Department.

iv. Emergency Response Drills conducted at regular intervals to train the students as well as the school staff v. All schools to observe Fire Safety Day on 14th of April every year with awareness programs and fire safety drills in collaboration with the Fire and Rescue Department.

3. SCHOOL BUILDING SPECIFICATIONS:

i. The school buildings shall preferably be a `A’ Class construction with brick / stone masonry walls with RCC roofing. Where it is not possible to provide RCC roofing only non-combustible fireproof heat resistance materials should be used.

ii. The nursery and elementary schools should be housed in single storied buildings and the maximum number of floors in school buildings shall be restricted to three including the ground floor.

iii. The School building shall be free from inflammable and toxic materials, which if necessary, should be stored away from the school building.

iv. The staircases, which act as exits or escape routes, shall adhere to provisions specified in the National Building Code of India 2005 to ensure quick evacuation of children.

v. The orientation of the buildings shall be in such a way that proper air circulation and lighting is available with open space all round the building as far as possible.

vi. Existing school buildings shall be provided with additional doors in the main entrances as well as the class rooms if required. The size of the main exit and classroom doors shall be enlarged if found inadequate.

vii. School buildings have to be insured against fire and natural calamities with Group Insurance of school pupils.

viii. Kitchen and other activities involving use of fire shall be carried out in a secure and safe location away from the main school building. ix. All schools shall have water storage tanks.

4. CLEARANCES & CERTIFICATES:

i. Every School shall have a mandatory fire safety inspection by the Fire and Rescue Services Department followed by issuance of a `no objection certificate’ to the School as a mandatory requirement for granting permission for establishing or continuation of a School.

ii. An Inspection Team consisting of experts like a Civil Engineer, a Health Officer, a Revenue Officer, a Psychologist, a Fire Officer, a local body officer and a development officer besides the educational authorities shall carry inspection and assessment of infrastructural facilities before the commencement of each academic year. The Team shall submit its Inspection Report to the concerned district Chief Educational Officer.

iii. The building plans for schools shall be prepared only by a Government certified engineer and the PWD Executive Engineer concerned should inspect the building and award a structural stability certificate. Stability Certificates shall be issued by the State or Central Government Engineers only and shall be mandatory for granting permission for establishing or continuation of a School.

iv. In every district, one Recognition Committee headed by a retired judge shall be constituted. Officials from Revenue Department, Public Works Department, Fire Service, Electricity Board, Health and Education Department, a reputed NGO shall be members. They shall visit the schools periodically or at least the erring institutions as listed by the Chief Education Officer.

v. Conditional recognition / approval shall never by resorted to for any school.

It is the fundamental right of each and every child to receive education free from fear of security and safety. The children cannot be compelled to receive education from an unsound and unsafe building. Therefore the apex court directed that safety measures as prescribed by the National Building Code of India, 2005 be implemented by all government and private schools functioning in our country which are as follows:-

(i) Before granting recognition or affiliation, the concerned State Governments and Union Territories are to ensure that the buildings are safe and secured from every angle and they are constructed according to the safety norms incorporated in the National Building Code of India.

(ii) All existing government and private schools shall install fire extinguishing equipments within a period of six months.

(iii) The school buildings be kept free from inflammable and toxic material. If storage is inevitable, they should be stored safely.

(iv) Evaluation of structural aspect of the school may be carried out periodically. The concerned engineers and officials must strictly follow the National Building Code. The safety certificate be issued only after proper inspection. Dereliction in duty must attract immediate disciplinary action against the concerned officials.

(v) Necessary training be imparted to the staff and other officials of the school to use the fire extinguishing equipments.

ANALYSIS

The Supreme Court’s decision in the instant case has given a new meaning to right to education. Thus it is clear that merely by conferring fundamental rights and enforcing them by endangering the lives of citizens is not enough, whereas for effective implementation it should be true to its meaning. The Court has thus secured the lives of children who are national asset by prescribing safety standards to be followed and thereby it is a challenge to those private management schools which view education only as a business and hardly care about the lives of innocent children. The decision has further increased the burden of government, since by providing free education and free mid day meals will not suffice, the lives of children is also a prerequisite.

Precedents and the background of education in India has been well considered in the judgment. The court has only dealt with preventive aspects to deal with such tragedies and no curative measures have been taken into account. There are chances of any similar tragedies even if the directions of the Court are fully complied with. The court should have prescribed for compensation and provision for insurance.

