Focus on conscience-shaking event, not locus of petitioner, SC observes during Muzaffarnagar child beating hearing

Expressing disapproval over the manner in which the first information report missed including a provision crucial to the case and reminding the State of its obligations under the Right to Education Act, a division Bench of the court asked for compliance reports to be filed within three weeks.

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"If the allegations made by the parents of the victim are correct, this may be the worst kind of punishment imparted by a teacher," Justice Abhay S. Oka orally observed on Monday while hearing a petition on an incident where a child in Muzaffarnagar was assaulted by his classmates on the direction of their teacher.

A division Bench comprising Justices Abhay S. Oka and Pankaj Mithal are in the process of hearing a petition filed by writer Tushar Gandhi.

Gandhi's petition seeks an independent and time-bound investigation into the incident, a video of which was widely circulated on the internet.

The court ordered the state government to nominate a senior officer of the Indian Police Service to supervise the conduction of further investigation and for filing compliance reports.

Provisions not invoked

"We have serious objections with the manner in which the first information report (FIR) has been registered," Justice Oka said at the outset of the hearing.

Justice Oka noted a disparity between the complaint made by the parents of the accused and the FIR registered by the Uttar Pradesh police on September 6 "after a long delay".

The FIR alleges commission of offences under Section 75 (punishment for cruelty to child) of the Juvenile Justice (Care and Protection of Children) Act, 2015, and Sections 323 (punishment for voluntarily causing hurt) and 504 (intentional insult with intent to provoke breach of the peace) of the Indian Penal Code, 1860.

The parents of the alleged minor victim had additionally sought to invoke Section 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence).

Appearing for Gandhi, advocate Shadan Farasat contended that "definitionally, the alleged offence falls squarely in Section 153A and yet it has still not been invoked."

Farasat also argued that Section 75 of the JJ Act has been inadequately applied in the present case.

He noted that the second proviso to Section 75 specifically deals with situations where cruelty has been committed by a person employed by or managing an organisation, which is entrusted with the care and protection of the child.

While the primary provision provides for an imprisonment of up to three years and fine up to ₹3 lakh, the proviso can attract an imprisonment of up to five years and fine up to ₹5 lakh.

Farasat claimed that the proviso has to be separately invoked while registering an FIR.

The court ordered that the officer appointed by the state government under today's Order will examine whether the second proviso to Section 75 JJ Act is attracted and whether Section 153A IPC deserves to be invoked.

Placard of the Mahatma

Questioning the filing of the petition by Gandhi, who is the great-grandson of Mohandas Karamchand Gandhi, Additional Solicitor General of India K.M. Nataraj said, "Anyone can come to this court for the purpose of any cause, but while coming here they should not come with a placard that they are the grandson of the Mahatma and all. It is a very unfortunate situation."

Farasat sought to argue that Gandhi had moved the court merely "as a social worker".

Replying to Nataraj's contention, Justice Oka clarified that it is at the discretion of the Bench to treat the petition as a suo moto petition.

Later in the hearing, when the Bench was dictating its Order, Nataraj raised concerns about this again, but Justice Oka stated that the Bench had decided to ignore that aspect.

Dictating the Order, the Bench said, "In a case like this, the State should not be concerned with the locus of the petitioner."

"The manner in which this incident has happened, if correct, should shock the conscience of the State," the Bench observed.

The Bench noted that it sees the case not only as a failure to set the criminal law in motion, but also as a violation of the fundamental right to education under Article 21A of the Constitution and a violation of Right of Children to Free and Compulsory Education Act, 2009 (RTE Act).

Counselling to the victim and his classmates

In reply to a question posed by Justice Oka about counselling of the victim after the alleged incident, Natarajan said, "Counselling has been done."

Justice Oka then asked who had conducted the counselling, to which Nataraj replied that it had been done by a child welfare officer.

As per the JJ Act, a child welfare officer is an officer attached to a child care institution for carrying out the directions given by a Child Welfare Committee or a Juvenile Justice Board.

The court directed the state government to take immediate steps to ensure that proper counselling is extended to the victim of the offence by an expert child counsellor.

The Order adds, "Even the other students involved in the incident who allegedly followed the diktats of the teacher and assaulted the victim need counselling by an expert child counsellor."

Significantly, the Order notes that the State "cannot expect the child to continue in the same school".

Obligations of the State

Under Section 8 of the RTE Act, it is the obligation of the state government to ensure quality elementary education. Local authorities are similarly obligated under Section 9 of the Act.

"There cannot be any quality education if a student is sought to be penalised only on the ground that he belongs to a particular community," the Order notes.

The Bench observed there has been a prima facie failure on the part of the State to comply with its mandatory obligations under the RTE Act and the Rules framed thereunder.

The Bench further noted there appears to have been a violation of Rule 5(3) of the Uttar Pradesh Right of Children to Free and Compulsory Rules, 2011.

This Rule mandates local authorities to ensure that no child is subjected to caste, class, religion based abuse or discrimination at a school.

"These are all obligations which flow from Article 21A (right to education)," Justice Oka orally observed.

Directions

The state government has been directed to submit a compliance report on providing better educational facilities to the victim of the offence and on counselling of the victim and other students through an expert child psychologist.

The state government will also place on record a compliance report on the aspect of implementation of the RTE Act and the Rules in relation to the victim of the offence.

"After looking at the report, we will consider whether further directions are required to be issued to ensure that there are no violations of the 17(1) of the RTE Act," the Order notes.

Section 17(1) of the Act declares that no child is to be subjected to physical punishment or mental harassment.

As Justice Oka was about to conclude dictating the Order, Farasat asked the Bench implead the education department of the state in the case.

The Bench accepted this request "so that on the aspect of compliance with the RTE [Act] and Rules framed thereunder, response of the education department can be considered".

The compliance reports are to be submitted within a period of three weeks from today. The Bench has listed the matter for further hearing on October 30.

Click here to read the Order.