Supreme Court: Directs UP government to comply with directions and implement wholistic reparations

An incident in west Uttar Pradesh’s Muzaffarnagar district where a minor Muslim student was assaulted by fellow students on directions of his school teacher Tripta Tyagi generated nationwide outrage. It is only the orders on the writ petition filed by Tushar Gandhi, great grandson of Mahatma Gandhi that have ensured a semblance of justice and reparation. Till February 2024, six months down, SC directions had been defiantly not adhered to, and still some crucial issues remain unaddressed.

A detailed look back at this case:

In the month of August 2023, a minor Muslim student was scolded and hurled communal remarks by his school teacher Tripta Tyagi, for allegedly not doing his homework. The teacher also asked other students to slap the minor boy. She could be heard saying, “Go to any Muslim child’s area…” suggesting a pejorative statement. Furthermore, she instructed the fellow students to “hit harder”. The video of the incident went viral on social media and created nationwide outrage.

Following the incident, Tushar Gandhi filed a petition in the Supreme Court to ensure independent investigation in the matter. Subsequently, the teacher was booked under Sections 302 (punishment for voluntarily causing hurt) and 504 (intentional insult with intent to provoke breach of the peace) of the Indian Penal Code, which are non-cognisable offences. Only after a long delay and rap from SC, the FIR was finally filed by the police incorporating the additional charges under Section 295A of IPC, which deals with acts that deliberately and maliciously outrage religious feelings of any class, and Section 75 of Juvenile Justice Act, 2015, which relates to punishment for cruelty to child.

The SC began hearing the petition in month of September 2023, and since then has issued several directions to the State Government with regards to the filing of FIR, invocation of relevant charges based on the evidence, admission of the victim student in the private school of their choice of school under the EWS quota, counselling of the victim and other students, and seeking compliance reports at various stages. The court has rebuked the State more than once for its repeated non-compliance of the court’s orders.

The trajectory of the case so far

CJP and Sabrang India have already tracked the progress of the case till November 2023, this article is a follow up to the same. To read the earlier updates on the case please visit here [1], [2], [3].

Following the order passed by the SC on November 10, 2023, in which it reprimanded the Uttar Pradesh (UP) state government for not conducting the counselling of either the victim nor the other children, it also asked Tata Institute of Social Science (TISS) to “suggest the mode and manner of extending counselling to the victim child and to the other children involved in the incident”^[1] and to “suggest the names of the expert child Counsellors and other experts in the field available in the State who can do counselling under the supervision of TISS”^[2]. Furthermore, the court asked TISS to prepare the report on the assessment made.

Thereafter on December 11, 2023, the court noted that it has carefully perused the report prepared by TISS regarding counselling of students, and ordered the State Government officials to coordinate with TISS experts to chart out the modalities for implementing the recommendations contained in the report. Directing the State to file compliance report, the order notes, “We direct the State to file a report containing the details about the manner in which the State proposes to implement the recommendations in the report of TISS. The State response shall be filed by January 17, 2024.”^[3]

Pertinently, Justice AS Oka, while hearing the case on January 12, observed that, “‘all this happened because the State did not do what it was expected to do. The State should be very concerned about the manner in which this incident happened’”.^[4] To this, the counsel for the State Government protested, saying that the incident took place in a private school.

During the same hearing, advocate Garima Prashad, appearing for the state of Uttar Pradesh, filed an affidavit regarding the implementation of the recommendations contained in the TISS report. When asked by the bench whether the victim child is still studying in the same school, Prashad responded that “We have taken the necessary steps, but my only concern is that a seven-year-old child has to go to school which is 28 kilometres away.” She added that this is also contrary to the Right to Education Act, which mandates that students of classes I to V should reside within a 1-km radius of the school and students belonging to classes VI to VIII within a 3-km radius, India Today reported^[5].

Responding to this, the counsel appearing for the petitioner, Shadan Farasat, noted that the “That’s the only good school available and the father is ready to take the child to school”. He countered the argument of the State, pointing out that “It is the school which was within this radius that caused harm to the child”. The response was in regard to the child being admitted in the private school affiliated to CBSE. Farasat also contended that, the affidavit submitted by the State Government regarding the recommendations contained in the TISS report was “inadequate”.