Most forward thinking States have enacted and enforced the National Building Code in their schools. Often these States have also created, empowered and funded a state-wide emergency response office. For example, the State of Gujarat has established such an emergency management office. With the assistance of outside experts, Gujarat recently created a colouring book to teach children how to respond to emergencies. In the Union Territory of Pondicherry, administrators replaced all thatched roofs and allocated an additional Rs.500 lakhs to build pucca classrooms. However, in the years since the fire at the Lord Krishna Middle School, some States have moved slowly and safety standards have varied in quality across States.

Moreover, 816 schools in New Delhi have been running without ‘no objection certificates’ from the fire department and their buildings don’t have any fire safety equipment and measures. The fire service is in no position to help. The CAG found that it has a 67 per cent shortage of fire-fighting equipment and 48 per cent shortage of firefighters. “Thus, the lives of the children and teachers were at risk,” the Comptroller and Auditor General report said. The fire officials appear worried with the attitude of teachers and school heads as the latter are considering that compliance with SC directive was the responsibility of the fire brigade only. The cost of fire extinguishers being used in the training session is also being borne by the fire brigade. The fire safety measures have been adopted in only 30 per cent of schools run by Municipal Corporation ofDelhi. And that’s a huge cause for concern, for MCD runs 1,752 schools across Delhi where 9.5 lakh students are enrolled. The lack of preparedness comes despite a Supreme Court order asking schools across the country to adopt safety measures and install fire extinguishers. The Delhi government had, in fact, directed all educational institutions in the Capital to install fire extinguishers and make their buildings fire-proof within six months of the Supreme Court order.

It is difficult to implement the above directions due to lack of funds and a thrust on the public exchequer in case it is a government school. It is the duty of the state to ensure fundamental rights and in budget a good sum is allotted to the education. It should be utilized properly to ensure the right to education, since it is not only an expenditure but an investment for future of our country. The right to education Act is a step forward to the development and the Court’s decision complement the Act and it is incumbent on the state to enforce it effectively.

CONCLUSION

Then as now, we recognize education’s “transcendental importance” in the lives of individuals and in the very survival of our Constitution and Republic. Education remains essential to the life of the individual, as much as health and dignity, and the State must provide it, comprehensively and completely, in order to satisfy its highest duty to citizens. The apex court held that Articles 21 and 21-A of the Constitution require that India’s school children receive education in safe schools. The court has time again stepped into the shoes of legislature by giving the aforementioned directions. The right to education has to move towards progress as only primary education is made compulsory and free, the secondary education and other higher levels still lag behind. The problem of drop outs even at primary level need to be solved. We can firmly believe that the apex court will always remain the guarantor of fundamental rights such as right to education and will guide the legislature and the executive when questions, such as in instant case are brought before it.

The enforcement of this right represents a momentous step forward in 100 – year struggle for universalizing elementary education. The immense relevance of inclusive education, particularly of disadvantaged groups, demands vibrant partnerships with the departments and organizations concerned with children of the Scheduled Castes, the Scheduled Tribes and educationally backward minorities. Government will have to set up systems for equal opportunity for children with special needs. The Rural Development and Panchayati Raj Departments would need to accelerate poverty reduction programmes so that children are freed from domestic chores and wage earning responsibilities. State Governments would simultaneously ensure that the Panchayati Raj institutions get appropriately involved so that ‘local authorities’ can discharge their functions under the RTE Act. There is a need for close cooperation amongst departments concerned to ensure that so far the deprived children get their rights to education.The Constitutional Amendment of 1976 included education in the Concurrent List, which means that both the Centre and the State have jurisdiction over enacting legislations on the subject and is a far-reaching step. The finance commission has provided 25000 crores for the implementation of the statute. Further, providing quality education is easier said than done. First there will be a need of a huge amount of teachers and schools. The UP and Bihar govenments have already expressed their inability to implement this act as both these states lack adequate number of teachers and schools.


(2009) 6 SCC 398

(1982) 3 SCC 235

18 January, 2010

1882-83

Set up by the Government of India in 1966

Adopted in 2002

(1993) 1 SCC 645

AIR 2006 SC 1946

(2008) 2 SCC 390

Bandhua Mukti Morcha v. Union of India & Ors., (1997)10 SCC 549

The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.

Fundamental duties – it shall be the duty of every citizen of India who is the parent or guardian to provide opportunities for education to his child or as the case may be, ward between the age of six and fourteen years.

(2008) 6 SCC 1

Promulgated by the Bureau of Indian Standards, it provides detailed instructions on how to construct fire-safe buildings. Tables and drawings set standard for schools particularly, including number and type of fire extinguishers, quantity of water necessary for a proper fire suppression system, providing an engineer-tested, nationally applicable set of standards that our schools.

The Times Of India, April 2, 2010

The Indian Express, Oct 06 2009

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