Right to Education Litigation: Remedies and Enforcement

Jayna KothariCentre for Law & Policy Research

Legal Remedies Petitions in public interest – high court / supreme

court

Intervenor Applications in individual writs

Negative remedies: constitutional challenges to the law – SC cases, minority PIL

Positive remedies: Implementation of the law - OOSC matter, National Coalition petition

Fire Fighting: Interventions in minorities cases

Petitions filed by individual children for admissions

Outcomes Interventions in SC cases on the constitutionality

challenges – important precedent laid down

Acceptance of the principle of horizontal application of social rights by the SC.

Outcomes in positive remedies – more complicated

Challenges in Designing Remedies – OOSC case

Scale of the problem – 1,79,000 children OOSC

Range of reasons for being out of school – migration, marriage, transport, not known (80,000)

Large scale social issue

Participatory Model Court refused to pass orders and put in place a High

Powered Committee to deliberate – the engagement model

Asked the Committee to make a plan and design a map for the way forward

Two level Committee formation – meetings with the Education Department, and High Powered Committee

Meetings every month

2013 5. In view of the above developments and important

suggestions being placed on record and also the other notifications issued by the State Government, it appears to be unnecessary at this stage to issue any direction. However, it is suggested and expected that the State Level Inter-departmental High Power Committee will take into consideration the suggestions which are placed on record by various respondents herein. …..It was submitted at the bar that the present petition may not be disposed at this stage and the hearing may be adjourned, so as to apprise the Court about working of the aforesaid committee and the progress being made in achieving the desired results, particularly in the area of identifying and tracking the children out of school, delivery of benefits under the incentive schemes to such children, development of facilities and infrastructure in terms of the provisions of the Right of Children to Free and Compulsory Education Act, 2009 and Rules made thereunder, as also to take note of deficiencies, if any, as may be found by the respondents.

17.3.2014“The Co-ordination Committee is expected to consider all the suggestions, including the suggestion of holding enrollment camps at the taluk and village levels for ensuring maximum possible enrollment of children, who have either dropped out of school or who have to enter the school for the first time. It was agreed that even as necessary steps are required to be taken under the guidance of the Co-ordination Committee and statutory provisions are being put in place, if any direction is required to be issued in the present proceeding, the Co-ordination Committee shall deliberate on that and make necessary suggestion on the next date of hearing.

In the meantime, the monitoring of enrollment of out of school children and collection of data and numbers of such children shall be continued and then reported to this Court for further orders, if any is required.

17.11.2014“ Learned Principal Government Advocate appearing for the State Government and the departments under it has also placed on record a statement according to which, by now, most of the areas of the State and most of the children who were out of school have been covered by the enrollment drive and the number of children out of school has been reduced from 1,68,621 in November 2013 to 44,148 by the end of last month. It is further stated that out of the 44,148 children out of school, 20,490 children are reported to have migrated to other States and therefore, the enrollment drive is required to be continued for a further period of two months to enroll the remaining number of nearly 24,000 children………It was also submitted that the Education Department and the committee concerned have no objection to making all the data available with them to the NGOs, as also the public in general, it would soon be known to everyone the exact number of children still out of school alongwith the area, town or village in which they are residing and that may help wider public participation and co-operation of all the agencies and parents in achieving the result of 100% enrollment of children in one or the other school. “

OOSC case – designing remedies

Demanded a survey – revealed the problem to be four-fold. Instead of 50,000 children, there were 1,79,000 children out of school

Drop-out re-defined

Karnataka Rules amended to set up an Attendance Authority

Policy to be drafted on out of school migrant children

Pros – Participatory Process

The dialogic model under the umbrella of the court litigation works as a threat so that it can report to court that it is taking action

Stake holders are involved due to court directions

Stake holders have been able to get engaged with the government machinery for enforcement of RTE

Stake holders able to design policy on OOSC and to work on the policy for the state government

Cons Very difficult to suggest to the government any

accountability or monitoring measures

Govt. is defensive of its actions

All stake holders (eg. Community groups, local NGOs and parents) not aware of this and therefore not involved

Where remedies are not accepted by the Committee, it is difficult to get orders from the Court.

Enforcement and Implementation of court

orders Monitoring and implementation of court orders is

challenging due to the scale of the problem

Attendance Authorities appointed, but trainings are inadequate and they have not been carrying out their duties as they should

Involvement of community groups and NGOs is lacking

Enviro-legal case – contempt petition filed by a private individual for implementation of court orders relating to toilets in Andhra Pradesh