Following the SC order in November 2023, Basic Siksha Adhikari (BSA) at Muzaffarnagar, Shubham Shukla was quoted as saying, “‘I then visited Shardein School, a well-known educational institution in the city, and got him admitted. The boy was provided a seat there in class II and will restart his schooling from Monday. His uniforms and syllabus have been provided. All the educational expenses will be taken care of by the state.’”, the Times of India reported^[6]

Following these developments, the SC bench comprising Justice AS Oka and Ujjal Bhuyan in their order dated January 12, 2024, said that the counsel appearing for the petitioner, Shadan Farasat, is free to give his suggestions to the State after consulting the parents of the child, so that the recommendations of the report can be implemented, and listed the matter on February 9, 2024^[7].

It was at the hearing of the case on February 9, 2024 that the bench sharply chastened the UP government and expressed its strong disapproval for not complying with its orders. The order reads, “We find from the affidavits filed on record that the State has not undertaken counselling of the other children, who were participants and witnesses in terms of the suggestions of TISS. There was an element of urgency in counselling. We direct the State Government to immediately implement the suggestions in TISS report about the counselling of other children, who were participants and witnesses in the corporal punishment incident. Compliance affidavit shall be filed on or before 28.02.2024.”^[8]

During the hearing, Farasat had brought to the notice of the court the fact that the affidavit submitted by the State did not name the agency appointed to conduct the counselling of the said students^[9]. To this, the counsel for the state of Uttar Pradesh, Garima Prashad, responded that the officials had held discussions with one agency, Childline, and will file a better affidavit showing the steps taken^[10]. The bench then dismally observed that “There has been a complete breach of our directions. None of the kids have been given counselling. This has to be in letter and spirit.” The court also directed the State to comply with its other directions issued in the order dated September 25, 2023 regarding implementation of the provisions of the RTE Act, 2009, and Uttar Pradesh RTE Rules, 2011, and granted one month’s time to report the compliance^[11].

It was following this rebuke that, on March 1, 2024 Uttar Pradesh Government informed the SC that it has implemented the recommendations of TISS report and started counselling workshops for students who were encouraged by their teacher to slap their fellow classmate, as per the Indian Express report^[12]. The workshops will continue till April 24 as per the affidavit filed by the State Education Department. The state government has also been asked to file a status report on the workshops conducted by the end of April. Another issue emerged during the court hearing on March 1, when the counsel for the petitioner raised the issue of travel reimbursement for the victim child being stopped by the State Government.^[13] Though no written order was passed by the court in this regard, it orally asked the State Government to release the pending amount and suggested that some help can be taken from a charitable trust for the same. For other matters relating to the implementation of RTE Act and Rules and relevant court orders, the next hearing is scheduled on April 15.

How the present case violates several provisions of the law

The present incident of hate crime against a minor school student is not only reprehensible for vitiating the classroom environment but also transforms the safe learning spaces of such classrooms, which should ideally teach children the values of fraternity, dignity, religious harmony, and scientific temperament, into factories of hate propaganda, misinformation, and bigotry.

The incident also violates the right of children to a safe educational environment under sub-section (1) of Section 17 of the RTE Act, which completely prohibits subjecting a child to physical punishment or mental harassment. In addition, sub-rule (3) of Rule 5 of UP RTE Rules, 2011, states that local authority shall be responsible for ensuring that no child is subjected to caste, class, religious or gender abuse or discrimination in the school.

The Supreme Court in the earlier hearing in September 2023 had also referred to detailed guidelines for eliminating Corporal Punishment in Schools as laid down by the National Commission for Protection of Child Rights (NCPCR)^[14], a statutory body for ensuring the rights of children. Incidentally, when the video of the incident emerged in public, NCPCR wrote to the police to file an FIR against the teacher and submit a copy of the inquiry report.

While the Constitution of India under Article 21A provides the fundamental right to free and compulsory elementary education to all children between the age of 6-14, and the complementary RTE Act provides the framework to implement the same, the role of (civil) society and most importantly teachers in creating harmonious and hate free environment is prerequisite to secure the most basic of our fundamental rights.

(The author is part of CJP’s Legal Research Team)