In addition to this, the accused had also been charged with second proviso of section 75 of the Juvenile Justice (care and protection of children) Act, 2015 (JJ Act). Notably, the second proviso of section 75 of the JJ Act pertains to the offence of assault or abuse upon a child, causing the minor unnecessary mental or physical suffering, by any person employed by or managing an organisation, which is entrusted with the care and protection of the child.

A bench of Justices Abhay S Oka and Pankaj Mithal was hearing the seeking speedy investigation into the aforementioned case by Tushar Gandhi, the great-grandson of Mahatma Gandhi.

Brief background of the case:

In the month of August, a video of a Muslim boy being beaten up, slapped and humiliated in front of the entire class in a school in Uttar Pradesh surfaced on social media. The video showed the accused teacher making communal comments and ordering her students to slap a Muslim classmate for not doing his homework. The incident created outrage on social media.

On August 26, a case was registered against a teacher in Muzaffarnagar who allegedly encouraged her students to slap a classmate. The FIR was registered against the school teacher under Section 323 (punishment for causing voluntary hurt) and Section 504 (intentional insult with intent to provoke breach of peace) of the Indian Penal Code, 1860 (IPC).

Content of the petition:

The petition was filed by Tushar Gandhi in the beginning of September. The petition sought for an independent and time-bound investigation in the case. The petition further urged for the invocation of several offences prescribed under IPC including Section 153A (Promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) and Section 298 (Uttering, words, etc., with deliberate intent to wound the religious feelings of any person) of IPC. Direction had also been sought for investigation of offences under JJ Act.

The petition had also submitted that there had been a breach of guidelines enumerated in Tehseen S. Poonawalla vs Union of India, (2018) 9 SCC 501, that inter-alia requires the police to ensure that there is no further harassment of the family members of the victims upon the FIR being lodged.

Observations by the Court

The Supreme Court bench noted that the affidavit filed by the Inspector General of Police of Meerut Range has provided that aforementioned sections have been invoked against the accused and that government sanction is awaited. The order stated, “A perusal of the Report submitted by the I.G., Meerut Range, Uttar Pradesh, shows that now the second proviso to Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 has been applied. Even Section 295A of the Indian Penal Code, 1860 (for short, “IPC”) has been applied. It is stated that investigation has been completed and the Government’s sanction for applying Section 295A of the IPC is awaited. We direct the Government to immediately take a decision on the request for grant of sanction.”

During the hearing, advocate Shadan Farasat, appearing for petitioner Tushar Gandhi, had provided that the father of the child had contacted them and brought to their notice that the child victim is traumatised and does not want to meet or interact with anybody after the incident.

Through its order, the court referred to the affidavit submitted by the father of the victim which highlighted the victim being in a state of trauma. The order states “Today, the learned counsel appearing for the petitioner has tendered an affidavit dated 28th October, 2023 of the father of the victim child. He states that as an officer of the Court, he has tried to interact with the victim child, but found that the child is severely traumatized.”

It further said “When it comes to the future of the victim child and his welfare, the state cannot treat this litigation as adversarial.”

“We see that he is traumatised and is in need of special kind of counselling. I will file an affidavit in this regard,” Advocate Farasat had said, emphasizing that whichever school the child will now be admitted to, he will be in need of continuous counselling.

In regards to this, the counsel appearing for the department of education submitted that a committee of three psychologists had been formed and it visited the child’s home to examine him. “We have been informed that the child is introverted since the very beginning and therefore the doctors have requested the child and his parents to come to the counselling centre,” the counsel provided.

The bench highlighted the issue of a traumatized child being required to come to the counselling centre. As per a report of the New Indian Express, the Bench then requested Additional Solicitor General KM Nataraj, appearing for the Uttar Pradesh government’s home department, to take instructions on the availability of an expert agency like NIMHANS (National Institute of Mental Health and Neurosciences) and Tata Institute of Social Sciences (TISS), which can go to the victim’s village and counsel him and other school children.

“Mr. Nataraj, can you take instructions, are there any institutions like NIMHANS, which play a very active role for children? Just find out, we will entrust the work to them. We will appoint NIMHANS or TISS and ask them to go there and give counselling,” the bench had said.

In regards to this, the bench may consider appointing an expert counsellor for the “severely traumatized” victim as well as the other students who were involved in this incident the order states “We are putting the state to notice that we may consider appointing an expert agency for the purposes of counselling not only the victim but the other children, who were involved in the alleged incident.”

As per a report of the Business Standard, the bench also directed the state to place on record the detailed guidelines laid down by the NCPCR about imposing physical punishment on students. The matter has now been posted for further hearing on November 6. As per the report, the court will “threadbare” examine the affidavits filed by the state.

In the earlier hearing, on September 25, the Supreme Court had remarked that there cannot be quality education if a student is sought to be penalised on the ground that he belongs to a particular community. The Court had also pulled up the Uttar Pradesh government for conducting a “shoddy probe” into this case. Explicitly voicing their displeasure over the incident, the top court had directed the UP government to appoint a senior IPS officer within a week to probe the case.

While directing that the IPS officer shall file a report in the apex court, it had asked the state government to conduct counselling of the alleged victim and other students involved in the incident by professional counsellors.

The order can be accessed here:

Related:

Outrageous, hate corrodes UP classrooms

Hate Speeches on the rise in UP and Uttarakhand

UP: Another teacher asks student to slap classmate, complaint lodged

UP: School question paper, on ‘Indian Muslim Terrorism’, calls for India to prepare for war with Pak

Dalit youth hung upside down and tortured for alleged goat theft in Telangana

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